CASE OF PALADI v. MOLDOVA
Preliminary objections dismissed;Violation of Art. 3;Violation of Art. 5-1;Not necessary to examine Art. 5-3 and 5-4;Violation of Art. 34;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
5. The applicant was born in 1953 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant worked as Deputy Mayor of Chişinău. He was also a lecturer at the Academy of Economic Studies in Moldova. Between 24 September 2004 and 25 February 2005 he was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (“the CFECC”). On 25 February 2005 he was transferred to Remand Centre no. 3 of the Ministry of Justice in Chişinău (also known as “Prison no. 3”, which was subsequently re-named “Prison no. 13”). The applicant suffers from a number of illnesses (see paragraphs 17 and 20 below). 8. The applicant is accused in three separate sets of criminal proceedings under Articles 185 (3) and 327 (2) of the Code of Criminal Procedure (“the CCP”) of abuse of his position and excess of power. 9. On 17 September 2004 the CFECC opened a criminal investigation concerning the applicant and on 24 September 2004 he was taken into custody. 10. On 27 September 2004 the Buiucani District Court issued a warrant for his arrest and detention for 30 days. The reasons given by the court for issuing the warrant were that: “[The applicant] is dangerous to society. If released he may reoffend, destroy evidence or abscond from the law-enforcement authorities, may obstruct the normal course of the investigation or the taking of evidence and may influence evidence and witnesses.” On 4 October 2004 the Chişinău Court of Appeal upheld that decision. Judge M.B. dissented, finding no reason to detain the applicant, as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation. The applicant had a family and a permanent residence in Chişinău, was ill and had no criminal record. 11. The applicant made habeas corpus requests on 5, 13 and 19 October, 2 November and 29 December 2004, and on 22 February, 23 June and 20 September 2005. He relied on the following facts: his poor state of health; the absence of a criminal record; his impeccable reputation as a Doctor of Economics and a university lecturer; the fact that his identification documents had been seized by the prosecuting authorities so that he could not leave the country; the fact that his family and permanent residence were in Chişinău; the fact that he supported his 75-year-old mother who was an invalid; he had the personal guarantee of three well-known persons (who had already deposited 3,000 Moldovan lei (MDL) and each of whom was prepared to pay the further MDL 8,000 initially requested by the court); and the lack of reasons for his arrest. All these requests were rejected for reasons similar to those given in the decision of 27 September 2004. 12. On 22 October 2004 the case file was submitted to the trial court. 13. On an unspecified date in October 2004 the prosecution submitted to the trial court a second case file in which the applicant was also identified as one of the accused. The investigation into that case had begun on 28 March 2003. The investigators twice closed it for lack of evidence (on 15 July and 26 September 2003) but on both occasions a prosecutor ordered its reopening. On 27 October 2004 both cases were joined. 14. On 2 November 2004 Judge L.V., President of the Centru District Court, rejected the applicant’s request for release against the personal guarantee of three well-known persons, without giving any reasons. 15. The applicant appealed but Judge L.V. refused to forward his appeal to the Court of Appeal because the law did not provide for an appeal against such decisions. The applicant submitted the appeal to the Chişinău Court of Appeal directly, which also refused to examine it for the same reason. A similar response was given to appeals made on 25 February and 27 September 2005. 16. On 30 December 2004 a third criminal case file was submitted to the trial court accusing the applicant of abuse of power in his own personal interest. This case was also joined to the two cases against the applicant mentioned above. 17. From 24 September 2004 the applicant was detained in the CFECC remand centre. On 29 September 2004 a medical consultative board examined the applicant’s medical file at his wife’s request and made the following diagnosis: type II diabetes (insulin-dependent), polyneuropathy, diabetic angiospasm, autoimmune thyroiditis stage 2, consequences of trauma to the head with intracranial hypertension, vagovagal paroxysm, chronic obstructive bronchitis, recurrent chronic pancreatitis with endocrine failure, chronic active hepatitis and asthenic syndrome. On 14 November 2004 the applicant’s wife informed the trial court of the findings of the medical board. 18. According to the applicant, the CFECC remand centre had no medical personnel until late February 2005, when a general practitioner was hired to work there. He claims that he requested medical assistance on a number of occasions but received treatment only from doctors from other institutions who visited him when there was an emergency. On 28 September 2004 an ambulance was called to treat the applicant for an acute hypertension. The doctor prescribed a consultation with an endocrinology specialist, who saw the applicant on 21 December 2004. The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply. He submitted copies of complaints from his wife, his mother and a parliamentary group to the CFECC authorities, the Prisons Department, the trial court, the President of Moldova, the Minister of Justice and other authorities. The applicant’s wife received several formal replies, essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise. 19. On 15 February 2005 the applicant was seen by Doctor B.E., a psychoneurologist, who concluded that his state of health was “unstable with a slight improvement” and that he needed to continue treatment under supervision. On 25 February 2005 the applicant was transferred to the remand centre of Prison no. 3 in Chişinău. 20. On 2 March 2005, in accordance with a court order, the applicant was examined by a medical board of the Ministry of Health. B.I., a neurologist and member of the board, diagnosed him with encephalopathy, polyneuropathy of endocrinal origin, hypertension, peripheral vascular disease and inferior paraplegia. He recommended that the applicant be treated on an in-patient basis. Z.A., an endocrinologist and member of the board, diagnosed the applicant with diabetes, macro and micro-angiopathy, cardiomyopathy, arterial hypertension, diabetic steatorrhoeic hepathosis, thyroiditis, hypothyroiditis and encephalopathy. He recommended a special diet and treatment on an in-patient basis in specialised clinics (endocrinology-cardiology-neurology). E.V., Head of the Cardiology Department of the Ministry of Health and a member of the board, diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy, unstable pectoral angina, prolonged attacks during the previous two weeks, arterial hypertension (3rd degree), congestive heart failure (2nd degree), hypertension and endocrinal renal failure, diabetic vascular disease and thoracic dilatation. E.V. recommended that the applicant be treated on an in-patient basis in a cardiology unit in order to investigate and prevent the risk of myocardic infarctus. She considered it necessary to undertake anti-coagulant treatment but noted that, given the risk of gastric haemorrhage, such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary. 21. On the basis of these recommendations, the trial court ordered the applicant’s transfer to a prison hospital. 22. On the basis of an order by the Ministry of Health, Doctor V.P., a neurologist from the Republican Neurology Centre of the Ministry of Health (“the RNC”), examined the applicant on 20 May 2005. He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of the Ministry of Health, including treatment with hyperbaric oxygen (HBO) therapy. 23. On 30 May 2005 the director of the prison hospital where the applicant was held informed the court of V.P.’s recommendations and said that the applicant was being given the medication prescribed but not HBO therapy, which it was impossible to administer at the prison hospital for lack of the necessary equipment. He also informed the court that the applicant’s condition prevented him from attending court hearings. 24. On 1 June 2005 the Centru District Court found that the condition of the applicant and of another co-accused had worsened and suspended the examination of their cases “until recovery”. The court did not respond to the applicant’s wife’s request for his release to allow treatment or to the above-mentioned letter from the director of the prison hospital. 25. By letters of 9, 17 and 22 June, 5 July and 1 August 2005 the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by V.P. 26. On 7 and 15 September 2005 a medical board of the Ministry of Health, which included doctors from the RNC, examined the applicant, and on 16 September 2005 it recommended, inter alia, HBO treatment in a specialised neurological unit. 27. On 16 September 2005 the director of the prison hospital confirmed, on the applicant’s behalf, that the hospital did not have the necessary equipment for the required neurological treatment. That information was submitted to the Centru District Court. 28. On 19 September 2005 the Helsinki Committee for Human Rights filed an amicus curiae brief with the court after visiting the applicant in hospital. It considered that the applicant’s state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend the examination of the case pending his recovery. 29. In view of the findings of the Ministry of Health medical board of 16 September 2005 recommending that the applicant be treated in a specialised neurological unit, the Centru District Court on 20 September 2005 ordered his transfer to the RNC for 30 days. 30. On 27 September 2005 the applicant requested the Centru District Court to order an expert report regarding his state of health before and after his arrest, as well as his condition on the date of lodging the request. In its decision of the same day the Centru District Court rejected the applicant’s request, since no doubts regarding his state of health had been raised. 31. On an unspecified date the applicant requested the RNC management to describe his state of health and the treatment received. He received no answer. On 17 October 2005 the court ordered the RNC to answer immediately and the court received its answer on 20 October 2005. In it, the RNC set out its diagnosis of the applicant’s condition and found that his health was unstable and that he needed further treatment. On 20 October 2005 the Centru District Court extended the applicant’s treatment until 10 November 2005, on the basis of the letter from the RNC. 32. According to a certificate issued by the HBO Therapy Unit of the Republican Clinical Hospital (“the RCH”), the applicant received five HBO therapy sessions there starting on 2 November 2005, which produced positive results. The applicant was prescribed a twelve-session course, scheduled to continue until 28 November 2005. According to the applicant, he was escorted from the RNC to the RCH every second day for the procedure and also began an acupuncture course there. The applicant submitted a copy of the certificate to the Centru District Court, which on 10 November 2005 decided that he should be transferred to the prison hospital. The court based its decision on the RNC’s letter of 9 November 2005 which stated that the applicant’s condition had stabilised and that he would be released on 10 November 2005. Since the RNC letter did not include HBO therapy among its recommendations for treatment, the court found the schedule of HBO treatment for November to be irrelevant. 33. On 16 November 2005 the Ministry of Health and Social Welfare replied to the Government Agent’s questions regarding the need to treat the applicant. The letter stated that on 17 November 2005 the applicant’s medical records had been examined by a group of doctors, who found that he did not need in-patient treatment “in any medical establishment, including the [RNC]” and that he could be treated as an out-patient. 34. In his letter of 12 February 2007 the applicant submitted to the Court a certificate stating that on 20 June 2006 he had been recognised as having a second-degree disability. 35. On 23 June 2005 the trial court rejected the applicant’s habeas corpus request on the following grounds: “the reasons for prolonging the accused’s detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court and altering the preventive measure may hinder the establishment of the truth in the criminal trial.” 36. On 8 July 2005 the applicant made another habeas corpus request, relying on Articles 2 and 3 of the Convention and emphasising that while examination of his case had been suspended pending his recovery, he had been refused the medical treatment necessary to ensure such a recovery. The court postponed examination of the request. Examination of the request was again postponed on 11 July 2005 for an indefinite period. 37. On 18 July Judge L.V. was absent and examination of the case was postponed. On 22 July 2005 other members of the court were absent and examination of the case was once more postponed. 38. On 25 July 2005 the applicant requested a copy of the court transcript of 8 and 11 July 2005 and informed the court of the worsening of his condition. The request was refused. On 3 August 2005 the Centru District Court informed the applicant that examination of his habeas corpus request had been postponed pending an answer from the Ministry of Health to its inquiry of 7 July 2005 regarding his condition. 39. On 20 September 2005 the Centru District Court rejected the applicant’s habeas corpus request “because the reasons for prolonging the detention remain valid”. The court also rejected the applicant’s complaint that the insufficient medical treatment he had received amounted to inhuman and degrading treatment: “... because the representative of the [prison hospital] declared that [the applicant] had been given the necessary medical treatment on an in-patient basis; there is no evidence of inhuman or degrading treatment.” At the same time, however, the court ordered the applicant’s transfer to the RNC (see paragraph 29 above). 40. On 27 September 2005 the applicant’s appeal was not examined, the court finding that no further appeal was possible. The court also rejected his request for a medical examination in order to establish his current state of health and the manner in which he had been treated during his detention. 41. On 11 October 2005 the applicant made another habeas corpus request, challenging, inter alia, the persistence of any reasonable suspicion justifying his continued detention. He referred to the finding of a violation of Article 5 of the Convention in the case of Sarban v. Moldova (no. 3456/05, 4 October 2005) as a new circumstance warranting re-examination of the need to detain him. The court rejected the request, finding that it could be submitted only one month at least after the last such request had been examined. It also found that the judgment referred to was not a new circumstance as it related only to Mr Sarban and not to the applicant. 42. On 10 November 2005 the applicant asked the Centru District Court to order his continued treatment at the RNC or his release based on his habeas corpus request. The court rejected the request (see paragraph 32 above) and did not examine the habeas corpus request. 43. On 15 November 2005 the Centru District Court rejected the applicant’s habeas corpus request of 10 November 2005, finding that: “... not all the evidence has been examined; [the applicant] has worked as a deputy Mayor of Chişinău and continues to have influence over witnesses yet to be questioned; he may obstruct the presentation to the court of authentic evidence still being kept by Chişinău Municipality.” 44. On 15 December 2005 the applicant’s detention pending trial was replaced with an obligation not to leave the country. 45. On the evening of 10 November 2005 the Court indicated by facsimile to the Moldovan Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should not be transferred from the RNC until the Court has had the opportunity to examine the case, i.e. until 29 November 2005 at the latest”. On 11 November 2005 the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by the Government Agent, but received no response. 46. On the morning of 11 November 2005 the applicant requested the trial court to stay the execution of its decision of 10 November 2005 and to prevent his transfer from the RNC. He submitted a copy of the facsimile from the European Court of Human Rights regarding the interim measures. The Centru District Court did not hold a hearing and did not reply to his request. He was transferred to the prison hospital on the same day. 47. On 14 November 2005 the applicant’s lawyer informed the President of the Supreme Council of Magistrates of the failure by Judge L.V., President of the Centru District Court, to examine his request of 11 November 2005 and asked for urgent action in order to ensure compliance with the Court’s order for interim measures. On the same day the lawyer submitted a similar request to the Agent for the Moldovan Government before the Court and to the Prosecutor General’s Office, noting that the prosecutor in charge of the case had supported the applicant’s request to continue being treated at the RNC. 48. On the same date and following the Government Agent’s request, the Centru District Court ordered the applicant’s transfer to the RNC until 29 November 2005. The subsequent events are disputed by the parties. According to the applicant, he was brought to the RNC at 6.30 p.m., but for six hours the management refused to admit him. When the applicant began to feel ill, the management admitted him after midnight. According to the Government, the applicant was admitted on the day the Centru District Court ordered his admission and the delay resulted from the doctors’ view that the applicant did not require further treatment at the RNC. The Government Agent had personally overseen execution of the order. 49. The applicant submitted a copy of a news report broadcast on the PRO-TV television channel, which showed the events at the RNC. The reporter stated that the applicant had been kept waiting for six hours for a decision and that he was finally admitted after midnight. The doctors informed the reporter that they had refused initially to admit the applicant because of the absence of his personal medical file and had admitted him only when the medical file was brought to them. In an interview given to the same reporter, the Government Agent stated that the reason for the delay in admitting the applicant was “certain technical, organisational issues”. This was confirmed by a statement by the head of the Prisons Department. 50. On 12 December 2005 the Supreme Council of Magistrates informed the applicant’s lawyer, in response to his letter of 14 November 2005, that the Centru District Court had officially received information about the European Court’s order for interim measures on Monday 14 November 2005 at 2.19 p.m. Following an urgent court hearing, the trial court had ordered the applicant’s transfer to the RNC. 51. In May 2006 the applicant allegedly made proposals in writing to the Government regarding the friendly settlement of his case. The document which he submitted to the Court referred to his poor state of health making it impossible for him to participate in the criminal proceedings and included the condition of his “final acquittal guaranteed by the State” before he would agree to withdraw his application before the Court. 52. On 27 July 2006 the Government submitted to the Court a friendly settlement agreement signed by them and the applicant on the same day. They asked the Court to strike the application out of its list of cases pursuant to Article 37 of the Convention. 53. The applicant did not inform the Court of the agreement and did not ask for the striking out of his application. When asked to comment, his lawyer submitted that he had not been aware of the agreement as he had not been involved in the negotiations. In response to the Court’s letter of 22 January 2007 asking the applicant to confirm the conclusion of his free will of the friendly settlement agreement, the applicant asked the Court, on 12 February 2007, to continue the examination of his case since his main condition, allegedly unofficially agreed upon with the Government, of being acquitted of all charges, had not been fulfilled and he considered the agreement null. 54. The relevant domestic law has been set out in this Court’s judgment in Sarban (cited above, §§ 51-56). In addition, Article 329 of the Code of Criminal Procedure provides: “(1) In trying a case the court may order, replace or revoke a preventive measure against an accused, either at the parties’ request or of its own motion. A new request for the ordering, replacing or revoking of a preventive measure can be submitted if there appear to be reasons for doing so, but not earlier than one month from the date when the previous court decision on the same matter entered into force, unless there are new circumstances which prompt the new request. (2) Where detention pending trial is imposed, the court decision may be appealed against, within three days, to higher court, which will decide on the appeal in accordance with Article 312 applied mutatis mutandis.”