CASE OF BOICENCO v. MOLDOVA
Violations of Art. 3;Violation of Art. 5-1;Violations of Art. 5-3;Failure to comply with obligations under Art. 34;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Nicolas Bratza
6. The applicant was born in 1961 and lives in Chişinău. 7. On 20 May 2005 the applicant was arrested on suspicion of fraud by the Centre for Fighting Economic Crime and Corruption (CFECC). 8. At the time of his arrest he showed no apparent abnormality in his normal physical state. According to a medical file dating from March 2005 the applicant weighed 133 kilograms. 9. According to the reports drawn up on 21 May 2005 by the policemen who arrested him, he attempted to escape, verbally abused them and even attempted to resist by trying to reach for a pistol which he had on him and by throwing away the arrest order when presented with it. It does not appear from those reports that any force was applied to the applicant or that he was injured in any way during his arrest. The applicant denies having resisted arrest. 10. It appears from the police reports that the applicant was arrested at approximately 6.45 p.m. According to the applicant, he was arrested at 4.30 p.m. 11. It is alleged on behalf of the applicant that after being brought to the CFECC premises he was beaten up by the police officers, as a result of which he lost consciousness. The Government deny that. 12. According to a medical report drawn up at 8.34 p.m. on the same date by a doctor from the CFECC, the applicant was unconscious. The doctor noted in the report that, according to the police officers, he had lost consciousness due to “intense emotions”, and recommended that the applicant be seen by a cardiologist. It does not appear from the report that the applicant had been injured in any way during arrest. 13. One of his lawyers saw the applicant at approximately 10.20 p.m. at the CFECC and noted in the minutes of arrest (proces verbal de reţinere), which was drawn up by the police officers in his presence, that the applicant was unconscious. At the request of the lawyer an ambulance was called at 11.37 p.m. and at 1.30 a.m. on 21 May 2005 the applicant was taken to the Cardiology Hospital, still unconscious. 14. It appears from the medical records from the Cardiology Hospital that the applicant regained consciousness after being brought there, but it is not clear when that happened. According to the medical records, he was suffering from arterial hypertension and a syndrome of confusion of unclear origin. The applicant would not respond to questions and would not react to anything. He also suffered headaches and nausea. There is no information in the medical file concerning his weight at the time of his hospitalisation. The doctors recommended inter alia that the applicant be given a brain scan in order to exclude the possibility of the applicant having had a cerebral stroke. The doctors concluded that a final diagnosis would be possible only after the latter tests had been carried out. 15. On 24 May 2005 the applicant was transferred to a Prison Hospital. On 25 May 2005 he was seen by a neurologist, who wrote in the medical file that on 20 May 2005 he had suffered a head trauma followed by loss of consciousness. The neurologist recommended various forms of medical treatment but did not recommend a brain scan. On 26 May 2005 a doctor noted in the medical file that the applicant had pain in his kidneys and red urine. On 2 June 2005 the applicant was examined by a commission of senior doctors from the hospital, who established a final diagnosis of, inter alia, acute head trauma and concussion and recommended, inter alia, that the applicant undergo a psychiatric investigation. On 7 June 2005 a doctor made a note in the medical file to the effect that the applicant urgently needed medication, but none was available. 16. The applicant was kept in the Prison Hospital until 1 September 2005, when he was moved to a prison for fifteen days until his further transfer to the Psychiatric Hospital. According to the medical records, during his stay in the Prison Hospital he never got out of bed. He had not fed himself and had been spoon-fed by the paramedical personnel with liquid food. He did not go to the toilet and had been kept in incontinence pads and smelt strongly of excrement. On rare occasions he would answer the doctors’ questions in a very low voice or using gestures indicating headaches and pain in his kidneys. His urine was red. Most of the time he would not react to any questions and kept his eyes closed. On at least five occasions in May and August 2005 the medical personnel reported in writing to their superiors that, due to his state, the applicant was unable to swallow his medication. On at least seven occasions the doctors noted in the medical file that the applicant’s condition was satisfactory. On several occasions the doctors speculated in the medical file that the applicant’s condition was bogus. 17. On several occasions between May and September 2005 one of the applicant’s lawyers and his wife requested that an independent doctor be given access to the applicant, but they received no answer. 18. During the applicant’s stay in the Prison Hospital, his wife was able to visit him only once, on 5 July 2005, for ten minutes. His mother was not allowed to see him. On one occasion she wrote to the Buiucani District Court and to the Prison Hospital and asked inter alia for his picture; however, she received no answer. 19. On 1 August 2005 the Chief Doctor of the Prison Hospital recommended a psychiatric examination of the applicant in order to “confirm or exclude simulation”. On 3 August 2005 the Buiucani District Court ordered a forensic and a psychiatric examination of the applicant. 20. On 18 and 30 August and 6 and 13 September 2005 one of the applicant’s lawyers and his wife requested the Buiucani District Court and the Ministry of Justice to have the applicant transferred to the Psychiatric Hospital and to speed up the psychiatric investigation. They argued inter alia that due to the lack of a clear diagnosis, no appropriate medical care was possible at that moment. The applicant’s wife also offered to cover all the costs of his transportation, examination and medical care. No answer to these requests was received. 21. Following the court order of 3 August 2005, the applicant underwent three medical investigations. A forensic investigation was carried out on 28 October 2005 and the doctors’ report stated inter alia: “... On 20 May 2005 [the applicant] suffered a head trauma with loss of consciousness. At the time of hospitalisation he suffered headaches, dizziness, and noises in his head, nausea, and fatigue... pain in his lower back... Diagnosis: acute head trauma, concussion of average severity... No visible injuries on the applicant’s body have been found during his stay at either [the Cardiology Hospital or the Prison Hospital]; however, it was established that he suffered a head trauma. On 23 May 2005, the doctors from the Cardiology Hospital established a disorder of the central nervous system, the origin of which has not been determined due to the lack of modern clinical investigation (magnetic resonance, brain scan), and consequently no adequate medical treatment was possible. According to the medical records made by the doctors between 20 May 2005 and 1 September 2005 it appears that during that period of time [the applicant] was incapable of actively participating in a criminal investigation” 22. On 20 September 2005 a psychiatric investigation was conducted. However, the Buiucani District Court considered the report incomplete and ordered a supplementary investigation, which took place on 15 November 2005. The reports of 20 September and 15 November 2005 stated inter alia: “...The commission concludes that [the applicant] is not suffering from any chronic mental disease, but that he is suffering from the consequences of a head trauma, arterial hypertension... ... As from 26 May 2005 the [applicant] has stopped answering questions; he never gets out of bed; he is dirty and eats only liquid food.... He was brought to the hospital on a stretcher. He does not move, does not react to others... he lies with his eyes closed and with his hands on his chest. He has a pale and anaemic face with moist skin... He makes no resistance to medical investigations ..., he is indifferent, passive and does not cooperate with the doctors. He did not object when his mouth was opened but did not show his tongue. His arms and legs fall down lifeless when lifted. When the doctors attempted to check his pupils, he rolled his eyes up. His clothes are dirty; he wears incontinence pads and has a strong smell of urine.... He does not take care of himself... and is being taken care of (fed, washed and changed) by the medical personnel... ... The stress (the arrest, the criminal investigation) triggered a reactive psychosis with a depressive and stupor syndrome [mental sub-responsiveness not as severe as coma, in that the person can still be partially roused by some stimuli, such as pain] which deprived him of the use of reason and he needs treatment in conditions of rigorous supervision.” 23. On 15 September 2005 the applicant was hospitalised in the Central Psychiatric Hospital, Department of Judicial Investigations, where he is held to date. 24. It appears from the medical file submitted by the Government in December 2005 that, by that date, most of the time the applicant was in a state of stupor. He regained consciousness for a period of three weeks, between 2 and 24 October 2005, but then fell back into a state of stupor after being subjected to a body search in the cafeteria of the hospital. The Government submitted copies of bills for medication for the applicant for the months of October, November and December 2005. 25. The Court has no information as to whether the applicant has ever recovered from the state of stupor. It appears that on 23 December 2005 the Buiucani District Court ordered that the applicant be held in the Central Psychiatric Hospital for treatment until full recovery. 26. According to a medical report issued at the request of one of the applicant’s lawyers on 5 December 2005 by Dr. I. Berghi, Psychiatrist, untreated psychosis with a depressive and stupor syndrome triggered in traumatic conditions can have as a consequence the development of a chronic psychiatric disease. 27. According to a medical report issued at the request of one of the applicant’s lawyers on 6 February 2006 by the applicant’s family doctor, Dr T. Moraru, the applicant had, for a long period before his head trauma of 20 May 2005, suffered from diabetes and arterial hypertension. During his stay in the Prison Hospital he suffered malnutrition and lost 30-35 kilograms. Due to his state of stupor he could not be fed and therefore needed transfusions of glucose, amino acids, vitamins C and B and others. Due to this condition he ran a serious risk of developing a diabetic coma, a stroke or a heart attack. It appeared from the applicant’s medical file from the Prison Hospital that he was not provided with sufficient treatment and medical investigation. His stupor syndrome was discovered only four to five months later. 28. On 28 March 2005 the applicant’s lawyer Mr Gribincea was received by the Deputy Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who informed Mr Gribincea inter alia that at the time of hospitalisation in the Psychiatric Hospital, the applicant weighed less than 100 kilograms and that lately, after gaining some weight, he weighed about 100 kilograms. Mr Catrinici also informed the lawyer that the applicant had been given a brain scan two weeks earlier. The Government have not disputed this. 2. The applicant’s complaint about ill-treatment 29. On 27 May 2005, when the applicant temporarily re-gained consciousness, he told one of his lawyers, in the presence of a doctor, that he had been beaten up by the police and that he had severe headaches and pain in the region of his kidneys. The doctor informed the lawyer that the applicant had suffered a head trauma and some disorder in his kidneys. 30. On 31 May 2005 one of the applicant’s lawyers lodged a complaint with the Prosecutor General’s Office about the way the CFECC representatives had ill-treated the applicant and requested the institution of criminal proceedings. He informed the Prosecutor’s Office about what he had been told by the applicant and the doctor. 31. Similar complaints were lodged by the applicant’s wife on four occasions between June and August 2005. 32. On 10 August and 10 October 2005 the applicant’s lawyer asked the General Prosecutor’s Office whether his complaint of 31 May 2005 had been examined. He did not receive any reply. 33. Only on 23 December 2005, after repeated requests made during court hearings in the criminal proceedings against the applicant, the applicant’s lawyer was handed a decision dated 8 June 2005, by which his complaint of 31 May 2005 had been dismissed. The decision was signed by Mr Nicolae Catană, the same prosecutor who had lodged the charges against the applicant and applied to court for his remand in custody (see paragraphs 45-46 below). 34. Mr Catană argued inter alia in the above decision that since the lawyer’s complaint of 31 May 2005 did not contain any specific information concerning the circumstances of the alleged ill-treatment, and in order to clarify the situation, he had attempted to hear the applicant in person on 25 and 30 May 2005. However, the applicant had categorically refused to talk to him. Moreover, even the doctors had confirmed that the applicant would refuse to talk to investigators and prosecutors and would talk only to his lawyers and the doctors, and that he was faking his symptoms. Mr Catană concluded that in any event the applicant was presumed to have been intending to use a gun during his arrest. In such circumstances, the police officers were entitled to use force and their use of force could be treated as legitimate defence. 35. On an unspecified date the applicant’s lawyer lodged an appeal against the decision of the Prosecutor General’s Office dated 8 June 2005. 36. On 23 February 2006 Judge Gheorghe Morozan from the Râşcani District Court dismissed the appeal. He argued inter alia that the investigation had been carried out carefully and in an objective manner without any derogation from the law. He found that the applicant refused to talk to the prosecutor on 25 and 30 May 2005. Moreover, the applicant had not complained to the prosecutor about being subjected to torture and physical violence. Nor had the doctors said anything to the prosecutor about ill-treatment, even though they were under an obligation to inform him of such matters. The medical file did not disclose any visible signs of violence on the applicant’s body. 3. The complaints about lack of medical care 37. On 1 July 2005 the applicant’s wife complained to the Prosecutor General’s Office inter alia that she was not allowed to see her husband and to provide him with medical care. The policemen and the doctors from the Prison Hospital were keeping the applicant’s medical condition secret in order to hide signs of torture. She also complained that her request to allow an independent doctor to consult the applicant had been rejected. The Prosecutor’s Office never replied to this letter. 38. On 18 August 2005 one of the applicant’s lawyers complained to the Buiucani District Court that the psychiatric investigation ordered by it on 3 August 2005 would not be carried out for unknown reasons. In order to ensure proper medical care to the applicant the court was asked to order the authorities to allow a private doctor to consult the applicant and to speed up the psychiatric investigation. The Buiucani District Court never examined this request. 39. On 6 September 2005 the applicant’s wife complained to the Buiucani District Court that the psychiatric investigation would not be carried out. She informed the court that she had found out that the applicant would not be moved to the Psychiatric Hospital due to the lack of facilities for transporting unconscious people. She argued that her husband’s state of health would become worse and that due to the lack of a diagnosis no appropriate medical care would be possible. She offered to cover all the expenses related to the applicant’s transportation, medical investigation and medical care. This complaint was never examined by the Buiucani District Court. 40. On 6 September 2005 the applicant’s mother wrote to the Buiucani District Court and asked it inter alia to order the speedy psychiatric evaluation of her son, to stop the inhuman treatment and to provide him with medical care appropriate for a human being. This complaint was never examined by the Buiucani District Court. 41. On 13 September 2005 the applicant’s wife wrote to the Buiucani District Court, the Prosecutor General’s Office and to the Chief of the Prison Hospital. She complained inter alia that the psychiatric evaluation of her husband would be postponed on purpose by the police and by the persons who had ordered the criminal investigation of her husband and that this made it impossible to provide him with appropriate medical care. The applicant’s wife did not receive any answer to this complaint. 42. On 5 October 2005 one of the applicant’s lawyers wrote to the Buiucani District Court that following the psychiatric investigation of 20 September 2005 the applicant was diagnosed with a serious psychiatric condition. Since the Prison Hospital, where the applicant was detained until 1 September 2005, did not treat psychiatric diseases no diagnosis and thus no appropriate treatment was possible there. Accordingly he was deprived of medical care needed by a human being and was subjected to inhuman suffering. The Buiucani District Court never replied to this letter. 43. On 6 October 2005 the applicant’s wife complained to the Buiucani District Court inter alia that her husband was not provided with appropriate medical care while in the Prison Hospital. The court did not react to this complaint either. 44. On 24 November 2005 one of the applicant’s lawyers asked the Buiucani District Court for permission to have the applicant visited by a private doctor. He informed the court that for more than six months the applicant had not regained consciousness and that the treatment provided to him by the State was not effective. He also informed the court that the delay in answering his request would amount to inhuman and degrading treatment of the applicant by hindering his recovery. He also informed the court that all the expenses would be covered by the applicant’s family. The court has never examined this request. 4. The proceedings concerning the applicant’s detention on remand 45. On 23 May 2005, following a request by the Prosecutor Nicolae Catană, the Buiucani District Court issued a warrant for the applicant’s detention for 10 days. The reasons given by the court for issuing the warrant were that: “[the applicant] is suspected of having committed a very serious offence, for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of the truth in the criminal investigation or re-offend”. 46. On 25 May 2005 an accusation was officially brought to the applicant by Prosecutor Nicolae Catană. 47. On 25 May 2005 the applicant appealed against the order of remand and argued inter alia that there was no evidence of a risk of his absconding, obstructing the investigation or re-offending. He argued that the criminal proceedings had been pending since February 2004 and that nothing in his behaviour since then could justify suspecting him of such intentions. Moreover, his medical condition was an important argument in favour of his release. 48. On 27 May 2005 the Chişinău Court of Appeal dismissed the appeal lodged by the applicant’s lawyers without giving any reasons. 49. The remand was prolonged by the Buiucani District Court on 30 May and on 22 June 2005 on the same grounds. The applicant’s appeals against the prolongations were dismissed by the Chişinău Court of Appeal on 3 and 30 June 2005 respectively. 50. On 23 July 2005 the detention warrant expired, but the applicant was not released. 51. On 25 July 2005 the Prosecutor’s Office submitted the criminal case-file to the competent court. 52. On 26 July 2005 one of the applicant’s lawyers asked the Buiucani District Court to release the applicant from detention because, inter alia, the detention warrant had expired several days earlier. The request was dismissed on 3 August 2005. 5. The examination by private doctors of the applicant and of his medical file after his transfer to the Psychiatric Hospital 53. The facts presented under this heading are based on the submissions of the applicant and the documents submitted by him. The Government have not disputed them. 54. After 16 November 2005, a private doctor had access to the applicant on only one occasion, in early January 2006. According to the applicant, the purpose of the doctor’s visit was to assess his medical condition and to evaluate the costs of future treatment. 55. After consulting the applicant, Doctor T. Moraru concluded that a number of investigations would be necessary in order for him to reach a conclusion. His written report was sent to the Psychiatric Hospital and to the Buiucani District Court and the applicant’s wife offered to bear all the medical costs. 56. In February 2006 Doctor T. Moraru attempted to visit the applicant again to examine him, but he was not allowed to do so. 57. On 8 February 2006 the applicant’s wife complained to the Buiucani District Court about the refusal of the Psychiatric Hospital authorities to allow a visit by Dr. T. Moraru, but it was dismissed by the court on 10 February 2006 on the ground that the court had no right to interfere with the applicant’s medical treatment by giving instructions to the doctors from the hospital. Similar repeated requests by the applicant’s wife and lawyer were rejected on 16 and 19 February 2006, the court adding that since the criminal proceedings against the applicant were suspended, it would be able to issue orders about him only once the proceedings had been resumed. 58. On an unspecified date the applicant’s wife asked permission from the Psychiatric Hospital to have her husband examined by a private doctor. On 16 February 2006 the Deputy Doctor in Chief of the Psychiatric Hospital wrote to the applicant’s wife that the applicant did not need to be seen by Dr. T. Moraru since he was receiving all necessary medical treatment from the hospital doctors. 59. The applicant’s wife made a similar unsuccessful request on 22 February 2006. 60. On 14 and 22 March 2006 one of the applicant’s lawyers (Mr Gribincea) called the Government Agent’s Office and asked Ms Lilia Grimaschi for assistance in obtaining access to the applicant and to his medical file for him and a private doctor. His request was unsuccessful. 61. On 20 and 28 March 2006 the applicant’s lawyers lodged with the Doctor in Chief of the Psychiatric Hospital two requests for access for Mr T. Moraru to the applicant and his medical file. They submitted in their requests that such access was needed in order to pursue the application before the Court and relied inter alia on Article 34 of the Convention. 62. On the same date the applicant’s lawyer, Mr Gribincea, had a meeting with the Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who verbally rejected his request and argued that no access to the applicant was possible without a court order. 63. On 31 March 2006 Mr I. Catrinici replied in writing to the letter of 28 March 2006 by a letter containing nothing but the text of section 9 of the Law on Psychiatric Assistance (see paragraph 69 below) in two languages, Romanian and Russian. 64. Article 25 of the Constitution of the Republic of Moldova, insofar as relevant, states as follows: “(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.” 65. The relevant provisions of the Code of Criminal Procedure (‘the CCP’) read as follows: Section 176 “(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence. (2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1). (3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria: 1) the character and degree of harm caused by the offence, 2) the character of the ... accused, 3) his/her age and state of health, 4) his/her occupation, 5) his/her family status and existence of any dependants, 6) his/her economic status, 7) the existence of a permanent place of abode, 8) other essential circumstances. ... Section 177 ... (2) Detention on remand ... can be applied only on the basis of a court decision... Section 185. Detention on remand (1) Detention on remand means the detention of the suspect, accused or indicted person in a state of arrest in places and in conditions provided for by law. (2) Detention on remand may be applied to someone in the circumstances and in the conditions provided for in Article 176, as well as when: 1) the suspect, the accused or the indicted person does not have a permanent place of residence on the territory of the Republic of Moldova; 2) the suspect, the accused or the indicted person is unknown; 3) the suspect, the accused or the indicted person has breached the conditions imposed on him/her concerning other preventive measures. ... (4) The decision by which detention on remand is ordered can be challenged by way of an appeal before the hierarchically superior court. Section 186. The length of the remand and its prolongation (1) The duration of a person’s remand starts to run from the moment of his or her arrest, or, if the person was not arrested, from the moment of enforcement of the court decision ordering the remand. ... (2) The remand during the investigation stage of the proceedings, before the case file is sent to the competent court [by the prosecutor] shall not be longer than thirty days, except in cases provided for in the present code. The running of the duration of the remand during the investigation stage of the proceedings ceases on the date when the prosecutor sends the criminal case-file to a court and when the detention on remand is revoked or is replaced with another preventive measure which does not involve a deprivation of liberty. ... (5) Any prolongation of the detention on remand may not be for a period longer than 30 days. (6) If it is necessary to prolong the duration of the detention on remand of an accused, the prosecutor shall, not later than 5 days before the expiry of the remand order, make a request in that respect before the investigating judge. (7) When deciding on the prosecutor’s request about the prolongation of the remand, the investigating judge, or, as the case may be, the court, has the right to replace the detention on remand with home detention, release under judicial control or bail. (8) After the sending of the bill of indictment to a court all the requests concerning the detention on remand shall be examined by the court in charge of the criminal case. (9) The prolongation of the duration of remand for up to 6 months shall be decided upon by the investigating judge on the basis of a request of the district prosecutor. In case of a necessity to prolong the duration of the remand for over 6 months the request shall be lodged by the district prosecutor with the consent of the Prosecutor General or his deputies. (10) The decision concerning the prolongation of the detention on remand may be challenged by way of an appeal to the hierarchically superior court. Section 190 A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail. Section 191. The provisional release under judicial control of a remanded person (1) A provisional release under judicial control of a remanded person, or of a person in respect of whom a request for detention on remand has been made, may be granted by the investigating judge or by a court only in case of offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment. (2) A provisional release under judicial control may not be granted to an accused who has outstanding criminal convictions for serious, very serious or exceptionally serious offences or if there exists information that he or she will commit another offence, will try to influence the witnesses, will try to destroy evidence or will abscond. (3) A provisional release under judicial control of a remanded person shall be accompanied by one or more of the following obligations: 1) not to leave the town of residence except in the conditions set by the investigating judge or by the court; 2) to inform the investigation organ or the court of any change of address; 3) not to go to certain places; 4) to appear in front of the investigation organ or the court when summonsed; 5) not to make contact with certain persons; 6) not to commit acts capable of hindering the discovery of the truth; 7) not to drive cars or not to exercise any profession of the kind used for committing of the offence. ... Section 195 (1) A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed. Section 329 (1) In examining a case the court, ex-officio or at the request of the parties and having heard their opinion, shall have the power to apply, revoke or discontinue the preventive measure applied to the accused. A new request for the application, replacement or revocation of a preventive measure may be submitted if there are grounds for such a request, but not earlier than one month from the date of entry into force of the last decision in this respect or if new circumstances have appeared. Section 345 (1) Within ten days from the date when the case was distributed for judgment, the judge or the bench, having examined the case-file, shall set a date for the preliminary hearing. The preliminary hearing in cases where the person is arrested shall be held urgently and with priority. ...(4) At the preliminary hearing the following issues shall be examined: ...6) preventive and protective measures. Section 351 ...(7) In setting a date for the examination of the case, the court shall order the maintenance, revocation or discontinuation of preventive measures, in conformity with the present Code.” 66. The explanatory judgment of the Plenary Supreme Court of Justice of 28 March 2005 states inter alia that release under judicial control can be granted by the investigating judge or by the trial court only to persons charged with offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment. 67. The Commentary of the Code of Criminal Procedure, edited in 2005, the authors of which are amongst others the President and several judges from the Supreme Court of Justice and several senior law professors, states the following in respect of section 191: “The first paragraph of section 191 provides for the first condition of admissibility of release under judicial control which is determined by the gravity of the offence with which the accused is charged. This condition [the gravity of the offence] is determined in the documents issued by the investigation body or by the prosecutor, who establish the qualification of the offence... The investigating judge is not empowered with assessing whether the legal qualification of the offence is correct since he does not examine the evidence on which the qualification is made ... At the trial stage, the trial court can give a new qualification to the offence with which the accused is charged...” 68. In Drugalev v. the Ministry of Internal Afairs and the Ministry of Finance (final judgment of the Chişinău Court of Appeal of 26 October 2004), after being released, the applicant claimed and obtained compensation for having been held in inhuman and degrading conditions during his pre-trial detention, in the amount of approximately 950 euros (EUR). The court based its award directly on Article 3 of the Convention. 69. Article 53 of the Constitution reads as follows: “(1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage. (2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.” 70. The relevant provisions of the Civil Code read as follows: “Section 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts (1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...” 71. The relevant provisions of the Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts read as follows: “Section 1 (1) In accordance with the present law, individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of: a) illegal detention, illegal arrest, illegal indictment, illegal conviction; b) illegal search carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person’s rights; c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine; d) carrying out of unlawful investigative measures; e) illegal seizure of accounting documents, other documents, money or stamps as well as blocking of banking accounts. (2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigation organs, prosecution and courts. Section 4 A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met: a) pronouncement of an acquittal judgment; b) dropping of charges or discontinuation of investigation on the ground of rehabilitation; c) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation; d) adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova; ...” 72. Section 9 of the Law on Psychiatric Assistance reads as follows: “Any information about mental diseases suffered by a person, his or her requests for psychiatric medical assistance and treatment in a psychiatric hospital, as well as any other information about his or her mental health constitutes a medical secret. With a view to realising his or her rights and interests, a person suffering from a mental disease or his or her legal representative can obtain any information about his or her psychiatric health and about the psychiatric assistance received.”