CASE OF MOZER v. THE REPUBLIC OF MOLDOVA AND RUSSIA
Preliminary objections dismissed (Article 35-3 - Ratione loci;Ratione personae) (Russia);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies) (the Republic of Moldova);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Russia);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) (Russia);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) (Russia);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) (Russia);Violation of Article 13+9-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion) (Russia);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (the Republic of Moldova);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) (the Republic of Moldova);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) (the Republic of Moldova);No violation of Article 13+9-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion) (the Republic of Moldova);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) (Russia);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) (Russia)
Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nebojša Vučinić;Paul Lemmens;Paul Mahoney;Ksenija Turković
I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a Moldovan national belonging to the German ethnic minority. He was born in 1978 and lived in Tiraspol until 2010. Since 2011 he has been an asylum seeker in Switzerland. 9. The Moldovan Government submitted that despite all their efforts they had been unable to verify most of the facts of the present case owing to a lack of cooperation on the part of the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). They had therefore proceeded, broadly speaking, on the basis of the facts as submitted by the applicant. 10. The Russian Government did not make any submissions in respect of the facts of the case. 11 12. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). A. The applicant’s arrest, detention and release 13. On 24 November 2008 the applicant was detained on suspicion of defrauding the company he worked for and another company belonging to the same group. The companies allegedly claimed initially that the damage had been 40,000 United States dollars (USD) and then increased that amount to USD 85,000. The applicant was asked to confess to the crime, which he claims he did not commit. He signed various confessions, allegedly following threats to him and his relatives. He claimed to have been first detained by his company’s security personnel and subjected to threats if he did not confess to the crime, before being handed over to the investigating authority. 14. On 26 November 2008 the “Tiraspol People’s Court” remanded the applicant in custody for an undetermined period. 15. On 5 December 2008 the “MRT Supreme Court” rejected an appeal by the applicant’s lawyer as unfounded. Neither the applicant nor his lawyer was present at the hearing. 16. On 20 March 2009 the “Tiraspol People’s Court” extended the applicant’s detention for up to five months from the date of his arrest. 17. On 21 May 2009 the “Tiraspol People’s Court” extended the applicant’s detention for up to eight months from the date of his arrest. That decision was upheld by the “MRT Supreme Court” on 29 May 2009. Neither the applicant nor his lawyer was present at the hearing. 18. On 22 July 2009 the “Tiraspol People’s Court” extended the applicant’s detention until 24 September 2009. 19. On 22 September 2009 the “Tiraspol People’s Court” extended the applicant’s detention until 24 November 2009. That decision was upheld by the “MRT Supreme Court” on 2 October 2009. The applicant’s lawyer was present at the hearing. 20. On 4 November 2009 the applicant’s criminal case was submitted to the trial court. 21. On 21 April 2010 the applicant’s detention was extended again until 4 August 2010. 22. On 1 July 2010 the “Tiraspol People’s Court” convicted the applicant under Article 158-1 of the “MRT Criminal Code” of defrauding two companies, and sentenced him to seven years’ imprisonment, suspended for five years. It ordered the confiscation of the money in his and his girlfriend’s bank accounts and of his personal car, in a total amount equivalent to approximately USD 16,000, and additionally ordered him to pay the two companies the equivalent of approximately USD 26,400. It also released him subject to an undertaking not to leave the city. No appeal was lodged against that decision. According to the applicant, in order to pay a part of the damages his parents sold his flat and paid USD 40,000 to the companies. 23. On an unknown date shortly after 1 July 2010 the applicant left for treatment in Chișinău. In 2011 he arrived in Switzerland. 24. On 25 January 2013 the “Tiraspol People’s Court” amended the judgment in the light of certain changes to the “MRT Criminal Code” providing for a more lenient punishment for the crime of which the applicant had been convicted. He was thus sentenced to six years and six months’ imprisonment, suspended for a period of five years. 25. By a final decision of 15 February 2013 the same court replaced the suspended sentence owing to the applicant’s failure to appear before the probation authorities, and ordered that the prison sentence be served in full. 26. Following a request from the applicant’s lawyer of 12 October 2012, on 22 January 2013 the Supreme Court of Justice of the Republic of Moldova quashed the judgment of the “Tiraspol People’s Court” of 1 July 2010. With reference to Articles 114 and 115 of the Constitution and section 1 of the Law on the status of judges (see paragraphs 69 and 70 below), the court found that the courts established in the “MRT” had not been created in accordance with the Moldovan legislation and could not therefore lawfully convict the applicant. It ordered the materials in the criminal file to be forwarded to the prosecutor’s office with a view to prosecuting the persons responsible for the applicant’s detention and also to determining whether the applicant had breached the rights of other persons. 27. On 31 May 2013 the Prosecutor General’s Office of the Republic of Moldova informed the applicant’s lawyer that it had initiated a criminal investigation into his unlawful detention. Within that investigation, “all possible procedural measures and actions [were] planned and carried out”. No further progress could be achieved owing to the impossibility of carrying out procedural steps on the territory of the self-proclaimed “MRT”. B. The applicant’s conditions of detention and medical treatment 28. The applicant’s medical condition (bronchial asthma, an illness which he has had since childhood) worsened while in prison, and he suffered several asthma attacks. He was often moved from one temporary detention facility (IVS) to another (such as the IVS at Tiraspol police headquarters and the IVS in Slobozia, as well as colony no. 3 in Tiraspol and the IVS in Hlinaia), all of which allegedly provided inadequate conditions of detention. 29. The applicant described the conditions at Tiraspol police headquarters as follows. There was high humidity, no working ventilation and a lack of access to natural light (since the detention facility was in the basement of the building), while the windows were covered with metal sheets with small holes in them. The cell was overcrowded (he was held in a 15 sq. m cell together with twelve other people). They had to take turns to sleep on the single large wooden platform, which was not covered. The applicant was allowed fifteen minutes’ daily exercise, spending the remainder of the time in the cell. Many of the detainees smoked in the cell, which contributed to his asthma attacks. The metal truck he was transported in when being brought before the investigator was suffocating, and he was placed in a cell without a toilet for hours on end (while waiting to be interviewed by the investigator) and suffered numerous asthma attacks. Laundry could only be done in the cells, where wet clothes would also be hung out to dry. The food was scarce and inedible. The cells were full of parasites. There were no hygiene products except for those brought in by detainees’ relatives. For several months the applicant was detained in a cell which became very hot in summer, causing him to suffer more asthma attacks. 30. The applicant described in a similar manner the conditions of his detention in the Slobozia detention facility, where he lacked any sort of hygiene products, was transported in a crammed and unventilated truck, and was fully reliant on his parents for any sort of medication. 31. As for colony no. 3 in Tiraspol, the applicant again noted the insufficient medical treatment, overcrowding (with one hour’s exercise per day, the remaining time being spent in the cell) and a lack of ventilation coupled with the heavy smoking of his cellmates. The food was inedible, with worms and rotten produce. In the winter the heating was on for only a few hours a day and, as at the Tiraspol police headquarters, a shower was allowed once a week (all the detainees in his cell had a combined total of twenty minutes in which to take a shower with cold water). 32. In the IVS in Hlinaia the applicant was again placed in an overcrowded cell and received virtually no medical assistance. 33. During his detention the applicant often complained about his medical condition and asked for medical assistance. His parents requested on many occasions that their son be seen by a lung specialist. On 12 March 2009 he was eventually seen and various tests were carried out. He was diagnosed with unstable bronchial asthma and prescribed treatment. 34. In May 2009 the applicant was transferred to the Medical Assistance and Social Rehabilitation Centre of the “MRT Ministry of Justice” (“the Centre”). Doctors there confirmed his previous diagnosis and the fact that he suffered frequent asthma attacks and had second and third degree respiratory insufficiency, and that his medical condition was continuing to worsen. On 7 May 2009 the Centre informed the applicant’s relatives that it had neither a lung specialist nor the required laboratory equipment to treat the applicant properly. The doctors added that he needed to be transferred to the respiratory medicine department of the Republican Clinical Hospital, but that this would be impossible to arrange because the hospital was shortstaffed and had no one to guard the applicant during his stay. 35. On an unknown date in 2009 the applicant’s mother asked for the applicant to be transferred to a specialist hospital, as bronchial asthma was one of the illnesses listed by the “MRT Ministry of the Interior” as a reason warranting a transfer to hospital. In its reply of 1 June 2009 the “MRT Ministry of the Interior” informed her that only convicted prisoners could be transferred to hospital on those grounds. 36. On 21 September 2009 the Centre informed the applicant’s parents that since May 2009 their son had continued to be treated on an in-patient basis, but that his medical condition was continuing to worsen, with no visible improvement as a result of treatment. 37. On 15 February 2010 a medical panel composed of four senior “MRT” doctors established as follows: “Despite the repeated treatment given, the respiratory dysfunction continues to increase and treatment is having no noticeable effect. A continuing downward trend is observed, with an increase in the frequency of asthma attacks and difficulty in stopping them.” In addition to the initial diagnosis of bronchial asthma and respiratory insufficiency, the panel found that the applicant had second degree posttraumatic encephalopathy. It concluded that: “The [applicant’s] life expectancy/prognosis is not favourable. His continued detention in the conditions of [pre-trial detention centres] appears problematic owing to the absence of laboratory equipment and specially qualified medical staff at [the Centre] for the purposes of carrying out the required treatment and its monitoring.” 38. Despite the panel’s findings, the applicant was transferred on the same day to the IVS in Hlinaia, which, as stated by the applicant and not contradicted by the respondent Governments, was less well equipped than the Centre. On 16 February 2010 the applicant’s mother was allowed to see him. He told her about his poor conditions of detention (lack of ventilation, heavy smoking by detainees, overcrowding) and said that he had already had two asthma attacks that day. The applicant’s mother was told by the prison staff that she had to bring her son the medication he required since there was none available in the prison. 39. On 18 February 2010 the applicant’s mother asked the “MRT President” for the applicant to be transferred as a matter of urgency to a specialist hospital and for his release from detention pending trial in order to obtain the treatment he required. On 20 February 2010 she received a reply saying that her complaint had not disclosed any breach of the law. 40. On an unknown date after 18 February 2010 the applicant was transferred to Prison no. 1 in Tiraspol. On 17 March 2010 he was again admitted to the Centre for in-patient treatment. 41. In a letter to the applicant’s lawyer dated 11 June 2010 the Centre’s director stated that in addition to the applicant’s main diagnosis of asthma, he was also found to have terminal respiratory insufficiency, symptoms of a head injury with localised areas of brain damage, the first signs of hypertonic disease, an allergy in his lungs making treatment and the ability to stop his asthma attacks more difficult, post-traumatic encephalopathy, arterial hypertension, toxoplasmosis, giardiasis (a parasite), chronic gastroduodenitis, pancreatitis and pyelonephritis. His prognosis was worsening. 42. In a number of replies to complaints by the applicant’s parents, the “MRT” authorities informed them that the applicant was seen regularly by various doctors. After his transfer from the Centre to the IVS in Hlinaia on 15 February 2010, his state of health had deteriorated and on 17 March 2010 he had been immediately transferred to the Centre for treatment. 43. According to the applicant, his state of health improved after his release and the treatment he received in Chișinău. However, because he feared re-arrest by “MRT militia”, he fled to Switzerland and applied for asylum there (see paragraph 23 above). C. The applicant’s meetings with his parents and his pastor 44. From November 2008 until May 2009 the applicant was not allowed to see his parents, despite repeated requests (for instance on 5 March and 13, 16 and 30 April 2009). The first authorised meeting took place six months after the applicant’s arrest, on 4 May 2009. On 9 December 2009 a judge of the “Tiraspol People’s Court” refused to allow a further meeting because examination of the case was pending. Another request for a meeting was refused on 15 February 2010. On 16 February 2010 a meeting was authorised, but the applicant and his mother had to talk to each other in the presence of a prison guard. They were not allowed to speak their own language (German) and were made to speak Russian or risk the guard calling off the meeting. 45. In June and September 2009 pastor Per Bergene Holm from Norway attempted to visit the applicant at the latter’s request in order to provide him with religious services, including “listening to [the applicant’s] confession and giving him the sacraments”. He was denied access to the applicant, a refusal which he subsequently confirmed in a letter to the Court dated 29 September 2010. On 30 September 2009 an “MRT presidential adviser” acknowledged that there was no reason to refuse the pastor access and that such a refusal was incompatible with the “MRT Constitution and laws”. The pastor was finally allowed to see the applicant on 1 February 2010. As stated by the applicant and not disputed by the Governments, a guard remained in the room throughout the meeting. D. Complaints to various authorities 46. The applicant’s parents made several complaints to the Moldovan authorities and the Russian embassy in Moldova concerning their son’s situation. 47. On 12 October 2009 the Centre for Human Rights of Moldova (the Moldovan Ombudsman) replied that it had no means of monitoring the applicant’s case. 48. On 3 November 2009 the Moldovan Prosecutor General’s Office informed the applicant’s parents that it could not intervene owing to the political situation in the Transdniestrian region since 1992. It also referred to Moldova’s reservations in respect of its ability to ensure observance of the Convention in the Eastern regions of Moldova. 49. A complaint made on an unknown date to the Russian embassy in Moldova was forwarded to the “MRT” prosecutor’s office. The latter replied on 1 February 2010, saying that the applicant’s case was pending before the “MRT courts”, which alone were competent to deal with any complaints after the case had been submitted to the trial court. On 10 February 2010 the Russian embassy forwarded that reply to the applicant’s mother. 50. The applicant also complained to the Joint Control Commission (“the JCC”), a trilateral peacekeeping force operating in a demilitarised buffer zone on the border between Moldova and Transdniestria known as the “Security Area”. For further details, see Ilaşcu and Others v. Moldova and Russia (cited above, § 90). It is unclear whether he obtained any response. 51. After notice of the present application had been given to the respondent Governments, the Moldovan Deputy Prime Minister wrote on 9 March 2010 to the Russian, Ukrainian and US ambassadors to Moldova, as well as to the Council of Europe, the European Union and the Organisation for Security and Cooperation in Europe (OSCE), asking them to assist in securing the applicant’s rights. 52. On 16 July 2010 the applicant asked the Moldovan Prosecutor General’s Office to provide witness protection to him and his parents, since the “MRT militia” had been looking for him at his home in Tiraspol while he was in hospital in Chișinău. On the same day the applicant was officially recognised as a victim. However, on 19 July 2010 the Bender prosecutor’s office refused his request to be provided with witness protection, since it had not been established that his life or health were at risk. 53. On 6 August 2010, following a complaint by the applicant, the investigating judge of the Bender District Court in Moldova set aside the decision of 19 July 2010 on the grounds that the applicant had been unlawfully arrested and convicted and had had his property taken away from him. He ordered the Bender prosecutor’s office to provide witness protection to the applicant and his family. The parties did not inform the Court of any further developments in this regard. E. Information concerning alleged Russian support for the “MRT” 54. The applicant submitted reports from various “MRT” media outlets. According to an article dated 13 April 2007 from Regnum, one of the leading Russian online news agencies at the relevant time, the Russian ambassador to Moldova had given a speech in Tiraspol the previous day in which he declared that Russia would continue its support for the “MRT” and would never give up its interests there. The diplomat added that “Russia has been here for more than a century. Our ancestors’ remains are buried here. A major part of our history is situated here”. 55. On 20 April 2007 the same news agency informed the public of a decision by the Russian Ministry of Finance to give the “MRT” USD 50 million in non-reimbursable aid, as well as USD 150 million in loans secured on “MRT” property. 56. In a news item dated 23 November 2006 the Regnum news agency reported a statement by the “MRT President” to the effect that each “MRT Ministry” was working on harmonising the legislation of the “MRT” with that of Russia, and that a group of representatives of “MRT Ministries” was to travel to Moscow within the next few days to discuss the matter. 57. According to the Moldovan Government, “the last and non-significant” withdrawal of armaments from the “MRT” to Russia took place on 25 March 2004. Almost twenty thousand tonnes of ammunition and military equipment are purportedly still stored on the territory controlled by the “MRT”. On 26 January 2011 Russian and Ukrainian officials were able to visit the Colbasna (Колбасна) arms depot, while Moldovan officials were neither informed of nor invited to participate in the visit. 58. In February 2011 the Russian Ambassador to Moldova declared, inter alia, in public speeches that since 2003, when Moldova had refused to sign a settlement agreement with the “MRT” (the so-called Kozak Memorandum, 2003), Russia had no longer been able to withdraw arms from the “MRT” owing to the latter’s resistance. 59. According to the Moldovan Government, Tiraspol Airport, which was officially closed down by the Russian authorities on 1 December 2005, continues to serve “MRT” military and civilian helicopters and aircraft. Russian military planes and helicopters are still parked there. Between 2004 and 2009 over eighty flights from that airport which were not authorised by the Moldovan authorities were recorded, some of which appear to have been bound for Russia. 60. According to the Moldovan Government, the “MRT” received a total of USD 20.64 million in Russian aid in 2011, in the form of either the waiving of debts for natural gas consumed or of non-refundable loans. During 2010 the “MRT” consumed natural gas from Russia to a value of USD 505 million. It paid the Russian company Gazprom USD 20 million, about 4% of the price for that gas. At the same time, the local population paid the “MRT” authorities approximately USD 163 million for gas in 2010, a sum which remained largely at the disposal of the “MRT”.