CASE OF STRAISTEANU AND OTHERS v. MOLDOVA
Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The first three applicants, Mr Gheorghe Straisteanu, Ms Natalia Straisteanu and Ms Daniela Straisteanu, are a family of Moldovan nationals who were born in 1954, 1957 and 1986 respectively. The fourth applicant, Codrana-Lux S.R.L., is a limited liability company incorporated in Moldova. Sixty percent of its stock belongs to the first three applicants’ family. 6. The first applicant is a well-known businessman and a former member of the Moldovan Parliament, between 1998 and 2001. He was, inter alia, the founder of the first Moldovan private television company and owned a chain of petrol stations. After the Communist party won the general election in 2001 he retired from politics and had to wind up most of his businesses, including the television station and the petrol business. 7. In May 2001 the fourth applicant bought a plot of land measuring 14.63 hectares from the Onesti Local Council. The land was later sold by the fourth applicant to the first two applicants. Subsequently, the first applicant donated a part of the land to the third applicant and an artificial lake was built on the family’s property. 8. Also in May 2001, the fourth applicant concluded a contract of lease with the Onesti Local Council for a period of ten years concerning a natural lake measuring 5.63 hectares adjacent to the property which it had bought. 9. The first three applicants settled on the above property and developed it with a view to using it for tourism and fishing. According to them, in 2005 Government officials started to exercise pressure on the first applicant to induce him to give up the property. 10. On 20 July 2005 the first applicant was arrested in Chişinău together with his driver. At the police station, he was informed that he and his driver were being accused of carrying out a series of car thefts over the past year in Chişinău. It would appear that several criminal complaints concerning car thefts were joined in a single procedure, while others were joined later (see paragraph 14 below). 11. On 22 July 2005 the Centru District Court issued a detention warrant in the first applicant’s name for a period of ten days. The grounds for detention were that he was suspected of committing a serious offence punishable by more than two years’ imprisonment, that the criminal case was complex, and that he might abscond, hinder the investigation and the finding of the truth. An appeal by the applicant was dismissed and his detention was subsequently extended on the same grounds. 12. On 18 August 2005 Judge A.B. from the same court ordered the applicant’s release. The grounds for release were that there were no reasons to believe that the applicant would abscond or hinder in any way the investigation. However, the prosecuting authorities refused to comply with the order and continued to hold the applicant in detention. They applied a second time for an extension of the detention but Judge A. B. refused again on 19 August 2005 and found that the prosecutor had failed to comply with his previous decision and that therefore the applicant’s detention had been unlawful. The prosecutor refused again to comply with the order of release and ordered his further detention on account of charges of theft from a Volkswagen car, an episode which had not been joined to the main criminal case at that time. On the same date the prosecutor applied to another court, the Râşcani District Court, for a detention warrant. The charges against the first applicant were the same as before and no new reasons for detention were adduced. On 22 August 2005 that court upheld the application and ordered the continued detention of the applicant. It did not give any reasons for detention except that the prosecutor’s application related to another criminal case. 13. On 25 July 2005 the Ministry of Internal Affairs issued a press release which stated that the first applicant was a member of a criminal gang which was robbing car drivers in Chişinău. The major Moldovan media reported on the event the same day. 14. On 24 August 2005 the episode concerning the theft from a Volkswagen car was joined to the main criminal proceedings against the applicant. 15. On 25 August 2005 the applicant appealed against the detention warrant of 22 August 2005. 16. On 29 August 2005 the criminal case in the applicant’s case was remitted to a court for examination and from that date on the applicant was detained without a detention warrant. 17. On the same date the Chişinău Court of Appeal discontinued the appeal proceedings against the detention warrant of 22 August 2005 on the ground that the criminal case had been remitted to a court and that therefore no detention warrant was now needed. His habeas corpus applications were dismissed and he remained in detention until 17 November 2005, when a judge ordered his release. 18. During the first applicant’s detention he was held in the detention facility of the General Police Station (Comisariatul General de Poliţie). According to him, the cells in which he was detained were overcrowded, dark, damp, dirty and hot. There was no natural light, but instead there was a very weak light bulb which was switched on all the time. The ventilation was not working properly and the inmates were allowed to smoke in the cell. The cell was infested with vermin and rats and the inmates were allowed to take showers only once every twenty days with cold water. The cells measured approximately ten or eleven square metres and were occupied by at least eight people at all times. Because of the conditions of his detention the applicant contracted influenza. 19. On 7 September 2005 Amnesty International organised action in support of the first applicant on its web page, stating, inter alia, the following: “Amnesty International is concerned that Gheorghe Straisteanu is being charged on the basis of evidence which has been extracted under torture. Amnesty International has information that a second individual gave evidence after being subjected to torture by investigating officers. However, he reportedly fears that he will be subjected to further ill-treatment if his name is mentioned. The organization is also concerned that Georghe Straisteanu is being detained arbitrarily. On 18 August 2005 the central district court of Chişinău ordered the release of Gheorghe Straisteanu on bail, but police officers immediately re-detained him in the court room and took him back to the temporary detention facility despite the court decision. On 19 August, after his lawyer appealed against this arbitrary detention, the court declared that his detention was illegal. However, police officers again defied the court order and detained him in the court room. On 22 August Gheorghe Straisteanu was sentenced to ten days’ imprisonment by the court of Riscani district in Chişinău. The ten day period was due to expire on 31 August, but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court. This effectively prolongs Gheorghe Straisteanu’s detention until the court hearing has been held. Furthermore, Amnesty International is concerned about the conditions in which Gheorghe Straisteanu is being held at the temporary detention facility on Tighina Street. He is currently being held in a cell with ten to 12 other detainees. The only washing facility is a tap and a basin in the cell, and conditions are damp and badly ventilated. Georghe Straisteanu has contracted influenza since he has been in detention and his family report that he has difficulty breathing. He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court.... Please send appeals to arrive as quickly as possible [to the Prosecutor General’s Office, the Ministry of Internal affairs and/or to Moldovan Embassies abroad]...: · expressing concern for the health of Gheorghe Straisteanu and asking for assurances that he will be given access to the medical care he requires in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners; · expressing concern at allegations that some of the evidence that has been used to convict Gheorghe Straisteanu has been extracted from another individual under torture; · urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings; · expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of Gheorghe Straisteanu and that he was arbitrarily detained by police twice in defiance of court orders; · urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct.” 20. On an unspecified date in October 2005 the President of Moldova, Mr V. Voronin, held a meeting with high ranking officials, among whom was the Prosecutor General, the head of the Anti-Corruption Department, the head of the Cadastral Authority and the prefect of the county where the applicants’ land was situated. During the meeting he expressed great dissatisfaction with the fact that in spite of his clear indications to numerous State bodies, the applicants’ property was still in their possession and had not been returned to the State and a monastery. He gave them a deadline of 17 November 2005 to solve the problem, threatened them with dismissal and left the room, slamming the door. 21. A video of this event was broadcast by a television channel on 4 April 2006 in a programme entitled ‘The President’s working day’ which reported on the busy schedule of the President. A copy of it was sent to the Court by the applicant. 22. According to the applicants, after the first applicant’s arrest their family started to experience harassment from law enforcement bodies such as the Department for the Fight against Organised Crime and Corruption, the police and the Prosecutor’s Office, who intimidated and pressured them to give up their property. While in detention the first applicant was approached by police officers, who proposed that he sell the property in exchange for his release. The second applicant was visited on numerous occasions by people claiming to be representatives of the above bodies. They requested her family to leave the property, failing which she would not see her husband again. The third applicant was contacted on numerous occasions by police officers and investigators in charge of her father’s case and ordered to sell the property. 23. On 25 August 2006 the second applicant lodged a complaint with the Prosecutor General’s Office complaining about the actions of two police officers who had entered her property without any legal basis and ordered her, also in the absence of any legal basis, to take down a billboard at the entrance to the property. 24. On 4 October 2006 the second applicant received a letter from the Prosecutor General’s Office, in which she was informed that the matters described by her had proved to be partially true; however, there were no sufficient reasons to justify the prosecutor office’s intervention. 25. On 26 October 2005 the Prosecutor General filed an action with the Economic Court asking for the annulment of the contract of lease for 5.63 hectares of land concluded between the Onesti Local Council and the fourth applicant in May 2001, on the ground that the Local Council had failed to organise an auction. 26. On an unspecified date the President of the Superior Council of Magistrates and the President of the Supreme Court of Justice, Ms V.S., inquired with the Vice President of the Economic Court, Judge M.M., about the above case. 27. In a letter of 30 October 2005 Judge M.M. wrote to Ms V.S. stating, inter alia, that the case was scheduled to be examined on 8 November 2005 and that she would be dealing with it. It appears that the hearing of 8 November was adjourned. 28. On 14 November 2005 the fourth applicant was sent a registered letter informing it that the hearing in the case was scheduled for 17 November 2005. It appears that the fourth applicant was no longer at the address to which the summons was sent and therefore did not receive the summons. 29. On 17 November 2005 Judge M.M. examined the case in the absence of the fourth applicant and upheld the Prosecutor General’s action relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. It found that the Onesti Municipal Council had contravened the law by failing to organise a public auction for the lease of the property. 30. On an unspecified date in January 2006 the fourth applicant appealed against the above judgment and argued, inter alia, that it had not been summoned and that it did not even know about the prosecutor’s application before 25 November 2005. According to the law in force at the time of the conclusion of the lease, there was no obligation to hold an auction. That obligation referred only to sale of land by local authorities, but not to leases. In any event, the action was time-barred. 31. On 19 January 2006 a panel of the Supreme Court of Justice presided over by Judge I.M. dismissed the applicant’s appeal and argued, inter alia, that it had been summoned at the address which appeared in the database of the Registration Chamber, and that therefore the applicant had been legally summoned. The court also found that the local council had been under an obligation to organise an auction before renting out the land in question. The Supreme Court did not refer to the applicants’ objection concerning the Statute of Limitations. 32. On an unspecified date the fourth applicant lodged an action with the Economic Court claiming compensation for the investments it had made in respect of the leased property. It claimed 5,034,304 Moldovan lei (MDL). 33. On 20 February 2006 the Economic Court refused to examine the application because the fourth applicant had not paid the court fees of three per cent of the amount sought. 34. In March and April 2006 the fourth applicant paid a part of the court fees and applied again to the court. It argued that it did not have any more money because all its assets and bank accounts had been frozen by the Prosecutor’s Office. 35. On 20 June 2006 the Economic Court refused again to examine the action on the same grounds. The fourth applicant’s appeal was dismissed. 36. On 10 November 2005 the Prosecutor General brought an action with the Economic Court of Moldova seeking the annulment of the purchase of the plot of land of 14.63 hectares by the fourth applicant from the Onesti Local Council in May 2001 and of all the subsequent contracts by which the property had been transmitted to the first, second and third applicants. The Prosecutor General argued that the Onesti Local Council had acted ultra vires and had committed numerous irregularities in organising the auction, establishing the price of the property and selling the property. 37. The applicants opposed all the Prosecutor General’s submissions. Their main arguments were that the Prosecutor General’s action was time-barred, that they had acquired the property in good faith and that the property could not be expropriated without compensation. At the same time the second and third applicants lodged a counter action in which they submitted that if the Prosecutor General’s action was upheld they should be entitled to compensation for the investments they had made in the development of the property in an amount of approximately 216,000 euros (EUR) and EUR 768,000 respectively. 38. On 11 May 2006 the Economic Court requested the applicants to pay court fees in the amount of three percent of the claimed amounts. The applicants appealed and argued that all their accounts had been seized by the Prosecutor’s Office, that they were unemployed and that they could not pay the court fees. They asked, on the basis of the law on court fees, to be allowed to pay the fees after the adoption of a judgment in the case. 39. On 29 June 2006 a panel of the Supreme Court of Justice presided by Judge I.M. dismissed the appeal. 40. On 2 August 2006 the applicants’ counter action was dismissed on the ground of their failure to pay court fees. The applicants appealed against this decision. However, their appeal was dismissed on 21 September 2006 by a panel of the Supreme Court of Justice presided over by Judge I.M. 41. On 18 December 2006 Judge B.B. from the Economic Court upheld the action lodged by the Prosecutor General, relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. Judge B.B. found that the Onesti Local Council had breached the rules concerning the conduct of public auctions, namely that it had failed to observe the rules concerning the advertising of the auction, the composition of the auction commission and the drafting of the auction record. The court did not refer to the applicant’s objection concerning the Statute of Limitations and considered all the prosecutor’s arguments well-founded. It ordered that the parties be put in the same position as they had been prior to the conclusion of the contract. 42. The applicants appealed and argued, inter alia, that they had been punished for errors of the local authorities which were not imputable to them, that the court was not independent and impartial, that the action was time-barred and that the actions against them had been orchestrated by President Voronin, submitting a copy of the video in which the President was shown instructing State officials to take away their property. 43. On 15 February 2007 the Supreme Court of Justice dismissed the applicants’ appeal. It held that according to the Code of Civil Procedure claims filed in the State’s interest were exempt from the requirement to observe time-limits. 44. On 3 August 2006 a bailiff came to the applicants’ property, accompanied by the mayor of Tiganesti village, in order to enforce one of the civil judgments concerning the applicants’ property. A quarrel took place between the first applicant and the mayor and two weeks later the latter lodged a complaint with the Prosecutor’s Office, complaining that the first applicant had made death threats against him. In particular, he submitted that during the quarrel the first applicant had said that he would feed him (the mayor) to the fishes. 45. On 21 August 2006 the applicant was arrested and placed in detention. On 23 August 2006 the Straseni District Court issued an order for him to be detained for ten days. That was extended on numerous occasions and the first applicant’s appeals and habeas corpus requests rejected. 46. He was detained in the detention centre of the Straseni Police Station until 24 September 2006 and then in Chişinău no. 13 prison. According to the applicant, the conditions of detention in both detention facilities amounted to inhuman and degrading treatment. 47. The applicant’s detention under the new charges continued until 28 November 2006, when he was placed under house arrest. 48. On an unspecified date in 2007 the first applicant initiated civil proceedings against the Government claiming compensation for poor conditions of detention in 2005 and in 2006 and for detention contrary to Article 5 of the Convention. He relied, inter alia, on the Court’s findings in respect of conditions of detention in Ostrovar v. Moldova (no. 35207/03, 13 September 2005), Sarban v. Moldova (no. 3456/05, 4 October 2005), and Holomiov v. Moldova (no. 30649/05, 7 November 2006) in which the applicants had been detained in the same detention facilities. 49. On 27 June 2007 the Centru District Court dismissed the applicant’s action, upholding the Government’s position and finding that the conditions of detention on both occasions were acceptable. The court accepted several of the applicant’s submissions, such as that his cell window did not have glass for several days, that a person with scabies was placed in his cell on one occasion, that there was no linen or mattresses in the cell, and that there was no sewerage in one of the detention facilities. Nevertheless, it considered that these shortcomings were not sufficient for the application to be upheld, because the applicant did not have to share a bed with the ill prisoner, the latter had been receiving treatment for five days and at the time of his placement in the cell he was no longer contagious. Moreover, the window cell was repaired after only four days and in any event the temperatures at the end of September were usually moderate. In addition, prisoners were allowed to bring their own mattresses and linen. In so far as the complaint under Article 5 was concerned, the court found that there were no civil remedies against the alleged breaches under Moldovan law. This judgment was confirmed by the Court of Appeal on 3 October 2007 and by the Supreme Court of Justice on 7 May 2008. 50. On 18 May 2008 the applicant lodged another action with the Rascani District Court, again claiming compensation for his allegedly unlawful detention between August and November 2005. It appears that his action has not yet been determined. 51. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, unofficial translation) read as follows: B. Establishments visited ... - EDP of Chişinău Police Inspectorate (Follow-up visit) ... b. remand centres (EDPs) 53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity. 54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ... 55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty. 56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit. In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m². 57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ... ...Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet. 59. The CPT also recommends that steps be taken to: - reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level; - supply persons in custody with clean mattresses and clean blankets; - authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter. In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.” 4. Conditions of detention. a. Institutions of the Ministry of Internal Affairs 41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs. The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented. 42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives... 45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions. 47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.” II. Institutions of the Ministry of Internal Affairs In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.” 52. Article 25 of the Constitution of the Republic of Moldova, in so far as relevant, states as follows: “(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of thirty 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.” 53. The relevant part of the Code of Criminal Procedure reads as follows: (2) The application for a detention warrant... shall be examined without delay by the investigating judge... at the place of the conduct of the criminal investigation, at the place of arrest or at the place of residence of the detainee’s representative. (5) A repeated application for a detention warrant... in respect of the same person and in the same proceedings, after the dismissal of a previous application, shall be possible only if new reasons for detention have appeared. 54. The relevant provisions of the Civil Code, in force at the relevant time, provide: The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations. The competent court ... shall apply the limitation period whether or not the parties request such application. Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim. If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected. The limitation period does not apply: ... (2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”. 55. The relevant provisions of the new Civil Code, in force after 12 June 2003, read as follows: “(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution.” 56. In a judgment of 20 April 2005 (case nr. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff’s contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that, therefore, the provisions of the old Civil Code were applicable.