THIRD SECTION

CASE OF SILVESTRU v. THE REPUBLIC OF MOLDOVA

(Application no. 28173/10)

JUDGMENT

STRASBOURG

13 January 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Silvestru v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Luis López Guerra,
	Ján Šikuta,
	Dragoljub Popović,
	Kristina Pardalos,
	Johannes Silvis,
	Valeriu Griţco, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 9 December 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 28173/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Sergiu Silvestru (“the applicant”), on 14 May 2010.
2.  The applicant was represented by Ms P. Copacinschi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3.  The applicant alleged a breach of his rights guaranteed by Article 3 of the Convention on account of his detention in inhuman and degrading conditions.
4.  On 7 October 2013 his complaint concerning conditions of detention was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1985 and lives in Chişinău.
6.  In April 2008 the applicant was arrested and placed in detention on suspicion of aggravated rape and ill-treatment of a young woman.
7.  On 29 December 2009 the applicant was found guilty as charged and sentenced to twelve years’ imprisonment.
8.  In the meantime, between 30 April 2008 and 6 September 2010 the applicant was detained in Prison no. 13 in Chisinau where, according to him, the conditions of detention were very poor. In particular, the applicant alleges that the cells were overcrowded and dirty, that the food was of very poor quality, and that he was not provided with appropriate medical care.
II.  RELEVANT MATERIALS
9.  The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows:
“B.  Conditions in places of detention
Institutions under the Ministry of Justice
30.  Undoubtedly, progress has been achieved in improving conditions of detention. However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution.
31.  Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food ...”
10.  In its report for 2009 (page 117 -“Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that:
“Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.”
11.  In its report for 2010 (page 142 et seq. - “Conditions of detention”) the Human Rights Centre found, inter alia, that:
“Failure to adhere to the statutory cell size (4 square metres per person) in the living blocks of the institution has become an unpleasant problem which now affects the prison system across the entire country ...
The same situation was confirmed during a visit to Chişinău Prison no. 13 in on 9 September 2010. In some cells the living space was not proportionate to the number of detainees. During the visit, eight detainees were being held in cell no. 38, which measured 24 square metres. This situation has been seen repeatedly during visits by the Centre’s staff to the Chişinău Pre-trial Detention Centre. Similar findings were made during visits to Rusca Prison no. 7 on 19 May 2010, where six detainees were being held in a cell measuring 15.5 square metres and to Cricova Prison no. 4, where (in living block no. 7) over twenty detainees were being held in a cell measuring 65 square metres.
Overcrowding comes directly within the Ombudsman’s remit as part of the National Mechanism for the Prevention of Torture, which on many occasions has recognised overcrowding in the country’s prisons ...
[T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, the authority stated that, owing to the difficult financial situation, during 2010 the detainees in Rezina Prison no. 17 received only 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice provided information to the Ombudsman about the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million. The daily cost of feeding a detainee in 2010 was MDL 10.24, whilst the daily budgetary need was MDL 12.35. This statistic was often cited by prison authorities to justify why they were unable to provide detainees with meat and fish ...
As regards sanitary conditions, lighting and ventilation problems continue to exist in the majority of living blocks in Moldovan prisons, with the exception of Taraclia Prisons no. 1 and Rusca Prison no. 7.
The Republic of Moldova inherited old gulag-type prisons in dilapidated buildings, corresponding to former Soviet standards. The prisons do not conform to current national and international standards; however, the budget constraints upon the State do not allow for their reconstruction or renovation.
In the prisons, with the exception of Taraclia Prison no. 1, detainees are held in large-capacity cells insufficiently equipped for their daily needs, namely areas for sleeping, for everyday living and for sanitary equipment. Detainees are held in extremely overcrowded, dark, damp and unventilated spaces full of cigarette smoke. In certain prisons the bunk beds essentially prevent daylight from reaching the living space.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
12.  The applicant complained under Article 3 of the Convention about the conditions of his detention in Prison no. 13 and about the lack of medical assistance during his detention. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
13.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint about poor conditions of detention. They pointed to case-law of the Supreme Court which awarded compensation for poor conditions of detention to persons released from detention.
14.  The applicant argued that he had no effective remedies in respect of his complaint under Article 3 of the Convention.
15.  The Court reiterates that it has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Moldova (see Holomiov v. Moldova, no. 30649/05, §§ 101-107, 7 November 2006; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 38, 27 March 2007; Modarca v. Moldova, no. 14437/05, § 47, 10 May 2007; and Stepuleac v. Moldova, no. 8207/06, § 46, 6 November 2007), and has concluded on each occasion that the remedies suggested by the Government were ineffective in respect of individuals currently held in detention, because they offered no opportunity to put an end to the detention in inhuman and degrading conditions. In Malai v. Moldova (no. 7101/06, §§ 42-46, 13 November 2008), it found a violation of Article 13 of the Convention on account of the lack of effective domestic remedies in respect of inhuman and degrading conditions of detention, concluding that “it has not been shown that effective remedies existed in respect of the applicant’s complaint under Article 3” concerning conditions of detention. Since the case-law of the Supreme Court relied upon by the Government is similar to the one cited by them in the above-mentioned cases, the Court sees no reason to depart from that finding in the present case.
16.  The Court finds, therefore, that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies, and accordingly the Government’s objection must be dismissed. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
17.  At the same time, the Court notes that the applicant failed to substantiate the other part of the complaint under Article 3 of the Convention, namely that he had not been provided with appropriate medical care during detention. Indeed, the applicant did not adduce any evidence that he was in need of any urgent medical care. Accordingly, the Court concludes that this part of the complaint under Article 3 of the Convention is manifestly ill-founded, and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
B.  Merits
18.  The applicant submitted that the conditions of detention in Prison No. 13 between April 2008 and September 2010 amounted to inhuman and degrading treatment.
19.  The Government submitted that the conditions of detention in Prison No. 13 did not amount to inhuman and degrading treatment, and argued that the conditions in that prison have considerably improved since the Court found them to be contrary to Article 3.
20.  The Court reiterates the general principles concerning conditions of detention set out in Ostrovar v. Moldova (no. 35207/03, §§ 76‑79, 13 September 2005).
21.  The Court observes that in Hadji v. Moldova (nos. 32844/07 and 41378/07, § 20, 14 February 2012), it found a violation of Article 3 of the Convention in respect of the poor conditions of the applicant’s detention in Prison no. 13 between March 2007 and April 2008. The Court further notes that the Government adduced no evidence in support of their submission to the effect that considerable improvements in Prison No. 13 had taken place in recent years. Against this background, the Court notes that the poor conditions of detention in the same detention facility were acknowledged in the years 2008, 2009 and 2010 by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment of the United Nations and by the Moldovan Ombudsman (see paragraphs 9-11 above). In such circumstances, the Court considers that there are no reasons to depart from the conclusions reached in Hadji. The Court thus considers that the hardship endured by the applicant during his detention between April 2008 and September 2010 went beyond the unavoidable level of hardship inherent in detention, and reached a threshold of severity contrary to Article 3 of the Convention. Accordingly, there has been a violation of that provision.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
22.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
23.  The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of his detention in inhuman and degrading conditions.
24.  The Government submitted that amount claimed by the applicant was excessively high.
25.  The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage. Deciding on an equitable basis, the Court awards him EUR 5,500.
B.  Costs and expenses
26.  The applicant also claimed EUR 700 for costs and expenses incurred before the Court.
27.  The Government contested the amount claimed by the applicant and argued that it was excessive.
28.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500.
C.  Default interest
29.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 3 of the Convention in respect of the applicant’s conditions of detention in Prison no. 13 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable on the date of settlement:
(i)  EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Josep Casadevall
	Registrar	President