Okolisan împotriva Republicii Moldova

Cazul a provenit dintr-o cerere (nr. 33200/11) împotriva Republicii Moldova depusă la Curtă conform Articolului 34 din Convenția pentru Protecția Drepturilor Omului și a Libertăților Fundamentale (Convenția) de un cetățean sârb, dl. Pavel Okolisan (reclamantul), pe 15 aprilie 2011.

Reclamantul a fost reprezentat de dl. V. Plesca, avocat care practicează în Chișinău. Guvernul Moldovei (Statul pârât) a fost reprezentat de agentul său, dl. L. Apostol.

Reclamantul susținea că fusese deținut în condiții inumane și nu dispunea de un remediu efectiv pentru plângerile sale cu privire la acele condiții.

Pe 7 mai 2013 plângerile referitoare la condițiile detenției reclamantului și disponibilitatea remediurilor efective au fost comunicate Statului pârât; restul cererii a fost declarat inadmisibil. FAPTELE

Pe 15 septembrie 2010 a fost arestat în Ungaria și pe 17 ianuarie 2011 a fost extradat în Moldova pe suspiciune de defraudare a unei companii C. înregistrată în Moldova. A. Condiții de detenție și tratament medical 1. Depunerile reclamantului

Reclamantul descrie în modul următor condițiile detenției sale în Penitenciarul nr. 13, unde a fost deținut între 21 ianuarie și 23 august 2011. Pentru prima lună a fost ținut în celula nr. 13, proiectată pentru deținuți cu probleme medicale, deoarece s-a plâns la sosirea sa de dureri datorită cancerului de prostată și hipertensiune. Deoarece cincisprezece alți deținuți cu diverse boli erau tutti aglomerați în această celulă, s-a temut să se îmbolnăvească de alte boli și a evitat cererea de detenție în această „celulă de tratament" după aceea.

După aproximativ o lună a fost transferat în celula nr. 123. Celula era la subsol și nu avea acces la lumina naturală. O fereastră deschidea o altă cameră care avea o deschidere în acoperiș, oferind deci o plivă de lumină de zi. Celula era umedă și rece; hainele putrezeau ca rezultat. Era plină de insecte parazitare și șobolani. Apa era galbenă pentru că conductele erau ruginite, dar trebuia s-o bea în absența unei alternative. Chiar acea apă nu era întotdeauna disponibilă, deci deținuții o colectau în sticle din plastic. Nu exista toaletă și deținuții trebuiau să folosească o găleată, care cauza un miros îngrozitor. Cei mai mulți deținuți fumau în celulă, ceea ce cauza reclamantului să sufere. Mâncarea servită uneori constă din apă caldă și pâine învechită, și altele din cereale needitabile pline de insecte.

Potrivit reclamantului, nu a primit tratamentul medical necesar pentru a-și trata boala. Penitenciarul nu avea un medic specialist în tratarea cancerului, nici nu avea echipamentul sofisticat cu care fusese tratat în Austria înainte de arestare. A primit medicamente de bază pentru hipertensiune. Ca rezultat al lipsei de asistență medicală specializată, starea de sănătate a reclamantului s-a înrăutățit atât încât nu mai putea controla procesul de urinare, urinând-se ca rezultat și deci trebuind să suporte umilire suplimentară. În absența schimburilor de haine sau a absorbantului pentru incontinență, trebuia să aștepte următoarea zi pentru a se spăla, ceea ce se întâmpla o singură dată pe săptămână. El susține că doar intervenția colocatarilor săi a împiedicat sinuciderea sa de mai multe ori, confirmată de semnăturile celor cinci colocatari sub descrierea sa a condițiilor adresate avocatului său. Mai mult, după schimbarea măsurii preventive de la detenție la arest la domiciliu pe 23 august 2011 a continuat să aibă nevoie de tratament specializat, dar nu a putut să-l asigure deoarece nu avea bani pentru a plăti spitalul. LEGEA

The case originated in an application (no. 33200/11) 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 Serbian national, Mr Pavel Okolisan (“the applicant”), on 15 April 2011.

The applicant was represented by Mr V. Plesca, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

The applicant alleged that he had been detained in inhuman conditions of detention and did not have an effective remedy for his complaints about those conditions.

On 7 May 2013 the complaints concerning the applicant’s conditions of detention and availability of effective remedies were communicated to the Government; the remainder of the application was declared inadmissible.

The Government of Serbia, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 §§ 1 and 4 of the Rules of Court), did not indicate that they wished to exercise that right. THE FACTS I.

On 15 September 2010 he was arrested in Hungary and on 17 January 2011 he was extradited to Moldova on suspicion of defrauding C., a company registered in Moldova. A. Conditions of detention and medical treatment 1. The applicant’s submissions

The applicant describes in the following way the conditions of his detention in Prison no. 13, where he was detained between 21 January and 23 August 2011. For the first month he was held in cell no. 13, designed for prisoners with medical problems, since he had complained upon his arrival of pain due to his prostate cancer, as well as hypertension. As fifteen other inmates with various illnesses were all crammed into this cell, he was afraid of getting other illnesses and avoided asking for detention in this “treatment cell” thereafter. 9 . After approximately one month he was transferred to cell no. 123. The cell was in the basement and had no access to natural light. A window opened on to another room which had an opening in its roof, thus giving a glimpse of daylight. The cell was damp and cold; clothes rotted as a result. It was full of parasitic insects and rats. The water was yellow because the pipes were rusted, but he had to drink it in the absence of an alternative. Even that water was not always available, so the detainees collected it in plastic bottles. There was no toilet and detainees had to use a bucket, which caused a horrible smell. Most of the detainees smoked in the cell, which caused the applicant to suffer. The food served sometimes consisted of warm water and stale bread, and at other times of inedible cereals full of insects.

According to the applicant, he did not receive the medical treatment required to treat his illness. The prison did not have a doctor who specialised in treating cancer, nor did it have the sophisticated equipment with which he had been treated in Austria before his arrest. He received basic medication for his hypertension. As a result of the lack of specialised medical assistance the applicant’s state of health worsened to such an extent that he could no longer control the process of urination, wetting himself as a result and thus having to endure additional humiliation. In the absence of changes of clothes or incontinence pads, he had to wait for the next day for bathing, which happened only once a week. He claims that only the intervention of his cellmates prevented his suicide on several occasions, as confirmed by the signatures of five cellmates under his description of the conditions addressed to his lawyer. Moreover, after the change of the preventive measure from detention to house arrest on 23 August 2011 he continued to need specialised treatment, but was unable to secure it since he had no money to pay for a hospital. 2. The Government’s submissions

According to the Government, during his detention in Prison no. 13 the applicant was held in cell no. 13, designed for twelve detainees and measuring 30 square metres, cell no. 123, designed for six detainees and measuring 13.68 square metres, and cell no. 80, designed for six detainees and measuring 15 square meters. Each cell was lit by three 100-W bulbs and had a window and artificial ventilation, as well as a washbasin and a toilet separated from the rest of the cell by a partition. The cells were regularly disinfected, and tap water was always available except for during repair periods, when water was brought in in special receptacles.

Hot food three times a day was ensured in accordance with Government Decision no. 609 concerning the minimal norms of food for detainees. The budget for food, medication and other expenses grew steadily each year (the total prison budget rose from 3,453,000 Moldovan lei (MDL) in 2007 to MDL 4,813,300 in 2011). B. Complaints about lack of medical treatment

In an appeal to the Chișinău Court of Appeal on 18 February 2011 the applicant referred to his poor state of health as a reason for his release; he was ill with prostate cancer.

On 19 April 2011 the applicant asked to be released, relying, inter alia, on a letter from his doctor in Austria concerning his untreated cancer and recommendations after delayed surgery for cancer in 2008. That request was refused on 20 April 2011 by the Buiucani District Court.

In an appeal of 16 May 2011 against a further extension of his detention, the applicant noted, inter alia , the lack in Prison no. 13 of medical personnel who specialised in treating his kind of illness, as well as the lack of equipment required to treat him, and the worsening of his health resulting in severe pain and in his inability to control the urination process, causing him to wet himself. He relied on Article 3 of the Convention. On 24 May 2011 the Chișinău Court of Appeal dismissed that appeal, finding that there was no medical evidence in the file to suggest that the applicant could not be treated while in detention.

On 29 June 2011 the applicant asked to have his detention replaced with house arrest, relying, inter alia, on Article 3 of the Convention. He relied on a reply by the medical service of Prison no. 13 as to the specific treatment given to him. According to that reply of 1 June 2011 he was being treated with hypertension pills and his blood pressure was monitored daily. The applicant claimed that this proved that he had no treatment whatever for his prostate cancer. This request was refused on 29 June 2011 by the Buiucani District Court.

In an appeal of 1 July 2011 the applicant repeated his submissions made before the Buiucani District Court.

On 23 August 2011 the Chișinău Court of Appeal replaced the applicant’s detention with house arrest. On 23 January 2012 the Buiucani District Court replaced that preventive measure with an undertaking not to leave the country. II.

In its report for 2010 (page 142 et seq., “Conditions of detention”) the Human Rights Centre (the Moldovan Ombudsman institution) found, inter alia , that: “... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in Prison no. 17 in Rezina received 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice submitted information concerning the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24,500,000, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29,500,000. The daily cost of feeding a detainee in 2010 was MDL 10.24 [approximately EUR 0.6], while 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 ...”

In its report for 2011 (page 71 et seq., “Conditions of detention”) the Human Rights Centre found, inter alia , that during 2011 it had addressed a total of seventeen recommendations to the authorities after making 238 visits to various prisons in Moldova. All of them noted problems concerning conditions of detention, and a significant proportion also noted problems with medical assistance. The report noted that in most cases prisons were overcrowded, each detainee having less than four square metres of personal space. In respect of Prison no. 13 the report stated that: “... the situation in respect of conditions of detention ... is of real concern… The Moldovan Minister of Justice confirmed that the conditions in prisons are akin to those in medieval times, noting that the conditions in prisons constitute a systemic problem.” The report noted the continuing problem of insufficient access to daylight in the cells, in which the windows are covered with layers of metal bars, the lack of ventilation, increased humidity in the cells, very worn-out bed linen, the separation of the toilet from the rest of the cell by a cellophane sheet, or the lack of any type of separation. The Human Rights Centre recommended that Prison no. 13 be closed down in order to avoid new findings of violations by the Court. The report also found that there was a lack of medical staff in prisons, with only 245 posts out of 321 filled.

In December 2015 the Human Rights Centre repeated its recommendation of closing down Prison no. 13 and, if that was impossible, the urgent improvement of conditions of detention there. THE LAW I.

The Government submitted that, in respect of his complaint about his conditions of detention, the applicant had failed to exhaust available domestic remedies. In particular, he had not complained about his conditions of detention at the domestic level. Moreover, he had not lodged a civil court action claiming compensation for the damage caused, although recent domestic case-law (notably in four court actions lodged by Mr Ipate) and an explanatory decision of the Supreme Court of Justice of 24 December 2012 concerning the direct application of the Convention gave him a reasonable chance of success.

The applicant submitted that he had repeatedly complained to the domestic authorities about his conditions of detention. Moreover, a civil action could not improve his conditions of detention, but if successful would only result in compensation.

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 Sarban v. Moldova , no. 3456/05 , §§ 57-62, 4 October 2005; 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 held in detention at the time when they lodged their complaints. In Malai v. Moldova (no. 7101/06 , §§ 42-46, 13 November 2008), and Segheti v. the Republic of Moldova (no. 39584/07, §§ 36-39, 15 October 2013) 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. In the present case, the applicant was still in detention at the time he lodged his complaint and has complained on several occasions, both prior to lodging his application and thereafter, to the domestic courts about his conditions of detention, even relying expressly on Article 3 of the Convention (see paragraphs 13-17 above). It would appear that his situation did not change until he was released from prison.

The Court finds, therefore, that the application cannot be declared inadmissible for non-exhaustion of domestic remedies, and accordingly the Government’s objection must be dismissed.

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits

The applicant complained that the conditions of his detention had been inhuman, and referred in particular to the insufficiency of the medical assistance given to him (see paragraphs 8-10 above).

The Government disagreed, pointing to improvements in recent years and to increases in the budget for repairs, food and medical assistance. Moreover, the fact that the applicant had not complained to the prison authorities about his conditions of detention confirmed that those conditions were acceptable. They also submitted documents attesting to several refusals by the applicant to be transferred to prison no. 16 for further medical investigations.

As regards the applicant’s complaint concerning the failure to provide him with medical assistance required by his condition, the Court notes the Government’s submission and supporting documents attesting to several attempts of persuading the applicant to be admitted to prison no. 16. That institution is a prison-hospital and he was supposed to be moved there for the express purpose of further medical investigations. In the Court’s view, the authorities cannot be held responsible for not fulfilling their positive obligations of ensuring an appropriate medical assistance to the applicant since his own actions prevented that.

As regards conditions of detention, the Court reiterates that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła , cited above, § 94; and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014 (extracts)) and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see see Kudła , cited above, § 94; and Idalov v. Russia [GC], no. 5826/03, § 93, 22 May 2012).

In the present case, the Court notes that overcrowding was confirmed both by the Government’s data concerning the size and occupancy of the cells (see paragraph 11 above) and the Human Rights Centre (see paragraph 21 above). Moreover, the high humidity, smoking in the cell and insufficient ventilation all further increased the applicant’s sufferings, which exceeded the unavoidable level of suffering inherent in detention. The Court also recalls that in its judgment of Shishanov v. the Republic of Moldova (no. 11353/06, § 139, 15 September 2015) it found necessary to apply Article 46 of the Convention. In particular, the Court decided that the Moldovan authorities should set up, without delay, a remedy or a combination of remedies with a preventive and compensatory effect in order to guarantee that the breaches of the Convention resulting from the inappropriate conditions of detention in the Republic of Moldova are effectively redressed.

The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention in the present case in respect of the applicant’s conditions of detention. II.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits

The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3 of the Convention. They relied on a case lodged by a detainee (Nichita Ipate). They also submitted that in the case of Straisteanu and Others v. Moldova (no. 4834/06, § 67, 7 April 2009) the Court had acknowledged the existence in Moldova of a remedy in the form of lodging civil court actions.

As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief.

In the present case, the Court finds that the same reasons as those which have led to the dismissal of the Government’s objection concerning exhaustion of domestic remedies (see paragraphs 26-27 above) apply equally to the present complaint.

As regards the Government’s submission concerning the case of Straisteanu , cited above, it notes that in that judgment the Court actually confirmed its previous findings in respect of the lack of effective remedies in Moldova against inhuman and degrading conditions of detention (§ 98).

Accordingly, the Court finds that there has been a violation of Article 13 of the Convention due to the absence of effective remedies in respect of the complaint concerning the applicant’s conditions of detention. III.

The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

The Government considered that this amount was excessive.

Having regard to the nature of the violations found above, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000. B. Costs and expenses

The applicant also claimed EUR 2,750 for costs and expenses incurred before the Court. He relied on a contract with his lawyer, as well as an itemised list of hours worked by the lawyer on his case, amounting to 54 hours at an hourly rate of EUR 50.

The Government considered that this amount was excessive.

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 1,000 covering costs under all heads. C. Default interest

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 application admissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention; 3. Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3; 4. Holds (a) that the respondent State is to pay the applicant, within three months from 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 at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley Naismith Ișıl Karakaș Registrar President