Mensenrechtenhof veroordeelt Moldavië wegens behandeling gevangenen (en)
The European Court of Human Rights has today notified in writing a judgment1 in the case of Ostrovar v. Moldova (application no. 35207/03).
The Court held unanimously that there had been:
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-a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights;
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-a violation of Article 8 (right to respect for correspondence) of the Convention in respect of the applicant's right to correspond with his mother;
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-a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the denial to the applicant of contact with his wife and daughter;
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-a violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 3;
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-no violation of Article 13 of the Convention taken together with Article 8.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 3,000 euros (EUR) for pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)
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1.Principal facts
The applicant, Vitalie Ostrovar, is a Moldovan national who was born in 1974 and lives in Chişinău. He is the former senior assistant to the prosecutor of the Centru District of Chişinău.
In July 2002 the applicant was arrested by the Moldovan Secret Services on charges of bribe-taking. Later the charges were modified to corruption (trafic de influenţă) and in April 2003 he was convicted by the Court of Appeal and sentenced to ten years' imprisonment.
In June 2003, whilst in detention, the applicant together with other cellmates lodged a complaint with the Prosecutor General, regarding the ban on receiving visits from his family and other people. The prisoners asked the Prosecutor General to order the prison authorities to allow them to have visits, telephone conversations and other kinds of contact with their relatives.
After a number of unsuccessful proceedings the Chişinău Court of Appeal dismissed his appeal by a final judgment in June 2004.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 28 October 2003 and declared partly admissible on 22 March 2005.
Judgment was given by a Chamber of 7 judges, composed as follows:
Nicolas Bratza (British), President,
Josep Casadevall (Andorran),
Giovanni Bonello (Maltese),
Rait Maruste (Estonian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish),
Javier Borrego Borrego (Spanish), judges,
and also Michael O'Boyle, Section Registrar.
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3.Summary of the judgment2
Complaints
The applicant complained about his conditions of detention, about the breach of his right to correspondence with his mother, and to have contacts with his wife and daughter, and about not having an effective remedy in respect of the violations of his rights guaranteed by Articles 3, 8 and 13 of the Convention.
His complaints regarding the conditions of detention related to two periods served in the Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3), between October and November 2002, and April and December 2003.
The applicant alleged he was kept in small and overcrowded cells equipped with bunk beds but with no mattresses or bed covers. He claimed that sometimes he had to take turns with other inmates to sleep as it was not always possible to have access to a bed. The windows in his cells were closed by shutters allowing in no fresh air or natural light. There was no ventilation or heating so that the cell was either very cold or hot, and always damp. Lack of electricity meant that the prisoners often had to prepare their food in the dark.
The applicant suffered frequent asthma attacks which were exacerbated by the fact that he spent 23 hours a day in a cell with prisoners who smoked. His condition worsened and since the prison did not have the necessary medication, he was entirely dependent on the supply of medication from his family.
The applicant complained that access to cold water was restricted and warm water was available only once every fifteen days. The toilet which was situated at 1.5 metres from the dining table was permanently open and not cleaned due to the lack of water and cleaning products. He also complained that the food served to the inmates was practically inedible.
He alleged that due to poor medical assistance and bad hygienic conditions, the cells were infected with bed bugs, lice and ants. The inmates were also exposed to infectious diseases like tuberculosis, skin and respiratory infections.
Decision of the Court
Article 3
The European Court of Human Rights recalled that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour.
The Court noted that the two cells in which the applicant was detained were designed for 14 and 10 inmates but, according to the applicant, sometimes housed more than twenty. They provided between 1.78 and 2.02 m² (according to the Government) and between 1.5 and 1.93 m² (according to the applicant) for each inmate which the Court considered fell below acceptable standards. The Court found that the fact that the cells were overpopulated, irrespective of the exact numbers involved, was something which in itself raised an issue under Article 3 of the Convention.
The Court noted that the prison authorities did not take any steps to transfer the applicant to a non-smoking cell despite his known health problems. The Government therefore failed to fulfil their obligation to safeguard the applicant's health. Furthermore, the Court was not satisfied that the applicant received the regular medical attention he requested since the Government did not provide any record of regular medical visits from the prison register.
The Government did not dispute the applicant's allegations regarding the toilet facilities and water provision nor did they dispute the fact that the cells were infected with vermin, and that the inmates were exposed to infectious diseases. That the inmates received inadequate nutrition was also not contested.
Having regard to the cumulative effects of the conditions in the cell, the lack of full medical assistance, the exposure to cigarette smoke, the inadequate food, the time spent in detention and to the specific impact which these conditions could have had on the applicant's health, the Court considered that the hardship the applicant endured appeared to have exceeded the unavoidable level inherent in detention and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention.
The Court therefore found that the conditions of detention of the applicant were contrary to Article 3 of the Convention.
Article 8
The Court noted that it was an essential part of a prisoner's right to respect for family life that the prison authorities assist him in maintaining contact with his close family. At the same time, the Court recognised that some measure of control over prisoners' contacts with the outside world was called for and was not of itself incompatible with the Convention By the same token, the law had to be clear to ensure that individuals were afforded the protection to which they were entitled in a democratic society. The Government, in this respect, relied on Articles 18 and 19 of the Law on Pre-Trial Detention.
The Court found that Article 18 did not draw any distinction between the different categories of persons with whom the prisoners could correspond. Also it did not lay down any principles governing the grant or refusal of authorisation, at least until 18 July 2003, when the provision was amended. It was also noted that the provision failed to specify the time-frame within which the restriction on correspondence could apply. No mention was made as to the possibility of challenging the refusal to issue an authorisation or as to the authority competent to rule on such a challenge.
The Court concluded that this provision did not indicate with reasonable clarity the scope and manner of the exercise of discretion conferred on the public authorities in respect of restrictions on prisoners' correspondence. It followed that the interference with the applicant's right to correspond with his mother was not in accordance with the law within the meaning of Article 8.
The Court came to the same conclusion concerning Article 19 on which the interference with the applicant's right to have contacts with his wife and daughter was based.
Article 13
The Court found that there had been a breach of Article 13 taken with Article 3 of the Convention in that there had been no effective remedy in respect of the applicant's complaint concerning his conditions of detention, but that there had been no violation of Article 13 taken together with Article 8.
The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).
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1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.