FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53487/99 by Victor MERIAKRI against Moldova

The European Court of Human Rights ( First Section) , sitting on 16 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Court of Human Rights on 28 April 1999 and registered on 17 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Moldovan national, born in 1952 and living in Chişinău , Moldova.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 5 March 1997 the applicant was arrested by the police officers from the Buiucani police station on the charge of complicity in an armed robbery. The applicant denied the charges. At the police station, the police officers seized from the applicant his personal belongings (including USD 800, a golden ring and chain). On the same date, the applicant was beaten up by the police officers after he refused to plead guilty by undersigning the interrogation record.

On 6 March 1997 the applicant was taken to the hospital where he underwent a surgery on his left eye which was seriously injured while he was beaten in the police station. After the surgery, the applicant lost the sight in his left eye.

On 7 March 1997 the applicant was brought before the District Public Prosecutor who threatened him, stating that if he will not plead guilty and sign the interrogation record, he will be beaten to death. On the same date, after repeated requests to be assisted by a lawyer, the applicant met the lawyer, who directed him to the medical examination which established the sustained by the applicant brain concussion and several broken ribs. On the same date, the governor of the prison to which he was brought sent him to a new medical examination which confirmed the above corporal injuries. Due to the severity of the inflicted injuries, the applicant underwent a ten months’ treatment in the prison’s hospital.

On 17 March 1997, the applicant lodged with the Municipal Prosecutor’s Office a complaint in which alleged that he was tortured by the police officers during the pre-trail detention. On 25 March 1997, he lodged a similar complaint with the General Prosecutor’s Office. The applicant did not receive any reply to his complaints.

On 16 June 1997 the applicant appeared before the District Court of Buiucani , assisted by his lawyer. During the first court hearing, the applicant submitted a written request to summon and question the injured party and to examine the gun which was supposedly used by him while committing the above offence and constituted the real evidence in the case-file. In his written statement he also requested to be confronted with the alleged co-accused in the above offence. Without providing a reason, the court rejected the applicant’s requests.

On 16 July 1997, during the court hearings, the applicant requested to summon and question the police officers who were involved in the investigation of his case. On the same date, he also submitted a written request to institute criminal proceedings against the police officers who subjected him physical ill-treatment during the pre-trial detention and seized his personal belongings. He further requested to summon and question the doctors who examined and nursed him during the pre-trial detention. The court rejected the applicant’s requests.

On 21 July 1997, during the court hearings, the applicant’s lawyer submitted that the refusal to question the injured party and to examine the real evidence would amount to the violation of the rules of criminal proceedings. The lawyer’s submissions were disregarded by the court.

On 22 July 1997, the District Court of Buiucani convicted the applicant of armed robbery and sentenced him to twelve years’ imprisonment, to be executed in a labour camp with a severe regime.

On 28 July 1997 the applicant lodged with the Regional Court of Chişinău an appeal against the above decision in which he alleged that he was unlawfully arrested and, subsequently, convicted. He further submitted that during the pre-trial detention he was tortured by the police officers involved in the investigation. He also submitted that the first instance court failed to summon and question the injured party and the witnesses proposed by him and to admit the evidence from his investigation file.

On 20 November 1997, the Regional Court of Chişinău rejected as ill-founded the applicant’s appeal against the decision of the District Court of Buiucani and upheld this decision. No answer was given to the applicant’s allegations of ill-treatment during the pre-trial detention.

On 12 February 1998, the Court of Appeal rejected as ill-founded the applicant’s appeal in cassation against the decision of the Regional Court of Chişinău and upheld the decision of the District Court of Buiucani of 22 July 1997.

In his letter to the Court of 2 August 1999 the applicant complained that the prison authorities had constantly interfered with his correspondence with the Court and with other authorities, such as the Chişinău Public Prosecutor or the Prosecutor General. The applicant submitted to the Court a request he had addressed on 16 July 1999 to the prison authorities for delivery of copies of all documents concerning his application to the Court, documents which had been requested by the Court. He pointed out to the hand-written note on the top of his request, which reads “To the special unit. For action. 17 July 1999” and to which he did not receive any reply.

The applicant also sent to the Court a letter addressed to him on 20 April 1999 by the Moldovan mission of OSCE. This letter bears a number of stamps indicating that the letter transited various offices from 5 May 1999 to 25 June 1999. According to the applicant’s acknowledgement on the letter, it was delivered to him only on 1 July 1999.

In a letter submitted on 11 October 1999, the applicant complained that the prison authorities routinely opened and delayed the Court’s letters addressed to him. In this respect, he sent back to the Court a letter dated 2 September 1999 which the Court had addressed to him.  On the top of this letter, a stamp indicated: “Entry no. 374, on 10 September 1999” and a hand-written mention reads: “The special unit. Received on 10 September 1999”. The applicant’s writing on the letter reads: “I received it and it was given to me on 22 September 1999”.

In a letter addressed to the Court on 23 March 2000, the applicant reiterated his complaints about the constant interference by the prison authorities with his correspondence with the Court. On 20 September 2000, a letter signed by the applicant was posted to the Court by his wife.

B. Relevant domestic law

Article 30 of the Moldovan Constitution

“The State shall ensure the privacy of the letters, telegrams, other postal despatches, of telephone conversations and of using other legal means of communication”.

The Code for Execution of Criminal Sentences

Article 14 § 1

“The convicted person shall enjoy his rights according to the nature of the offence he has committed and restrictions imposed upon his rights by virtue of the court decision.”

Article 14 § 2 (c)

“The convicted prisoner shall be entitled to receive and send mail, to submit explanations, proposals and complaints… .”

Article 73 § 1

“The convicted prisoner shall be entitled to receive and send letters and telegrams in an unlimited number.”

Article 73 § 2

“The convicted prisoner’s outgoing and incoming correspondence […] shall be subjected to censorship.”

Article 73 § 4

“The convicted prisoner’s proposals, requests and complaints addressed to an hierarchically higher legal authority shall be dispatched to this authority within three days.”

COMPLAINTS

1. The applicant complains, invoking in substance Article 3 of the Convention, that during his detention on remand he was subjected to physical ill-treatment by the police officers and that the suffering he experienced, taken as a whole, amounted to torture. He also complains about the national authorities’ refusal to examine his complaint of torture during his pre-trial detention in breach of Article 3 of the Convention.

2. He also complains, invoking in substance Article 13 of the Convention, that he was denied an effective remedy in respect of his complaints of torture during his pre-trial detention.

3. The applicant further complains, invoking in substance Article 5 § 1 of the Convention, that his arrest was unlawful and that there were no reasonable suspicions against him.

4. He also complains, invoking in substance Article 1 of the Protocol No. 1 to the Convention, that the police officers involved in his arrest unlawfully dispossessed him of his personal belongings which, subsequently, were lost.

5. The applicant complains, invoking in substance Article 6 of the Convention, that he did not have a fair hearing before the domestic courts. In particular, he complains that he was refused to call and question the injured party and the witnesses proposed by him, and that the evidence proposed by him, in particular, the gun which he supposedly used while he committed the robbery, was not admitted. He further complains that the domestic courts erroneously assessed the evidence before them and that the available evidence was not sufficient for his conviction.

6. He finally complains, invoking in substance Article 8 of the Convention, about the interference by the prison authorities with his right to respect for his correspondence with the Court and other domestic authorities.

THE LAW

1. The applicant complains under Article 3 of the Convention that on 5 March 1997, while he was detained on remand, he was subjected to physical ill-treatment by the police officers involved in the investigation of his case, and that the domestic authorities did not investigate his complaints related thereto filed with the Public Prosecutor.

The Court notes that further to his alleged ill-treatment on 5 March 1997, the applicant filed two complaints with the Public Prosecutor, on 17 and 25 March 1997.  It also notes that the Convention entered into force with respect to Moldova on 12 September 1997.  The Court therefore finds that the above complaint, relating to facts prior to 12 September 1997, is incompatible ratione temporis with the provisions of the Convention and must be rejected according to Article 35 § 4 .

2. The applicant also complains under Article 13 of the Convention that he was denied an effective remedy in respect of his complaint under Article 3 that he was ill-treated during his detention on remand.

The Court observes that this provision recalls that the right to an effective remedy can only be claimed by someone who has an “arguable claim” to be the victim of a violation of a right guaranteed under the Convention (Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).

The Court has just examined the complaint based on Article 3 of the Convention and has found that it falls outside the competence ratione temporis of the Court.  It follows that the Court is not competent ratione temporis to examine whether the applicant had an “arguable claim” and therefore, the applicant’s submissions in respect of Article 13 also fall outside the Court’s competence ratione temporis .

For these reasons, the Court concludes that this part of the application should be rejected as inadmissible according with Article 35 § 4 of the Convention.

3. The applicant further complains under Article 5 § 1 of the Convention that his arrest on 5 March 1997 was unlawful. He also complains under Article 1 of Protocol No. 1 to the Convention that the police officers involved in his arrest unlawfully dispossessed him of his personal belongings.

The Court notes that the applicant’s complaints relate to the period between 5 March 1997, date on which he was arrested, and 22 July 1997, date on which the District Court of Buiucani convicted him.  It further notes that the Convention entered into force with respect to Moldova on 12 September 1997. The Court therefore finds that the above complaints, relating to a period prior to 12 September 1997, are incompatible with the provisions of the Convention ratione temporis and must be rejected according to Article 35 § 4 .

4. The applicant complains under Article 6 of the Convention that he did not have a fair hearing before the domestic courts. In particular, he complains that he was refused to call and question the injured party and the witnesses proposed by him, and that the evidence proposed by him, was not admitted in the file. He finally complains that the courts erroneously assessed the evidence and that the available evidence was not sufficient for his conviction.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant complains under Article 8 of the Convention about the interference of the prison administration with his right to respect for his correspondence with the Court and other domestic authorities.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

Decides to adjourn the examination of the applicant’s complaints concerning the fairness of the criminal proceedings conducted against him and his complaint about the interference with his right to respect for his correspondence.

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President