SECOND SECTION

CASE OF BAÅžTOVOI v. THE REPUBLIC OF MOLDOVA

( Application no. 36125/14 )

JUDGMENT

STRASBOURG

5 July 2016

This judgment is final. It may be subject to editorial revision.

In the case of BaÅŸtovoi v. the Republic of Moldova ,

The European Court of Human Rights ( Second Section ), sitting as a Committee composed of:

Stéphanie Mourou-Vikström , President, Valeriu Griţco , Georges Ravarani, judges, and Hasan Bakirci , Deputy Section Registrar ,

Having deliberated in private on 14 June 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 36125/14) 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 Andrei Baştovoi (“the applicant”), on 24 April 2014 .

2 . The applicant, who had been granted legal aid, was represented by Mr R. Zadoinov , a lawyer practising in Chișinău . The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol .

3 . On 18 December 2014 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1959 and is currently detained in Chișinău .

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

6 . On 23 December 2013 the applicant was arrested and charged with embezzlement and organising the attempted murder of two businessmen. Since that date he has been detained in Prison no. 13.

7 . According to the applicant, he has been detained in a cell measuring 6 square metres with five other inmates, which left very little space for each detainee. Due to overcrowding, detainees had to share beds. He was not provided with bedding or a pillow. There was no sink or running water in the cell. The food was of poor quality and inedible. The squat toilet was not separated from the rest of the cell and gave off a foul odour. There was a lso a lack of daylight and poor ventilation.

8 . The applicant asserted that he had been detained with inmates diagnosed with tuberculosis, HIV/AIDS and other infectious diseases. As a result of being held in inhuman conditions of detention , he had be en ill with mycosis, gastritis and a respiratory infection. He was not provided with any medical assistance and was forbidden from receiving herbal medicine from his wife.

9 . The applicant complained of inhuman conditions of detention to the Chișinău p rosecutor ’ s o ffice and Court of Appeal. On 14 April 2014 the Prisons Department replied that after examin ing his allegations , it had not f ound any violation of domestic law .

10 . The Government submitted that the applicant ’ s cell ( no. 130 ) measured 10 square metres and was designed to accommodate four people. All detainees had their own beds. The cell was equipped with a sink and running water. The applicant was provided with bedding, hygiene products tailored to his needs and hot food three times a day , in accordance with Government Decision no. 609 concerning the minimum daily food requirements for detainees. The Government contended that the cell in question had not accommodated people with infectious diseases. They added that the applicant had been provided with medical assistance and submitted evidence of various medical check-ups.

II. RELEVANT MATERIAL

11 . The Court refers to the relevant material cited in its previous case ‑ law concerning the Republic of Moldova (see, for instance, Shishanov v. the Republic of Moldova , no. 11353/06 , §§ 50- 61 , 15 September 2015 ).

12 . In its report s for 2013 , 2014 and 2015 on conditions of detention following several visit s undertaken in Chișină u Prison no. 13, the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found serious problems , notably concerning overcrowding, food quality, ventilation and access to daylight. In view of its findings , it recommended in its reports for 2014 and 2015 that Prison no. 13 be closed or if that was not possible , that the conditions of detention there be urgently improved .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

13 . The applicant complained that the material conditions of detention and lack of medical assistance in Prison no. 13 amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

14 . The Government submitted that by not claiming compensation for the damage allegedly caused as a result of his detention in inhuman conditions , the applicant had failed to exhaust the available domestic remedies . They submitted a summary of forty-six cases examined by the domestic courts in which detainees had lodged claims seeking compen sation for violations of Article 3 of the Convention . They also pointed to an explanatory decision of the Supreme Court of Justice dated 24 December 2012 concerning the compensatory remedy introduced for violations of Articles 3, 5 and 8.

15 . The applicant argued that he had no effective remedies in respect of h is complaints under Article 3.

16 . In so far as the domestic case-law relied on by the Government is concerned, it is noted that no copies of the relevant judgments were submitted to the Court.

17 . The Court observes that it found violation s of Article 13 of the Convention in Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no. 47203/06 , § 50, 30 November 2010) and Rotaru v. Moldova (no. 51216/06 , § 47, 15 February 2011) on account of the lack of effective remedies in Moldova for inhuman and degrading conditions of detention. It also observes that the remedy suggested by the Government does not have a preventive effect in the sense of improving the conditions of an applicant ’ s detention, only a compensatory effect (see, for instance, Holomiov v. Moldova , no. 30649/05, § 107, 7 November 2006 ). I t is not therefore effective in case s where people are still detained in such conditions at the time of lodging their application with the Court (see, for instance, Oprea v. Moldova , no. 38055/06 , § 33, 21 December 2010 ). In the present case, the applicant was in detention at the time he lodged his application and complained to the Chișinău Court of Appeal and p rosecutor ’ s o ffice about his conditions of detention. It would appear that his situation did not change. The Court therefore rejec ts the Government ’ s objection.

18 . 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.

19 . At the same time, the Court notes that the applicant failed to substantiate the part of the complaint under Article 3 of the Convention that he had not been provided with appropriate medical assistance during detention. According to evidence submitted by the Government, he was seen by a doctor when he was placed in detention and on several subsequent occasions was examined by an ophthalmologist and a rheumatologist and was provided with medical care in accordance with his needs. The applicant did not adduce any evidence that he had asked for but had not received any additional specific type of medical treatment or that the prison administration had forbidden him from receiving herbal medicine from his wife. 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 .

B. Merits

20 . The applicant submitted that the conditions of detention in Prison no. 13 amounted to inhuman and degrading treatment, and referred in particular to overcrowding, poor food quality, a lack of ventilation and access to daylight and a lack of separation between the squat toilet and the rest of the cell.

21 . The Government submitted that the conditions of detention in Prison no. 13 did not amount to inhuman and degrading treatment and argued that prison cells were renovated every year.

22 . 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 and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see KudÅ‚a v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI, and Popov v. Russia , no. 26853/04, § 208, 13 July 2006).

23 . It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania , no. 53254/99, §§ 39, 7 April 2005, and Ananyev and Others , nos. 42525/07 and 60800/08, §§ 139 ‑ 165, 10 January 2012, §§ 145-147 and 149).

24 . 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 10 above) and the Human Rights Centre (see paragraph 12 above). Moreover, the poor food quality, lack of daylight , poor ventilation and lack of privacy when using the toilet all further increased the applicant ’ s suffering, which exceeded the unavoidable level of hardship inherent in detention (see Onaca v. Romania , no. 22661/06, §§ 38-39, 13 March 2012) . In the absence of any evidence from the Government that considerable improvements in Prison no. 13 had taken place during recent years, the Court considers that there is no reason to depart from the conclusions reached in its previous judgments (see , among recent authorities , Silvestru v. the Republic of Moldova , no. 28173/10 , 13 January 2015; Pisaroglu v. the Republic of Moldova , no. 21061/11 , 3 March 2015; and Mescereacov v. the Republic of Moldova , no. 61050/11, 16 February 2016).

25 . The Court also reiterates that in the leading case of Shishanov v. the Republic of Moldova ( cited above , § 139) , it found it 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 combination of remedies with preventive and compensatory effect in order to guarantee that breaches of the Convention resulting from inappropriate conditions of detention in the Republic of Moldova are effectively redressed.

26 . 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.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

27 . Relying on Article 13 of the Convention, t he applicant complained of a violation of his right to an effective domestic remedy in respect of his complaints under Article 3 .

28 . The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3. They relied on a list of domestic cases.

29 . 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.

30 . As the Court has held on many occasions, Article 13 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 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.

31 . In the present case, for the same reasons as those which have led to the dismissal of the Government ’ s objection concerning the exhaustion of domestic remedies (see paragraph 1 7 a bove), the Court finds that there has been a violation of Article 13 owing to the absence of any effective remedies in respect of complaints concerning conditions of detention in Moldova.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . 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

33 . The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage suffered as a result of his detention in inhuman and degrading conditions.

34 . The Government submitted that the amount claimed was excessive.

35 . The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage. Deciding on an equitable basis, it awards him EUR 5 , 70 0.

B. Costs and expenses

36 . The applicant also claimed EUR 3,500 for the costs and expenses incurred before the domestic courts and the Court. He relied on a contract with his lawyer, as well as an itemised timesheet outlining the hours worked by him , amounting to sixty hours at an hourly rate of EUR 100.

37 . The Government considered the amount claimed excessive and disputed the number of hours worked by the applicant ’ s lawyer.

38 . 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 1,500 for costs and expenses, less EUR 850 already paid in legal aid by the Council of Europe .

C. Default interest

39 . 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 ( concerning poor conditions of detention ) and Article 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 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 the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 5 , 70 0 ( five thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage ;

(ii) EUR 650 (six hundred and fifty 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 5 July 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakirci Stéphanie Mourou-Vikström Deputy Registrar President