THIRD SECTION

Application no. 50157/06 Stefan MANGIR and others against Moldova and Russia lodged on 1 December 2006

STATEMENT OF FACTS

The applicants, Mr Ştefan Mangîr , Vitalie Vasiliev , Igor Daţco , Constantin Condrea , Alexandru Pohila , are Moldovan nationals who were born in 1967, 1978, 1976, 1979 and 1964 respectively and live in Bender (except for Mr Mangîr , who lives in Chişinău , and Mr Vasiliev , who lives in Căuşeni ). They were represented before the Court by Ms J. Hanganu , a lawyer practising in Chişinău .

A. The circumstances of the case

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

1. The applicants ’ arrest and alleged ill-treatment

On 14 June 2006 police officers Mangîr , Vasiliev and Condrea were arrested in Tiraspol by the secret service of the self-proclaimed “ Moldovan Republic of Transdniestria ” (“MRT”) [1] , where they were conducting a criminal investigation. During their arrest they managed to call the Bender police station.

The other two applicants (officers Daţco and Pohila ) went to Tiraspol to clarify the reasons for the arrest of their colleagues, but were also arrested upon arrival.

No warrant for their arrest has been issued, except for officer Mangîr (see below), and no warrant for the applicants ’ arrest was ever issued by any court officially constituted under Moldovan law.

The applicants were placed in the Tiraspol remand centre (IVS Tiraspol).

On 17 June 2006 officers Pohila , Daţco and Vasiliev were released without charge and without any explanation of the reason for their arrest.

On 18 June 2006 officer Mangîr was allegedly injected with an unknown substance which made him unconscious for four days. After his release he was subsequently admitted for in-patient treatment in the hospital of the Ministry of Internal Affairs of the Republic of Moldova .

On 20 June 2006 the “ Tiraspol city court” issued a warrant for the arrest of officer Mangîr for 30 days. On 23 June 2006 the MRT authorities released officers Mangîr and Condrea . The head of the MRT secret service declared in an interview that the officers had been released after Russian authorities had “given assurances” that Moldovan authorities would not “kidnap people” in MRT.

The applicants were accused in the MRT media of being part of “black squadrons” created for the purpose of kidnapping politicians and other persons causing nuisance to the Moldovan authorities. According to the applicants, during their detention they were interrogated by the MRT secret service and forced to declare that in Tiraspol they had been trying to kidnap MRT politicians. Officers Pohila , Daţco and Vasiliev were allegedly beaten on the soles of their feet and threatened with assassination of their family members, as well as with transfer to cells together with common criminals, where they would be ill-treated or even killed.

Officer Condrea was allegedly held in the so-called “Palestinian hanging” position for up to seven hours and was taken to his cell unconscious thereafter. All medical assistance was refused to the applicants.

2. Conditions of the applicants ’ detention

The applicants describe as follows their conditions of detention at the IVS Tiraspol. Cells were in the basement without any access to natural light. In the absence of ventilation and because of overcrowding it was difficult to breathe. Officer Condrea submits that he was detained in the same cell in which Mr Ilie IlaÅŸcu had been detained (see for more details IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII ).

During their detention the applicants did not have any daily walks or access to a shower, they could not receive parcels with food from their relatives, did not have bed linen and were not allowed to be seen by doctors.

B. The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Moldova in 2000 – CPT/ Inf (2002) 35

The relevant parts of the CPT report concerning the visit to Moldova , including its Transnistrian region, between 27 and 30 November 2000 read as follows:

“31. Regrettably, conditions of detention in the temporary holding facility (IVS) at Tiraspol Police Headquarters fell far short of meeting the standards referred to above and can only be described as wretched. This state of affairs is all the more serious given that persons are frequently held in the facility well beyond the normal 10-day limit (cf. paragraph 10).

The local Police Chief acknowledged that conditions of detention in the IVS were far from satisfactory and, more specifically, not in conformity on a number of points with the legal provisions governing the operation of the facility (i.e. Regulation 220 of 20 August 1996). He explained this situation by the rising crime rate (which had led to overcrowding) and the very limited budgetary means placed at his disposal.

32. The IVS at Tiraspol Police Headquarters is a basement-level facility which has thirteen cells of varying sizes. On the day of the delegation ’ s visit, 125 persons were being detained in the IVS, including nine women and an unspecified number of minors. The women were held together in one cell; as for the minors, they were held together with adults.

33. One of the largest cells (No. 12), measur ing 16 m², was accommodating 16 persons. Consultation of the custody register showed that this grossly excessive occupancy rate was in no way unusual and that on occasion it was even worse; 19 persons had been held in cell 12 in the recent past. The negative effects of the severe overcrowding were exacerbated by poor ventilation and lack of natural light. The cell window had been completely covered over and the only noticeable effect of the IVS ’ s ventilation system was to produce a lot of noise. As a result, the atmosphere was both stale and excessively warm. Artificial lighting was just about adequate (the detainees pointing out that they had bought the neon tube themselves).

A wooden platform covered most of the cell floor. However, given the number of detainees, it was not possible for all of them to lie down on the platform at the same time; consequently, sleeping took place in shifts. There were some blankets, but no mattresses. The rest of the cell ’ s equipment consisted of an asian toilet (a low partition offering a modicum of privacy), a washbasin, and an improvised table (apparently made by the detainees). As for the state of cleanliness and hygiene, the cell (including its toilet and washbasin) was filthy and infested with insects. The detainees had to rely heavily on their families for the provision of numerous items, including basic personal hygiene items.

Material conditions of detention in the other cells were in all respects very much the same as those described above. In particular, overcrowding reached alarming proportions in certain of them e.g. 9 persons in a cell of 7 m².

It should also be noted that the food given to detainees was the subject of widespread complaints, both as regards its quality (it was claimed that a thin gruel of poor nutritional quality was usually provided) and its quantity (in particular, the daily bread ration was only some 250 grammes , rather than the 500 grammes apparently foreseen by the applicable regulations). However, the food was said to be somewhat better on the day of the delegation ’ s visit.

34. Throughout their stay in the IVS, detainees only left their cells for questioning, visits from their lawyers and the occasional shower. Staff informed the delegation that detainees were offered a shower once every two weeks (the city providing the IVS with hot water at two-weekly intervals). The state of the shower room was in keeping with that of the rest of the detention facility.

The IVS did possess a "walking area". However, detainees alleged that they were rarely, if ever, taken there. The area in question consisted of a small and completely covered yard, immediately adjacent to the machinery operating the ventilation system. Although the yard was a very poor facility, regular access to it would no doubt come as a welcome break from conditions in the cells.

35. At the end of the visit, the CPT ’ s delegation identified three measures not requiring a substantial financial outlay which should be taken immediately to improve conditions of detention in the IVS at Tiraspol Police Headquarters:

- ensure that the ventilation system is serviced regularly;

- uncover the cell windows, so as to allow access to natural light and fresh air;

- give detainees regular access (if possible on a daily basis) to the IVS ’ s walking area.

The CPT requests information on the steps which have been taken to implement the above-mentioned measures.

36. The measures referred to in paragraph 35 will not be sufficient to bring conditions of detention in the IVS at Tiraspol Police Headquarters to an acceptable standard. Other measures which could and should be taken without delay include:

- providing mattresses in addition to blankets;

- ensuring that detainees have at their disposal basic personal hygiene products (soap, toilet paper, sanitary materials for women ’ s monthly needs, etc.); those detainees who cannot obtain such products from their families should have them provided by the authorities;

- offering detainees a warm shower once a week;

- giving detainees the necessary products to keep their cells clean and hygienic;

- ensuring that the food provided to detainees is adequate in terms both of quality and quantity;

- holding minors separately from adults;

- providing detainees with reading matter (newspapers, etc.);

The CPT recommends that immediate steps be taken to implement the measures set out in this paragraph.

37. Of course, resolving the fundamental problem of overcrowding in the IVS at Tiraspol Police Headquarters will require either a change in current law and practice with regard to pre-trial detention (cf. the recommendation in paragraph 12) or a significant extension of the facility ’ s premises. From a financial standpoint, the former would almost certainly be less onerous than the latter.

The CPT recommends that the authorities strive through all appropriate means to reduce significantly cell occupancy levels in the IVS at Tiraspol Police Headquarters.

38. As already indicated (paragraph 27), the IVS ’ s in-house health-care service consisted of one feldscher , who was present throughout the day on weekdays. This is manifestly insufficient for a facility accommodating well in excess of 100 detainees and having a rapid turnover of inmates. Not surprisingly, the delegation heard many complaints about inadequate medical care.

The CPT recommends that the health-care service in the IVS at Tiraspol Police Headquarters be reinforced immediately by an additional feldscher ; this reinforcement should, inter alia, make it possible to guarantee the presence of a feldscher seven days a week.

Further, the Committee recommends that arrangements be made for the IVS at Tiraspol Police Headquarters to be attended regularly by a doctor. In addition to providing medical examinations, such a doctor could assume responsibility for the health-care service and supervise the work of the feldschers .”

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that they were held in inhuman conditions of detention, that they were ill-treated physically and morally and were refused medical assistance.

2. They also complain under Article 5 § 1 (c) that they were arbitrarily arrested and detained in the absence of an arrest warrant.

3. They further complain under Article 5 §§ 3 and 4 of the Convention that they were not brought before a judge in order to decide on the lawfulness of their arrest and therefore could not appeal a non-existent decision to detain them.

4. They finally complain of a violation of Article 13 since they do not have a remedy before the Moldovan or Russian courts.

QUESTIONS

1. Do the applicants come within the jurisdiction of Moldova and/or Russia within the meaning of Article 1 of the Convention as interpreted by the Court, inter alia, in the case of IlaÅŸcu and Others v. Moldova and Russia [GC], (No. 48787/99, ECHR 2004-VII) on account of the circumstances of the present case?

In particular, in the light of the case of Ilaşcu and Others , could the responsibility of the respondent Governments under the Convention be engaged on account of their positive obligations to secure the applicants ’ rights under the Convention?

Have there been any developments following the IlaÅŸcu and Others case which might affect the responsibility of either Contracting Party?

2. Did the applicants exhaust “all domestic remedies ... , according to the generally recognised rules of international law ... ”, as required under Article 35 of the Convention?

3. Has there been a violation of Article 3 of the Convention? In particular: (a) were the applicants subjected to ill-treatment while in detention?

(b) was each of them given the medical assistance required by his condition?

(c) have the applicants been detained in inhuman and/or degrading conditions?

4. Do the facts of the case disclose a violation of Article 5 of the Convention? In particular:

(a) was the applicants ’ detention by the MRT authorities “lawful”, within the meaning of Article 5 § 1 of the Convention (see Ilaşcu and Others , § 461 et seq. )?

(b) after their arrest, were the applicants brought before a “judge or other officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention?

(c) did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?

5. Did the applicants have at their disposal effective remedies in respect of their complaints under Articles 3 and 5 of the Convention, as required under Article 13 of the Convention?

[1] 1. For further details see IlaÅŸcu and Others v. Moldova and Russia [GC] ( no. 48787/99, ECHR 2004 ‑ VII ).