Lexploria

Information Note on the Court’s case-law 226

February 2019

Draniceru v. the Republic of Moldova (dec.) - 31975/15

Decision 12.2.2019 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Effectiveness of new remedy for physical conditions of detention: inadmissible

Facts – In his application lodged in 2015 the applicant complained of the conditions of his detention.

Fol lowing the judgment in Shishanov v. the Republic of Moldova (11353/06, 15 September 2015, Information Note 188 ), the Moldovan Parliament enacted two laws (no. 163 et no. 272) introducing, among othe r things, a remedy for complaints about detention conditions. Those two laws were published on 20 October 2017 and 12 December 2018 respectively, and the provisions concerning the new remedy entered into force on 1 January 2019.

Law – Article 35 § 1: Even though the exhaustion of domestic remedies was to be assessed in principle on the date when the application was lodged, there were exceptions to the rule which could be justified by the circumstances of a given case, particularly where a remedy had been in troduced following a judgment of the Court, as in the applicant’s situation.

(a) Examination of the effectiveness of the new remedy, on the basis of the statutory provisions – For the reasons given below, the Court took the view that the new remedy, in pri nciple, offered prospects of appropriate redress in the event of violations of the Convention stemming from poor conditions of detention. However, as it was a remedy which had not existed for very long, this analysis was necessarily carried out by the Cour t on the basis of the statutory provisions. That conclusion did not therefore rule out, if necessary, a possible review of the question in the light of decisions taken by the domestic courts and their effective enforcement.

The Court first observed with satisfaction:

– that the procedure relating to the new remedy was in the hands of a judge who presented the requisite guarantees of independence and impartiality, and all the other safeguards associated with adversarial judicial proceedings, and whose decisions were bin ding on the administrative authorities and were immediately enforceable;

– that the burden of proof on the detainee did not appear excessive;

– that the judge was obliged, in order to assess the conditions of detention, to take account of the principles s et out by the Court;

– that the three-month period granted to the judge for a decision was not unreasonable; however, the judges would have to ensure strict compliance with that deadline and, where the circumstances called for particular expedition, they w ould have to process a case within an even shorter time-frame (compare Atanasov and Apostolov v. Bulgaria (dec.), 65540/16 and 22368/17, 27 June 2017, Information Note 209 ).

The Court then examined the preventive or compensatory measures which could be obtained by means of this new remedy.

(i) Preventive aspect – Under these new provisions, the judge could order a prison to remedy the situation within fifteen days; after that time, the prison service would have to inform the judge of the concrete measures taken. There was no evidence to suggest that this new remedy would not offer genuine prospects of improving unsatisfactory conditions of detention or that it would not be capable of providing prisone rs with an effective possibility of ensuring that the conditions met the requirements of Article 3 of the Convention.

The Court urgently requested the Moldovan authorities, and more precisely the domestic courts, to reduce the use of pre-trial detention a nd increase the use of non-custodial alternatives (compare Ananyev and Others v. Russia , 42525/07 and 60800/08, 10 January 2012, Information Note 148 ).

(ii) Compensatory aspect – The new provisions co uld be summarised as follows:

– For individuals serving a sentence, the forms of compensation were: (i) a reduction in sentence, on the basis of one to three days of remission for ten days of detention in unsatisfactory conditions; (ii) where such remissio n did not provide sufficient compensation or where the detention in such conditions lasted less than ten days, pecuniary compensation up to 100 Moldovan lei (about EUR 5.10 as at 1 January 2019) for each day of detention in unsatisfactory conditions.

– For persons in pre-trial detention, the court which decided on any custodial sentence would reduce that sentence by two days for each day of pre-trial detention in unsatisfactory conditions. If this proved impossible, the prisoner would be entitled to seek co mpensation through a civil action.

Moreover, it could be seen from these provisions that the granting of compensation for conditions of detention was not subject to the existence of unlawful conduct on the part of those responsible or of any specific autho rities.

The Court did not consider EUR 5.10 to be unreasonable as the maximum amount fixed per day of detention in unsatisfactory conditions. It was true that Moldovan law did not provide for any lower limit on the compensation to be awarded. That being sa id, the Court could not infer that the Moldovan courts would not succeed in establishing a coherent and homogeneous case-law that was compatible with its own.

(b) Immediate obligation to use the new domestic remedy – The newly introduced remedy was open to individuals who had been convicted or placed in pre-trial detention, and also – subject to compliance with the time-limits – to prisoners who had already been released. In addition, anyone who had a pending application before the Court was allowed an addi tional four months from 1 January 2019 in order to use it.

In the present case, the applicant therefore had to use the new remedy immediately. He could, if necessary, then submit a new application to the Court in view of the decision to be taken. The same obligation was incumbent on anyone in the same situation.

Conclusion : inadmissible (failure to exhaust domestic remedies).

(See also Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Information Note 177 ; and Domján v. Hungary (dec.), 5433/17, 14 November 2017, Information Note 212 )

Click here for the Case-Law Information Notes