Information Note on the Court’s case-law 188

August-September 2015

Shishanov v. the Republic of Moldova - 11353/06

Judgment 15.9.2015 [Section III]

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to take general measures regarding conditions of detention and absence of effective preventive and compensatory remedy

Article 3

Degrading treatment

Conditions of detention – overcrowding, inadequate living and sanitary facilities, insufficient and substandard food: violation

Facts – The applicant, who was sentenced in 1996 to an aggregate term of twenty-five years’ imprisonment for a variety of serious offences, wa s held in several detention facilities. His complaints concerned, among other things, overcrowding, inappropriate living and hygiene conditions and the allegedly inadequate quality and quantity of the food.

In February 2014 the applicant was transferred to a detention facility in the Russian Federation.

Law – Article 3

(a) Admissibility (objection of failure to exhaust domestic remedies) – The Court had repeatedly held that the domestic remedies available di d not afford effective redress for violations of the Convention resulting from poor conditions of detention in the Republic of Moldova.

In the present case the civil action for damages against the State suggested by the Government was a purely compensatory remedy that was not capable of improving the applicant’s conditions of detention. The Government had not proved that the domestic case-law consisting in ordering the administrative authorities to pay financial compensation for poor conditions of detention had constituted, at the material time, an established, consistent and therefore foreseeable practice on the part of the civil courts. Accordingly, the Court was not convinced that a civil action for damages, although accessible, had been effective in prac tice.

As to whether an effective preventive remedy had been available to the applicant, the competent domestic authority had not examined the acts and omissions allegedly contrary to Article 3 from the standpoint of the principles and standards established by the Court’s case-law. Furthermore, after finding that the internal rules concerning prisoner hygiene had been breached in one prison, the investigating judge had not ordered the authority concerned to take any specific measures. The shortcomings observ ed by the investigating judge had been only partially remedied by the prison authorities. Hence, the application to the investigating judge had not been effective in practice.

The Government had further contended that the applicant should have brought a ci vil action for damages against the State on the basis of the investigating judge’s decision. However, even assuming that this remedy had been effective at the material time, prisoners who had obtained a decision in their favour could not be expected to att empt a series of remedies in order to have their fundamental rights recognised.

Conclusion : preliminary objection dismissed (unanimously).

(b) Merits – Article 3: The conditions of detention of which the applicant complained in each of the three prisons, namely overcrowding, inappropriate living and hygiene conditions and the allegedly inadequate quality and quantity of the food, had exceeded the thresh old of severity required under Article 3.

Conclusion : violation (unanimously).

Article 46: The Court had found a violation of Article 3 in the present case on account of overcrowding, inappropriate living and hygiene conditions and the inadequate quality and quantity of the food in the prisons where the applicant had been detained. Since September 2005* the Republic of Moldova had breached Article 3 on similar grounds in over 30 cases, and there were more than 70 pending applications relating primarily to the same issues.

Although the respondent State had taken steps to improve detention conditions, it was required to make an adequate and effective mechanism available to individuals enabling the competent domestic authority to examine the substance of compl aints relating to poor conditions of detention and to provide appropriate and sufficient redress.

“Preventive” remedies and those of a “compensatory” nature had to co-exist and complement each other. Hence, where an applicant was detained in conditions con trary to Article 3, the most appropriate form of redress was the prompt cessation of the violation of the right not to be subjected to inhuman and degrading treatment. Furthermore, any person who had been subjected to detention which infringed his or her d ignity should be able to obtain compensation for the violation found.

(a) Preventive remedies – The best option would be the creation of a special authority responsible for supervising detention facilities. In order for this remedy to be effective, the au thority in question would have to (i) be independent of the authorities in charge of the prison system, (ii) guarantee effective participation by prisoners during the examination of their complaints, (iii) examine prisoners’ complaints swiftly and diligent ly, (iv) have available a wide array of legal instruments with which to remedy the problems underlying those complaints and (v) be able to give binding and enforceable decisions. The remedy in question should also enable prompt action to be taken to put an end to imprisonment in conditions contrary to Article 3.

Another option would be to introduce a preventive remedy before a judicial authority by creating a new mechanism or adapting the existing system of application to the investigating judge. In the pre sent case the application to the investigating judge had been ineffective in practice, mainly because the judge had not ordered the administrative authorities to take any specific measures and because the authorities had afforded only partial redress for t he shortcomings identified by the judge. Hence, the competent judicial body should have the power to order the prison authorities to take specific remedial action capable of improving the situation not just of the complainant but also of other prisoners. T he State should also define the precise arrangements for implementing the measures ordered by the judge.

(b) Compensatory remedies – The burden of proof imposed on litigants must not be excessive. Prisoners could be required to demonstrate that there was at least the appearance of a violation of Article 3 and to furnish any evidence that was readily accessible. It would then be up to the domestic authorities to dispute those allegations.

With regard to procedural guarantees, the prisoner’s action should be heard within a reasonable time and the rules governing that action should comply with the principle of fairness as set forth in Article 6 § 1 of the Convention. The rules on court fees must not impose an excessive burden on the prisoner. Furthermore, the granting of compensation should not be determined by the applicant’s ability to prove that the conduct of the persons responsible or of the specific authorities had been unlawful. Lastly, the amount of compensation granted in respect of non-pecuniary damag e should not be unreasonable in comparison with the sums awarded by the Court in similar cases.

The compensatory remedy indicated by the Government in the present case, namely a civil action for damages against the State, had not been effective in practice . The explanatory decision by the Supreme Court of Justice sitting as a full court on 24 December 2012, regarding the examination of cases concerning compensation for pecuniary and non-pecuniary damage caused to prisoners as a result of violations of Artic les 3, 5 and 8 of the Convention, took into account most of the principles established by the Court in its case-law on the subject of compensatory remedies. However, the Supreme Court of Justice imposed on the applicant the burden of proving the existence of non-pecuniary damage. In that connection, the finding that the conditions of detention had been incompatible with the requirements of Article 3 of the Convention gave rise in itself to a strong presumption that the prisoner concerned had sustained non-p ecuniary damage.

Finally, a reduction of sentence in proportion to the number of days of detention spent in conditions incompatible with the Convention was a form of compensation that might be considered in the case of persons still in detention. At presen t, the Moldovan criminal courts could reduce the accused’s sentence if they found that he or she had been detained in conditions contrary to Article 3. However, the sentence of a person already convicted could not be reduced, and large numbers of prisoners were therefore not covered by this mechanism. The legislation did not provide for any specific method of calculating the reduction in sentence, and the courts were not required to reduce the sentence in proportion to the number of days of detention spent in conditions contrary to Article 3.

The Court further held that there had been a violation of Article 8 of the Convention for failure to observe the applicant’s right to respect for his correspondence.

Article 41: EUR 10,000 in respect of non-pecuniary da mage; claim for pecuniary damage dismissed.

(See also Ananyev and Others v. Russia , 42525/07 and 60800/08, 10 January 2012, Information Note 148 ; and Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Information Note 177 )

*  O strovar v. Moldova , 35207/03 , 13 September 2005

© Council of Europe/European Court of Human R ights This summary by the Registry does not bind the Court.

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