Last Updated on May 17, 2021 by LawEuro
The present case concerns the alleged unlawful detention of the applicants, the prohibition to contact their relatives and the ill-treatment suffered by the first applicant while in detention.
SECOND SECTION
CASE OF MÎRCA v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Application no. 7845/06)
JUDGMENT
STRASBOURG
27 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Mîrca v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Aleš Pejchal, President,
Egidijus Kūris,
Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 7845/06) 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 two Moldovan nationals, Mr Alexei Mîrca (“the first applicant”) and Mr Dumitru Mîrca (“the second applicant”), on 8 February 2006;
the decision to give notice to the respondent Governments of the application, except for the complaint under Article 3 (ill-treatment) submitted by the second applicant, and to declare inadmissible this latter complaint;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the alleged unlawful detention of the applicants, the prohibition to contact their relatives and the ill-treatment suffered by the first applicant while in detention.
THE FACTS
2. The first applicant was born in 1949 and lives in Căușeni. The second applicant was born in 1953 and lives in Bender. The applicants were represented by Mr S. Burlaca, a lawyer practising in Chișinău.
3. The Moldovan Government were represented by their Agent, Mr O. Rotari. The Russian Government were represented by their Agent, Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights – deputy Minister of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. The applicants’ arrest following the arrest of their father
5. The applicants’ father, C.M., participated in the 1992 military conflict on the banks of the Nistru river on the side of the Moldovan authorities and against the forces of the self-proclaimed “Moldovan Republic of Transnistria” (the “MRT” (the “MRT” – see for more details Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). In 1993 he was charged by the “MRT” authorities with murder, following which he left the “MRT” region and settled in a village under Moldovan control near Bender/Tighina, a town which is controlled by the “MRT”. On 27 June 2004 C.M. was involved in a car accident, following which he was brought unconscious to a hospital in Bender/Tighina. In that hospital he was identified by the “MRT” militia as a fugitive and was later moved to a hospital in Tiraspol. He was handcuffed to the bed and guarded all the time by the “MRT” militia.
6. On 18 July 2004 the applicants visited C.M. in hospital. They stayed overnight at a friend’s house. During the same night C.M. escaped from hospital. On 19 July 2004, at 3 a.m., the “MRT” militia raided the house where the applicants were sleeping and arrested them.
7. On 26 July 2004 the applicants were charged with having committed the criminal offence of assisting in the escape of a detained person. On the same day, the Bender City Court released the second applicant, who undertook not to leave the town (Bender/Tighina). The first applicant was placed in detention pending trial for an undetermined period. On 19 August 2004 the second applicant was re-arrested.
8. On 29 July 2004 a criminal investigation was initiated into the unlawful deprivation of the applicants’ liberty. The 129-page criminal file includes interviews with witnesses, attempts to identify the owners of cars involved in the applicants’ abduction, provision of personal protection to their brother, examination of the circumstances in which the applicants’ brother ended in “MRT” detention after his accident, requests for information from the “MRT” authorities concerning any criminal investigations against the applicants, and other investigative actions.
9. On 26 October 2004 the Centre for Human Rights of Moldova (the Ombudsman institution) replied to the applicants’ brother that all of its previous efforts to ensure the observance of the applicants’ rights by the “MRT” authorities had been futile. His complaint and annexes were forwarded to the OSCE mission in Moldova and to the Ministry of Reintegration for further action.
10. On 26 November 2004 an “MRT” prosecutor started a criminal investigation against the applicants’ as regards their assistance in the escape of a detained person. On the same day, they were indicted for that offence. The prosecutor mentioned, inter alia, that during the investigation the applicants had alleged having been ill-treated by the “MRT” militia, but that in the absence of any evidence of such ill-treatment the complaint was rejected by a prosecutor’s decision of 26 November 2004.
11. On 20 May 2005 the Bender City Court extended the applicants’ detention pending trial until 9 September 2005. The prosecutor in charge of the case attended that hearing; there was no reference to the participation of the applicants or their lawyer.
12. On 16 June 2005 the Bender City Court convicted the applicants of assisting C.M. to escape and sentenced them to three years’ imprisonment. The applicants did not inform the Court of the further course of those proceedings. On 25 July 2006 the first applicant was released from prison on the basis of an amnesty act.
13. On 3 January 2006 the Moldovan Ministry of Internal Affairs replied to the applicants’ brother that, owing to the tensioned situation in Bender, it had not been possible to bring to justice any of the members of the “MRT” militia.
II. Alleged ill-treatment, inadequate conditions of detention and lack of medical assistance
14. According to the first applicant, he was ill-treated almost daily while in pre-trial detention in order to extract confessions from him. He was denied access to a doctor or a lawyer during the first eight days of his detention. According to both applicants, no relatives were allowed to see them. Only once was the first applicant allowed to see his son, who observed that his father was in very bad shape.
15. Initially the applicants were not allowed pens and paper and so no complaint about ill-treatment could be made. All oral complaints to prosecutors went unanswered, as it was considered that the applicants’ case was a political one. Eventually written complaints were made, which were annexed to the criminal file against the applicants and dismissed at a later stage for lack of evidence. According to the applicants, the investigators dismissed the complaints about ill-treatment on the ground that the injuries had been caused as a result of disobeying the prison guards’ instructions. They have not submitted any documents in support of their allegations.
16. The first applicant submitted a copy of a medical certificate dated 16 July 2004, according to which he had been declared healthy and fit for work three days prior to his arrest. After his release from prison on 25 July 2006, on 22 August 2006 he was examined by the Memoria Rehabilitation Centre for Torture Victims, which established that the first applicant had been suffering, inter alia, the consequences of a cerebral trauma with organic post-traumatic cerebral syndrome, traumatic neurosis and anxiety‑depressive disorder. The document concluded that most of the medical findings corroborated his claim that he had been ill-treated.
17. The applicants describde the conditions of their detention, first in the prison in Tiraspol, then in the prison in Hlinaia, as follows. They were held in cells with up to twenty other detainees. They slept on bunk-beds. It was very hot in summer. Sanitary conditions were very poor. The cells lacked access to daylight and had a strong smell. There were no toilets in the cells. According to his lawyers, the second applicant’s state of health has worsened (partial loss of sight, kidney problems) and the prison administration asked his relatives to bring medicines needed for treating him.
III. Alleged censorship of correspondence and limitation of the right of family visits
18. According to the applicants, all their correspondence, including with their family members, was censored during their detention.
19. The applicants were able to communicate with their families only after their conviction on 16 June 2005. Moreover, even representatives of the Organization for Security and Co-operation in Europe (OSCE) were not allowed to meet the applicants.
RELEVANT LEGAL FRAMEWORK
20. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, ECHR 2016).
THE LAW
I. JURISDICTION
21. The Russian Government argued that the applicants did not come within their jurisdiction. Consequently, the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.
22. The Court notes that the parties in the present case have positions concerning the matter of jurisdiction which are similar to those expressed by the parties in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 83-101, ECHR 2012 and in Mozer (cited above, §§ 81-95). Namely, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. The Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others v. Moldova and Russia [GC] (no. 48787/99, ECHR 2004 VII) was wrong and at variance with public international law.
23. The Court observes that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts undertaken and facts arising in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98).
24. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer cases it found that, although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).
25. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova had jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).
26. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others v. Moldova and Russia, no. 23687/05, § 116-20, 15 November 2011; Catan and Others, cited above, §§ 121-22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicants fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110‑11).
27. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above).
28. It follows that the applicants in the present cases fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.
29. The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30. The applicants complained about inhuman conditions of detention. The first applicant also complained that he had been ill-treated while in detention in the “MRT”. They all 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
31. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The complaint concerning inhuman conditions of detention
32. The applicants submitted that they had been held in inhuman conditions and not provided with medical assistance they needed. They gave detailed descriptions of those conditions (see paragraph 17 above).
33. Neither of the respondent Governments made comments in this respect.
34. The Court notes that the applicants were held in detention in various “MRT” prisons during 2004-2006. It also notes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the “MRT” region in 2000 and expressed serious concerns regarding the conditions of detention in the “MRT” prisons which they had visited. In 2010 the CPT was not allowed to have private meetings with detainees, prompting it not to visit the region (see Mozer, cited above, §§ 63 and 64).
35. The Court considers that, in view of the detailed description made by the applicants and in the absence of any arguments and evidence to contradict that description, added to the findings made by the CPT in the region and its own findings concerning prisons in “MRT” (see, for instance, Mozer, cited above, § 28 and Ilașcu, cited above, §§ 240-266), it can but conclude that the applicants were held in conditions which are incompatible with the requirements of Article 3, notably the severe overcrowding, lacking sanitary conditions, insufficient access to daylight and insufficient medical assistance, particularly in view of the second applicant’s health problems (see paragraph 17 above).
2. The complaint concerning the first applicant’s ill-treatment
36. The first applicant complained that during his detention pending trial he had been severely beaten in order to extract self-incriminating statements.
37. The respondent Governments did not make any comments in this regard.
38. The Court notes that the first applicant was in good health only three days prior to his arrest and that after his release he was diagnosed with consequences of a cerebral trauma with organic post-traumatic cerebral syndrome and other disorders consistent with his allegation that he had been ill-treated (see paragraph 16 above). In the absence of any materials and arguments contradicting the applicant’s allegations and in view of the medical documents in the file, the Court concludes that the first applicant has been ill-treated while in detention. There has thus been a breach of Article 3 of the Convention in this respect.
C. Responsibility of the respondent States
1. The Republic of Moldova
39. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicants’ rights under Article 3 of the Convention (see paragraph 24 above). In Mozer the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151).
40. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). The events complained of in all the present applications concern events predating that case. It therefore sees no reason to reach a different conclusion from that reached in Mozer (cited above, § 152).
41. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that the Republic of Moldova had failed to fully comply with its positive obligations, to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, the applicants submitted that the Republic of Moldova had not discharged its positive obligations since various State authorities replied that they could not take action on the territory under the de facto control of the “MRT”.
42. The Court considers that Moldovan authorities did not have any real means of improving the conditions of detention in the “MRT” prisons, nor could they move the applicants to other prisons (see, a contrario, Pocasovschi and Mihaila v. the Republic of Moldova and Russia, no. 1089/09, § 46, 29 May 2018). Moreover, they could not properly investigate the allegations of ill-treatment or of unlawful detention. As is clear from the case-file, the criminal investigations concerning unlawful acts by the “MRT” authorities had to be suspended due to the absence of cooperation by that region, making it impossible to carry out any meaningful prosecution.
43. It also notes that those applicants who had been convicted by “MRT” courts could ask the Moldovan courts to quash those convictions (Mozer, cited above, § 73).
44. In such circumstances, the Court cannot conclude that the Republic of Moldova failed to fulfil its positive obligations in respect of the applicants (see Mozer, cited above, § 154).
45. There has therefore been no violation of Article 3 of the Convention by the Republic Moldova.
2. The Russian Federation
46. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period of the applicants’ detention (see paragraphs 26-28 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicants’ rights (ibidem).
47. In conclusion, having found that the applicants were held in inhuman conditions within the meaning of Article 3 of the Convention and that the first applicant had been ill-treated, the Court holds that there has been a violation of that provision by the Russian Federation.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
48. The applicants complained of a violation of Article 5 § 1 of the Convention owing to their detention on the basis of decisions by the “MRT” authorities, the latter having been unlawfully taken.
The relevant parts of Article 5 read:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…”
A. Admissibility
49. 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.
B. Merits
50. The applicants submitted that they had been detained by private individuals who did not have the authority under Moldovan law to deprive them of their liberty.
51. The Moldovan Government submitted that they had difficulties in assessing the situation, in the absence of any effective control over the territory controlled by the “MRT”.
52. The Russian Government argued that the Court’s findings made in Mozer (cited above) and Vardanean v. the Republic of Moldova and Russia (no. 22200/10, § 39, 30 May 2017) were based on the findings in Ilașcu and Others (cited above), which in turn was based on a report written in 1994 by two persons at the request of the OSCE. That report, together with the absence of any new information about the legal and judicial system in the “MRT”, should not still be the basis for the Court’s conclusions in 2020. They submitted a summary of various legal provisions and agreements in force on the territory of the “MRT”, including information about the judicial organisation and guarantees of independence of the judges and examples of successful protection of human rights in the region. They did not submit any copies of the relevant documents.
53. The Court reiterates that it is well established in its case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and Mozer, cited above, § 134).
54. In the present case, it is noted that the Russian Federation submitted a summary of documents concerning the judicial system in the “MRT”, without submitting copies of the documents themselves (see paragraph 52 above). However, they failed to explain whether the judicial system or legislation which they have described in the “MRT” was in force during the relevant events (2004-2006). The Court recalls that, for this period, it has already established that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-49). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicant’s “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer, cited above, § 150).
55. In the light of the above, the Court considers that the conclusion reached in Mozer is valid in the present case too. There has accordingly been a violation of Article 5 § 1 of the Convention.
56. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant’s rights under Article 5 of the Convention. For the same reasons as those mentioned in paragraphs 40-44 above, the Court finds that Moldova has not failed in fulfilling its positive obligations under Article 5 of the Convention. There has accordingly been no breach of that provision by the Republic of Moldova.
57. As concerns the Russian Federation, for the same reasons as those mentioned in paragraphs 46 and 47 above, the Court finds that Russia is responsible for the breach of Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION ARTILE 6 § 1 OF THE CONVENTION
58. The applicants complained of a breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. Admissibility
59. The Russian Government argued that after the passage of fifteen years since the relevant events, the Court’s supervision of the observance of the applicants’ rights would not be “practical and effective”. They therefore invited the Court to end its examination of the case.
60. The Court notes that the applicants lodged their application in 2006, shortly after their conviction, and cannot be faulted for the time that has passed since then. It is also clear that their criminal conviction is still registered in the “MRT”. Regardless of whether such a conviction is recognised as lawful outside the region, it can be seen as continuing to affect the applicants. Therefore, the Court considers that continuing the examination of the case will serve as an effective protection of their rights.
61. 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.
B. Merits
62. The applicants complained under Article 6 § 1 of the Convention that the “MRT” courts which had convicted them could not be considered as an “independent tribunal established by law”.
63. The Moldovan Government submitted that Article 6 § 1 of the Convention had been breached since the tribunals created in the “MRT” had not been established by law. They added that they could not verify the authenticity and accuracy of any texts which may be presented to the Court as “MRT law”. Moreover, recent reports made by United Nations experts show that the basic principles of democracy, independence and impartiality of judicial organisation are not met in the Transdniestrian region.
64. Apart from submitting a summary of the “MRT” legislation and practice (see paragraph 52 above), the Russian Government did not make any submissions on the merits of this complaint.
65. The Court refers to its finding (see paragraphs 54 and 55 above) that the information submitted by the Russian Government was insufficient to justify a departure from its conclusions in previous cases concerning the nature of the judicial system in the “MRT”. It also refers to its conclusion (see paragraph 54 above) that the “MRT” courts could not order the applicants’ “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention. It considers, by implication, that the “MRT” courts could not qualify as an “independent tribunal established by law” for the purposes of Article 6 § 1 of the Convention (see, for instance, Vardanean, cited above, § 39). The Court therefore considers that there has been a breach of Article 6 § 1 of the Convention in the present case.
66. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicants’ rights (see paragraph 24 above). For the same reasons as those mentioned in paragraphs 40-44 above, the Court finds that Moldova has not failed in fulfilling its positive obligations under Article 6 § 1 of the Convention. There has accordingly been no breach of that provision by the Republic of Moldova.
67. As regards the Russian Federation, for the same reasons as those mentioned in paragraphs 46 and 47 above, the Court finds that Russia is responsible for the breach of Article 6 § 1 of the Convention.
V. ALLEGED VIOLATION ARTILE 8 OF THE CONVENTION
68. Lastly, the applicants complained of a violation of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
69. 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.
B. Merits
70. The applicants submitted that their correspondence while in detention had been censored. Moreover, they were not allowed for a significant time to meet their relatives while in detention, without any particular reason (see paragraphs 18 and 19 above).
71. The Moldovan Government submitted that, provided that the applicants’ account of events had been accurate, there had been a violation of Article 8 in the present case, for which they could not be held responsible. The Russian Government did not comment.
72. The Court notes that none of the respondent Governments objected to the account of events constituting the basis for this complaint. Accordingly, it accepts the applicants’ statements as an accurate reflection of the events.
73. The Court considers that the opening and reading of private correspondence sent to or by a detainee clearly amounts to an interference with the right to respect for a person’s correspondence guaranteed by Article 8 of the Convention (see, for instance, Porowski v. Poland, no. 34458/03, §§ 166-168, 21 March 2017).
74. Even assuming that such acts were in accordance with the law of the “MRT”, whose provisions were not communicated by the respondent Governments, the Court notes the absence of any justification for such monitoring.
75. Similarly, the Court does not see any justification or any lawful basis under Moldovan law in refusing the applicants family visits until their conviction.
76. This is sufficient for the Court to conclude that there has been a breach of Article 8 of the Convention in the present case.
77. For the same reasons as those mentioned in paragraphs 40-44 above, the Court finds that Moldova has not failed in fulfilling its positive obligations under Article 8 of the Convention. There has accordingly been no breach of that provision by the Republic of Moldova.
78. As regards the Russian Federation, for the same reasons as those mentioned in paragraphs 46 and 47 above, the Court finds that Russia is responsible for the breach of Article 8 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
79. The applicants complained that they did not have any effective remedy in respect of their complaints under Articles 3, 5, 6 and 8 of the Convention. In this connection, they alleged a breach of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
80. 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.
B. Merits
81. The applicants considered that they had no means of asserting their rights in the face of the actions of the “MRT” authorities.
82. The Moldovan Government submitted that there had been a violation of Article 13 in the present case, for which they could not be held responsible. The Russian Government did not make any specific comment.
83. The Court reiterates its finding in Mozer (cited above, § 211) that “… in certain circumstances applicants may be required to exhaust effective remedies available in an unrecognised entity (see Demopoulos and Others, cited above, §§ 89 and 92-96). However, there is no indication in the file, and the Russian Government have not claimed, that any effective remedies were available to the applicant in the ‘MRT’ in respect of the above‑mentioned complaints”. Since the present case refers to a period (2004-2006) covered by the findings in Mozer, the Court does not see any reason to depart from that conclusion in the present case.
84. The Court therefore concludes that the applicants did not have an effective remedy in respect of their complaints under Articles 3, 5, 6 and 8 of the Convention. Consequently, the Court must decide whether the violation of Article 13 can be attributed to any of the respondent States.
85. The Court notes that in Mozer (cited above, §§ 213-216) it found that Moldova had made procedures available to applicants commensurate with its limited ability to protect their rights. It had thus fulfilled its positive obligations and the Court found that there had been no violation of Article 13 of the Convention by that State. In view of the similarity of the complaints made and of the coincidence of the time-frame of the events in the present cases with those in Mozer, the Court sees no reasons to depart from that conclusion in the present cases. Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by the Republic of Moldova.
86. As in Mozer (cited above, §§ 217-218), in the absence of any submission by the Russian Government as to any remedies available to the applicants, the Court concludes that there has been a violation by the Russian Federation of Article 13, taken in conjunction with Articles 3, 5, 6 and 8 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
87. 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. Non-pecuniary damage
88. The applicants claimed 35,000 euros (EUR) each in respect of the non-pecuniary damage caused to them as a result of ill-treatment, inhuman conditions of detention, and insufficient medical assistance.
89. The Moldovan Government submitted that the sums claimed were excessive.
90. The Russian Government argued that the applicants’ claims were excessive, unsubstantiated and guided by their political preferences.
91. The Court notes that it has not found any violation of the Convention by Moldova in the present case. Accordingly, no award of compensation is to be made with regard to this respondent State.
92. The Court considers that the applicants have suffered a certain level of stress following their unlawful detention in inhuman conditions, the first applicant’s ill-treatment, as well as their unlawful conviction by a tribunal not established by law and unjustified interference with their right to private and family life. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court awards the sums below, in respect of non‑pecuniary damage, to be paid by the Russian Federation:
– EUR 20,000, plus any tax that may be chargeable, to Mr Alexei Mîrca
– EUR 12,500, plus any tax that may be chargeable, to Mr Dumitru Mîrca.
B. Costs and expenses
93. The applicants claimed EUR 2,100 jointly in respect of costs and expenses. They relied on a contract concluded with their lawyer, as well as an itemised list of hours worked on the case.
94. The Moldovan Government submitted that the sum claimed was excessive. The Russian Government did not comment.
95. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer, cited above, § 240). Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses, to be paid by the Russian Federation.
96. 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 application admissible;
2. Holds that there has been no violation of Article 3 of the Convention by the Republic of Moldova;
3. Holds that there has been a violation of Article 3 of the Convention by the Russian Federation in respect of the first applicant’s ill-treatment, the second applicant’s insufficient medical treatment and both applicants’ inhuman conditions of detention;
4. Holds that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova;
5. Holds that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation;
6. Holds that there has been no violation of Article 6 § 1 of the Convention by the Republic of Moldova;
7. Holds that there has been a violation of Article 6 § 1 of the Convention by the Russian Federation;
8. Holds, that there has been no violation of Article 8 of the Convention by the Republic of Moldova;
9. Holds that there has been a violation of Article 8 of the Convention by the Russian Federation, both with respect to the censorship of the applicants’ correspondence in prison and the restriction of their right to family visits while in detention;
10. Holds that there has been no violation of Article 13 in conjunction with Articles 3, 5, 6 and 8 of the Convention by the Republic of Moldova;
11. Holds that there has been a violation of Article 13 in conjunction with Article 3, 5, 6 and 8 of the Convention by the Russian Federation;
12. Holds
(a) that the Russian Federation is to pay the applicants, within three months, the following amounts:
(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Alexei Mîrca;
(ii) EUR 12,500 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Dumitru Mîrca;
(iii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable to the applicants, 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;
13. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 27 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Aleš Pejchal
Deputy Registrar President
Leave a Reply