Постановление ЕСПЧ от 23.02.2016 <Дело Мозер (Mozer) против Республики Молдова и России> (жалоба N 11138/10) [англ.] Часть 4

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  1. Alleged violation of Article 2 of the Convention

 

  1. The applicant complained about the authorities’ failure to provide him with the requisite medical assistance for his condition. He argued that this failure exposed him to a real risk to his life, contrary to Article 2 of the Convention, the relevant part of which reads as follows:

«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally…»

 

  1. Admissibility

 

  1. 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.

 

  1. Merits
  1. The parties’ submissions

 

  1. The applicant submitted that in view of the acute nature of his condition and the many asthma attacks he suffered, coupled with the unfavourable prognosis he had been given by the doctors, the «MRT» authorities’ failure to provide him with the requisite medical assistance for his condition or to release him pending trial in order to seek medical assistance in civilian hospitals had exposed him to a real risk of suffocating to death. Moreover, after a medical panel had established that risk, and in the absence of appropriate medical equipment at the Centre, he had in fact been transferred on 15 February 2010 to an ordinary prison which was even less well equipped (see paragraph 38 above).
  2. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestrian region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant’s rights.
  3. The Russian Government submitted that all questions concerning the protection of the applicant’s rights were to be answered exclusively by Moldova. They added that in the absence of any means of confirming the facts of the case, such as medical evidence, they could not assess the conditions of the applicant’s detention or the quality of the medical treatment he had received.

 

  1. The Court’s assessment

 

  1. The Court has established that there may be a positive obligation on a State under the first sentence of Article 2 § 1 to protect the life of an individual from third parties or from the risk of life-endangering illness (see Osman v. the United Kingdom, 28 October 1998, §§ 115 — 122, Reports 1998-VIII; v. Turkey, 2 September 1998, §§ 92 — 108, Reports 1998-VI; and L.C.B. v. the United Kingdom, 9 June 1998, §§ 36 — 41, Reports 1998-III). At the same time, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004-XI).
  2. In the present case the Court notes that, despite the applicant’s unfavourable overall prognosis, the doctors at no point established that there was an immediate risk to his life. They were able to stop the applicant’s asthma attacks, even though doing so required the use of medication brought in by his parents.
  3. That being so, the Court considers that the facts complained of by the applicant do not call for a separate examination under Article 2 of the Convention, but would be more appropriately examined under Article 3 instead (see, mutatis mutandis, and Others, cited above, § 418).

 

  1. Alleged violation of Article 3 of the Convention

 

  1. The applicant complained that he had not been given the requisite medical assistance for his condition and had been held in inhuman conditions of detention. 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.»

 

  1. Admissibility

 

  1. 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.

 

  1. Merits
  1. The parties’ submissions

 

  1. The applicant complained that the two respondent Governments had failed to secure his rights under Article 3, particularly with regard to the provision of medical assistance and the conditions of his detention.
  2. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestria region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant’s rights.
  3. According to the Russian Government, in the absence of any jurisdiction within the meaning of Article 1 of the Convention over the territory of Transdniestria, they could neither verify the facts as described by the applicant nor comment on the merits of his complaint.

 

  1. The Court’s assessment

 

  1. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III; Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).
  2. 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 of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see , cited above, § 94; and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014 (extracts)) and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see , cited above, § 94; and Idalov v. Russia [GC], no. 5826/03, § 93, 22 May 2012). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released «on compassionate grounds», it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Pakhomov v. Russia, no. 44917/08, § 61, 30 September 2010; and Gladkiy v. Russia, no. 3242/03, § 83, 21 December 2010).
  3. In the present case the Court notes that, although the doctors considered the applicant’s condition to be deteriorating and the specialists and equipment required to treat him to be lacking, the «MRT» authorities not only refused to transfer him to a civilian hospital for treatment but also exposed him to further suffering and a more serious risk to his health by transferring him to an ordinary prison on 15 February 2010 (see paragraph 38 above). It is indisputable that the applicant suffered greatly from his asthma attacks. The Court is also struck by the fact that the applicant’s illness, while considered serious enough to warrant the transfer to a civilian hospital of a convicted person, was not a ground for the similar transfer of a person awaiting trial (see paragraph 35 above). In view of the lack of any explanation for the refusal to offer him appropriate treatment, the Court finds that the medical assistance received by the applicant was not adequately secured.
  4. The Court will now turn to the conditions of the applicant’s detention. According to him, the cell was very hot, humid and poorly ventilated and lacked access to natural light. It was overcrowded and full of cigarette smoke as well as parasitic insects. He lacked access to a toilet for hours on end and was unable to dry clothes outside the cell. The food was inedible and there were no hygiene products. Throughout his detention he did not receive the medical assistance required by his condition (see paragraphs 28 to 41 above).
  5. While the respondent Governments have not commented on the description provided by the applicant (see paragraphs 28 to 38 above), it is largely confirmed by the reports of the CPT and the United Nations Special Rapporteur on visits to various places of detention in the «MRT» (see paragraphs 61 — 64 above). The Court notes in particular that the latter’s visit took place in July 2008, some four months before the applicant was taken into detention.
  6. On the basis of the material before it, the Court finds it established that the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of severe overcrowding, lack of access to daylight and lack of working ventilation which, coupled with cigarette smoke and dampness in the cell, aggravated the applicant’s asthma attacks.

 

  1. Responsibility of the respondent States

 

  1. The Court considers that there is no material difference in the nature of each respondent State’s responsibility under the Convention in respect of the various complaints made in the present case. Accordingly, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 — 155 above), the Court finds that there has been no violation of Article 3 of the Convention by the Republic of Moldova.
  2. For the same reasons as above (see paragraphs 156 — 159), the Court finds that there has been a violation of Article 3 of the Convention by the Russian Federation.

 

  1. Alleged violation of Articles 8 and 9 of the Convention

 

  1. The applicant further complained that for no apparent reason he had been unable to meet his parents for a considerable length of time, and that during the meetings that had eventually been authorised they had not been allowed to speak their own language. He had also been prevented from seeing his pastor. He relied on Articles 8 and 9 of the Convention, which read as follows:

Article 8

«1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. 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.»

Article 9

«1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

  1. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.»

 

  1. Admissibility

 

  1. 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.

 

  1. Merits
  1. The parties’ submissions

 

  1. The applicant submitted that for a considerable length of time during the investigation he had been unable to meet his parents. When they were finally allowed to meet they had been asked to speak Russian rather than their native language. He had also been unable to see his pastor, and when this was eventually allowed a prison guard had been present. No reasons had been advanced as to why such strict measures had been implemented in his case, and it had been at the discretion of the investigator in charge of the criminal case against him whether to allow such meetings.
  2. The Moldovan Government submitted that in view of the content of the ICRC’s letter (see paragraph 68 above), they doubted the veracity of the applicant’s complaint concerning the meetings with his parents.
  3. The Russian Government did not make any submissions on this point.

 

  1. The Court’s assessment

 

  1. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, help him, to maintain contact with his close family (see, among many other authorities, Messina v. Italy (no. 2), no. 25498/94, §§ 61 — 62, ECHR 2000-X; Lavents v. Latvia, no. 58442/00, § 139, 28 November 2002; and Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). At the same time the Court recognises that some measure of control over prisoners’ contact with the outside world is called for and is not of itself incompatible with the Convention (see Khoroshenko, cited above, § 123).
  2. In the present case the applicant claimed that he had been completely denied visits by his parents during the first six months of his detention. The first meeting had been authorised on 4 May 2009. He submitted evidence of his requests to meet his parents submitted on 5 March and 13, 16 and 30 April 2009, on 9 December 2009 and on 15 February 2010. Moreover, when a meeting had been allowed on 16 February 2010, the applicant and his mother had had to talk to each other in the presence of a prison guard and had been asked to speak Russian instead of their mother tongue, German (see paragraph 44 above).
  3. The Moldovan Government doubted the veracity of this claim, referring to the letter from the ICRC (see paragraph 68 above). The Court notes that the ICRC visited the applicant in April 2010, whereas his complaint referred to the period from 2009 until the meeting of 16 February 2010. Moreover, the letter relied on by the Moldovan Government merely mentioned that the applicant had regular contact with his family, without specifying the nature of that contact. In the light of the above, the Court sees no reason to doubt the applicant’s account of the facts and concludes that there was interference with his right to respect for his family life within the meaning of Article 8 § 1 of the Convention in that he was prevented from seeing his parents for a considerable length of time. It remains to be examined whether this interference was justified under the second paragraph of Article 8.
  4. The Court reiterates that Article 8 § 2 requires any interference to be «in accordance with the law». It notes that the applicant did not argue that the interference with his rights under Articles 8 and 9 had been unlawful because it had been carried out pursuant to the decisions of unlawfully constituted courts or other authorities. In any event, the Court notes that the respondent Governments have not submitted any details, while the limited material available from the applicant is insufficient to form a clear understanding of the applicable «MRT» law. The Court is therefore not in a position to assess whether the interference complained of was «in accordance with the law» and whether it was based on any clear criteria or was at the investigator’s discretion, as submitted by the applicant. However, it notes that no reasons for refusing family meetings are apparent from the documents in the file and it is clear that the applicant was unable to meet his parents for six months after his initial arrest.
  5. The respondent Governments did not submit any explanation as to why it had been necessary to separate the applicant from his family for such a considerable length of time. It has therefore not been shown that the interference pursued a legitimate aim or was proportionate to that aim, as required under Article 8 § 2 of the Convention.
  6. Similarly, the Court finds it unacceptable in principle that a prison guard was present during family visits (compare Khoroshenko, cited above, § 146). It is clear that the guard was there specifically in order to monitor what the family discussed, given that they were at risk of having the meeting cancelled if they did not speak a language he understood (see paragraph 44 above). Again, no explanation was given as to why the meetings had to be monitored so closely.
  7. The Court therefore finds that, regardless of whether there was a legal basis for the interference with the applicant’s rights, the restriction of prison visits from his parents did not comply with the other conditions set out in Article 8 § 2 of the Convention.
  8. Turning now to the applicant’s complaint that he was not allowed to see Pastor Per Bergene Holm, the Court reiterates that the authorities’ refusal to allow a prisoner to meet a priest constitutes interference with the rights guaranteed under Article 9 of the Convention (see, for instance, Poltoratskiy v. Ukraine, no. 38812/97, § 167, ECHR 2003-V).
  9. The applicant alleged that the pastor who attempted to visit him was denied access in June and September 2009. This was confirmed by the pastor in a letter to the Court (see paragraph 45 above). The two respondent Governments have not made any submissions on this point. The Court sees no reason to doubt the description of the facts provided by the applicant and the pastor and accepts that there was interference with his right to freedom of religion.
  10. Again, it is not clear whether there was a legal basis for the refusal to allow meetings, and no reasons have been advanced to justify the refusal. The Court considers that it has not been shown that the interference with the applicant’s right pursued a legitimate aim or was proportionate to that aim, as required under Article 9 § 2 of the Convention.

 

  1. Responsibility of the respondent States

 

  1. The Court finds, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 — 155 above), that there has been no violation of Articles 8 and 9 of the Convention by the Republic of Moldova.
  2. For the same reasons as above (see paragraphs 156 — 159), the Court finds that there has been a violation of Articles 8 and 9 of the Convention by the Russian Federation.

 

VII. Alleged violation of Article 13 of the Convention taken in conjunction with Articles 2, 3, 5, 8 and 9

 

  1. The applicant further complained that he had no effective remedies in respect of his complaints under Articles 2, 3, 5, 8 and 9 of the Convention. He relied on 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.»

 

  1. Admissibility

 

  1. The Court notes that the complaint under Article 13 taken in conjunction with Articles 2, 3, 5, 8 and 9 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.

 

  1. Merits
  1. The parties’ submissions

 

  1. The applicant submitted that he had had no means of asserting his rights in the face of the actions of the «MRT» authorities, and that the respondent Governments had not indicated any remedies which he should have exhausted.
  2. The Moldovan Government submitted that the applicant had had at his disposal the ordinary remedies available in Moldova, where courts, prosecutors’ offices, notaries’ offices and so forth had been created for the specific purpose of protecting the rights and interests of persons living in the Transdniestrian region.
  3. The Russian Government did not make any submissions on this point.

 

  1. The Court’s assessment

 

  1. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under that provision (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports 1996-V). The remedy required by Article 13 must be «effective», both in practice and in law. However, such a remedy is required only for complaints that can be regarded as «arguable» under the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 78, ECHR 2012, and Centre for Legal Resources on behalf of Valentin v. Romania [GC], no. 47848/08, § 148, ECHR 2014).
  2. The Court observes that it found no need to examine the complaint under Article 2 of the Convention separately, considering that the facts of the case were more appropriately examined under Article 3 (see paragraph 171 above). Similarly, it does not find it necessary to examine separately whether his complaint under Article 2 was arguable for the purposes of Article 13 as it will in any event deal with the matter under the head of Article 3. The Court observes that the applicant’s complaint under Article 3, as well as those under Articles 5, 8 and 9 of the Convention were arguable. However, as regards the applicant’s complaint under Article 5 § 1, the Court observes that Article 5 § 4, which the Court did not consider necessary to examine separately in the circumstances of the case (see paragraph 163), is the lex specialis in relation to Article 13.
  3. The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of his complaints under Articles 3, 8 and 9 of the Convention. Accordingly, the Court will examine whether such a remedy was available to the applicant.
  4. In so far as the applicant complains against Moldova, the Court refers to the considerations it set out above in respect of the Moldovan Government’s objection of non-exhaustion, which led it to the conclusion that the proceedings for damages which the applicant could have pursued before the Moldovan courts could not be considered as an effective remedy in respect of any of his complaints (see paragraphs 115 — 121) above.
  5. In so far as the applicant complains against Russia, the Court reiterates 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.
  6. The Court therefore concludes that the applicant did not have an effective remedy in respect of his complaints under Articles 3, 8 and 9 of the Convention. Consequently, the Court must decide whether any violation of Article 13 can be attributed to either of the respondent States.

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