SECOND SECTION
 
 
 
 
 
 
 
CASE OF APCOV v. THE REPUBLIC OF MOLDOVA AND RUSSIA
 
(Application no. 13463/07)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
30 May 2017
 
 
 
FINAL
 
13/11/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Apcov v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Işıl Karakaş, President,
 Julia Laffranque,
 Paul Lemmens,
 Valeriu Griţco,
 Ksenija Turković,
 Dmitry Dedov,
 Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 25 April 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 13463/07) 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 a Moldovan national, Mr Sergiu Apcov (“the applicant”), on 26 March 2007. 2. The applicant was represented by Mr Pavel Postica, a lawyer practising in Chisinau. The Moldovan Government were represented by their Agent, Mr L. Apostol, and the Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicant submitted, in particular, that he had been arrested and detained unlawfully. He further alleged that that he had not been given the requisite medical assistance for his condition, had been held in inhuman conditions of detention and had not had a fair hearing in the determination of the criminal charges against him. 4. On 14 May 2013 the application was communicated to the respondent Governments. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and lives in Tiraspol. 6. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in 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 and 2 others, §§ 8-42, ECHR 2012 (extracts)). 7. On 21 January 2005 the applicant was arrested by the authorities of the break-away “Moldavian Republic of Transdniestria” (the “MRT”) on charges of robbery. He was detained in custody until 8 July 2005 when he was released on bail. During detention he was allegedly detained in very poor conditions with persons with HIV and subjected to ill-treatment. He claims that a doctor infected him with HIV after using the same syringe on all the inmates. 8. During the criminal proceedings, two and a half years after the robbery, the victim of the robbery was asked to identify the applicant from a picture. The applicant claims that no procedural guarantees were in place and suggests that the investigator indicated to the victim which picture to choose. Moreover, the applicant’s alibi regarding his being away from the “MRT” on the date when the offence was committed had been dismissed without any investigation. According to the applicant, at the time of the alleged offence, he was in Moscow. He obtained a letter from his employer to confirm that on the particular day of the offence the applicant had been at work. However, the investigators seized the original of that letter during a search of his parents’ home and it later disappeared. The courts refused to accept a copy of the letter as evidence and/or to check the information contained in it. 9. On 29 August 2006 the Tiraspol District Court convicted the applicant as charged and sentenced him to seven years’ imprisonment. 10. The applicant was placed in detention in Tiraspol colony no. 2 where the conditions allegedly were very poor. In particular, his cell was overcrowded, he did not have daily walks, the material conditions were very poor, there were shortages of electricity sometimes for several days, and he shared space with detainees suffering from contagious diseases. The food was inedible and therefore detainees had to rely on the food supplied to them by their relatives. According to the applicant, he requested on numerous occasions that he be seen by a doctor in relation to his HIV diagnosis. However, the prison authorities ignored his requests. There was no dentist in the prison, and the inmates had to remove each other’s teeth in emergencies. The applicant had his molar teeth removed in this way. 11. On 26 September 2006 the Supreme Court of the “MRT” dismissed the applicant’s appeal. 12. On an unspecified date after his final conviction, the applicant’s mother engaged a lawyer with a view to lodging an application to the Court. She later went to visit the applicant to obtain his signature on the application form. However, the prison guards refused to allow her to do so on the grounds that the application was not in Russian and that it had to be authorised first by the prison authorities. It appears that she eventually succeeded in having the application form signed by the applicant. 13. On 24 April 2012 the applicant was released from detention. 14. It appears from the material in the case file and from the parties’ submissions that the applicant never informed the authorities of Moldova about his detention in the “MRT” or about the criminal proceedings against him. II. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA AND OTHER RELEVANT MATERIALS
15. Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice from the Republic of Moldova and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, ECHR 2016). THE LAW
16. The applicant submitted that he had been arrested and detained unlawfully, contrary to Article 5 § 1 of the Convention. He further alleged that, contrary to the provisions of Article 3 of the Convention, upon his arrest and during his first period of detention he had been ill-treated and infected with HIV. He also complained that he had not been given the requisite medical assistance for his condition and had been held in inhuman conditions of detention during both periods of detention. He also contended that he had not had a fair hearing in the determination of the criminal charges against him as required by Article 6 § 1 of the Convention. The applicant argued that there had been a breach of his rights guaranteed by Articles 8 and 34 of the Convention because he had not been able to have confidential meetings with his mother and because the prison administration had attempted to hinder the lodging of his application with the Court. Lastly, the applicant complained that he had not had any effective remedies, as provided for by Article 13 of the Convention. I. GENERAL ADMISSIBILITY ISSUES
A. Jurisdiction
17. The Court must first determine whether the applicant falls within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention. 1. The parties’ submissions
18. The applicant and the Moldovan Government submitted that both respondent Governments had jurisdiction. 19. For their part, the Russian Government argued that the applicant did not come within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer (cited above, §§ 92-94), the Russian Government express the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others (cited above), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law. 2. The Court’s assessment
20. The Court observes that the general principles concerning the problem of jurisdiction under Article 1 of the Convention in respect of acts and facts occurring 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, in Mozer (cited above, §§ 97-98). 21. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer 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). 22. 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 has 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). 23. 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 Ilașcu 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, cited above, §§ 116-20; 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 applicant fell within that State’s jurisdiction under Article 1 of the Convention (see Mozer, cited above, §§ 110-11). 24. The Court considers, given the absence of any new information to the contrary, that this conclusion continues to be valid for the period under consideration, namely until 24 April 2012. The Court therefore 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). 25. It follows that the applicant in the present case falls 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. 26. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112). B. Exhaustion of domestic remedies
27. The Russian Government submitted that the application should be rejected for failure to exhaust domestic remedies within the Russian Federation, namely to apply for redress to the Russian courts. 28. The applicant disagreed and argued that the Russian Government had not proven the existence of any effective remedy. 29. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants firstly to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015). 30. Turning to the facts of the present case, the Court notes that not only have the Russian Government failed to show that a remedy was available to the applicant within the Russian Federation but they also strongly emphasised their position according to which the Russian Federation had no jurisdiction in cases concerning Transdniestria. It follows that the Russian Government’s objection of non-exhaustion of domestic remedies must be dismissed as ill-founded. C. Six-month rule
31. The Russian Government further submitted that the applicant’s complaint concerning his poor conditions of detention between 21 January 2005 and 8 July 2005 was inadmissible owing to his failure to comply with the six-month rule. In so far as the second period of detention was concerned, the Russian Government argued that the applicant had only complained after two years of detention and had not informed the Moldovan Government, which would have offered them a possibility to solve the problem. 32. The applicant objected and argued that both periods of detention were part of a continuing situation and that, therefore, the six-month period had to be calculated starting with the date of his release, namely 24 April 2012. 33. The six-month rule stipulated in Article 35 § 1 of the Convention is intended to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (Jeronovičs v. Latvia [GC], no. 44898/10, § 74, ECHR 2016). As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to an applicant, the time-limit generally expires six months after the date of the acts or measures about which he or she complains (ibidem, § 75). In cases of a continuing situation, the period starts to run afresh each day and it is in general only when that situation ends that the six‑month period actually starts to run (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 159, ECHR 2009; Sabri Güneş v. Turkey [GC], no. 27396/06, § 54, 29 June 2012; and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 261, ECHR 2014 (extracts)). The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim (Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 86, ECHR 2014 (extracts)). 34. The Court notes that the applicant was detained within the context of the same criminal proceedings throughout his entire detention. Nonetheless, in view of the significant gap of more than one year between the two periods of detention with which the complaint is concerned (from January to July 2005, and from August 2006 to April 2012), the Court cannot treat them as a part of a continuing situation (see Haritonov v. Moldova, no. 15868/07, § 26, 5 July 2011). In such circumstances, the Court considers that only the complaint concerning the second period of detention was lodged within six months. Consequently, the complaint in respect of the first period of detention must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. 35. Moreover, the Court notes that other complaints were also lodged out of time, in particular the complaint concerning his ill-treatment after arrest, that concerning his alleged infection with HIV during the first period of detention, and the complaint under Article 5 § 1 regarding the lawfulness of his pre-trial detention until 8 July 2005. These complaints must also be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
36. 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. The relevant part of Article 3 of the Convention reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
37. The Court notes that this complaint, in so far as it refers to the period of detention after the applicant’s conviction, from 29 August 2006 to 24 April 2012, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other ground. The Court therefore declares it admissible. B. Merits
38. The applicant complained that he did not receive qualified medical help, as required by his state of health. He also complained about the deplorable state of the cells. He finally complained about the lack of space, being detained in a cell of 9 m2, together with a large number of detainees. 39. The respondent Governments did not make any submissions on the merits of this complaint. 40. The Court reiterates that 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 or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well‑being are adequately secured (see Mozer, cited above, § 178; Muršić v. Croatia [GC], no. 7334/13, § 99, ECHR 2016; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, ECHR 2016 (extracts)). 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 of the Convention 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 Mozer, cited above, §178). 41. In the present case the Court notes that the applicant suffered from HIV and needed medical treatment. It also appears that at one point the applicant needed urgent dental treatment which was not provided to him and he had to have his teeth removed by his co-detainees. In view of the lack of any evidence to the contrary or of any explanation for the refusal to offer him appropriate treatment, the Court finds that the medical assistance received by the applicant was not adequate. 42. The Court will now turn to the conditions of the applicant’s detention. As indicated above (paragraph 37), it is the second period of detention, from August 2006 to April 2012, that is to be examined. While the respondent Governments have not commented on the description provided by the applicant (see paragraph 10 above), it is largely confirmed by the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the United Nations Special Rapporteur on visits to various places of detention in the “MRT” (see some of the documents referred to in paragraph 15 above). The Court notes in particular that the latter’s visit took place in July 2008, that is to say during the time when the applicant was in detention. 43. On the basis of the material before it, the Court finds it established that the lack of adequate medical care and the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 44. 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 (see paragraph 21 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). 45. As regards the first aspect of Moldova’s obligations, to re-establish control over the Transdniestrian territory, the Court found in Mozer that Moldova had taken all measures in its power from the onset of the hostilities in 1991-1992 until July 2010 (see Mozer, cited above, § 152). In the present case, the parties did not submit any argument which would indicate that the Moldovan Government had changed their position in respect of Transdniestria in the intervening years up to the period of the applicant’s release from detention in April 2012. The Court therefore sees no reason to reach a different conclusion in the present case (ibidem). 46. Turning to the second part of the positive obligations, namely to ensure respect for the applicant’s rights, the Court notes that the applicant never informed the Moldovan authorities of his plight (see paragraph 14 above). In such circumstances, the non-involvement of the Moldovan authorities in the particular case of the applicant cannot be held against them.

Outcome for Article 5: no_violation