SECOND SECTION
 
CASE OF CAZAC AND SURCHICIAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Application no. 22365/10)
 
 
 
 
 
JUDGMENT
 
STRASBOURG
7 January 2020
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Cazac and Surchician v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Julia Laffranque, President,
 Ivana Jelić,
 Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 10 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22365/10) against the Republic of Moldova and the Russian Federation 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, Ilie Cazac and Stela Surchician (“the applicants”), on 22 April 2010. 2. The applicants were represented by Mr A. Postică, Mr V. Postică, Mr V. Ursu and Mr A. Zubco, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari, and the Russian Government were represented by their Agent, Mr M. Galperin. 3. On 2 November 2017 notice of the complaints concerning Articles 3, 5, 6, 8 and 13 of the Convention was given to the Governments and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Russian Government objected to the examination of the application by a Committee. After having considered the objection, the Court rejects it. THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1985 and 1966 respectively and live in Bender. The first applicant’s arrest and detention and related events
6. The first applicant is the second applicant’s son. He worked as a tax inspector in the self-proclaimed “Moldovan Republic of Transdniestria” (“the MRT”). On 19 March 2010 he was arrested by officers from the “Ministry of State Security” (“MSS”). He was not allowed to inform anyone of his arrest. 7. The second applicant found out about the arrest on 21 March 2010 from her other son and from a pro bono lawyer who had called her and told her that she was representing her son. She also told her that her son was accused of treason in the form of espionage against the “MRT” and in favour of Moldova. No documents concerning the first applicant’s arrest were issued to the applicants by the date of lodging this application. According to the first applicant, another lawyer (K.) was subsequently appointed to represent him. He was threatened with ill-treatment, being infected with HIV by fellow detainees, and placement in a cell for detainees ill with active forms of tuberculosis if he did not agree to be represented by K. 8. During the night of 21 March 2010 searches were carried out at two apartments belonging to the second applicant in her absence and without showing her other son, who was present, any order confirming the lawfulness of the searches. During the searches furniture was allegedly destroyed and a list of items taken from the apartments was never drawn up. 9. On 25 March 2010 the second applicant complained to the Bender police station (Moldovan police) and the Moldovan Prosecutor General’s Office about the first applicant’s illegal arrest and the unlawful searches. On 26 March 2010 she asked the “MRT Prosecutor’s Office” to inform her of her son’s whereabouts and to be issued copies of procedural documents concerning him. 10. On 1 April 2010 the first applicant’s pro bono lawyer asked the Moldovan prosecutor’s office to initiate criminal proceedings into his client’s abduction and the unlawful searches. On 17 April 2010 he was informed that such a criminal investigation had been initiated on 31 March 2010. 11. On 4 April 2010 the second applicant was informed by the “MRT Military Prosecutor” that the MSS Officers had not committed any crime and that the MSS investigator was responsible for deciding whether to allow her to meet with her son. According to the applicant, she had previously asked the MSS investigator to be allowed to see her son, but had received no reply. 12. On 6 April 2010 the Moldovan Ministry of Foreign Affairs informed the second applicant that efforts were being made to ensure access to the first applicant by his relatives. 13. On 19 April 2010 the lawyer hired by the second applicant to represent her son asked the “MRT authorities” for permission to see her client, but received no reply. Thereafter the first applicant appointed a lawyer (K.) from the “MRT”. According to him, he was forced to accept representation by K., whom he did not trust, under threats of further ill‑treatment. K. was present during all his meetings with representatives of the Organization for Security and Co-operation in Europe (“OSCE”) that took place thereafter and the applicant was warned not to complain about anything under threat of ill-treatment. 14. On 18 June 2010 the first applicant was seen by OSCE representatives. It was the first time he had contact with anyone other than individuals representing the “MRT authorities”. K. was present at the meeting, although the first applicant asked for a meeting without any witnesses. 15. On 21 June 2010 the “MRT Prosecutor’s Office” informed the second applicant that while “MRT law” allowed the investigator to authorise meetings with a detainee’s relatives, this was not an obligation. 16. On 22 June 2010 the “MRT” press published a letter from the first applicant and addressed to the Head of the OSCE mission in Moldova. In the letter the first applicant declared that he had been recruited as a spy by the Moldovan security agencies and had collaborated with them. 17. On 9 August 2010 the applicants saw each other for the first time since the arrest over four months earlier, in the presence of OSCE representatives. 18. The first applicant’s detention pending trial was extended on an unknown date in mid-August and again on 17 September 2010. Each time the applicant was not given the opportunity to address the court. 19. On 18 October 2010 the applicants were again allowed to see each other. During this meeting the first applicant told his mother that he was ill (the second applicant did not specify which illness) and was not receiving medical assistance. He was being questioned for ten to fifteen hours in a row with few breaks by multiple investigators, without being given food and water or allowed to go to the toilet. 20. On 10 December 2010 the second applicant found out that her son’s case had been submitted to the “MRT Supreme Court” for trial. She asked the judge in charge of the case to allow her to meet with the first applicant, but she received no reply. 21. The lawyer hired by the second applicant to represent her son was never given copies of any documents concerning his detention, including court decisions ordering the extension of such detention. On 18 July 2011 the second applicant again requested copies of court decisions concerning her son’s detention, as well as those concerning the searches of the two apartments. In reply she was told that “MRT law” did not give her such a right, since she was not a party to the proceedings. The first applicant’s trial, conviction and release
22. On 5 November 2010 the first applicant declared that he no longer wished to be represented by K. He was then allegedly severely ill-treated by other detainees. When he subsequently asked the court to replace K. with his chosen lawyer, this was refused. 23. On 19 November 2010 he was shown the final charges submitted to the trial court by the prosecution. However, he was not allowed to read them, because they contained secret material. 24. During the trial hearings the first applicant asked for a translator in order to translate documents confirming his innocence (correspondence in Romanian with his cousin in Chișinău). This was refused. The only people present at the in camera hearings were the judge and her assistant, the prosecutor, K. and the first applicant. 25. On 9 February 2011 the first applicant was convicted by the “MRT Supreme Court” of treason and sentenced to fourteen years’ imprisonment. He did not submit a copy of the court’s decision to the Court. On the same date the Moldovan Government made a statement, declaring the first applicant’s conviction to be an unlawful act and a human rights violation. Similar reactions came from international organisations and foreign countries such as the Council of Europe, the European Union, the OSCE, and the American Embassy in Moldova. 26. The first applicant appealed against his conviction. On 21 March 2011 his appeal was rejected and his conviction upheld by the appellate chamber of the “MRT Supreme Court”. 27. On 1 August 2011 the first applicant asked the “President of the MRT” for a pardon. He asked again for a pardon on 19 September 2011. 28. On 31 October 2011 the first applicant was pardoned by the “President of the MRT” and was released from prison. The conditions of the first applicant’s detention, lack of medical assistance and ill-treatment
29. Upon his release the first applicant gave a detailed description of the conditions of his detention. Initially he was detained in a cell without any furniture except for a table and a chair. He slept on the table with no bed linen and in a very uncomfortable position. There was no window in the cell and it was very cold. 30. He was then moved to a cell for three people, in which he was detained together with seven other persons. There were not enough beds and the detainees had to take turns to sleep. Everyone else in the cell smoked, which subjected the first applicant to passive smoking. The ventilation system did not work. There was constant noise from water dripping in the broken lavatory; the tap water was so rusty he could not drink it. When he started receiving parcels from relatives, he asked them to send him cigarettes, which he then exchanged with the guards for normal drinking water. 31. On 7 April 2010 the first applicant was moved to another cell with three other detainees, two of whom were convicted persons. 32. On 15 April 2010 he was moved to prison no. 1 in Hlinaia, where he was detained until 29 November 2010. He was placed in a cell with a person sentenced to life imprisonment for multiple murders. That detainee cooperated with the “MRT” authorities and was used to physically and psychologically coerce the first applicant. That detainee “persuaded” him to give up the services of the pro bono lawyer representing him and to hire K., a lawyer he did not trust. He also threatened the first applicant with violence and to infect him with HIV. There was no toilet in the cell, the first applicant had to use plastic bags instead. He was often ill, but received no medical assistance. 33. During his detention the first applicant initially refused to make confessions and to talk to the media, as he was coerced to do. He was then moved for twenty days to a cell for detainees ill with tuberculosis. He often asked for permission to see his relatives, but the investigator told him that this would only be possible after he made a self-incriminating statement. 34. Several times during questioning sessions the first applicant was allegedly sedated with an unknown substance. On one of these occasions he was forced to sign letters to the Moldovan security agency and to the head of the OSCE mission in Moldova, acknowledging that he had been recruited as a spy for Moldova. He signed those letters after being told that if he refused to sign, he would be returned to the cell for detainees ill with tuberculosis on a permanent basis. 35. Before the visit by OSCE officials on 18 June 2010, the first applicant was “instructed” for thirteen hours on what to say and what not to say, under threat of severe ill-treatment. 36. On 5 July 2010 the first applicant declared a hunger strike in protest against the unfair proceedings and the inhuman conditions of his detention. He was then ill-treated. On an unknown date he discontinued his hunger strike. However, on 30 July 2010 he restarted it because of the absence of medical assistance and the constant psychological and physical ill-treatment inflicted on him by his convicted cellmate. After his transfer to another cell, he stopped his hunger strike. On 11 August 2010 he again started a hunger strike, asking to have an expert report commissioned and to be informed of the exact charges against him. This was refused, and he was then ill-treated by his cellmates, who eventually forced him to start eating. 37. During his detention the first applicant started having dental problems. As there was no dentist in the prison, he kept taking pills sent by his mother in order to ease the pain. However, from February 2011 onwards the pain was too strong for the pills to have an effect. On 26 April 2011 he was finally taken to a dentist in prison no. 3. The dentist allegedly told him that he could not treat him due to the absence of specialised equipment, save for extracting all the teeth on one side of his jaw. He refused to undergo this treatment. 38. On 21 April 2011 the World Organisation Against Torture (OMCT) called for specialised medical treatment to be given to the first applicant. It repeated its request on 17 and 23 May 2011. The actions undertaken by the Moldovan authorities
39. The Moldovan Government undertook numerous actions of a diplomatic and political nature aimed at the first applicant’s release. In particular, they addressed the issue of the applicant’s detention and trial by the MRT authorities at the OSCE and in their contacts with the Russian and Ukrainian authorities. Criminal investigations were also initiated into the circumstances of the applicant’s detention and alleged ill-treatment. RELEVANT NON-CONVENTION MATERIAL
40. Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of 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, 23 February 2016). THE LAW
JURISDICTION
41. The Court must first determine whether the applicants fell within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention. The parties’ submissions
42. The applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction. 43. For their part, the Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications 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 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); Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, ECHR 2012; and Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011) was wrong and at variance with public international law.

Outcome for Article 5: no_violation