MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-25

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-25 I.D. group v. Republic of Moldova (Application No. 47203/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1149, CM/Del/Dec(2022)1443/H46-17

 

Application	Case	Judgment of	Final on	Indicator for the classification
47203/06	I.D.	30/11/2010	11/04/2011	Complex problem
60450/13	A.C.	30/11/2021	30/11/2021

·  Cooperation project: VC2840 – “Strengthening the prison and probation reforms, provision of health care and the treatment of patients in closed institutions in the Republic of Moldova” ·  Cooperation project: VC3679 – “Further strengthening the prison and probation reforms, provision of health care and the treatment of patients in closed institutions in the Republic of Moldova” ·  Cooperation project: VC2846 – “Strengthening the Human Rights Compliant Criminal Justice System in the Republic of Moldova”

Case description

This group of cases concerns poor material conditions of detention in establishments under the authority of the Ministries of the Interior and Justice and the absence of effective domestic remedies in this respect (violations of Article 3 and 13).

In the judgment Shishanov,[1] delivered on 15 September 2015, the European Court indicated under Article 46 that the authorities should, without delay, put in place an effective preventive and compensatory remedy, or a combination of remedies, in respect of inadequate conditions of detention.

This group also concerns:

·         the lack of reasonable clarity as to the scope and manner of the exercise of discretion by the investigating authorities and courts as regards the authorisation of family visits for remand detainees (violation of Article 8);

·         actions by the prison administration to intimidate or dissuade the applicant in the A.C. case from pursuing his application before the Court, including by conducting searches in his cell, seizing some of his belongings and transferring him to another prison (violation of Article 34).^[2]

Status of execution

During its previous examinations of this group of cases, the Committee of Ministers ended its supervision of the individual measures in all cases.

As regards general measures, at its last examination in September 2022 (1443^rd meeting (DH)) the Committee, among others:

·         invited the authorities to explain the exclusion of certain categories of detainees from claiming monetary compensation on the basis of the remedy provided by the Code of Criminal Procedure (the CCP), and to clarify whether the civil remedy will be compatible with the Convention, notably as concerns the length of examination and rules governing the burden of proof;

·         expressed concern that, despite the trend of a slight decrease in prison population in the recent years, no significant progress has been achieved in reducing prison overcrowding and again urged the authorities to develop a strategy in this respect with the Council of Europe assistance;

·         noted the information provided on improvements to the material conditions of detention and invited the authorities to clarify whether repairs of prisons are made based on a proper assessment of prison infrastructure and whether sufficient resources are allocated for these purposes;

·         deplored the considerable delay in the construction of the new prison in Chișinău and invited the authorities to provide information on the relevant developments;

·         invited the authorities to provide information on the measures taken to rectify remaining shortcomings as to the material conditions of detention (food, sanitary conditions etc.), measures to improve material conditions in police detention facilities, legislative set-up for requesting family visits to remand detainees, and measure to ensure that detainees are not discouraged from applying to the European Court;

·         decided to disjoin the issues related to medical care in detention from the present group and examine them separately in the Cosovan group[3] under enhanced procedure.

In response, on 16 October 2024 the authorities submitted an action report (see DH-DD(2024)1181), which can be summarised as follows.

General measures:

A)  Domestic remedy to challenge poor conditions of detention

In July 2023, amendments were introduced to the CCP in the part related to the domestic remedy. They provide, in particular, the following:

·         Persons serving life imprisonment can claim monetary compensation (for poor conditions of detention) by means of a general civil remedy.

·         Trial courts can award compensation in the form of reduction of sentence to remand detainees when deciding on the merits of the criminal case against them. If a remand detainee was subjected to poor conditions of detention for at least three months before the appointment of the case for trial and if s/he was sanctioned to community work, a fine or the deprivation of the right to hold certain positions or to exercise a certain activity, s/he is released from the execution of this sentence.

·         The same compensation formula was introduced for detainees on remand and convicts, i.e. one or two days of reduction for ten days of poor conditions of detention.

The authorities provided statistics on the functioning of the compensatory remedy. Between 1 January 2019, when the new remedy entered into force, and 23 August 2024, 32 140 complaints challenging conditions of detention were lodged with the courts. Out of them, 19 051 have been admitted. In most of admitted cases, the courts awarded both forms of compensation (reduction of sentence and monetary compensation). In 2022, the courts made monetary awards in the amount of about 81 406 EUR and in 2023, 70 170 EUR (in 2021 they awarded about 134 000 EUR).

The judicial practice reveals that the examination of complaints does not exceed the statutory three-month time-limit. According to the Superior Council of Magistracy, in the period 2022 – 2024, no complaints were lodged in relation to delays in examining claims on poor conditions of detention.

As concerns the preventive remedy, the authorities presented five examples of domestic case-law, in which the courts ordered the prison administration to improve the claimants’ conditions of detention. In two of these cases, the prison authorities reported back to the courts that the claimants were moved to a different section in the penitentiary where adequate conditions of detention were ensured.

B)  Prison overcrowding

With the support of the Council of Europe, a National Strategy and an Action Plan on preventing and reducing overcrowding in prisons were developed. The authorities are working on an Action Plan to prevent and combat overcrowding in Prison No. 13. Also, a working group was set up to develop a methodology for calculating the maximum capacity of a prison in line with international standards. The prison population decreased in recent years and is kept under the maximum capacity in all prisons, except for Prisons Nos. 11 and 13.

The dynamics of the overall prison population in the Republic of Moldova and, in particular, in Chișinău Prison No. 13 in recent years is presented herein:

Date	Overall number of detainees (overall capacity is 6 735 places)	Number of Detainees in Prison No. 13 (official capacity 570 places)
01/07/2024	5 817	775
01/01/2023	6 084	814
01/01/2022	6 396	948
01/01/2021	6 429	855
01/01/2020	6 716	842
01/01/2019	6 990	926
01/01/2018	7 635	1069

C)  Measures to improve material conditions of detention

Construction of prisons, including the new prison in Chișinău: The construction project for the new prison in Chișinău was adjusted, reducing its capacity from 1 536 to 1 050 places. A separate project for a photovoltaic solar park was added. The total cost is estimated at EUR 75.9 million, with EUR 69.6 million for the building, EUR 3.3 million for the solar park and heat pumps, and EUR 6.3 million for the surveillance system, unexpected expenses and management. The project duration was extended until the end of 2028, under the agreement between the Council of Europe Development Bank and the authorities.

The construction of the Prison for detention on remand in Bălți, with a capacity of 650 persons, is underway. The reconstruction of the Cahul Prison No. 5 was initiated in 2024.

Repair and maintenance work in other prisons: Significant renovation works were carried out in Prison No. 13. In particular, 32 cells, two disciplinary isolators, the room for long-term visits and the space for reception of detainees were repaired. The authorities also provided information on maintenance works carried out in other prisons.

The authorities explained that renovation works are planned biannually, following an inventory of buildings and engineering networks conducted each autumn and spring. Priorities are determined based on the inventory results and building materials procured by the National Prison Administration (NPA) depending on the available financial resources. Renovation efforts are guided by a thorough assessment of prison infrastructure and the authorities focus on places requiring immediate intervention.

Other issues related to conditions of detention:

·         The government adopted Decision No. 228/2024 on food and hygiene standards for prisoners (effective from 1 January 2025). It provides for new food norms, which take into consideration the prisoner’s gender, age, state of health, and workload.

·         Detainees have access to free counselling, educational programs, and tailored mandatory activities. Libraries, weekly sports, and occasional artistic events are available to all detainees.

Material conditions in police detention facilities: Conditions of detention in police detention facilities were improved in the context of implementation of the Police Development Strategy in the period from 2016 to 2020. Thus, 15 facilities were renovated (in Chișinău, Bălți, Comrat, Anenii Noi, Soroca, Criuleni, Hâncești, Orhei, Cimișlia, Ungheni, Căușeni, Edineț, Cahul and Râșcani).

In 2021, non-compliant facilities in Călărași, Fălești, Florești and Ceadir-Lunga were closed. The necessary supplies (mattresses, bed linen, tableware, electric kettles and microwaves) were provided to police detention facilities in Criuleni, Comrat, Bălți, Hâncești and Soroca. The National Preventive Mechanism (NPM) conducted a monitoring visit at the Chișinău Police Inspectorate in March 2022 and reported that the material conditions in the cells were relatively satisfactory, the cells were not overcrowded, and the conditions in solitary confinement rooms, medical office, the interview room and the kitchen were satisfactory.

D)  Family visits (Article 8)

Remand detainees have the right to short term visits up to four hours once a month and long-term visits up to three days once every three months with family members under the same conditions established for convicts. Visiting right can be refused if it can jeopardise the normal conduct of the criminal proceedings or in case of a disciplinary sanction by which the right to a visit is suspended. Both the refusal to grant visiting right and the disciplinary sanctions may be challenged before the investigative judge.

During the last two years, no complaints were lodged challenging the refusal to grant visits to detainees on remand. The authorities presented examples of domestic case-law examining complaints against disciplinary sanctions suspending visiting rights.

In their previous action plan of 30 June 2022 (DH-DD(2022)695), the authorities reported about two cases in which the claimants challenged the refusal of the prison administration to grant family visits in Prison No. 13. The authorities provided updated information, according to which in one case the court ruled in favour of the applicant. The second case is still pending as a result of the referral for retrial.

E)  Article 34

On 17 March 2022, the NPA adopted a circular, based on the Court’s findings in the A.C. case, which aims at preventing any intimidation of detainees from pursuing applications before the Court. Regular inspections are conducted in prisons to monitor compliance with this circular. Detainees are interviewed and their complaints are investigated promptly to allow the NPA to intervene if there is evidence of intimidation. Additionally, inadmissibility of pressuring prisoners is emphasised at the thematic training activities for prison staff.

Communications under Rule 9:

A joint communication was received on 30 October 2024 from the NGOs Promo-LEX, the European Prison Litigation Network and the People’s Advocate (see DH-DD(2024)1292). As concerns the domestic remedy, the communication notes systemic shortcomings in its functioning, in particular:

·         low rate of admissibility of complaints;[4]

·         excessive length of proceedings, which in some cases exceed five years (for two instances); this situation is due inter alia to the high number of cases and insufficient human resources in courts;

·         excessive demand for evidence from claimants and inaccurate information provided to the courts by the penitentiary administration;

·         ambiguities in the interpretation of the law in the part related to the time-limit for lodging a complaint to the court, the mode of calculation of compensation for remand detainees and other aspects;

·         the remedy does not address the complexity of cases related to the alleged lack of medical assistance in detention.

The communication also points out to issues related to the lack of national strategy addressing prison overcrowding, scarce application of non-custodial measures and conditional release, and insufficient budgetary resources allocated for improving material conditions in prisons.

A reply from the authorities was received on 6 November 2024. They note that the alleged low rate of admissibility of complaints challenging poor conditions of detention is misleading, because partial admission of such complaints still provides redress for detainees, with 74% of requests in 2023 being admitted. Regarding excessive length of proceedings, the authorities assert that delays are rare exceptions and compensatory part of the remedy ensures relief. They refute the claim of excessive evidence requirement, arguing that national courts presume poor conditions of detention and place the burden of proof on the prison administration. Moreover, they ascertain that the legal framework is clearly distinguishing remand detainees from convicts. Furthermore, they point out the decrease in prison overcrowding, and infrastructure investments which are being made as part of the authorities’ efforts to modernise the prison system and ensure adequate prison conditions. Finally, they highlight the legislative amendments to the Criminal Code concerning the equitable treatment of young adults sentenced to life imprisonment, the revision of imprisonment regimes for minor offenses, the reduction of the minimum term for early release from life imprisonment, and the extension of the list of situations for the replacement of custodial sentences with more lenient ones.

Analysis of the Secretariat

General measures:

A)  The domestic remedy to challenge poor conditions of detention

As concerns the compensatory remedy, in the light of the 2023 amendments to the CCP distinguishing remand detainees from convicts, the authorities could be invited to provide examples on how this mechanism functions in practice and whether compensation is feasible for those remand detainees whose criminal proceedings were discontinued. Likewise, it would be useful to receive examples on the functioning of the civil remedy in respect of persons sentenced to life imprisonment and a clarification onwhether, before applying to the civil court for compensation, they should first get a decision by an investigating judge finding a violation of Article 3 on account of poor conditions of detention.

It would appear, in view of the communication under Rule 9, that an important number of difficulties arise in interpretation of the domestic law, which undermine the efficiency of the remedy.[5] The Committee might thus wish to invite the authorities to consider these issues and provide solutions where necessary, in particular through possible guidelines to be elaborated by the Supreme Court.

Further, the authorities’ submission as to the compliance with the statutory three-month time-limit for the examination of claims, contrasts with the information provided in the communication under Rule 9, according to which this continues to be a problem. In two examples provided by the NGOs and the People’s Advocate, the period of examination exceeded five years for two instances.[6] Such cases raise serious concerns. The authorities could yet again be encouraged to take rapid measures to exclude such delays, including where necessary by increasing the number of investigating judges, simplifying the procedures for examination of such claims and undertaking other measures to ensure their most efficient examination. Information in this sense is awaited in addition to the updated statistical data on the use of the compensatory remedy, including the number of complaints lodged and examined and their outcome.

As concerns the preventive remedy, the examples of cases in which the courts ordered the prison administration to improve the claimants’ conditions of detention are noted. The authorities could be invited to ensure that such approach is applied consistently and that the domestic courts develop coherent case-law as regards the functioning of the preventive remedy. However, the effect of the investigative judge’s instructions to remedy the deficiencies is not clear when the conditions challenged are due to structural deficiencies. Given the structural character of most of the deficiencies at issue, it is recalled that improving conditions of detention and reducing prison overcrowding are vital for ensuring the proper functioning of the preventive remedy.

The functioning of the preventive remedy in respect of remand detainees also remains unclear. The authorities could be invited to explain the applicable procedure and provide examples of the domestic case-law, if available.

It is recalled that issues related to the functioning of the domestic remedy in cases alleging insufficient medical assistance in prisons are examined in the Cosovan group of cases.

B)  Overcrowding

It is a positive development to note that, according to the data submitted by the authorities, the overall prison population has been continuously decreasing since 2018. In the period from 1 January 2022 to 1 July 2024, the prison population decreased by almost 9%. A decrease of some 18% can also be noted in the same period of time in the Chișinău Prison No. 13. However, it appears from the communication under Rule 9 that overcrowding continues to be a major problem, which is exacerbated by inefficient management practices and the incoherent calculation of detention capacity in prisons. The Council of Europe Annual Statistics for 2023 (SPACE I) confirm that overcrowding remained a challenge for the authorities.[7]Although the prison density in the Republic of Moldova is at medium level, the prison population rate remains very high (25% higher that the European median value). The average rate of imprisonment in the Republic of Moldova is also very high, while the rate of release remains low.

The elaboration, with Council of Europe assistance, of a comprehensive draft National Strategy to fight overcrowding and an Action Plan for its implementation, is a promising step. The authorities could be strongly encouraged to adopt and implement this Strategy, while continuing to make full use of the CoE expertise. The authorities could be also strongly encouraged to intensify their efforts to combat prison overcrowding in Prisons Nos. 11 and 13. Information could be required on the progress in this process, as well as in the developments related to the implementation of the Strategy and on the reconsideration of maximum prison capacity norms.

C)  Measures to improve material conditions of detention

Prisons

As concerns the new prison in Chișinău, the authorities could be urged to abide by the agreement with the Council of Europe Development Bank, start the construction in line with the new deadlines and prevent further delays in this process. It can be noted again that the construction of this prison, which will allow to close Chişinău Prison No. 13, is vital for improving material conditions of detention and should thus be a highest priority for the authorities.

The Committee might wish to note the renovation works in the prison system, which appear to be based on a needs assessment of the prison estate. However, as transpires from the communication under Rule 9, the NPA lacks sufficient resources for immediate repair and maintenance of facilities. Recalling that improving material conditions are of outmost importance for ensuring the proper functioning of the preventive remedy and minimising the recourse to the compensatory remedy, the Committee might wish to invite the authorities to continue their efforts to improve material conditions of detention and call for political will to allocate sufficient resources for this purpose. The authorities could be invited to provide updated information on this as well as on the implementation of the new regulation on food and hygiene standards.

Police detention facilities

The measures adopted to improve conditions in police detention facilities, notably the closure of sub-standard ones and the repairs carried out at the remaining facilities, can be noted with interest. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its Report on the periodic visit to the Republic to Moldova in 2020, welcomed the general trend towards improving material conditions in police detention facilities. It observed that the newly refurbished detention facilities in Cahul, Cimișlia and Hâncești offered very good material conditions. In particular, cells were sufficiently large and adequately equipped, including fully partitioned sanitary annexes. Each of these facilities was also equipped with a courtyard where detained persons could take outdoor walks.[8] The 2023 Annual Report of the Moldovan NPM confirms these findings, describing the conditions as satisfactory, meeting national and international standards, with clean, properly ventilated cells, adequate lighting, appropriate temperature and communication devices for detainees to contact guards.[9]

It is noted that the police detention facilities in Fălești and Florești, in which a number of shortcomings were identfied by the CPT, were closed down in 2021.

In view of these observations and considering that neither the communication under Rule 9, nor the recent cases communicated by the European Court mention any issue in this respect, the Committee might wish to close this aspect, with the understanding that the authorities will maintain all the necessary efforts to continue providing adequate conditions of detention in police detention facilities.

D) Family visits to detainees (violation of Article 8)

The clarifications provided by the authorities on the legislative set-up for visiting rights and examples of domestic case-law examining complaints against refusals to grant visits, are noted with interest. Given this, and considering the absence of any indication that this violation would derive from a broader issue, including the fact that no similar violations have been recently found by the Court, the Committee might thus wish to close the examination of this aspect.

E) Article 34 violation in the A.C. case

The Committee might wish to note with interest the measures adopted to ensure that no pressure is exerted by the prison staff on detainees to dissuade them from applying to the Court, including the adoption of the circular aiming to prevent any intimidation and monitor compliance thereof, as well as training of prison staff on the inadmissibility of pressuring detainees.In view of the information provided and given that the relevant events in the A.C. case date back to 2014 and that this issue is not raised in recent cases before the Court, the Committee might wish to close the examination of this aspect of general measures and adopt the draft final resolution in the A.C. case attached to these Notes.

Financing assured: YES