Paladi v. Moldova

Application No. 39806/05; (2008) 47 EHRR 15
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The applicant, a Moldovan national, complained that the Republic of Moldova violated his rights under Articles 3, 5, and 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”) by detaining him without a lawful basis and failing to provide proper medical care.

Detention: The applicant was a deputy mayor and a lecturer at the Academy of Economic Studies in Moldova.  The applicant was first taken into custody on September 24, 2004 for charges brought over time relating to abuse of power and acting in excess of authority. As a result of the three charges, the applicant was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (the “CFECC”) from September 24, 2004 to February 25, 2005. In February of 2005, the applicant was transferred to Ministry of Justice Remand Centre no. 3 (“Prison no. 3”).

Medical Condition: The applicant, both at the time arrested and throughout his detention, suffered from many illnesses. A few days after his initial detention at the CFECC and after review of his medical file, the applicant was diagnosed with type II diabetes, polyneuropathy, diabetic angiospasm, stage II autoimmune thyroiditis, intracranial hypertension, vagovagal spasms, chronic obstructive bronchitis, recurrent chronic pancreatitis, chronic active hepatitis, and asthenic syndrome. The remand centers did not have any specialized medical care and only during part of the applicant’s detention was there any regular medical personnel. The applicant claimed that during his detention at the CFECC, he repeatedly requested medical attention, but had received treatment only from visiting doctors from other institutions. On February 15, 2005, the applicant was seen by a psychoneurologist who advised that the applicant needed to continue treatment under supervision. As a result of this diagnosis, the applicant was transferred to Prison no. 3, which had medical professionals on staff and also contained a prison hospital. On March 2, 2005, three separate specialists examined the applicant and all advised that he needed to be treated on an in-patient basis. As a result, the trial court ordered that the applicant be moved to the prison hospital.

On May 20, 2005, a neurologist from the Republican Neurology Centre of the Ministry of Health and Social Welfare (the “RNC”) examined the applicant and confirmed earlier diagnoses. He recommended a complex treatment, including hyperbaric oxygen (“HBO”) therapy, in a specialized unit of the Ministry of Health and Social Welfare. As of May 30, the director of the prison hospital informed the court that the applicant was receiving the treatment recommended by the neurologist, except for the HBO treatment as it was not available at the prison hospital.

On June 1, 2005, the Centru District Court found that the condition of the applicant had worsened and suspended examination of the case until the applicant’s recovery. In September of 2005, the Centru District Court ordered that the applicant be transferred to the RNC for thirty days to receive HBO therapy. The District Court later extended the treatment till November 10 on the basis of a letter from RNC. When the applicant was transferred back to the prison hospital on November 10th, however, he had received only five of the twelve recommended HBO treatments. After an interim measure was issued by the European Court of Human Rights, the applicant was later returned to RNC until November 29th. On November 30, the trial court ordered the applicant’s transfer to a hospital for ten days to finish the HBO therapy.

In March of 2008, a Minister of Health medical commission  claimed that the applicant had received all treatment recommended by the RNC while in the prison hospital between September 21 and November 30 of 2005., other than the HBO therapy. They also claimed that the interruption of the HBO therapy had not affected the applicant’s state of health.

Habeas Corpus Requests: During his detention, the applicant filed eight habeas corpus requests. The second, made in July of 2005, relied on Articles 2 and 3 of the Convention in stating that while the case had been suspended pending the applicant’s recovery, the applicant was not receiving treatment to ensure such recovery. The request was denied as the District Court found that the reasons for prolonging the detention remained valid. The subsequent requests were also rejected.

Interim Order from the Court: On November 10, the European Court of Human Rights (the “Court”) issued an interim measure that the applicant should not be transferred from the RNC pending an opportunity for the Court to examine the case. The Court sent the message multiple times by fax and also tried to telephone the Government Agent, but was unable to receive a response. On Friday, November 11, the applicant’s lawyer requested that the trial court stay the execution of its order of transfer from the RNC and provided a copy of the fax from the Court. However, the applicant was still transferred to the prison hospital. On Monday, November 14, the Centru District Court ordered the applicant’s readmission to the RNC after reviewing the measure from the Court. There were complications, however, that resulted in the applicant waiting for six hours at the facility before being checked in for care.

The Court held that the Government violated Articles 3 (prohibition on inhuman and degrading treatment), 5 (right to liberty and security) and 34 (right to petition the Court) of the Convention. This affirmed the earlier judgment of the Chamber.

With regards to Article 3, the Court agreed with the Chamber that there was a violation on the grounds that the applicant did not receive sufficient medical assistance. The Court recognized that during detention, Article 3 requires the State’s to ensure that conditions are “compatible with respect for [] human dignity” and that they do not inflict unnecessary distress or hardship. Here, the applicant had serious medical conditions and did not receive adequate medical assistance.

With regards to Article 5, the Court upheld the Chamber’s finding of violations of sections 1, 3 and 4. The parties did not comment or object to the Chamber’s findings, and the Court did not find fault with the Chamber’s reasoning. The Chamber found that the detention without a court order was in violation of section 1. The Chamber found it did not need to independently review the claims made under sections 3 and 4.

With regards to Article 34, the Court found that the Government violated the Convention by failing to adequately comply with the interim measure issued by the Court. Article 34 permits the Court to issue interim measures and requires that “High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”  The Court found that Article 34 is breached if the Government fails to take all reasonable steps to comply with the interim measure. Here, the measure was issued to ensure that the applicant’s health did not deteriorate in a way that hindered him from pursuing his claim in front of the Court. The Government claims that the three day delay in complying did not in actuality harm the applicant’s health. The Court stated that a determination on failure to comply was not dependent on whether the expected potential harm occurred in actuality.

The multiple dissenting opinions disagreed with the majority’s finding of a violation of Article 34. They expressed a belief that a three day delay, which extended over a weekend, was not unreasonable.

“71. The Court reiterates that ‘the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure do not subject him 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 health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.’”

“89. … [W]here there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court…[T]he fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34.”

“104. … [Regarding the government’s argument that the delay did not expose the applicant to a risk of irreparable damage,] [i]t appears from the file in the present case that the Moldovan authorities were unaware of the alleged absence of a risk to the applicant's life and health at the time of the events and even much later. They did not inform the Court of any evidence they may have had raising doubts as to the applicant's state of health or the necessity of one treatment or another. In such circumstances, there was no explanation whatsoever at that moment in time for their failure to take immediate action aimed at complying with the interim measure and at reducing the presumed risk to the applicant. Such failure to comply is to be regarded as at least negligently allowing a situation to continue which, as far as was known at the material time, could have led to irreparable damage to the applicant and could thus have deprived the proceedings of their object. The fact that, ultimately, the risk did not materialise and that information obtained subsequently suggests that the risk may have been exaggerated does not alter the fact that the attitude and lack of action on the part of the authorities were incompatible with their obligations under Article 34 of the Convention.”

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