Since the beginning of 2019, 72 convicts have been released from prisons in Moldova on the grounds that they were being held in inhuman and degrading conditions that violated the European Convention on Human Rights (ECHR). In that same period, more than 2,500 people in Moldova’s detention institutions filed complaints about being held in similar conditions and requested compensation in the form of a reduced prison term or monetary damages. In other words, the Government has found itself “guilty” of mistreating its detainees – and is now paying its convicts back with either money or freedom.
The chronic under-funding of repairs and maintenance in the penitentiary system (just €5 million from 2012-2018) as well as Soviet era constructions going out of commission has led to a severe degradation of conditions for detainees. The construction of the first new modern prison, a project worth €44.5 million, since Moldova’s independence has been delayed year after year, even though around €39million in external funding was secured for the project back in 2013.
The European Court of Human Rights (ECtHR) first found Moldova guilty of violating Article 3 of the ECHR – prohibiting torture or inhuman or degrading treatment or punishment – in 2005, due to the deteriorating conditions in the country’s prisons.
Since then, the European Court has ruled against Moldova in 30 cases involving similar abuses. These were concentrated between 2012 and 2014, when Moldova was involved in 49 cases at the ECtHR for violations under Article 3.
The cases resulted in 27 convictions (with 253,000 euros paid in damages) and 22 cases where Moldova acknowledged the existence of an infringement and reached an amicable settlement (paying 344,000 euros in compensation all total).
This total of almost 600,000 euros in damages is in addition to compensations ordered by judges at the national level.
ECtHR issues an “ultimatum”
These cases exposed inhuman conditions in the Moldovan prison system, including overcrowding, lack of proper hygiene and facilities, insufficient and poor quality food, as well as lack of adequate medical care.
Consequently, the European Court became increasingly insistent in its recommendations to the Chișinău authorities, calling for the establishment of compensatory mechanisms and the elimination of poor detention conditions at the national level.
As the number of complaints regarding prison conditions increased, so did demand for involving the ECtHR. By the end of 2015, over 70 applications from Moldova had reached the European Court’s judges.
The ECtHR sounded its final alarm on December 15, 2015, when it issued an unprecedented ruling in the case of Șișanov vs. Moldova.
The Court asked the national authorities to promptly implement an appeal or a combination of preventive and compensatory remedies, and to guarantee effective means of redress for violations of the Human Rights Convention resulting from improper detention conditions in Moldova.
In the event that Chișinău didn’t identify a solution to the problem within six months, the state would have to pay moral damages to all 70 people concurrently – a sum amounting to over ten million lei (518,000 euros).
The Government’s solution postponed by Parliament
Six months after the decision was issued in the case of Șișanov vs. Moldova, a mechanism for repairing damages due to poor detention conditions was developed – but only on paper. The Ministry of Justice developed a draft law adding several articles to the Criminal Procedure Code.
The remedy consisted of the possibility of filing a complaint in court against the administration of the detention institution, regarding the conditions that seriously affect the rights of convicts or detainees held in preventative custody.
The preventive remedy implied that the court would oblige the prison administration to eliminate the identified degrading conditions within a certain time period. But the compensatory mechanism also included other possibilities for repairing the damage.
One possibility was to reduce the punishment, calculating from 1 to 3 days of reduction for every 10 days of detention under degrading conditions, depending on the severity of the conditions. If the remaining sentence does not allow the full reduction of the remaining sentence, the detainee can apply for monetary compensation for the remaining period – up to two conventional units (around 5 euros (100 lei)) for a day of detention. Persons who have completed their prison sentences can file a compensation claim to the court following the Civil Procedure Code.
The document was voted on in its first reading in December 2016, and then in a final reading in July 2017. The mechanism was not immediately implemented, however, because the former Democratic Party deputy, Anatolie Zagorodnii, proposed an amendment regarding the entry into force of the changes on January 1, 2019, on the grounds that the project involves financial expenses that were not included in the budget in 2017 and needed to be planned for.
Meanwhile, ECtHR judges continued to receive complaints from persons imprisoned in Moldova’s penitentiary system.
At the end of 2018, a few days before the Ministry of Justice’s mechanism entered into force, two other deputies of the Democratic Party, Igor Vremea and Sergiu Sîrbu, re-drafted it, introducing new amendments.
In this final draft, the project assumes that complaints regarding the conditions of detention contrary to Article 3 of the ECHR shall be submitted while in detention or within six months from the date when that person is no longer held in such conditions, but no later than four months after their release from prison.
The mechanism establishes that the investigating judge shall examine complaints within a maximum period of three months and that the prison administration shall submit a report that responds to all the claims invoked in the complaint by the detainee within in 10 days, indicating the actions taken to address the contested detention conditions.
The law stipulates that, when assessing detention conditions, the court shall evaluate both the evidence presented by the parties and the reports of the national and international institutions in the field, taking into account the cumulative effects of the general conditions in relation to the individual characteristics of the detainee, as well as the period during which detainee was held under the contested conditions.
According to the law, if the court finds the detention conditions contrary to the provisions of Article 3 of the Human Rights Convention, the administration of the prison is obliged to eliminate the contested conditions of detention within a maximum of 15 days.
The Law entered into force on January 1, 2019.
Around 50,000 euros compensation in eight months
According to data from the National Penitentiary Administration (ANP), 2,362 files seeking the application of the compensatory mechanism were submitted to the courts in the first eight months of 2019.
In addition, 147 requests were filed under Article 385 paragraph 5 of the Code of Criminal Procedure for the reduction of sentences (calculated as two days imprisonment for every day of preventive arrest), in response to alleged violations of rights guaranteed under Article 3 of the ECHR.
According to Oleg Pangea, spokesman for the National Penitentiary Administration, all the complaints submitted so far concern the conditions of Chișinău’s Penitentiary no. 13.
The National Penitentiary Administration data shows that during the aforementioned period of time, 691 applications were admitted and 36 were partially considered. As many as 171 complaints were rejected, 42 were ceased, 168 were dismissed and five were declared inadmissible. Some of the court decisions were appealed and are currently being examined in the courts of appeal.
During this time, 72 people were released from detention. At the same time, the state was obliged to pay damages exceeding 50,000 euros (959,000 lei) to the persons formerly in custody.
The new mechanism has also resulted in some high profile cases, including that of Former prime minister Vlad Filat, who is among those who received compensation. On July 30, 2019, the Chișinău Court reduced his nine-years prison sentence in the file of passive corruption and influence trafficking by 682 days.
In August 2019, the former athlete Ion Șoltoianu, sentenced in 2013 to 12 years in prison for murder, illegal weapons possession and blackmail, was released from the Penitentiary no. 13 through the same compensatory mechanism.
In the course of eight months, the state was obliged to pay detainees over 50,000 euros (959, 000 lei) for holding them in inhuman and degrading conditions. This amounts to more than half of the money allocated in 2018 for repairs to the penitentiary institutions – around 88,000 euros (1.7 million lei).
The arguments of the Ministry of Justice
Anatolie Munteanu, former deputy minister and secretary of state at the Ministry of Justice, was one of the authors of the mechanism and the one who presented the project to the deputies in 2016. He asserts that the remedy was inspired by international models, such as legislation in Romania and Italy, and adapted to the particularities of Moldova.
According to him, the ECtHR transmitted all ongoing cases on prison conditions in Moldova to the national justice system and has not been accepting new Moldovan cases related to violations of Article 3 since January 1, 2019, because of the existence of the functioning national mechanism.
He also believes that the mechanism is primarily for the benefit of society, because detention in inhuman and degrading conditions undermines the purpose of criminal punishment, and the person will not leave prison re-educated and ready to reintegrate into the community with new visions and principles; on the contrary, the person may leave more “hardened and frustrated.”
According to Munteanu, the construction of a new prison with a capacity of 1,536, could solve the problem. He said that this project is only in the initial stage of designating through tender the company that will build the prison, and could only be completed in 2024.
The other side of the coin: double standards
On the other hand, Alexandru Zubco, the Head of the Prevention of Torture Department at the People’s Advocate Office, thinks that the subject must be viewed from several angles.
He argues that all of the nearly 7,000 convicts in Moldovan prisons and about 10,000 people who are placed in preventive detention annually have the right to request the application of this compensatory mechanism, but not everyone knows about it and they have no opportunities to access it.
Zubco also believes that the law has several shortcomings which leave room for interpretation.
According to him, unlike the Romanian model – where it is expressly established that “bad treatment” means inhuman and degrading conditions and specifies in which situations a person can request the application of the compensatory mechanism – Moldova’s legislation only contains general notions and is limited only to: “The conditions affecting the rights of the convict or the prevented persons, guaranteed by Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”
“We have double situations, when convicts from the same cell address the court, and two judges issue different judgments. There are already such cases [where] one convict’s request is granted while the other’s request is rejected,” explained the Head of the Prevention of Torture Department.
He argues that the concept sounds legal but the problem has not been solved, and the prison system, instead of exercising its mission, is busy justifying itself against accusations regarding poor detention conditions in court.
“When the state budget feels the effects – and the budget will be affected – state policy will be radically changed. Detained persons are being paid. It is a colossal sum, considering that no money is invested in the system, but only taken out of it. Around 50,000 euros would solve problems in a prison,” Zubco said. “The prison system is [meant] to justify itself in front of the detainees. It’s not good. A smart convict can skillfully blackmail the system and the state.”
Oleg Pantea, National Penitentiary Administration spokesman, claims that the institution has prepared the ground for the application of the respective mechanism, but there are more problems.
“We knew that the normative act would come into effect and we made an internal counter-assessment, to evaluate what the real detention conditions are. When detainee X or Y complains, we have already evaluated the number of cells or the detention unit. In court, in most cases, we are against the application of the compensatory mechanism,” he explained, specifying that as of May 2018 each prison has its own lawyers, who go to court in these cases.