I.E. v. the Republic of Moldova (Application no. 45422/13)

A selection of key paragraphs can be found below the document.


43. In the present case, the Court notes that although the applicant was accused of murder, at the time of his placement in prison no. 13 he had not been convicted. As a minor placed for the first time in detention, he was obviously in a particularly vulnerable position. His suspected mental disability (see paragraph 21 above) could only have exacerbated his vulnerability. Nonetheless, he was placed in a cell with five other detainees who had already been convicted at least by a first-instance court of serious offences, such as murder and sexual violence. (…) In this respect the Court notes that under both Council of Europe and United Nations prison rules (see paragraphs 30 and 31 above), untried prisoners should be detained separately from sentenced prisoners. 

46. The Court concludes that (i) the applicant’s placement in a cell with persons already convicted of very serious, violent offences, (ii) his special vulnerability as a minor and as a person with mental disability (see paragraph 21 above), and (iii) the insufficient reaction to clear and medically confirmed indications of ill-treatment, all contributed to the creation of conditions in which he was exposed to a serious risk of ill- treatment by co-detainees. (…) the Court finds that there has been a violation of Article 3 of the Convention under its substantive limb.

61. While the Court has not previously formulated a definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities(see, for example, Bozano v. France, 18 December 1986, Series A no. 111; Čonka v. Belgium, no. 51564/99, ECHR 2002-I; Saadi, cited above, §§ 68 and 69; and S.V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 76, 22 October 2018).  

62. Turning to the circumstances of the present case, the Court notes that Article 186 § 4 of the Code of Criminal Procedure expressly prohibits the holding of a minor in detention pending trial for a period longer than four months, without any distinction as to the minor’s legal status during such detention (suspect, accused or indicted – see paragraph 31above).

64.  In this context the Court considers that the applicant’s lawyer made a compelling argument, both before the domestic courts (see paragraph 10 above) and in his observations, that the prosecutor in charge of the case had been aware of the entirety of the applicant’s alleged actions from the very beginning (see paragraph 7 above). As such, it cannot be said that during the murder investigation that prosecutor became aware of separate offences allegedly committed by the applicant and that in reaction thereto he initiated new criminal investigation. 

67.  The Court considers that such an artificial separation of the charges with the obvious aim of extending the time-limit in respect of the applicant’s detention (which would otherwise have been unlawful) constitutes an element of bad faith on the part of the authorities. As such, the applicant’s detention in respect of newly opened criminal proceedings after 9 December 2012 was arbitrary, within the meaning of Article 5 § 1 of the Convention


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