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FOURTH
SECTION
CASE OF BREABIN v. MOLDOVA
(Application
no. 12544/08)
JUDGMENT
STRASBOURG
7 April 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Breabin v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 17 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12544/08) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mr Dumitru Breabin (“the
applicant”), on 5 February 2008.
- The
applicant was represented by Mr G. Ulianovschi, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged that he had been subjected to severe police
brutality and that the authorities had failed to carry out an
adequate investigation into the incident, in breach of Article 3 of
the Convention. He also complained under Article 13 of the
Convention.
- On
21 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Chişinău. He is a
driver but at the time of the events was unemployed.
- He
was suspected of having forged documents concerning the sale of an
apartment in Chişinău and was summoned to appear at the
Ministry of Internal Affairs for questioning on 21 December 2004.
- He
complied with the summons and appeared before police officers N. T.
and S.D. in their office, in the building of the Ministry of Internal
Affairs. The time of his arrival in the building of the Ministry is
disputed between the parties. According to the applicant he arrived
at about 9 a.m. while the Government maintains that he arrived
at 1 p.m. According to the applicant, the two police officers tried
to force him to confess and when he refused to comply beat him with
rubber truncheons and punched him in the head. Following a punch to
his right ear he lost consciousness for several minutes. The
allegations of beatings are disputed by the Government. It is
undisputed that the questioning took place. The length of the
questioning is also disputed between the parties: according to the
applicant it lasted for eight hours while the Government contend that
the questioning lasted for only one hour. At the same time it is
undisputed that the police officers did not make any record of the
questioning on that day.
- The time of the applicant's release is also disputed
between the parties: the Government contend that he was released at
about 2 p.m. while the applicant submits that he was released at
approximately 5 p.m. It is, however, undisputed that he took a taxi
from the front of the Ministry of Internal Affairs and went directly
to his friend, V.P., with whom he had planned to go to Germany the
next morning to inform him that he would not be able to go. Both the
taxi driver and his friend noted the bruises on his face and were
told by the applicant that he had been beaten up by the police in the
building of the Ministry of Internal Affairs. The applicant obtained
the taxi driver's card.
- The
applicant felt ill during the night and the next morning, 22 December
2004, he went to the Emergency Hospital (Spitatlul de Urgenţă).
The hospital's register contains the following information:
“The patient was beaten up by police officers in
the building of the Ministry of Internal Affairs on 21 December 2004
at 11.50 a.m. with loss of consciousness for several minutes. He
complains of headache, nausea, vomiting and vertigo. Diagnosis:
concussion and bruises to the face, upper lip, head and body.... The
applicant refused to be hospitalised. Information has been
transmitted to the General Police Station and received by D. under
number 6196 at 8.35 p.m.”
- It
appears that no action followed as a result of the Emergency
Hospital's informing the General Police Station about the applicant's
allegations of ill-treatment at the hands of police officers.
- On
the same day, 22 December 2004, at 4.45 p.m. the applicant was
hospitalised in a military hospital. According to the applicant, he
chose that hospital over the Emergency Hospital because it had
cheaper services. It appears from the hospital's register that the
applicant gave the same account of events as at the Emergency
Hospital about the beating received on 21 December 2004 in the
building of the Ministry of Internal Affairs at the hands of two
police officers. He was diagnosed with head trauma, multiple bruises
to the body and head and post-traumatic deafness in the right ear.
The applicant left hospital on 31 December 2004.
- On
5 January 2005 the applicant obtained a forensic report concerning
his injuries. The report confirmed the previous diagnosis and stated
that the injuries had been inflicted with blunt objects and that the
findings of the medical examinations were compatible with the
applicant's account of the use of physical violence against him on 21
December 2004. The injuries were designated under the Criminal Code
as light injuries, necessitating no more than twenty-one days of
medical care.
- On 3 September 2005, during the investigation
proceedings in the criminal case against the applicant, he complained
to an investigator that he had been ill-treated on 21 December 2004.
It appears that no action followed in respect of the applicant's
complaint.
- On 15 December 2005 the applicant wrote to the
Prosecutor's Office and complained that, having examined his criminal
file on 14 December 2005, he had noted that it did not contain
any information about his questioning of 21 December 2004 and that no
action had been taken in respect of his ill-treatment on that date in
spite of two complaints, one lodged by the hospital on 22 December
2004 and his own complaint of 3 September 2005. He asked that
criminal proceedings be initiated against the two police officers who
had ill-treated him and joined to his request a copy of the forensic
medical report of 5 January 2005.
- On
15 January 2006 the Prosecutor's Office decided to take no action in
respect of the applicant's ill-treatment complaint after finding it
ill-founded. In a decision of the same date it was stated that the
accused police officers had admitted having questioned the applicant;
however, they denied having ill-treated him and since the applicant
had only complained about the alleged ill-treatment one year later,
it was obvious that he had the intention to protract and hinder the
criminal proceedings against himself. It appears that the applicant
was not heard and no mention of his previous complaints or the
forensic report was made. The applicant appealed against this
decision and argued that no assessment had been made of the medical
report. He also submitted that he had a witness who could confirm the
fact of his ill-treatment.
- On
24 March 2006 the Centru District Court upheld the applicant's appeal
and quashed the prosecutor's decision. It found, inter alia,
that the Prosecutor's Office had not sufficiently investigated the
medical evidence presented by the applicant.
- On
11 May 2006 the applicant was heard by a prosecutor. He reiterated
the facts presented earlier in his complaint and informed the
prosecutor about the taxi driver who could testify as to his state in
the evening of 21 December 2004.
- On
an unspecified date a prosecutor questioned the taxi driver who had
taken the applicant from the Ministry of Internal Affairs (see
paragraph 8 above). The taxi driver stated that he took the applicant
in the evening of 21 December 2004 from the corner of the street
on which the Ministry of Internal Affairs was located. The
applicant's clothes were dirty and dusty and at the beginning he
thought that the applicant was not sober. However, later he was told
by the applicant that he had been beaten up by two police officers in
the building of the Ministry of Internal Affairs. The applicant
showed him signs of beatings on his face, namely a swollen ear and
bruises around it. Before leaving the car, the applicant asked for
his card and he gave it to him.
- On
an unspecified date a prosecutor questioned the applicant's friend
whom the latter visited in the evening of 21 December 2004 (see
paragraph 8 above). The applicant's friend confirmed that in the
evening of 21 December 2004 between 8 and 10 p.m. the applicant
had come to his home to announce to him that he was not able to
travel to Germany the next day. The applicant had bruises on his face
and told him that he had been beaten up the same day by police
officers in the building of the Ministry of Internal Affairs.
- On
7 July 2006 the Centru Prosecutor's Office again dismissed the
applicant's complaint of ill-treatment. Without giving any assessment
of the medical reports and the statements of the taxi driver and the
applicant's friend it found the applicant's complaint ill-founded
because there was sufficient evidence to prove his guilt of the
offence imputed to him and therefore his complaint about
ill-treatment was a mere attempt to hinder and protract the criminal
investigation against him. This was supported by the fact that the
applicant had complained only one year after the alleged events. The
applicant challenged this decision before the prosecutor's
hierarchical superior.
- On
29 January 2007 the applicant's appeal was dismissed as ill-founded
by a hierarchically superior prosecutor on identical grounds. The
applicant challenged the decision in court.
- On
24 April 2007 the Centru District Court upheld the applicant's
appeal. It found, inter alia, that the prosecutors' decisions
lacked reasoning.
- On
29 June 2007 a prosecutor from the Centru Prosecutor's Office again
dismissed the applicant's complaint. He stated, inter alia,
that the accused police officers had admitted to questioning the
applicant on 21 December 2004 only for one hour; however, they
had denied having applied force to him. The statements of the taxi
driver and of the applicant's friend could not be accepted because
they were not eyewitnesses to the beating but rather knew about the
applicant's alleged ill-treatment at the hands of police from what
the applicant had told them. The police officers argued that it was
impossible for them to ill-treat the applicant in their office
because the Minister's office was one floor above and if there had
been shouts the Minister or other persons from the Ministry's top
echelons would have heard. Moreover, they did not have rubber
truncheons in their office and the offence with which the applicant
had been charged was not so serious as to justify ill-treating him. A
colleague of the police officers also declared that the applicant was
not ill-treated and that, during questioning, the door of the office
was always open. The applicant appealed against this decision and
argued that it was unlawful because the prosecutor had failed to
examine objectively and completely all the circumstances of the case.
The applicant submitted that the prosecutor had failed to notice that
the police officers had failed to draw up a record of his detention
and questioning of 21 December 2004.
- On
15 August 2007 his appeal was dismissed by the Centru District Court.
The court found that the forensic report of 5 January 2005 did not
prove the applicant's ill-treatment because it had been drawn up
twelve days after the alleged ill-treatment.
- The
damage to the applicant's right ear was so serious that it never
recovered. The applicant submitted a medical report of 2007 stating
that the loss of hearing in his right ear was irremediable and
permanent.
- On
an unspecified date the applicant requested a medical report from the
Forensic Medicine Centre of the Ministry of Health Protection which
concluded on 11 November 2008 that following the head trauma of
21 December 2004 the applicant had entirely lost the hearing in
his right ear. According to Moldovan legislation the injury caused
the applicant a loss of working capacity of twenty-five per cent. The
applicant's injury was redesignated under the Criminal Code as an
injury of medium seriousness causing long-term health problems
necessitating more than twenty-one days of medical care.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic Law
- The relevant provisions of the Criminal Code read as
follows:
Article 309. Extortion of confession
(1) The act of forcing someone to confess a
criminal offence or to make declarations during questioning, by means
of threats or by other illegal means by the person carrying out a
criminal investigation... shall be punishable by imprisonment of up
to three years...
(2) The same act accompanied by:
a) violence;
b) cruel, inhuman or degrading treatment;
...
Shall be punishable by imprisonment of three to eight
years...
Article 309 § 1. Torture
(1) Intentionally creating intense physical
or mental pain or suffering, especially with a view to obtaining
information or testimonies ... shall be punishable by imprisonment of
two to five years....
(3) The actions provided at paragraph 1 ...,
carried out:
c) by two or more persons;
e) with the use of special instruments for
torture or other objects adapted for that purpose;
f) by an official,
shall be punishable by imprisonment of five to ten
years...
- The
relevant provision of the Code of Administrative Offences reads as
follows:
Article 471. Causing injuries
The intentional causing of light injuries,
ill-treatment, blows or other violent actions which caused physical
pain shall be punishable by a fine of 200-300 Moldovan lei (MDL) or
by imprisonment of up to fifteen days...
B. Domestic remedies relied on by the Government
- In Ciorap v. the Ministry of Internal Affairs and
the Ministry of Finance (final judgment of the Supreme Court of
Justice of 19 December 2007) a person remanded in custody was
ill-treated by police to such an extent that he had a fractured skull
and an open post-operative wound. Despite clear evidence in support
of his allegations of ill-treatment, his criminal complaints were
dismissed by the Prosecutor's Office and the video of his
ill-treatment disappeared from the criminal file. The applicant
introduced a civil action against the State claiming that there had
been a violation of his rights guaranteed by Article 3 of the
Convention and seeking compensation of MDL 300,000 (approximately
18,000 euros (EUR)). By its final judgment the Supreme Court of
Justice found that there was sufficient evidence to support the
applicant's allegations of torture, that the Prosecutor Office's
investigation had been inefficient and that therefore there had been
a violation of the applicant's rights guaranteed by Article 3 of
the Convention. The applicant was initially awarded MDL 30,000;
however, that amount was reduced by the Supreme Court to MDL 3,000
(approximately EUR 180).
THE LAW
- The
applicant complained under Article 3 of the Convention that he had
been ill-treated by the police on 21 December 2004. He also
complained that the domestic authorities had failed to investigate
his complaints of ill-treatment properly. Article 3 of the Convention
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant argued that he did not have effective remedies to claim
compensation for the ill-treatment to which he had been subjected and
alleged a violation of Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ....”
I. ADMISSIBILITY OF THE CASE
- The Government submitted that the application was
inadmissible on grounds of non-exhaustion of domestic remedies. In
particular, they argued that the applicant should have initiated
civil proceedings and claimed compensation for the alleged
ill-treatment. They relied on the domestic courts' jurisprudence, in
particular on the case of Ciorap (see paragraph 29 above).
Alternatively, the applicant could have complained under Article 471
of the Code of Administrative Offences. The applicant disagreed with
the Government.
- In
so far as the Government's contention that the applicant should have
complained under the provisions of the Code of Administrative
Offences is concerned, the Court reiterates that an individual is not
required to try more than one avenue of redress when there are
several available (see, for example, Airey v. Ireland, 9
October 1979, § 23, Series A no. 32). It clearly appears from
the facts of the case that the applicant made a criminal complaint
against the police officers under the provisions of the Criminal Code
(see paragraphs 13 and 14 above). The Government have not argued that
such a procedure is ineffective in respect of the alleged breach of
the applicant's right guaranteed by Article 3. Accordingly, their
objection that he should have tried to complain also under the
provisions of the Code of Administrative Offences must be dismissed.
- As to the civil remedy relied on by the Government,
the Court retierates that where an individual makes a credible
assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other agents of the State, that provision,
read in conjunction with the State's general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000-IV).
- Having examined the domestic courts' judgments in the
case of Ciorap, the Court notes that beside the manifestly
inadequate amount of non-pecuniary damage awarded to Mr Ciorap for a
violation as serious as torture, the civil proceedings in question
did not lead to the identification and punishment of the responsible
police officers. The Court recalls other decisions by the domestic
courts to compensate victims of Article 3 breaches, such as the
2004 judgment in Drugalev v. the Ministry of Internal Affairs and
the Ministry of Finance (see Holomiov v. Moldova,
no. 30649/05, §§ 88, 106 and 107, 7 November 2006).
However, such decisions, encouraging as they may seem, do not appear
to be part of a consistent policy of the domestic courts offering
real remedies against breaches of Article 3 of the Convention. The
Court considers, therefore that the complaint under Article 3 of the
Convention cannot be declared inadmissible for non-exhaustion of
domestic remedies and accordingly the Government's objection must be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The submissions of the parties
1. Concerning the alleged ill-treatment
- The
applicant submitted that on 21 December 2004 between 9 a.m. and
5 p.m. he was under the control of the police and that before that he
had been in perfect health. After his release, he had injuries on his
body, which was confirmed by the medical report of 22 December 2004
and not contested by the Government. The medical evidence, which was
corroborated by the statements of two witnesses (the taxi driver and
the applicant's friend), proved beyond any reasonable doubt that the
injuries had been inflicted on the applicant during his detention in
the building of the Ministry of Internal Affairs. The conclusions
reached by the prosecuting authorities in dismissing the applicant's
complaint were based exclusively on the declarations of the police
officers accused of ill-treatment. The applicant also argued that one
of the police officers accused by him implicitly admitted that there
was a current practice of ill-treating suspects by saying that the
charges against him had not been so serious as to warrant
ill-treatment.
- The
Government contested the applicant's submissions and argued that he
had not been subjected to ill-treatment on 21 December 2004. In
support of their position the Government restated the findings of the
Prosecutor's Office in the decisions dismissing the applicant's
complaint.
2. Concerning the alleged inadequacy of the
investigation
- The
applicant submitted that only in respect of cases of violence between
individuals is a complaint from the victim necessary to trigger a
police investigation. Under Articles 276 and 298 of the Code of
Criminal Procedure the triggering of an investigation into
allegations of ill-treatment by police is not conditioned by the
existence of a prior complaint from the alleged victim of
ill-treatment. In support of his contention the applicant sent a copy
of an order of the Prosecutor General addressed to his subordinates,
according to which prosecutors are obliged to investigate ex
officio any case concerning torture or ill-treatment by the
police.
- The
applicant was informed on 22 December 2004 by the hospital that the
police would be informed about his allegations of ill-treatment.
Therefore, he did not submit any complaints and was awaiting to be
summoned by the police to make statements.
- On
3 September 2005, when summoned by a prosecutor for questioning in
respect of the criminal proceedings against him, the applicant
complained about the ill-treatment of 21 December 2004. Despite this
fact, and despite the provisions of the Code of Criminal Procedure,
no action followed.
- On
14 December 2005, when examining his criminal file, the applicant
noted that it did not contain any traces of the information submitted
by the hospital on 22 December 2004 or of his complaint made on 3
September 2005 and, on 15 December 2005, he made a complaint.
- Even
after 15 December 2005 the Prosecutor's Office did not undertake any
investigative measures and dismissed the complaint on 15 January
2006 solely on the basis of the declarations of the accused police
officers. The prosecutor in charge of the case concluded that the
applicant had made the complaint of ill-treatment in order to distort
the criminal proceedings against him; however the applicant did not
make any confession during the questioning of 21 December 2004 and
therefore any fake complaint would not have helped him in the
criminal proceedings against him. Moreover, after 21 December 2004
the police officers who had ill-treated him were not involved in the
investigation of the charges against him.
- During
the investigation into his allegations of ill-treatment, the
prosecutors only questioned two witnesses and the two police officers
accused of ill-treatment. They did not question the doctors who had
examined the applicant. Moreover, the case file concerning the
investigation into his complaints of ill-treatment did not contain
anything which would indicate that the prosecutors had noted the
doctors' conclusions that the injuries on the applicant's body were
consistent with his description of the events leading to them. The
prosecutors also failed to give any alternative explanation as to the
origin of the applicant's injuries.
- The
Government submitted that at the time of receiving the information
about the applicant's ill-treatment from the hospital, on 22 December
2004, the offence fell within the category of offences (causing light
injuries) in which a criminal investigation was to be commenced only
as a result of a complaint lodged by the victim. Therefore, even if
the police were informed about the applicant's injuries, they could
not start investigating the case unless they received a complaint
from the applicant.
- After
thorough investigation, the investigating authorities came to the
conclusion that the applicant's complaint one year after the events
was aimed at tampering with the criminal investigation in respect of
the charges against the applicant. Moreover, the fact that the
applicant complained only one year after the events made it difficult
for the authorities to investigate his complaints properly. Had the
applicant informed the authorities immediately, they could have
looked for traces of the applicant's blood on the clothes of the
accused police officers or for other evidence. However, this was
rendered impossible by the applicant's late complaint.
- The
witnesses called by the applicant were not eyewitnesses to the
alleged ill-treatment but had rather heard about it from the
applicant.
B. The Court's assessment
1. Concerning the alleged ill-treatment
- As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment. Unlike most of the
substantive clauses of the Convention and of Protocols Nos. 1 and 4,
Article 3 makes no provision for exceptions and no derogation from it
is permissible under Article 15 § 2 even in the event of a
public emergency threatening the life of the nation (see Selmouni
v. France [GC], no. 25803/94, § 95, ECHR 1999 V,
and the Assenov and Others v. Bulgaria, 28 October 1998, § 93
Reports of Judgments and Decisions 1998-VIII).
- Where a person is injured while in detention or
otherwise under the control of the police, any such injury will give
rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98,
§ 80, 12 October 2004). It is incumbent on the State to provide
a plausible explanation of how the injuries were caused, failing
which a clear issue arises under Article 3 of the Convention
(Selmouni v. France, cited above, § 87).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
- It
is undisputed that on 21 December 2004 the applicant was in the
building of the Ministry of Internal Affairs under the control of the
police. The Court notes with concern that no record was kept of the
time of his arrival and release nor of the times of his
interrogation. A medical report dated 22 December 2004, in the
morning, concluded that the applicant had injuries to his head and
body. It is true that after his release from the Ministry of Internal
Affairs the applicant did not go directly to a hospital. However, he
was able to provide two witnesses who confirmed that he had injuries
on his face in the evening of 21 December 2004, after his
release from the Ministry of Internal Affairs. One of the witnesses
was a taxi driver who picked him up from the front of the Ministry of
Internal Affairs. The Centru Prosecutor's Office dismissed the
testimony of the taxi driver on the ground that it was hearsay
evidence, namely that it was the applicant who had told him about the
beating at the hands of the police. However, it appears clearly from
the taxi driver's statements that he had personally seen injuries on
the applicant's face and the latter's dirty clothes. Moreover, it is
undisputed between the parties that the applicant was seen by the
taxi driver immediately after his release from the building of the
Ministry of Internal Affairs.
- In
the light of the above considerations, and since it was not found
that the applicant had been injured before entering the building of
the Ministry of Internal Affairs, the Court concludes that the
applicant's injuries were caused during his stay at the Ministry of
Internal Affairs on 21 December 2004.
- Since
the Government did not give any explanations concerning the origin of
the above injury, and having regard to the strong presumption which
arises in such matters (see paragraph 48 above), the Court concludes
that the Government have not satisfied it that the applicant's
injuries were caused by anything other than ill-treatment while in
police custody. Accordingly, there has been a violation of Article 3
of the Convention in that he was subjected to ill-treatment.
2. Concerning the alleged inadequacy of the
investigation
- Beside
the general principle enunciated in paragraph 34 above, the Court
reiterates that the investigation into serious allegations of
ill-treatment must be thorough. That means that the authorities must
always make a serious attempt to find out what happened and should
not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions (see the Assenov
and Others judgment, cited above, § 103 et seq.). They must
take all reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 104, ECHR 1999-IV, et seq. and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000).
Any deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of the persons
responsible will risk falling foul of this standard.
- The
Court notes a series of serious shortcomings in the investigation
conducted by the national authorities. In so far as the Government's
reliance on the fact that the applicant waited for almost a year
before personally filing a complaint about his ill-treatment is
concerned, the Court notes that the applicant sought medical
attention upon his release from custody. The doctor who examined him
notified the police of the applicant's injuries and his allegations
that they had been caused by police ill-treatment. In such
circumstances, the onus was on the authorities to follow-up the
concerns raised in the hospital's letter. However, no response at all
was given to the letter. The Prosecutor's Office also failed to react
even when it was approached personally by the applicant on 3
September 2005. After 15 December 2005, when an investigation
was finally launched, the prosecutors failed to inquire as to the
reason why the two accused police officers had omitted to make any
entries in the registration log concerning the applicant's
questioning on 21 December 2004. On 15 January 2006 the Prosecutor's
Office dismissed the applicant's complaint without even questioning
the applicant, nor for that matter any other witnesses. The
conclusion was that his aim was to tamper with the criminal
investigation against him, a conclusion which remained predominant
until the end of the investigation. It is not without interest to
note that in spite of reaching such a conclusion, the Prosecutor's
Office did not make any analysis of whether the applicant had any
incentive to make false accusations against the two police officers
or whether the applicant could have benefited from such accusations
in circumstances in which no confession was obtained on 21 December
2004 and the two accused police officers did not work on his case
after that date.
- It
is true that after the quashing of the Prosecutor's decision of
15 January 2006 to dismiss the applicant's complaint, witnesses
were heard. However, the Prosecutor's Office dismissed the witnesses'
testimonies on the ground that they were hearsay evidence, namely
that the taxi driver's and the applicant's friend's knowledge of the
ill-treatment were based on the applicant's account of events to
them. However, having examined the witnesses' statements, the Court
noted that they declared that they had seen signs of beatings on his
face. These very important declarations were ignored by the
prosecutors and treated as irrelevant information.
- In
the light of the serious deficiencies referred to above, the Court
considers that the domestic authorities did not make a serious
attempt to investigate the applicant's complaints of ill-treatment.
Accordingly, there has been a violation of Article 3 of the
Convention in this respect also.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant contended that as a result of the ineffectiveness of the
criminal investigation of his allegations of ill-treatment he did not
have effective remedies to claim compensation for the ill-treatment
to which he was subjected.
- The
Government disagreed and invoked the case of Ciorap as an
example of available domestic remedies.
- The
Court notes that the Government failed to submit evidence as to the
existence of any effective domestic remedies (see paragraphs 32-35
above). In any event, given the inadequacy of the investigation into
the applicant's criminal complaint against the police officers who
had ill-treated him, a civil claim based on the same facts and
allegations would not have had any prospects of success. Accordingly,
the Court considers that it has not been shown that effective
remedies existed for the applicant to claim compensation for the
ill-treatment suffered at the hands of the police. There has
therefore been a violation of Article 13 taken in conjunction with
Article 3 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed EUR 200 in respect of pecuniary damage, the amount
representing his expenditure on the treatment of his injuries caused
on 21 December 2004.
- The
Government submitted that the applicant was not entitled to any
compensation because he had not been ill-treated.
- The
Court considers that there is a causal link between the violation
found and the pecuniary damage alleged; it therefore awards the
entire amount claimed in respect of pecuniary damage.
B. Non-pecuniary damage
- The
applicant claimed EUR 150,000 in respect of non-pecuniary damage
arguing that he had suffered serious physical pain as a result of
ill-treatment necessitating more than twenty-one days of treatment.
He also endured severe mental and emotional suffering as a result of
the treatment he had been subjected to and as a result of the total
loss of hearing in his right ear. According to the Moldovan
legislation such a disability amounts to a loss of working capacity
of 25%. The applicant's disability constituted a serious obstacle to
the practice of his profession and made it very difficult for him to
find a permanent place of employment. The applicant and the other
three members of his family who are his dependants were therefore in
a very difficult economic situation. He was obliged to accept minor
unqualified temporary jobs in order to provide for his family.
- The
Government disagreed and argued that since the domestic authorities
had not found that the applicant had been ill-treated by the police
officers he was not entitled to any compensation. As an alternative
they submitted that the amount claimed was excessive in the light of
the Court's case-law in similar cases.
- Having
regard to the violations found above and their gravity, the Court
considers that an award for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, and bearing in
mind the permanent disability caused to the applicant as a result of
ill-treatment, the Court awards him EUR 25,000.
C. Costs and expenses
- The
applicant also claimed EUR 5,287 for the costs and expenses incurred
before the Court.
- The
Government contested this amount and argued that it was excessive and
unfounded.
- The
Court awards EUR 3,500 for costs and expenses.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant's ill-treatment by
police officers on 21 December 2004;
- Holds that there has been a violation of Article
3 of the Convention in respect of the failure to conduct an effective
investigation into the applicant's complaints of ill-treatment while
in detention;
- Holds that there has been a violation of Article
13 of the Convention on account of the lack of effective remedies in
respect of the ill-treatment complained of;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following amounts, to
be converted into the currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR
200 (two hundred euros) in respect of pecuniary damage;
(ii) EUR
25,000 (twenty-five thousand euros) in respect of non-pecuniary
damage;
(iii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses;
(iv) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
