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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> GURGUROV v. MOLDOVA - 7045/08 [2009] ECHR 923 (16 June 2009)
    URL: http://www.bailii.org/eu/cases/ECHR/2009/923.html
    Cite as: [2009] ECHR 923

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    FOURTH SECTION







    CASE OF GURGUROV v. MOLDOVA


    (Application no. 7045/08)











    JUDGMENT




    STRASBOURG


    16 June 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 Gurgurov v. Moldova,

    The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

    Nicolas Bratza, President,
     Lech Garlicki,
     Giovanni Bonello,
     Ljiljana Mijović,
     Ján Šikuta,
     Ledi Bianku,
     Mihai Poalelungi, judges,
    and Lawrence Early, Section Registrar,

    Having deliberated in private on 26 May 2009,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 7045/08) 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 Sergiu Gurgurov (“the applicant”), on 11 February 2008.

  2. The applicant was represented by Mr V. Ţurcan, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

  3. 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.

  4. On 23 June 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).

    5. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1978 and lives in Chişinău.

  6. The applicant was arrested and placed in detention on 25 October 2005 on suspicion of having stolen some mobile telephones.

  7. According to the applicant, immediately after his arrest the police started to ill-treat him almost every day during lunch breaks and in the evenings in order to try to force him to confess to numerous other offences which he had not committed. Although he was being detained on suspicion of stealing mobile telephones, he was interrogated by police officers from the homicide squad who tried to make him admit to having committed a murder. Since he refused to make any confession and denied the accusations, he was taken on 31 October 2005 to an office in the General Police Headquarters, where five police officers tortured him for several hours. His hands and legs were tied together behind his back and he was suspended on a metal bar. The police officers put a gas mask on his head and periodically closed the air tube. Two wires were placed under the gas mask and attached to his ears and he was given electric shocks. He was beaten on his head with two-litre plastic bottles filled with water and was hit on his ears. Periodically, the applicant lost consciousness. After reviving him the police officers continued the acts of torture. They attached wires to his hips and administered electric shocks to him and beat him. He was later taken off the metal bar and laid on the floor. A weight of thirty-two kilograms was placed on his back and he was left lying on the ground for approximately ten minutes. The applicant's hands and feet were subsequently untied; he felt severe pain in the region of his lower back and was unable to move his feet. He was made to sit on a chair; however, he fell down. He was put back on the chair by two police officers, who kept telling him something, but he could not hear them. He was then taken to his cell. His cellmates put him on a bed, where he was left lying for two days. The allegations of beatings are disputed by the Government.

  8. Since the applicant could not stand up, he was visited by two doctors on 3 November 2005. They were accompanied by one of the police officers who had allegedly tortured him. The police officer told the doctors that the applicant had fallen from his bed. The doctors diagnosed the applicant with hysteria and recommended that he be seen by a neurologist. The applicant was then taken to another room, where he was allegedly told by a police officer not to tell anybody about the acts of torture. He was allegedly threatened with death or imprisonment for twenty-five years. A police officer wrote a report on behalf of the applicant stating that nobody had beaten him up and that he had fallen from his bed and had caught a cold; he allegedly forced the applicant to sign the report.

  9. On 4 November 2005 the applicant's father employed a lawyer, who immediately lodged a complaint with the prosecutor's office alleging ill treatment.

  10. On an unspecified date the applicant was allegedly taken again to an office at the police station. Since he could not walk, he was lifted by two police officers. The police officers who had tortured him were in the office along with three other police officers. He was made to sit on a chair and was kicked and punched. The police officers allegedly requested that he withdraw the complaint about ill-treatment, and threatened him with death.

  11. The ill-treatment was allegedly repeated on several occasions. According to the applicant, he was beaten with bottles filled with water, punched, kicked and told to confess and to withdraw the complaint about ill-treatment.

  12. On 11 November 2005 the applicant was examined by a forensic doctor who later wrote the following in his report (no. 5908): “Current situation: bruise on the left arm, lateral, middle third, oval shape, yellow/brown colour, size 6 x 9 cm. In the region of both knees and below the right patella, numerous abrasions covered by dark brown scabs, partly detached from the skin at their edges, ranging in size from 0.6 x 0.5 cm to 3.5 x 2.5 cm in one place ... Conclusions: the neurologist's findings have not reached us as at 24 November 2005, nor have the X-rays of the lumbar section of the spinal column, to which examination certificate no. 92894 refers .... It is therefore impossible to determine the reasons why the victim is unable to move unassisted. The abrasions visible in the patellar region of the knee joints and the bruises visible on the left arm could have been caused by a blunt instrument and are not less than six or seven days old at the time of examination .... It is impossible to establish with greater accuracy from how long ago the bruises and abrasions date because of the delay in presentation for medical examination. Hospitalisation of the victim in a specialised medical establishment would enable a more accurate diagnosis to be made and the consequences for his state of health to be assessed.”

  13. On 18 November 2005, following complaints by the applicant's lawyer, Amnesty International organised action in support of the applicant by publishing on their Internet site a description of the applicant's case and an appeal to people from all over the world to write to the Prosecutor General of Moldova, the Moldovan Ministry of Internal Affairs and the Moldovan Embassy in their country asking them to take action such as conducting a medical examination of the applicant, carrying out an effective investigation into his complaints of torture and allowing the applicant to meet his lawyer in conditions of confidentiality.

  14. On 23 November 2005 the United Nations High Commissioner for Human Rights wrote to the Moldovan Minister of Foreign Affairs expressing concern about the situation of S. Gurgurov and about the refusal of the authorities to transfer him to a hospital as recommended by doctors. He requested information.

  15. On an unspecified date between 21 and 25 November 2005 the applicant was visited by a delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which described his case in its report (see paragraph 54 below). It appears that in their reply to the CPT's report the Government did not comment on the latter's findings.

  16. On 1 December 2005 the Moldovan Ombudsman wrote to the Prosecutor General informing him about the allegations of torture against the applicant and the fact that no medical assistance had been provided to him by that date. On 11 January 2006 the Prosecutor General's Office informed the Ombudsman that the applicant's complaint appeared to be ill founded.

  17. On 1 December 2005 during questioning by a prosecutor one of the applicant's cellmates stated that the applicant could not walk and that he had to be helped by his cellmates to go to the toilet. All the prison guards stated that the applicant could walk perfectly well and that they had not noted any signs of beatings on him. Only one guard stated that the applicant was limping. Two of the applicant's cellmates stated that he was faking his condition. Another stated that the applicant could not stand or even sit and that he had to be helped by his cellmates to go to the toilet.

  18. On 9 December 2005 the Chişinău Court of Appeal ordered the applicant's release from detention.

  19. On 10 December 2005 the applicant was hospitalised and underwent the following medical examinations: radiography of the head and back, echoencephalography, electroencephalography, computerised tomography, ultrasound of the internal organs and functional computerised investigation. The diagnosis following the investigations was the following: consolidated fracture of the cranial bones (skull broken, without pieces relocated); a 6 x 16 mm focal cerebral contusion in the left temporal cortical area and dilatation of the ventricular system (a contusion with augmented volume of the brain ventricular system); a post-craniocerebral trauma state; cerebral contusion of the left hemisphere (temporal area); medullar contusion L1-L2 with flask tetraparesis, especially on the inferior limbs (trauma of the back, 1st and 2nd lumbar spines, damaging the spinal cord and causing partial paralysis, especially of the legs).

  20. On 20 December 2005 the prosecutor in charge of the case ordered examination of the applicant by a panel of forensic doctors and directed the panel to give answers to the following questions:

    21. “1.  Did Mr Gurgurov suffer from diseases of the nervous system before his arrest?

    2.  Is it possible that the diseases from which he suffered before his arrest were aggravated during detention?

    3.  Did Mr Gurgurov have any injuries at the moment of his arrest which could have led to the worsening of his present state of health?

    4.  Is it possible that the applicant's problems with his central nervous system and his capacity to move were caused by the administering of electric shocks? If so, what are the after-effects of electric shocks and how long do they last?”

  21. On 16 January 2006 a panel of three forensic doctors examined the applicant's medical documents and gave the following answers:

    22. “1 and 2.  The applicant's medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest.

    3.  At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which are considered to be light injuries...

    4.  During further medical investigations of the applicant he was found to be suffering from paralysis of the feet and left arm. The paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable.”

    The forensic panel added that in reaching its conclusions it had not paid attention to the earlier findings concerning the fracture of the cranial bones and the cerebral contusion (see paragraph 19 above) because it had not been presented with the original radiographic images. The panel also added that it could not be ruled out that the applicant was simulating his condition, and that only a psychiatric investigation could exclude that possibility.

  22. On 18 January 2006 the prosecutor's office dismissed the applicant's complaint concerning his allegations of ill-treatment. It relied on the statements of one of his cellmates who had contended that the applicant was faking his condition, the statements of police officers who denied having ill treated the applicant, the medical report of 11 November 2005 and the conclusion of the medical report of 16 January 2006 to the effect that: “the paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable...”

  23. Starting on 15 February 2006 the applicant underwent a medical check-up at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have been subjected there to detailed medical tests and examinations by various medical specialists. In a document entitled “Extract from the medical records”, dated 26 February 2006, issued by the Centre, it was stated, inter alia, that the applicant was suffering the after-effects of cranial trauma (cerebral contusion of the left hemisphere predominant in the temporal area), organic cerebral post-traumatic syndrome, post-traumatic bilateral adhesive otitis, post-traumatic cochlear neuritis, bilateral neuro-sensorial deafness, and medullar lumbar contusion L1-L2 with flask tetraparesis of the inferior limbs. A number of psychological conditions characteristic of victims of torture were also found. The Centre also decided to help the applicant to fund surgery in order to “regain his hearing at least partially”.

  24. On 26 June 2006 the Prosecutor General of the Republic of Moldova, Valeriu Balaban, wrote a letter to the Moldovan Bar Association in which he stated, inter alia, the following:

    25. “Lately, the Prosecutor General's Office has been confronted with the phenomenon whereby some Moldovan lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases. These organisations are used as an instrument for serving personal interests and for enabling suspected persons to avoid criminal responsibility.

    Examples of such incidents are the case of Gurgurov, triggered by the lawyer Ana Ursachi, and the case of Colibaba, triggered by the lawyer Roman Zadoinov. The international media coverage of these cases prompted action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers' clients.

    After having examined with sufficient thoroughness the complaints alleging torture and abuse on the part of the police ... the prosecutor's office dismissed the complaints on the ground of lack of proof that offences had been committed. ...

    ... In such circumstances the irresponsible attitude and behaviour of the lawyers Ana Ursachi and Roman Zadoinov give rise to concern. They knew that no acts of torture had been committed against their clients. However, they complained to international organisations without first attempting to use the national mechanism for solving such problems. They presented the facts erroneously in order to win their cases...

    Such practices by lawyers will be investigated by the Prosecutor General's Office in order to determine whether they have committed the offence provided for in Article 335 § 2 of the Criminal Code, by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country.

    Accordingly, the Bar Association is called upon to take account of the facts described above, to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of the Republic of Moldova.”

    The above letter generated a heated debate in the media. On 30 June 2006 the Moldovan Bar Association issued an official statement in which it qualified the Prosecutor General's letter as an attempt to intimidate lawyers. In an interview to the newspaper Ziarul de Garda the President of the Bar Association declared, inter alia, that it was an attempt to intimidate lawyers so that they would no longer complain to the Court.

  25. It appears that the prosecutor's office did not inform the applicant about its decision of 18 January 2006 until late June 2006. On 17 July 2006 the applicant's lawyer appealed against the decision of 18 January 2006 and argued, inter alia, that the prosecutor's office had not examined the complaint properly. He argued that the prosecutor's office had not paid attention to the fact that on 25 October 2005, on the day of his arrest, the applicant had been in good health. The prosecutor's office had also failed to question persons who had seen the applicant on 3 November 2005, when he was brought before a court, including the judge, prosecutor and persons present in the court. The prosecutor had not questioned the doctors who had examined the applicant, or asked the applicant to identify the persons who had allegedly tortured him and the offices where the alleged torture had taken place. The prosecutor had failed to investigate why police officers from the homicide division were questioning the applicant, who had been charged with stealing mobile telephones.

  26. On 13 February 2007 the appeal was dismissed by the Riscani District Court on the ground that the applicant's lawyer had failed to observe the ten-day time-limit for challenging the prosecutor's decision. The applicant lodged an appeal on points of law which was upheld by the Supreme Court of Justice on 3 July 2007.

  27. In the meantime, in June 2007, the applicant was officially recognised as having a second-degree disability. In the medical documents issued by the Ministry of Social Welfare and Family Matters it was recommended that he should not work. The reasons given for declaring him disabled were “the after-effects of severe head trauma dating from October 2005, injury to the spine and post-traumatic deafness in both ears”.

  28. It appears that on an unspecified date in August or September 2007 the applicant broke his hip as a result of falling down in the stairwell, and spent two months in hospital.

  29. On 15 October 2007 the Chişinău prosecutor's office again dismissed the applicant's complaint about his alleged ill-treatment. The prosecutor based his decision on essentially the same reasons as the decision of 18 January 2006. The applicant's lawyer appealed against this decision.

  30. On 1 November 2007 a higher-ranking prosecutor quashed the decision of 15 October 2007 and ordered the re-examination of the case. He instructed the lower-ranking prosecutor to examine the medical documents, to find out whether the applicant had been suffering before his arrest from any conditions which had been discovered after he was taken into detention and to question the doctors who had examined him.

  31. On 11 December 2007 a prosecutor requested the Ministry of Health to establish a medical panel to verify the applicant's condition in view of the contradictions in the existing medical reports, namely the report of 16 January 2006 and the decision recognising him as having a second degree disability.

  32. On 9 January 2008 a junior health minister wrote to the prosecutor's office informing it that a panel had been set up which had intended to conduct a medical examination of the applicant on 27 December 2007. However, the applicant had failed to appear before the panel.

  33. On 12 March 2008 the same junior minister wrote to the prosecutor's office informing it that the applicant had not shown up for a medical examination scheduled for the same date.

  34. In a letter of 14 April 2008 addressed to the junior health minister, the chief neurologist wrote that the applicant had been seen by him at the beginning of April and that the applicant was in a wheelchair and had undergone hip-replacement surgery. The applicant had a severe weakness in his limbs on the right side. The doctor concluded that the applicant was suffering from severe movement dysfunction on the right side and a less severe dysfunction of the movement of the left foot. According to the doctor it was very difficult to tell the cause of the applicant's condition, which could either be the result of a trauma or have been simulated.

  35. On 6 May 2008 the prosecutor's office reiterated its request to the Ministry of Health for a repeat medical examination of the applicant by a panel of doctors. The prosecutor's office requested that the medical panel answer the following questions:

    36. “1.  Did Mr Gurgurov suffer from any diseases of the central nervous system before [his arrest on 25 October 2005]?

    2.  Is it possible that the diseases from which he suffered before his arrest were aggravated during detention?

    3.  Did Mr Gurgurov have any injuries at the time of his arrest which could have led to the worsening of his present state of health?

    4.  Is it possible that Mr Gurgurov's health problems were caused by self-mutilation?

    5.  Does Mr Gurgurov have traces of a head trauma and a spinal trauma and how are they manifested?

    6.  Is Mr Gurgurov suffering from the after-effects of electric shocks?

    7.  What are the reasons for recognising him as suffering from a second-degree disability and what are the rules according to which this status was granted to him?

    8.  How old are the applicant's injuries?

    9.  Is there a causal link between Mr Gurgurov's state and his injury of September 2007?

    10.  Did the injury of September 2007 influence Mr Gurgurov's state of health?”

  36. On 15 May 2008 the applicant's lawyer complained to the Prosecutor General's Office that the prosecutor in charge of the case was prolonging its examination unnecessarily.

  37. On 6 June 2008 a panel of three forensic doctors, two of whom were members of the panel which issued the report of 16 January 2006, examined the applicant's medical history and gave the following answers:

    38. “1 and 2.  The applicant's medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest.

    3.  At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which could not have any influence on the state of his health.

    4.  The applicant's injuries are not characteristic of self-mutilation; however, it cannot be ruled out that they were inflicted by himself.

    5.  No clear clinical symptoms of head or spinal trauma can be found on Mr Gurgurov.

    6.  The panel does not have in its possession any information which would allow it to conclude that the applicant was subjected to electric shocks.

    7.  Normally, invalidity is granted after the examination of the individual's medical history and medical examination by specialised doctors...

    8.  The age of the applicant's injuries was correctly established in the medical report of 11 November 2005. His neurological problems were established in the report of 16 January 2006. It is impossible to establish more precisely their age.

    9 and 10.  There is no causal link between the injuries and his current state. His injury of September 2007 is not at the origin of his severe movement dysfunction.”

  38. On 11 June 2008 the prosecutor's office issued a decision dismissing again the applicant's criminal complaint about his alleged ill-treatment. The decision relied, inter alia, on the medical report of 6 June 2008. The applicant challenged the decision before an investigating judge. However, the appeal was dismissed and the applicant was directed to lodge his appeal with the higher-ranking prosecutor, which he did.

  39. On 13 February 2009 the Prosecutor General's Office dismissed the applicant's appeal against the prosecutor office's decision of 11 June 2008. It concluded that the applicant was simulating his condition. In reaching this conclusion it relied on testimonies from several of the applicant's former cellmates and on the medical report of 6 June 2008.

    40. II.  RELEVANT NON-CONVENTION MATERIAL

    40.  The relevant provisions of the Criminal Code read as follows:

    Article 309 Extorting of confessions

    (1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of 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 causing 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 referred to in paragraph 1 ..., carried out:

    (c)  by two or more persons;

    (e)  with the use of special instruments of torture or other objects adapted for that purpose;

    (f)  by an official,

    shall be punishable by imprisonment of five to ten years...

  40. The relevant findings of the CPT during its visit to Moldova between 21 and 25 November 2005 read as follows (unofficial translation):

    41. “46.  At the remand centre (EDP) of the Department for the fight against organised crime, one detainee interviewed by the delegation alleged that, on the evening of 25 October 2005, at the Riscani district police station, he had been punched and kicked in a third-floor office, in order to make him confess to various offences. On the next day, he had been transferred to the Municipal Police Headquarters EDP, from where he had, during the period for which he was held (until 2 November according to the relevant registers), been transferred on several occasions, sometimes to the Riscani police station and sometimes to the Municipal Police Headquarters (transfers confirmed by the examination of the relevant registers). He alleged that he had been ill-treated on these premises. In particular, he alleged that, on 31 October, in a second-floor office at the Municipal Police Headquarters, he was subjected to several forms of ill-treatment: an attempt to suffocate him by placing a gas mask over his face; suspension in what is known as the swallow position; slaps on his ears; electric shocks administered via electrodes placed behind his ears and on his hips; placement of a heavy dumbbell weight on his back. As a consequence of the ill-treatment inflicted, he had briefly lost consciousness, and, furthermore, had been unable to move for the next four days.

    Furthermore, according to the detainee concerned, he had not been given a form informing him about his rights until the end of the morning of 26 October, which was when he said that he had met an officially assigned defence counsel. The first judge before whom he had been brought on the third day of his deprivation of liberty was said not to have reacted to his allegations of ill-treatment.

    On 3 November he had been brought before a judge who had served a compulsory residence order on him. In spite of this decision, he had been transferred to the EDP of the Department for the fight against organised crime on that same day, on the basis of an arrest warrant issued in 2001, after undergoing a medical examination at a hospital casualty unit. He said that he had also been beaten during this new detention in an office of this Department, and had been threatened to make him stop lodging complaints.

    47.  The medical screening carried out on his admission to the EDP at the municipal police headquarters referred only to an injury sustained prior to his arrest. A medical examination of this detainee carried out in hospital by a neurologist on 3 November recorded signs of traumatism in the region of his left arm and both knees, and put forward the diagnosis of hysteria, with a recommendation that further paraclinical examinations be carried out.

    On 4 November 2005, his lawyer had asked the Prosecutor General for a forensic medical examination. However, the examination took place late, i.e. on 11 November 2005 [forensic report No. 5908, see paragraph 12 above] and it is stressed that, due to this fact, it is impossible to establish precisely how old the lesions observed were, as well as that it is necessary to hospitalise the detainee for assessment and for a precise diagnosis.

    48.  The examination of this detainee by the delegation's doctors revealed two small bilateral tympanic tears consistent with his allegations of slaps on the ears, as well as atypical motor deficiency disorders, highly suggestive of a major psychological trauma.

    In view of this person's state of health, the delegation asked for action to be taken to ensure that he received the medical assistance that his condition necessitated, including psychological care. The CPT would like to receive this information within one month.

    Moreover, the CPT reiterates its delegation's request to be informed of follow-up action taken regarding this detainee's complaint and of the results of any investigation carried out in this respect.

    49.  Without prejudice to the follow-up given to this detainee's complaint and to the conclusions of the investigations carried out, the CPT wishes to emphasise that this case is indicative of unacceptable inertia on the part of the agencies concerned in the face of allegations of severe ill-treatment/torture, and of the flagrant failure by the authorities to implement the main recommendations of the Committee intended to prevent ill-treatment (set out in paragraphs 21 and 23 of its report on the 2004 visit) and in terms of providing the fundamental safeguards (set out in paragraphs 30, 32 and 34).

    It is crucial for these recommendations to be implemented immediately, and there is no convincing argument which could justify any delay whatsoever in taking action. Only their implementation can give clear indication as to the willingness of the Moldovan authorities to put an end to the phenomenon of ill-treatment.

    The CPT therefore calls upon the Moldovan authorities to take decisive steps, at every appropriate level, to ensure that all the recommendations relating to the prevention of ill-treatment by the police and to compliance with fundamental safeguards made by the Committee in its report on the 2004 visit are implemented without further delay...”

    THE LAW

  41. The applicant complained under Article 3 of the Convention that he had been tortured by the police. He also complained that the domestic authorities had failed to investigate his complaints of torture properly. Article 3 of the Convention reads as follows:

    42. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

  42. The applicant argued that he did not have effective remedies by which to claim compensation for the ill-treatment to which he had been subjected, and alleged a violation of Article 13, which provides:

    43. “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

  43. The Government submitted that the complaint under Article 3 of the Convention was inadmissible on grounds of non-exhaustion of domestic remedies. In particular, they argued that the applicant had failed to challenge the prosecutor's decision of 11 June 2008 before the higher ranking prosecutor, as required by the law, but had challenged it instead before the investigating judge. The applicant disagreed with the Government.

  44. The Court notes that the applicant challenged the decision of 11 June 2008 before the Prosecutor General's Office and that the latter examined his appeal on the merits and dismissed it as ill-founded, but not on any procedural grounds. Accordingly, the Government's objection must be dismissed.

  45. The applicant further complained that his detention between 25 October and 9 December 2005 had been in breach of Article 5 § 1 of the Convention. He also complained under Article 13 taken in conjunction with Article 5 that there were no effective remedies in Moldova by which to complain about the unlawfulness of his detention and secure his release. The Court notes that the present application was lodged on 11 February 2008, that is, more than six months after the end of the applicant's detention. Accordingly, these complaints must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

  46. The applicant also complained under Article 6 § 3 of the Convention that he had had no access to his lawyer during the proceedings concerning his detention pending trial. The Court considers that this complaint falls to be examined under Article 5 § 4 of the Convention and that it is inadmissible for the same reasons as the complaint under Article 5 § 1.

  47. The Court considers that the application, with the exception of the complaints referred to in paragraphs 46 and 47 above, raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and that no other grounds for declaring it inadmissible have been established. The Court therefore declares the application partly admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the application.

    48. II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

    A.  The submissions of the parties

    1.  Concerning the alleged ill-treatment

  48. The applicant contended that he had been tortured by police during his detention and that as a result of the acts of torture he was now disabled. Referring to the statements of some of his cellmates who had accused him of simulating his condition, the applicant argued that the cellmates concerned were police informers.

  49. Relying on the statements of the police officers accused of ill treating the applicant, statements by warders from the detention facility where the applicant was detained, medical reports and statements by some of the applicant's cellmates, the Government argued that the applicant had fallen off his bed and was simulating his condition.

  50. In so far as the applicant's invalidity is concerned, the Government submitted one page of a document from the authority responsible for the determination of invalidity, in which, under the heading “Cause of invalidity” the words “General disease” were written. The Government argued that there was no causal link between the applicant's invalidity and his alleged ill-treatment of October-November 2005.

    51. 2.  Concerning the alleged inadequacy of the investigation

  51. The applicant submitted that the authorities had failed to take him to a doctor immediately after he complained about the torture so as to be able to record any visible injuries on his body before they disappeared. Moreover, the authorities had conducted only a superficial medical check up and failed to conduct a thorough medical examination of his internal organs. The authorities had failed to question all of his cellmates, questioning only those who, according to the applicant, were police informants.

  52. The Government submitted that the authorities had undertaken all the necessary measures in order to effectively investigate the applicant's allegations of ill-treatment. The prosecutor's office had requested on numerous occasions the assistance of the Ministry of Health and obtained medical reports concerning the applicant's medical state. Police officers and the applicant's cellmates had been questioned for the purposes of the investigation. It was true that the investigation had lasted longer than would have been desirable; however, the delay was due to the divergences in the medical documents and to the applicant's refusal to appear before the medical panels set up by the Ministry of Health.

    53. B.  The Court's assessment

    1.  Concerning the alleged ill-treatment

  53. 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 Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII).

  54. 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 (see Selmouni, cited above, § 87).

  55. 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).

  56. Turning to the facts of the present case, the Court notes that it is undisputed that between 25 October and 9 December 2005 the applicant was in detention. It is also undisputed that immediately after his release, on 10 December 2005, the applicant was hospitalised and that very serious injuries were found on his body, such as a broken skull, cerebral contusion, a post-craniocerebral trauma state and trauma to the back damaging the spinal cord and causing partial paralysis (see paragraph 19 above). These findings were confirmed by the doctors from the Memoria Centre who also found that the applicant was suffering from post-traumatic deafness (see paragraph 23 above). The Government have not contested the above findings. The Court further notes that the parties agree that the applicant did not suffer from any of the above conditions before his arrest on 25 October 2005. In such circumstances, the Court considers it established that all the above injuries were caused to the applicant during his detention.

  57. Since the Government did not give any explanations concerning the origin of the above injuries, and having regard to the strong presumption which arises in such matters (see paragraph 55 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.

  58. The Court shall further determine the form of ill-treatment inflicted on the applicant. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland, cited above, § 167). The fact that pain or suffering was deliberately inflicted for the purpose of obtaining a confession is a further factor to be taken into account in deciding whether ill-treatment amounted to torture (see Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996 VI, and Salman, cited above, § 114).

  59. In the present case the Court notes in particular the intensity of the ill-treatment inflicted on the applicant, as a result of which he suffered very serious injuries and became disabled. The Court notes the Government's contention that his disability was not linked to the injuries received during detention (see paragraph 51 above); however, it cannot accept this submission, since the other pages of the report relied upon by the Government clearly make reference to the ill-treatment by police in October 2005 as being the cause of the applicant's disability (see paragraph 27 above).

  60. In such circumstances, the Court considers that the violence inflicted on the applicant was of an extreme nature, capable of provoking severe pain and cruel suffering which fall to be treated as acts of torture for the purpose of Article 3 of the Convention.

  61. In the light of the above, the Court concludes that there has been a violation of Article 3 of the Convention.

    62. 2.  Concerning the alleged inadequacy of the investigation

  62. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar 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). For an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see e.g. Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or institutional connection but also a practical independence (see for example the case of Ergı v. Turkey judgment of 28 July 1998, §§ 83-84, Reports 1998-IV, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).

  63. 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 Assenov and Others, cited above, § 103). 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 et seq., ECHR 1999-IV, 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.

  64. The Court notes in the first place that the independence of the prosecutor's office was open to doubt throughout the investigation conducted by it. It observes that the Prosecutor General's Office expressed a clear opinion on the matter at the beginning of the investigation and attempted to put pressure on the applicant's lawyer along with other lawyers and to dissuade them from pursuing their complaints before international organisations specialised in the protection of human rights (see paragraph 24 above). This led to the finding of a violation of Article 34 of the Convention in Colibaba v. Moldova (no. 29089/06, § 67, 23 October 2007).

  65. The Court further notes a series of serious shortcomings in the investigation conducted by the national authorities. The Court will confine itself to the following matters which it finds of particular concern. In the first place, despite the applicant's complaint of 4 November 2005 about ill-treatment, he was only seen by a forensic doctor on 11 November 2005, that is, more than one week after the last alleged acts of ill-treatment. The forensic doctor concluded that due to the delay in presentation for medical examination it was impossible to establish with precision the age of the applicant's injuries. He recommended hospitalisation in order to determine the causes of the applicant's condition; however, despite this clear recommendation, the applicant continued to be detained and was only able to be hospitalised after his release, on 9 December 2005. In the medical report which followed his hospitalisation some very serious injuries were found on the applicant's body, including a broken skull and a spinal injury. The prosecutor's office considered it necessary to order an additional medical examination of the applicant by a medical panel, to be carried out on the basis of existing medical reports. The prosecutor's office addressed four questions to the medical panel, none of which was aimed at finding out the origin of the injuries to the applicant's head or spine. The medical panel appears to have limited its findings to the questions put by the prosecutor's office and did not refer to the earlier findings concerning the applicant's broken skull and injured spine. Regrettably it did not pay attention to the findings concerning the fracture to the applicant's skull bones because it had not been presented with the original radiographic images. The panel also added that simulation by the applicant could not be ruled out and that only a psychiatric investigation could exclude that possibility. No such psychiatric investigation was ever conducted. On the basis of the medical panel's report and the statements of some of the applicant's cellmates, the prosecutor's office dismissed the applicant's complaint of ill-treatment on 18 January 2006. The prosecutor's office did not give any assessment of the findings in the medical report of 10 December 2005, a report which was made by doctors who had examined the applicant in person and on the basis of medical documentation.

  66. After several procedural events which lasted for more than two years and after the applicant had been recognised as having a second-degree disability, the prosecutor's office decided to obtain a new report from a medical panel. This time it addressed ten questions to the panel, none of which was aimed at finding out the origin of the applicant's skull fracture and spinal injury noted after his release. In a report of 6 June 2008 a medical panel issued a report based on the applicant's medical history. The report did not contain any reference to the medical reports of 10 December 2005 and 15 February 2006 and focused mainly on the findings contained in the report of 11 November 2005 concerning the bruises and scratches on the applicant's knees and arms. Therefore it is not surprising that it found that “no clear clinical symptoms of head or spinal trauma can be found on Mr Gurgurov”.

  67. In its final decision dismissing the applicant's complaint of ill treatment, the prosecutor's office decided on the basis of testimonies from some of the applicant's cellmates and police officers that the applicant was simulating his condition. The prosecutor's office chose to ignore the testimonies according to which the applicant was not faking his condition and, most importantly, it ignored the uncontested medical reports of 10 December 2005 and 15 February 2006 and the medical documents issued by the Ministry of Social Welfare and Family Matters in respect of the applicant's invalidity.

  68. Besides the facts presented above, the Court notes that at no point during the entire proceedings was the applicant given the chance to identify his aggressors and to be confronted with them as requested by him. The manner in which the investigation was conducted allows the Court to conclude that the prosecutor's office did not make any genuine efforts to investigate the case and discover the truth. On the contrary, there are strong indications that it was trying to cover up the facts and create impediments in such a manner as to make it impossible to identify and punish those responsible.

  69. In the light of the serious deficiencies referred to above, the Court considers that the domestic authorities did not fulfil their obligation 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.

    70. III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  70. The applicant contended that as a result of the ineffectiveness of the criminal investigation into his allegations of ill-treatment he did not have any effective remedies by which to claim compensation for the ill-treatment to which he had been subjected.

  71. The Government disagreed and submitted that it was open to the applicant to institute civil proceedings and claim compensation.

  72. The Court considers that 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 enabling 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.

    73. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  73. Article 41 of the Convention provides:

    74. “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.  Damage

  74. The applicant claimed 113,000 euros (EUR) in respect of non-pecuniary damage, consisting of EUR 100,000 for the breach of his rights guaranteed by Article 3 of the Convention, EUR 7,000 for the breach of his rights guaranteed by Article 5, EUR 1,000 for the breach of his rights guaranteed by Article 6 and EUR 5,000 for the breach of his rights guaranteed by Article 13 of the Convention. He argued that he had suffered very serious physical pain as a result of his ill-treatment at the hands of the police. He had also endured severe mental and emotional suffering as a result of the treatment he had been subjected to and the injuries sustained.

  75. The Government disagreed and argued that the amount claimed was excessive in the light of the Court's case-law in similar cases.

  76. 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 his ill-treatment, the Court awards him EUR 60,000.

    77. B.  Costs and expenses

  77. The applicant did not make any claim for costs and expenses.

    78. C.  Default interest

  78. 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.

    79. FOR THESE REASONS, THE COURT UNANIMOUSLY

  79. Declares the complaints under Articles 5 and 6 and under Article 13 taken in conjunction with Article 5 of the Convention inadmissible and the remainder of the application admissible;


  80. Holds that there has been a violation of Article 3 of the Convention on account of the applicant's torture by police officers;


  81. 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 torture while in detention;


  82. 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 acts of torture complained of;


  83. Holds

    84. (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, EUR 45,000 (forty-five thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

    (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;


  84. Dismisses the remainder of the applicant's claim for just satisfaction.

    85. Done in English, and notified in writing on 16 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Lawrence Early Nicolas Bratza
    Registrar President


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