THIRD SECTION
CASE OF
GASANOV v. THE REPUBLIC OF MOLDOVA
(Application no.
39441/09)
JUDGMENT
STRASBOURG
18 December 2012
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 Gasanov v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 27 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
39441/09) 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 Georgian national, Mr Zeinal Gasanov on 15 July
2009.
The Moldovan Government (“the Government”) were
represented by their acting Agent, Mr L. Apostol.
The applicant alleged, in particular, that he had
been ill-treated while in detention and that the authorities had not carried
out an effective investigation of that complaint.
On 25 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Having been given leave to
intervene in the proceedings pursuant to Article 36 § 1 of the Convention
and Rule 44 § 1 of the Rules of Court, the Georgian Government did not submit
any observations concerning the present case.
Following the resignation of Mr Mihai Poalelungi,
the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of
Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad
hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of
Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lives in Taraclia
(the Republic of Moldova).
A. The applicant’s arrest and alleged ill-treatment
At around 11 p.m. on 6 February 2007 the
applicant was arrested by police officers C. and G. and taken to the Glodeni
District police station. The applicant was accused of fraud and trespassing on private
property.
The applicant was placed in the Glodeni police temporary
detention unit (Izolatorul de detenţie provizorie al CPR Glodeni).
At 3 p.m.
on 7 February 2007 the on-duty medical officer, M., examined the
applicant. In medical examination report no. 52, drawn up on 7 February
2007, M. stated that during the examination she had not noticed any visible
traces of injury on the applicant’s body. M. assessed the general state of the
applicant’s health as “satisfactory” and noted that the applicant’s only
complaint was of chest pain.
According to the applicant, on an unspecified
date while detained in the Glodeni temporary detention unit, he was taken to
the office of a police officer and ill-treated in order to extract a
confession. In particular, he was struck on the head with a black, blunt object, after which he lost consciousness. He was then forced to confess to the offences attributed to
him.
On 21
February 2007 the applicant was examined again by a forensic medical expert, S. According to the medical report drawn up by S. on that date, he observed “a curved, whitish
scar measuring 3 x 0.3 cm” in the middle of the applicant’s forehead. The
expert came to the conclusion that the scar had formed as a result of the
healing of a wound. He could not determine when the wound had been sustained.
He noted that the applicant had said that he had been beaten up by an
individual, O., on 6 February 2007 at 10.30 p.m. In particular, the applicant had been hit in the face with some rope. He also noted that the applicant had
not made any complaint.
In subsequent
submissions to the domestic courts the applicant stated that he had made the
above-mentioned statement concerning the attack by O. only because he had
been taken to the medical examination by C., one of the police officers who had
ill-treated him. C. had threatened him with further beatings upon his return to
the detention facility if he complained.
The applicant remained in the Glodeni temporary
detention unit until an unspecified date in April 2007, when he was transferred
to the Bălţi temporary detention centre. He made his first complaint of
ill-treatment after that transfer.
According to the applicant, on 10 July 2008 he
was declared Category 3 disabled as a result of cranial trauma.
B. The criminal investigation of the allegation of ill-treatment
On 17
April 2007 the applicant lodged a complaint with the Prosecutor General’s
Office, alleging that while in custody he had been beaten up by police officers
C. and G. He made a similar complaint to the President of the Republic of Moldova, whose office received the applicant’s letter on 20 April 2007. He
apparently received no reply.
On 16 May
2007 he lodged another complaint with the Glodeni District Prosecutor’s Office
about the same events. He submitted that he had been warned against complaining
about ill-treatment and threatened with further ill-treatment if he complained.
He pointed out that the alleged victim’s family were relatives of a
high-ranking police officer in Glodeni. The applicant was first interviewed by
a prosecutor on 20 May 2007.
On 9 July 2007 the Glodeni Prosecutor’s Office
issued a decision not to start criminal proceedings. On 6 September 2007 a
superior prosecutor informed the applicant that he had confirmed that decision.
On 14 April 2008 another superior prosecutor quashed the decision of 9 July
2007, ordering a supplementary investigation. In particular, he ordered a medical examination of the applicant to be carried out with a view to investigating
the allegations of ill-treatment.
On 20 June 2008 a medical board examined the
applicant’s medical records, at the request of the Glodeni Prosecutor’s Office.
On 16 July 2008 the medical board issued their
report. The applicant was diagnosed with “a cranial
contusion with pyramidal insufficiency on the right side and signs of light
motor aphasia”. However, on account of the lack of any medical documents
concerning the applicant’s health in the period between 6 February 2007
and 16 January 2008, the experts could not draw the conclusion that the head
wound had been caused on 6-7 February 2007. The medical board
considered that it was thus impossible to establish a causal link between the
alleged ill-treatment and the contusion.
On 4 September 2008 the Glodeni Prosecutor’s
Office again decided not to open a criminal investigation.
On 13
November 2008 the investigating judge of the Glodeni District Court examined
the applicant’s appeal against the refusal of the Prosecutor’s Office to start
criminal proceedings against the police officers. The judge found that the
inquiry into the applicant’s allegations of ill-treatment had been
superficial and that there were “serious and unexplained shortcomings”. While the
applicant’s representative had requested on 29 May 2008 that two witnesses, I. and B., who were the applicant’s cellmates, be heard by the prosecutor, that request had been left unexamined, thus depriving the applicant of the opportunity to
submit evidence in support of his allegations. The judge also noted that the
applicant had not been heard and that the prosecution authorities had made use only
of his written submissions. He further found that the prosecutors had not
carried out an inquiry into the applicant’s alleged ill-treatment by O. on the
day of his arrest, mentioned in the medical report of 21 February 2007. The
judge quashed the decision of 4 September 2008 and ordered a more thorough
investigation.
On unknown dates a prosecutor from the Glodeni prosecutor’s office
interviewed I. and B. They stated that they were not sure about the exact date
or month at the beginning of 2007 when the applicant had shown them injuries on
his head and other parts of his body, and told them that the police had
ill-treated him. According to these witnesses, both of them were detained in
the same unit as the applicant at the relevant time. Having also questioned O.
and his family, the investigator found that no one in that family had beaten
the applicant prior to his arrest.
On 15 November 2008 the applicant’s lawyer
submitted to the Glodeni Prosecutor’s Office a certified copy of his client’s
medical records from prison no. 11 in Bălți
concerning the period of April-August 2007. He asked the prosecution to find
the original records in that institution and to order a new medical board
examination, given that the previous one had noted a lack of data on the
applicant’s medical condition during the relevant period after the alleged
attack.
On 19
November 2008 the prosecutor ordered a new medical board examination of the
applicant’s medical documents. According to the board’s report of 28 November
2008, the medical documents with the applicant’s name on them did not attest to
any injury on the applicant’s body. It was impossible to determine the time
when the applicant had sustained the injury on his forehead, but due to its characteristics,
it must have been caused earlier than 6 February 2007. The board was
unable to find a causal link between that injury and the applicant’s cranial
trauma.
On 12 December 2008 the Glodeni Prosecutor’s
Office again refused to open criminal proceedings against officers C. and G.,
giving the same reasons as before. On 15 January 2009 the superior prosecutor
upheld this decision. The applicant challenged that decision before the
investigating judge.
On 18 February 2009 the investigating judge of
the Glodeni District Court again examined the lawfulness of the refusal to
start criminal proceedings against the police officers and upheld it, finding no appearance of a violation of the applicant’s rights and that the decision had been
lawful and based on a correct assessment of the facts.
C. The criminal proceedings against the applicant
On 17 August 2007 the Glodeni District Tribunal
convicted the applicant of trespassing and fraud and sentenced him to fourteen
years and six months’ imprisonment. The applicant appealed against this
judgment.
On 14 November 2007 the Bălţi Court of
Appeal dismissed the applicant’s appeal as ill-founded.
On 8 April 2008 the Supreme Court of Justice
allowed the applicant’s appeal on points of law, quashed the decision of 14
November 2007, and remitted the case for fresh examination to the
Bălţi Court of Appeal.
On 17 December 2008 the Bălţi Court of
Appeal sentenced the applicant to eight years’ imprisonment.
On 2 June 2009 the Supreme Court of Justice
dismissed the applicant’s appeal on points of law as ill-founded, but reduced
his sentence to six years and four months’ imprisonment. This decision was
final.
II. RELEVANT INTERNATIONAL MATERIAL
The relevant part of the
report of the visit to Moldova carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 1
to 10 June 2011 read as follows (unofficial translation):
“24. During the visit, all those met by the delegation, both at
the Ministry of the Interior and at the Prosecutor’s Service for Fighting Torture,
have acknowledged that respect for the right of access to a doctor was
fundamental for the prevention and fighting police violence. They observed
that, under Article 64 § 2(15) of the Code of Criminal Procedure, a suspect has
the right to make requests, including requests for independent medical
assistance. In its previous reports the CPT has considered that this provision
was still far from answering the Committee’s already long-standing
recommendation that the right of access to a doctor from the beginning of
deprivation of liberty should be explicitly guaranteed. ...
The Committee calls on the Moldovan authorities to implement
its long-standing recommendation aiming at amending the legal provisions so as
to guarantee to any person deprived of liberty, from the beginning of the de
facto deprivation of liberty, the right to be seen by a doctor. This
implies that, during the period of deprivation of liberty and before placement
in a provisional detention centre (IDP), any request of a detained person to
see a doctor must also be immediately satisfied. Moreover, the right of access
to a doctor should include the right, if the detainee requests it, to be
examined by an independent doctor in addition to any examination by a medical
professional working for the police.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
ill-treated by police officers in violation of Article 3 of the Convention. He
also argued that the State authorities had failed to conduct an effective
investigation in respect of his complaint of torture. Article 3 reads as
follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) Concerning the alleged ill-treatment
The applicant submitted that officers C. and G.
had tortured him in order to obtain a confession. The medical evidence demonstrated
that he had sustained the injury to his head while in detention.
The Government relied on the findings of the
domestic authorities, including the medical board’s conclusion of 28 November
2008 (see paragraph 26 above). Since the medical board had found that the
applicant had sustained his injury prior to his arrest on 6 February 2007, it
was clear that he had not been ill-treated while in detention. Witnesses had
also denied his story.
(b) Concerning the alleged inadequacy of the
investigation
The applicant considered that the authorities
had failed to carry out an effective investigation of his allegations of
ill-treatment. The investigator had failed to immediately secure the necessary
evidence and the investigation had lasted for two years.
The Government argued that the investigation of
the applicant’s allegations had been thorough and swift, all reasonable
investigative actions had been taken, all potential witnesses heard and all
medical evidence collected. While the investigating judge had found some
initial shortcomings in the investigation, he was later satisfied that all
those deficiencies had been removed (see paragraph 28 above).
2. The Court’s assessment
(a) Concerning the alleged ill-treatment
The general principles concerning the State’s responsibility
for injuries sustained by individuals in detention have been summarised in the
Court’s previous case-law (see, among many other authorities, Selmouni
v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p.
3288, § 93; Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, pp. 64-65, § 161; and Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000-VII). In particular, 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, and Pruneanu
v. Moldova, no. 6888/03, § 43, 16 January
2007).
The Court notes that the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(“the CPT”) has long recommended that medical examinations be carried out at
the beginning of detention, with a view to preventing ill-treatment (see, for
instance, paragraph 34 above). In its own case-law the Court has also
emphasised the importance of such an initial medical examination. Where no such
examination has been carried out or where the examination has not recorded any
injuries, the Court has drawn the conclusion that the person entered detention
in good health (see, mutatis mutandis, Levinţa v. Moldova,
no. 17332/03, §§ 69 and 70, 16 December 2008).
In the present case, the Court notes that the
day after his arrival in the Glodeni police detention unit the applicant underwent
a medical examination, which did not reveal any injuries on the applicant’s
body (see paragraph 10 above). The Court therefore concludes that the applicant
was in good health on 7 February 2007, when he was examined by the detention unit
doctor.
After two weeks of detention another medical
examination attested to the presence of a healing wound on the applicant’s forehead
(see paragraph 12 above). The doctor who examined the applicant on
21 February 2007 could not determine whether the injury had been sustained
prior to the applicant’s arrest. However, nothing in the file contradicts the
applicant’s claim that the injury could not have been caused earlier than 7
February 2007, when he was brought into detention and a doctor made no record of
that injury. The Court considers that this creates a strong presumption that
the applicant sustained his injury during his detention. In such circumstances
it is for the Government to submit a sufficient explanation for the origin of
the injury, failing which the conclusion will be drawn that the applicant was
ill-treated during his detention.
The Government submitted that a subsequent medical
board examination, while also unable to determine when exactly the applicant
had been injured, determined that the injury had been sustained prior to 6 February
2007 (see paragraph 26 above). This, in their view, could only mean that the
applicant had not been ill-treated while in detention. The Court notes that the
medical board, having made its examination more than a year after the relevant
events, did not observe the applicant’s injury itself, but relied on his
medical documents. Moreover, it concluded that the injury had been sustained
prior to 6 February 2007 even though the only doctor who had actually seen the
wound had been unable to draw such a conclusion. The Court considers that this
opinion, formulated by the medical board a year after the relevant events,
cannot override the objective evidence that on 7 February 2007 a doctor working
in the detention facility did not observe any injury on the applicant’s body.
It is true that during the examination on 21
February 2007 which recorded the head injury, the applicant declared to the
doctor that he had been hit with a rope by O. (see paragraph 12 above). However, he subsequently noted in his complaints and explanations to the
authorities that he had been taken to the doctor by C., one of the police
officers who had ill-treated him, and that C. had also threatened him
with further violence if he complained (see paragraph 13 above). As noted by
the investigating judge in his decision of 13 November 2008, the prosecution
had initially not even attempted to establish whether the applicant had indeed been
beaten by O. (see paragraph 23 above). Nor was a beating confirmed by the
subsequent investigation, O. and other witnesses stating that they had not
beaten the applicant (see paragraph 24 above).
The Court also notes that two witnesses attested
to having been shown injuries by the applicant and having been told that he had
been beaten by the police (see paragraph 24 above). This only reinforces the
conclusion that the applicant was ill-treated during his detention.
On the basis of all the material placed before
it, the Court concludes that the Government have not fulfilled the
responsibility they have to persuade it that the applicant’s injuries were
caused otherwise than by ill-treatment while in custody.
In the light of the above, the Court concludes
that there has been a violation of Article 3 of the Convention in its
substantive limb.
(b) Concerning the alleged inadequacy of the
investigation
The Court recalls that
under its established case law the notion of an ‘effective remedy’ entails, in
addition to the payment of compensation where appropriate and without prejudice
to any other remedy available in domestic law, a thorough and effective
investigation. The kind of investigation that will achieve those purposes may
vary according to the circumstances. However, whatever the method of
investigation, the authorities must act as soon as an official complaint has
been lodged. Even when strictly speaking no complaint has been made, an
investigation must be started if there are sufficiently clear indications that
torture or ill-treatment has been used (see, among other authorities, Özbey
v. Turkey (dec.), no. 31883/96, 8 March 2001[...]). Moreover, a requirement
of promptness and reasonable expedition is implicit in this context. A prompt
response by the authorities in investigating allegations of ill-treatment may
generally be regarded as essential in maintaining public confidence in their
adherence to the rule of law and in preventing any appearance of collusion in
or tolerance of unlawful acts (see, among other authorities, Indelicato
v. Italy, no. 31143/96, § 37, 18 October 2001, and Özgür
Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002), and Batı
and Others v. Turkey, nos. 33097/96 and 57834/00, ECHR 2004-IV
(extracts)).
In the present case the Court notes that on 21
February 2007 a doctor found an injury on the applicant’s body which the
previous medical examination had not recorded. It is also clear from the
materials submitted by the parties that the results of both investigations were
in the criminal file and were thus known to the investigator. It follows that a
doctor and an investigator were aware, or should have been aware on 21 February
2007, that the applicant had sustained an injury, possibly while being detained.
This should have prompted the authorities to carry out an investigation of the
applicant’s possible ill-treatment, even in the absence of a complaint and
despite his statement that O. had beaten him. However, there was no
investigation at the time.
It is also apparent from the case file that the
investigation has lasted for approximately two years (see paragraph 28 above) and that during this time a decision not to initiate a criminal
investigation has been quashed twice (see paragraphs 19 and 23 above). The decision of the investigating judge of 13 November 2008 is
particularly revealing since, more than a year and a half after the relevant
events, the judge found that the investigation had been affected by “serious
and unexplained shortcomings”, such as a failure to hear the applicant and witnesses
identified by him (see paragraph 23 above). The Court considers that failing to
carry out such basic fact-finding for such a long period of time is
incompatible with the requirement of promptness included in the procedural
obligations under Article 3 of the Convention (see, for instance, Pădureţ
v. Moldova, no. 33134/03, § 68,
5 January 2010).
Moreover, in the present case no criminal proceedings
have been initiated, even after the decisions not to initiate such an investigation
had been quashed. The Court has already found that “in
accordance with Articles 93, 96 and 109 of the [Moldovan] Code of Criminal
Procedure, no investigative measures at all could be taken in respect of the
offence allegedly committed ... unless criminal proceedings were formally
instituted” (see Guţu v. Moldova, no. 20289/02, § 61, 7 June 2007, and Mătăsaru and Saviţchi v. Moldova, no. 38281/08, § 90, 2 November 2010,
including the domestic court’s decision cited in that paragraph confirming the
above conclusion). The refusal of the investigator
to initiate a proper criminal investigation of the alleged ill-treatment had
thus limited the opportunities for evidence-gathering and reduced the overall
effectiveness of the investigation of the applicant’s allegations.
The Court concludes that the investigation of
the applicant’s allegation of ill-treatment has been inefficient and protracted
as a result of repeated refusals to institute criminal proceedings, and was also
affected by serious shortcomings, as established by a domestic court. These
shortcomings are incompatible with the procedural obligations under
Article 3 of the Convention. There has therefore been a violation of
that provision in its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant also claimed that the prosecution
authorities’ failure to carry out a proper inquiry into his allegations of
ill-treatment had precluded him from obtaining redress in the domestic civil
courts. He relied on Article 6 of the Convention. The Court decided to
examine this complaint under Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It must therefore be declared admissible. However, in view of its
conclusion concerning the complaint under Article 3 of the Convention, the Court
holds that no separate issue arises under Article 13 of the Convention, taken
in conjunction with Article 3.
III. 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. Damage
The applicant claimed five million euros (EUR)
in compensation for non-pecuniary damage caused to him by ill-treatment and
failure to investigate his complaints in that regard.
The Government submitted that the amount claimed
was excessive in the light of the Court’s case-law in similar cases.
Having regard to the nature of the violations
found above, the Court considers that an award for non-pecuniary damage is
justified in this case. Making its assessment on an equitable basis the Court
awards the applicant EUR 12,000.
B. Costs and expenses
The applicant also claimed EUR 6,085 for costs
and expenses incurred before the Court. He submitted an itemised list of hours
worked on the case (fifty-nine hours at an hourly rate of EUR 100).
The Government considered that the applicant was
entitled to nothing for costs and expenses.
According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention under its substantive limb;
3. Holds that there has been a violation of
Article 3 of the Convention under its procedural limb;
4. Holds that there is no need to separately
examine the complaint under Article 13 taken in conjunction with Article 3 of
the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months of 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 12,000 (twelve thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
