DORNEAN v. THE REPUBLIC OF MOLDOVA - 27810/07 (Judgment : Article 3 - Prohibition of torture : Second Section) [2018] ECHR 433 (29 May 2018)

In the case of Dornean v. the Republic of Moldova,

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

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 27810/07) 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 Leonid Dornean ("the applicant"), on 22 June 2007.

2. The applicant was represented by Mr I. Ţurcanu, a lawyer practising in Edineț. The Moldovan Government ("the Government") were represented by their Agent ad interim, Ms R. Revencu.

3. The applicant alleged, in particular, that the authorities had not conducted an efficient investigation into his allegation of ill-treatment by his children and ex-wife.

4. On 2 December 2015 the complaint under Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Trinca.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

A. General background of the case

7. Having divorced his wife, the applicant has continued to live in an annex to the same house as her and their children, some of whom are adults. He has a hostile relationship with them and all of his former in-laws.

8. On 30 May 2005 he wrote to the Prosecutor General's Office, listing the many complaints that he had previously lodged with various authorities (including the police) of having been ill-treated by his ex-wife and children, the destruction of his property by them, and the failure of the local police to react in any manner. In reply, on 21 June 2005, he was informed that the local prosecutor's decision not to initiate a criminal investigation had been annulled; the case was then sent for re-examination by the local prosecutor's office.

9. On 31 March 2006 the applicant was examined by a medical expert, who found an excoriation on his right hand. He explained that he had been struck by his son.

10. On 15 May 2006 the applicant was examined by a medical expert, who determined that three of his teeth were loose and found a contusion of one of the fingers on his right hand. He explained that he had been again struck by his son. On 26 June 2006 the Edineț prosecutor's office informed the applicant that it had decided not to initiate an investigation into the alleged attack by his son (D.V.).

11. The applicant lodged another complaint with the Edineț prosecutor's office on 31 August 2006, stating that he had been again attacked by his children and ex-wife; during that attack they had also threatened to kill him and destroy or throw away his property if he did not leave the house. He lodged a further complaint on 19 September 2006, but was subsequently informed that it had been decided not to initiate a criminal investigation.

12. In a letter dated 12 December 2006 the head of Edineț police station informed the applicant's brother that, on a date not indicated in the letter, "a cautionary discussion" had been conducted with the applicant's ex-wife and that she had been "officially warned to change her conduct" towards the applicant and his brother.

B. The alleged assault of 27 December 2006 and the subsequent proceedings

13. On 27 December 2006 the applicant's ex-wife and children allegedly assaulted him at their home. His left elbow was allegedly broken. According to the applicant, he called the police immediately after the incident and was told that they did not deal with such matters. The next day he went to the local doctor, B., who referred him to Edineț Polyclinic for examination (including an X-ray examination, which was carried out on 28 December 2006). With the results of that examination he went to a medical expert on 29 December 2006.

14. According to a medical report dated 29 December 2006 the applicant sustained a fracture of the upper third of the radial bone in his left elbow, as confirmed also by the X-ray images. The injury was considered to be of medium severity and requiring more than twenty-one days of treatment. According to the report, the injury had been caused by a blunt object, possibly in circumstances such as those described by the applicant. According to medical documents submitted by the applicant, he saw a doctor, T., on 28 and 29 December 2006, and on 4 and 17 January, 7 and 22 February and 6 March 2007 and was given prescriptions for medicine to treat his left elbow.

15. On 5 January 2007 the applicant lodged a complaint with the police about ill-treatment by his ex-wife and three of his children, including D.V. On 12 January 2007 he was informed that it had been decided not to initiate a criminal investigation. On 29 January 2007 the investigating judge of the Edineț District Court dismissed the applicant's complaint, finding that the facts complained of were being investigated by the Edineț police. On 2 February 2007 a prosecutor initiated a criminal investigation into the applicant's alleged ill-treatment by his ex-wife and children (including D.V.). On 1 March 2007 he was officially recognised as the victim of the alleged crime.

16. On 6 March 2007 the prosecutor requested that a new expert medical report be drawn up in order to assess the severity and origin of the applicant's injury. He noted that the applicant had alleged that he had been struck by his ex-wife and children (including D.V.). On the same day a new medical report was drawn up which confirmed the previous report's findings.

17. On 23 March 2007 the prosecutor interviewed a witness who stated that he had worked with the applicant on 12 January 2007, cutting wood at the local priest's house. He had not seen any injury or sign of pain on his hand. A similar statement was given on 3 March 2007 by another participant in the wood-cutting. Another witness stated that he had seen the applicant cutting wood on 12 January 2007 at the local priest's house, while three other persons were taking a rest. On 10 April 2007 T., the doctor who had seen the applicant on 28 December 2006 (see paragraph 14 above), was questioned as a witness and declared that he had seen a contusion on his body and another contusion on the left elbow, but had not identified any broken bones. He stated that the description contained in the medical report dated 29 December 2006 of the X-ray images taken on 28 December 2006 (see paragraph 14 above) was incomplete, as it did not indicate the exact location of the broken bone. T. himself did not see in the X-ray any sign of such trauma.

18. On 2 May 2007 the prosecutor ordered another medical report to be prepared by a medical commission, because the applicant's wife disagreed with the results of the first two reports and argued that he had been fit after the alleged assault. On 7 May 2007 the head of the Forensics Department at the Centre of Forensic Medicine ("the Centre") asked the prosecutor to submit the X-rays of the applicant's elbow in order to allow the report to be prepared. In the absence of a reply, the doctor repeated his request on 14 September 2007, adding that the report could not be prepared without the X-ray results.

19. On 20 September 2007 the applicant was questioned by the investigator, who proposed that he submit the X-ray images taken on 28 December 2006 for examination by the medical commission. The applicant refused, stating that he did not trust the police.

20. On 4 December 2007 the Centre returned all relevant documents to the prosecutor, informing him that, in the absence of the applicant's X-ray results, it had been impossible to carry out the examination.

21. On 19 March 2008 the prosecutor discontinued the investigation, finding that the applicant had often provoked quarrels with his ex-wife and children, and that they denied having caused him any injuries (they were examined as witnesses on 19 January and 8 February 2007, and on 15 March 2008.) The prosecutor also referred to the statement given by doctor T. (see paragraph 17 above), whom the applicant had asked for help and who had found bruising on the applicant's body and on his left elbow, but no bone fractures. The prosecutor furthermore noted that the applicant had only gone to the medical expert on 29 December 2006 and not immediately after the incident. Lastly, the applicant had refused to submit his X-ray results, thus preventing the medical commission from drawing up its report.

22. On 10 April 2008 a higher-ranking prosecutor annulled the decision of 19 March 2008 as premature and taken without the origin of the applicant's injury having been established.

23. On 17 May 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 23 June 2008 the investigating judge of the Edineț District Court annulled that decision. The judge found that the investigator had ignored the prosecutor's conclusion in the decision of 10 April 2008 and had limited his investigation to interviewing the applicant's children and members of his ex-wife's family, who all had a hostile relationship with him and who, moreover, had given somewhat different versions of the incident of 27 December 2006. Furthermore, one of the doctors (T.) had been interviewed only superficially, another doctor who had seen the applicant after the incident had not been interviewed at all, and a third doctor who had taken the X-ray of the applicant's elbow had also not been interviewed. Another expert medical report had been ordered on 2 May 2007 without first observing the victim's rights, such as being able to contribute to the questions asked of the experts. Lastly, the applicant had not been informed that he could submit the X-ray results directly to the Centre.

24. On 21 November 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 3 December 2008 a higher-ranking prosecutor annulled that decision for reasons similar to those relied on by the investigating judge (see paragraph 23 above). He also found that the investigative actions had been "extremely superficial" and had had a "tendentious, unilateral character".

25. On 20 March 2009 the applicant agreed to submit the X-rays taken on 28 December 2006 to the investigator. On 7 April 2009 the prosecutor ordered that a new expert medical report be drawn up by the Centre, to be based on those X-rays.

26. On 21 October 2009 the Centre informed the prosecutor that the applicant's X-rays were of poor quality and that the applicant would have to have a new X-ray taken. On 2 December 2009 the applicant was asked to undergo a fresh X-ray examination. The medical commission drew up its report on 9 December 2009 and found signs of a fracture in the upper third of the applicant's radial bone in his left elbow. The commission also concluded that this type of injury could have been caused in the manner described by the applicant, but could also have been self-inflicted.

27. On 30 June 2010 the prosecutor discontinued the investigation, essentially for the same reasons as those for which he had discontinued it previously, adding that the medical reports did not exclude the possibility that the injury had been self-inflicted. That decision was confirmed by a higher-ranking prosecutor on 17 December 2010.

28. On 25 July 2011 the investigating judge of the Bălți District Court upheld the decisions of 30 June and 17 December 2010. The judge found that the investigator had undertaken all possible measures to investigate the case, and that the witnesses had not confirmed the applicant's version of the events and had even contradicted it by stating that on 12 January 2007 they had been out cutting wood with the applicant and had not observed any injury to his elbow.

C. Further assaults on the applicant

29. In a medical report dated 15 August 2007 a doctor recorded an oval light-violet ecchymosis measuring 6 cm by 4 cm on the applicant's forehead and an excoriation measuring 2 cm by 1 cm and covered with a red crust, as well as pain in the cervical column and the right side of the thoracic region. The applicant explained that he had been beaten by his ex-wife and daughter.

30. In another medical report dated 21 August 2007 a doctor recorded an excoriation on the applicant's head measuring 2 cm by 1.5 cm and covered with a red crust. He explained that he had been hit on the head by his ex-wife the day before.

31. The applicant submitted similar medical reports, dated 13 September and 12 November 2007, which recorded various excoriations and bruises. Each time he explained that he had been beaten by his ex-wife and children.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

32. The applicant complained that there had been no efficient investigation into his allegation of ill-treatment by his ex-wife and children. He relied on Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

33. 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

34. The applicant submitted that he had presented medical evidence to the authorities that he had been ill-treated and that he had consistently identified his ex-wife and his son, D.V., as the perpetrators from the time of his very first approach to the police (see paragraphs 15 and 16 above). The Government had not proved that the domestic authorities had taken reasonable steps to ensure that the X-rays required by the medical commission had been delivered to it. The repeated annulment of the decisions to discontinue the investigation had highlighted the insufficiency of that investigation and indicated specific shortcomings which had undermined its efficiency. Instead of verifying thoroughly the applicant's allegations, the authorities had done the opposite, having the applicant undergo a psychiatric investigation in order to verify whether he was suffering from a mental illness. This, in the applicant's opinion, demonstrated the intention to lessen the force of his complaint by depicting him as deranged and having a tendency to complain without any reason or being prone to self-mutilation.

35. The Government submitted that the applicant had misinformed the authorities by failing initially to lodge any complaint against D.V., only mentioning his role in the incident on 21 January 2009. This meant that the authorities had lost valuable time because they had not been able to prosecute the alleged perpetrator promptly, but instead had had to spend time verifying the circumstances in respect of other persons, such as his ex-wife. Furthermore, several witnesses had stated that the applicant had not had any broken bone, such as T., the doctor who had seen him in Edineț Polyclinic, and the people with whom he had cut wood on 12 January 2007 (see paragraph 17 above). Importantly, the applicant had contributed to the length of the investigation by refusing to submit the requested X-rays to the police for verification by the medical commission (see paragraph 19 above). Since in the meantime the quality of those X-rays had deteriorated, it had been necessary to undertake a fresh X-ray examination, which had taken up further time. After 7 April 2009, when he had been re-examined, the applicant had lost interest in the case and had failed to appear before the investigator, despite having been invited by telephone to appear and despite a summons having been sent to him. Therefore, it was he who had been responsible for most of the delays in the investigation.

2. The Court's assessment

36. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-�XI; Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015; Muršić v. Croatia [GC], no. 7334/13, § 97, ECHR 2016; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, ECHR 2016 (extracts)).

37. It further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on the States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals (see A. v. the United Kingdom, § 22, 23 September 1998, Reports of Judgments and Decisions 1998-�VI, and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009).

38. Furthermore, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill-treatment even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-�XII; Denis Vasilyev v. Russia, no. 32704/04, §§ 98-99, 17 December 2009; and Eremia v. the Republic of Moldova, no. 3564/11, § 51, 28 May 2013). For the investigation to be regarded as "effective", it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and to the length of time taken for the initial investigation (see Denis Vasilyev, cited above, § 100 with further references, and Stoica v. Romania, no. 42722/02, § 67, 4 March 2008).

a. Whether the applicant was subjected to treatment contrary to Article 3 of the Convention

39. In the present case, the Court needs to determine first whether Article 3 was applicable. It notes that the applicant suffered injuries on 27 December 2006 and accused his ex-wife and children of having caused those injuries (see paragraph 13 above). While the Government focused on proving that he had not suffered any broken bone, they did not challenge the applicant's statement, which was confirmed by a doctor (see paragraph 17 above), that he had received trauma to his body and limbs. It also notes that this was not the first time the applicant complained about being beaten by his ex-wife and children (see paragraphs 8-11 above) and that subsequently he made complaints about further attacks while the investigation into the attack of 27 December 2006 was ongoing (see paragraphs 29-31 above).

40. The Court also finds that, notwithstanding the Government's arguments and the witness statements adduced by the investigator, the applicant has repeatedly furnished medical evidence for his submission that he suffered a broken bone on 27 December 2006 (see paragraphs 14, 16 and 26 above), which one expert characterised as being an injury of medium gravity requiring more than twenty-one days of treatment (see paragraph 14 above). In view of the clear evidence that the applicant had suffered injuries on 27 December 2006 deemed by a medical expert to be serious enough for treatment lasting more than three weeks, the Court finds that Article 3 of the Convention is applicable to the present case (see, mutatis mutandis, Mătăsaru and Saviţchi v. Moldova, no. 38281/08, § 86, 2 November 2010). It must therefore determine whether the authorities' actions in response to the applicant's complaint complied with the requirements of that provision.

b. Whether there was an efficient investigation into the applicant's allegation of ill-treatment

41. The Court notes that the applicant allegedly complained immediately after the incident to the local police (see paragraph 14 above). However, he did not submit any evidence supporting that complaint. In any event, from 5 January 2007, when he lodged a written complaint (see paragraph 15 above), the authorities were aware of the situation.

42. It also notes that medical evidence of a serious injury having been inflicted on the applicant was readily available and a complaint directly naming the alleged perpetrators had been made. The authorities initially decided not to initiate a criminal investigation; they started one almost a month after the complaint had been lodged (see paragraph 15 above).

43. Thereafter, the investigation lasted for four and a half years. During this time the prosecutor discontinued it on three different occasions (see paragraphs 21, 23 and 24 above). On each of these occasions either a higher-ranking prosecutor or the investigating judge annulled the decision to discontinue the investigation, finding a number of shortcomings, such as a failure to (i) question all the doctors who had seen the applicant after the incident of 27 December 2006, (ii) question more thoroughly those witnesses who had been questioned, and (iii) observe the victim's right to be involved in formulating the questions to the expert (see paragraphs 22, 23 and 24 above).

44. It is true that the applicant did not submit the X-rays to the police when requested to do so, causing a delay in the medical examination (see paragraph 19 above). However, given the failure of the local police and prosecution to open an investigation on so many earlier occasions after the applicant had complained of having been beaten (see paragraph 8 above), his hesitation in entrusting to the investigator the main piece of objective evidence of his ill-treatment was understandable. Moreover, as found by the investigating judge (see paragraph 23 above), the investigator failed to inform him of his right to submit the X-rays directly to the Centre so as to avoid giving them to the police or the prosecutor. Furthermore, there is no evidence in the file that the authorities took any action in response to the Centre's request of 7 May 2007 to have access to the X-rays at any time before 14 September 2007, when the Centre repeated its request (see paragraphs 18 and 19 above). It follows that for more than four months the authorities did nothing to enable the medical experts to analyse the most important evidence of ill-treatment.

45. Thereafter, when the applicant did submit the X-rays for analysis, it took the Centre more than six months to determine that they were of too poor quality to enable analysis and that the applicant needed to be examined again (see paragraphs 25 and 26 above).

46. Finally, having received on 9 December 2009 confirmation that the applicant had suffered a broken bone in his left elbow, a conclusion that corresponded with that of the previous medical reports on this issue, the authorities took another year and a half to adopt a final decision in the case. The Court notes that the reasons given for the final decision of the prosecutor to discontinue the investigation (see paragraph 27 above) and the reasons for which the investigating judge confirmed that decision (see paragraph 28 above) were in both cases essentially the same as those for which all previous similar decisions had been adopted (see paragraphs 21, 23 and 24 above). The only new element relied on was the medical expert's opinion given in the report of 9 December 2009 that the injury was situated in a part of the body accessible to the applicant, a fact which did not exclude the possibility of self-mutilation.

47. The Court does not accept the Government's submission that the applicant's statements to the authorities had been inconsistent (thus causing them to waste their time), namely that he had not named his son, D.V., as one of the attackers until early 2009. In fact, it appears from the documents in the case file that he complained about the actions of his ex-wife and children (including D.V.) from the very beginning (see paragraphs 15 and 16 above).

48. The Court considers that, even if it is accepted that the applicant was partly responsible for any delay by refusing to submit his X-rays for re-examination, a duration of four and a half years because of the need to undertake what appears not to have been a complex investigation - the parties not having mentioned any complexity in their observations before the Court - is incompatible with the requirement of promptness inherent in the notion of an effective investigation under Article 3 of the Convention (see paragraph 38 above). The fact that after an initial decision not to open an investigation (see paragraph 15 above) it was discontinued three times before the final decision on the matter was taken (see paragraphs 21, 23 and 24 above) raises questions as to the effectiveness of that investigation. Moreover, the reasons for the annulment of the decisions to discontinue the investigation reveal serious shortcomings, such as a failure to question important witnesses (notably doctors who had seen the applicant after the incident of 27 December 2006) or to properly involve the applicant in the investigation by informing him of his right to pose questions to the medical experts (see paragraphs 23 and 24 above). A prosecutor even found the investigation to have been "extremely superficial" and "tendentious [and] unilateral" (see paragraph 23 above). Moreover, the prosecutor appears to have engaged in the same shortcomings, prompting first a judge and then a higher-ranked prosecutor to annul his decisions essentially for the same reasons (see paragraphs 23 and 24 above). In the Court's view, the repeated failure to take specific steps which the domestic authorities themselves considered essential for a proper investigation raises additional questions concerning the quality of the investigation.

49. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the applicant's complaint of ill-treatment was protracted and inefficient.

There has accordingly been a violation of Article 3 of the Convention in its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. 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

51. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

52. The Government submitted that the sum claimed was excessive.

53. The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

54. The applicant also claimed a total of 17,529 Moldovan lei (MDL - the equivalent of EUR 786) for the costs and expenses incurred before the domestic courts and before the Court, relying on receipts for payments made to his lawyer and for domestic court fees and transportation and postal expenses related to the various procedural steps taken during the investigation.

55. The Government acknowledged that the majority of the sums were confirmed by evidence of payment. They asked the Court to award the applicant a sum corresponding to those expenses which had been necessary and reasonable.

56. According to the Court's case-law (see for a recent example Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), an applicant is entitled to the 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 accepts the applicant's claim in full.

C. Default interest

57. 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 in its procedural limb;

3. 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:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Moldovan lei at the rate applicable at the date of settlement;

(ii) MDL 17,529 (seventeen thousand five hundred and twenty-nine Moldovan lei), 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;

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

Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> DORNEAN v. THE REPUBLIC OF MOLDOVA - 27810/07 (Judgment : Article 3 - Prohibition of torture : Second Section) [2018] ECHR 433 (29 May 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/433.html Cite as: [2018] ECHR 433, CE:ECHR:2018:0529JUD002781007, ECLI:CE:ECHR:2018:0529JUD002781007