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VICTOR SAVITCHI v. MOLDOVA - 81/04 [2008] ECHR 527 (17 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/527.html
Cite as:
[2008] ECHR 527
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FOURTH
SECTION
CASE OF VICTOR SAVITCHI v. MOLDOVA
(Application
no. 81/04)
JUDGMENT
STRASBOURG
17
June 2008
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 Victor Savitchi v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Mihai Poalelungi,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 81/04) 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 Victor Saviţchi
(“the applicant”), on 26 November 2003.
The
applicant was represented by Mr V. Nagacevschi, a lawyer practising
in Chişinău and member of the non-governmental organisation
“Lawyers for Human Rights”. The Moldovan Government (“the
Government”) were represented by their Agent at the time, Mr V.
Pârlog.
The
applicant alleged, in particular, that he had been ill treated during
his arrest, that his telephone conversations had been illegally
intercepted and that the criminal proceedings against him had been
unfair.
On
16 February 2006 the President of the Fourth Section of the Court, to
which the case was allocated, decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Victor Saviţchi, is a
Moldovan national who was born in 1954. He worked as an inspector in
the Făleşti County Economic
Police Force. On 3 August 2000 he was arrested on a charge of taking
a bribe of 4,000 United States dollars (USD) in exchange for a favour
concerning a case he was dealing with.
1. The arrest in
flagrante delicto
The
arrest in flagrante delicto was filmed by two cameras from
different angles. Both videos were included in the domestic criminal
file and were sent to the Court by the Government.
One
of the videos shows a group of police officers wearing plain clothes
enter a room, which looks like a small bar, where the applicant is
drinking beer with the briber. At the sight of the police officers,
the applicant dips his fingers into a mug of beer, after which he is
immediately grabbed and restrained by four police officers. Since the
applicant attempts to bend down, three police officers hold his hands
behind his back while another one holds his head up. Subsequently,
another police officer joins the other four. Another police officer
approaches the applicant and checks the pockets of his trousers. The
applicant is splashed with beer and water, apparently in an attempt
to calm him down, and one of the police officers restraining him
comments that he is attempting to bend down. Finally, he is forcibly
cuffed and seated on a chair. After approximately four minutes of
struggle, the applicant calms down. After approximately five minutes,
one of the police officers announces to the others that he has
stopped filming because the cassette has run out.
The second video starts immediately after the police
officers grab and restrain the applicant. A man holding a camera can
be seen kicking the applicant in the region of his chest. It appears
that the man kicking the applicant is the police officer who was
filming the other video (see the preceding paragraph). Immediately
after this scene the image changes to a wall; however, sounds
resembling two blows are heard in the background. After approximately
twenty seconds the same person kicks the applicant twice in the
posterior. Another police officer approaches the applicant and does
something to him; however, only his back can be seen. Later the
applicant, who continues to struggle, is splashed with beer and
water, apparently in an attempt to calm him down. One of the police
officers restraining him comments that he is attempting to bend down.
After being forcibly seated on a chair, the applicant calms down and
a police officer examines his hands with a special lamp to detect the
presence of a special dust with which the bribe money has apparently
been treated. Subsequently, his pockets are examined and USD 4,000 is
extracted from the pocket of his shirt. The money appears to have
been marked with a special dust and every banknote bears the
inscription “Bribe Savitchi 2000”. The applicant claims
that the money is not his and that he has no idea how it got into his
pocket. He argues that in that pocket he had documents and a pen
which mysteriously appeared on the table.
2. The proceedings against the policemen who allegedly
ill-treated him during arrest
On
an unspecified date the applicant lodged a complaint with the General
Prosecutor's Office about his alleged ill-treatment by the policemen
who arrested him on 3 August 2000.
On
24 November 2000 the General Prosecutor's Office refused to institute
criminal proceedings against the policemen, on the ground that the
applicant's complaint was ill-founded. The decision dismissing the
applicant's complaint stated, inter alia, that several police
officers who had participated in the applicant's arrest had been
questioned and they had denied the applicant's submissions that he
had been beaten up.
On
17 May 2004 the applicant complained to the Râşcani
District Court about the Prosecutor's Office's refusal to institute
criminal proceedings against the police officers who had ill-treated
him. In support of his complaint the applicant relied on the video of
his arrest (see paragraph 8 above) and the findings in the
judgment of the Bălţi Regional Court of 5 June 2001
(see paragraph 14 below).
On
18 June 2004 the Râşcani District Court without having
viewed the video, examined the case on its merits and, in a very
brief decision, dismissed the complaint as ill-founded.
3. Criminal proceedings against the applicant
The
applicant was detained during the judicial proceedings between
4 August 2000 and 5 June 2001.
On 5 June 2001 the Bălţi Regional Court
acquitted the applicant. In its judgment it stated, inter alia,
the following:
“Article 109 of the Code of Criminal Procedure
provides that investigative measures can be taken only after criminal
proceedings are formally instituted... The criminal proceedings were
formally instituted in this case on 3 August 2000....
The accusation is based on a number of pieces of
evidence which were obtained prior to that date, such as: the warrant
for the installation of a recording device of 2 August 2000, the
minutes of the marking of the money of 2 August 2000, a video of
2 August 2000, and some audio recordings...
...
According to Article 156 of the Code of Criminal
Procedure, the interception of telephone communications and other
communications... of suspects... may be carried out in connection
with criminal proceedings instituted in accordance with a decision of
the authority conducting the investigation with the authorisation of
the prosecutor.
In the present criminal proceedings the prosecution
presented four audio cassettes and three micro audio cassettes;
however, it appears from the materials of the case that the
interception of the communications was not authorised by a
prosecutor.
...
Having listened to the contents of the audio cassette
HF-S 90, micro audio cassette Sony MC-60, TDK-60 and “Olimpus”,
the court found that the interception and the recordings were carried
out in breach of the provisions of the [Code of Criminal Procedure]
and it is not clear who made the recordings, who was involved in the
discussion and on which date the recordings were made.
The contents of the micro audio cassette Sony MC-60...
are incomprehensible....
The above audio cassettes were sent to the Prosecutor
General's Office on 2 August 2000, one day before the formal
institution of the criminal proceedings.
Since the above evidence was obtained in breach of the
provisions of the Code of Criminal Procedure, it is not admissible.
...
Having watched the video of the arrest, the examination
of the scene of the crime and the body search, the court found the
following: the film starts at 6.52 p.m.; Savitchi is surrounded by
men who arrest him, his hands are twisted and he is kicked in the
area of his liver. The image changes, but one can still hear the
sound of blows. After that ... Savitchi is splashed with beer and
water and seated on a chair with his hands cuffed behind his back...
At 7.21 p.m. a wad of money is taken out of the left pocket of his
shirt.
One can clearly see in the film that during the disorder
created at the moment of arrest (at 6.53 p.m.), while Savitchi had
his hands cuffed at his back and was surrounded by men, someone
approached him, bent low and stretched his arms towards Savitchi's
chest.
These images cast doubt on the fact that Savitchi took
the money, and his version of the facts, that the money was placed in
his pocket, cannot be ruled out...
...
The fact that he was splashed with water and beer seem
to support the allegation that he lost consciousness... and that the
special dust appeared on his hands which had been behind his back.
Witnesses S. and B., who were questioned during the
hearing, declared that when they entered the premises [the bar], they
saw Savitchi, who had already been arrested, and that they did not
see the moment of his arrest. Their testimonies are consistent with
the video.
The fact that he [Savitchi] dipped his fingers in beer
is not sufficient proof that he took the money...
The above evidence being equivocal, must be interpreted
in favour of Savitchi.
The policemen..., who participated in the arrest as
witnesses, stated that during the arrest Savitchi had resisted and
therefore he had been cuffed, he had not lost consciousness, nobody
had placed money in his pocket and nobody had beaten him up.
...
The declarations of the above witnesses [the police
officers] are not consistent with the film and therefore the court
doubts their truthfulness...
...
Witness L.M. [the briber] did not confirm the fact that
Savitchi requested money from her... It was A.M. [the intermediary]
who told her about the money. Moreover, there were no reasons for her
to fear a control...
Having analysed all the circumstances of the case, the
court comes to the conclusion that in the present case an entrapment
was organised by the State organs, which is contrary to Article 95
(5) of the Code of Criminal Procedure.”
The
Prosecutor's Office lodged an appeal against this judgment. It did
not deny the fact that some of the evidence had been obtained in
breach of the Code of Criminal Procedure.
In
respect of the description of the video of the applicant's arrest
given by the first-instance court, the Prosecutor's Office stated
that there had indeed been disorder at the moment of the arrest
because the applicant had resisted. He would not calm down and had
tried to throw himself to the ground. It was, however, clearly
visible that the money had been extracted from his pocket. The
Prosecutor's Office stressed that the first-instance court should
have paid more attention to the testimonies of victims L.M. and A.M.
(the bribers) and argued that the first-instance court had refused to
question a witness who had been present at the moment of extraction
of money from the applicant's pocket. The first-instance court had
failed to listen to all the audio recordings presented by the
prosecution. It had also failed to question the technicians who had
made the audio and video recordings and wrongly interpreted the
testimonies of the policemen who had arrested the applicant.
The
Prosecutor's Office asked for the judgment of 5 June 2001 to be
quashed and the case re-examined by the first-instance court.
On
30 August 2001 the Court of Appeal allowed the prosecutor's appeal in
its entirety, quashed the judgment of 5 June 2001 and ordered a
re-trial of the case by the first-instance court. The court found
numerous mistakes in the procedure before the first-instance court,
such as, inter alia, the wrongful assessment of the evidence,
the breach of the accused's right to defence, the evidence (video and
audio cassettes) was not given a proper examination, the prosecutor's
motions to hear a witness and several experts were dismissed, there
was insufficient evidence to prove that the applicant had not taken
the bribe and the conclusion about the entrapment was wrong.
On
12 November 2002 the Bălţi Regional Court conducted a
complete rehearing of the case, found the applicant guilty of
bribe-taking and sentenced him to ten years' imprisonment. The court
based the conviction, inter alia, on the statements of A.M.
and L.M., who declared that the applicant had asked them for a bribe,
and of five policemen who arrested the applicant, who made more or
less similar declarations about the alleged bribe-giving and arrest.
Only one of the five policemen declared in an affidavit that force
had been used on the applicant. The other policemen stated that no
force had been used. All of the policemen declared that the applicant
had dipped his fingers in a glass of beer in order to wash away
traces of phosphorescent dust.
The
court also relied on the fact that the money had been found in the
applicant's pocket and that traces of phosphorescent dust had been
detected on the palm of his right hand. The court also relied on two
audio cassettes containing the recording of telephone conversations
between the applicant and A.M. and L.M. of unknown date, and the
video of the applicant's arrest. The court stated the following:
“It appears from the audio cassette TDK MC-60 that
Savitchi was dealing with the case of L.M. It also appears from their
discussion that he requested from her the stated amount of money, in
exchange for a positive report on the case. He insisted that she
resign and move to another town, and promised that after the payment
of the money the problem would be solved positively; if not, the
money would be returned.
It appears from the discussions between Savitchi and
A.M. that Savitchi was requesting USD 4,000. He was dealing with
L.M.'s case and he had discovered irregularities concerning large
amounts of money, and promised to help in exchange for a bribe, on
condition that she resign and move to another town.
From the video it appears that the money in the amount
of USD 4,000 had been marked in the presence of witnesses and had
been given to A.M., who, on 3 August 2000 at approximately
6.30 p.m. ... had given it to Savitchi. When the police entered the
bar, the bribe was already in the pocket of Savitchi's shirt.
Savitchi put his fingers in a glass of beer in order to wash away the
traces of phosphorescent dust.”
The
court did not describe the other details of the video of the
applicant's arrest described in the judgment of 5 June 2001. It
stated that the applicant's submissions that he had not taken the
money and that it had been put into his pocket were baseless. The
court found that physical force had been used on him in order to
overcome his resistance against the police and block his attempts to
destroy the evidence.
The
applicant appealed against this judgment, arguing, inter alia,
that:
“The court was influenced by the President's [the
President of the country] letter addressed to the President of the
Superior Council of Magistrates, V.S....
...
...the court failed to give any consideration to the
video of the applicant's arrest in which one can clearly see that at
6.52 p.m. someone kicked him in the stomach after which the [camera]
was immediately [directed elsewhere] by the person who was filming;
however, the sound of beating could still be heard in the background.
A minute later, at 6.53 p.m., an unknown person obscured the view
with his body and stuck the money into the applicant's pocket...
Savitchi was splashed with water and beer in order to make him regain
consciousness....
The court did not find out who beat the applicant up and
why force had been necessary. Moreover, the court did not take into
consideration that all the police witnesses except one denied the
fact that Savitchi had been beaten up.... There was a plan to make
Savitchi lose consciousness in order to be able to manipulate the
evidence.
The court did not take into consideration the fact that
some evidence, such as the report of the installing of telephone
interception devices of 2 August 2000, the minutes of the marking of
the money and the audio and video recordings of 2 August 2000, were
obtained in breach of ... the Code of Criminal Procedure....
The recording of the telephone communication was carried
out without the authorisation of a prosecutor... Moreover, even these
items of evidence prove Savitchi's innocence. ... No audio or video
evidence proves that Savitchi demanded or received a bribe from L.M
or A.M.”
On
30 January 2003 the Court of Appeal dismissed the applicant's appeal.
In respect of his arguments it stated the following:
“It follows from the materials of the case that
Savitchi extorted a bribe of USD 4,000 from A.M. who informed the
police. After that, investigative measures were undertaken, recording
devices were used and conversations between Savitchi and A.M. about
the hand-over of the bribe and its amount were recorded. A video of
the marking of the bribe money was made. In this manner, Savitchi was
caught red-handed and there are no doubts about his guilt. The
arguments in Savitchi's appeal are devoid of any legal basis and the
court considers them to be a method of defending the accused with the
aim of avoiding penal responsibility for the offence committed.
Accordingly it cannot be said that the bribery was [committed as a
result of] entrapment.”
The
applicant lodged an appeal on points of law with the Supreme Court of
Justice, raising points about the inadmissibility of all the evidence
obtained before 3 August 2000 and other arguments similar to those
raised in his appeal.
On
10 July 2003 the Supreme Court of Justice, without holding a hearing
and without giving any reasons, declared the applicant's appeal on
points of law inadmissible.
4. The applicant's attempts to obtain copies of materials from his
criminal file
On
26 March 2004 the applicant wrote a letter to the Bălţi
Court of Appeal, where his criminal file was held, in which he
requested to be issued copies of some materials from the file. In
reply he did not receive all the requested copies.
He
repeated his request and stressed that he needed a copy of the
minutes of the hearings in the criminal proceedings against him and a
copy of the video of his arrest of 3 August 2000, when he was caught
red-handed, for the purpose of applying to an international court.
By
a letter of 3 May 2004 the President of the Bălţi Court of
Appeal informed the applicant that under the Code of Criminal
Procedure he did not have a right to receive copies of the minutes of
the hearings; as to a copy of the video cassette, the applicant was
informed that the court did not have the technical or economic means
to make one.
The
applicant wrote in reply that he was prepared to bear all the
expenses linked to the copying of the video cassette.
On
30 June 2004 a Vice-President of the Bălţi Court of Appeal
replied to the applicant that the court did not have the technical or
economic means to make a copy of a video cassette.
On
unspecified dates the applicant complained to the Superior Council of
Magistrates about the refusal of the Bălţi Court of Appeal
to issue him with copies of the required materials from his criminal
file. He relied, inter alia, on the provisions of the Law on
Access to Information and on Article 10 of the Convention.
On
2 July 2004 C.G., a Vice-President of the Supreme Court of Justice,
informed the applicant that he had the right to have his lawyer see
the minutes of the hearings and the video of his arrest, but not to
request copies of them.
On
15 July 2004 the applicant introduced an action with the Chişinău
Court of Appeal against C.G.'s decision of 2 July 2004, asking for
the decision to be quashed and that the Bălţi Court of
Appeal be obliged to issue him copies of the transcripts of the
hearings of his criminal case and of the video of his arrest. He
based his action, inter alia, on the Law on Access to
Information and on Article 10 of the Convention.
On
27 July 2004 the Chişinău Court of Appeal informed the
applicant that his action could not be examined, since C.G.'s letter
was merely the opinion of a public official which did not infringe
the applicant's rights and therefore could not be challenged in the
courts.
The
applicant lodged an appeal with the Supreme Court of Justice.
However, on 20 September 2004 he was informed by the Supreme Court of
Justice that the letter of the Chişinău Court of Appeal of
27 July 2004 was not a judicial decision and therefore could not be
challenged by way of an appeal.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure (in force at
the time of the events) read as follows:
“Section 55. The evidence
...
Evidence obtained in violation of the present Code or
not properly examined during the court hearing cannot be relied upon
in a judgment or in any other procedural documents.
...
Section 109. The commencement of the preliminary
investigation
The preliminary investigation can be carried out only
after the institution of criminal proceedings and in accordance with
the rules set out in the present Code. ...
...
The
relevant provisions of the new Code of Criminal Procedure read as
follows:
Section 66. The rights and the obligations of the
suspect or accused
(2) The suspect or the accused has the right, in
accordance with the provisions of the present Code:
...
22) after the termination of the preliminary
investigation, to examine all the materials of the case, to take
notes from them, to make copies of them...
Section 336. Minutes of the hearings
...
(5) The president of the hearing shall inform the
parties to the proceedings about the minutes of the hearing and about
their being signed, and make sure that they have the possibility to
see their contents...
THE LAW
The
applicant complained under Article 3 of the Convention that he had
been beaten up by the police during his arrest on 3 August 2000.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him had been unfair. The relevant
part of Article 6 § 1 of the Convention reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
The
applicant originally complained under Article 10 about the refusal of
the domestic courts to issue him with copies of the minutes of the
hearings in the criminal proceedings against him and of the video of
his arrest. The Court considered that it was more appropriate to
examine this complaint under Article 8 of the Convention. The
applicant further complained under Article 8 of the Convention that
his telephone conversations had been illegally recorded by the person
who had set him up. Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.”
The
applicant finally complained under Article 13 of the Convention that
he had not had an effective remedy in respect of the alleged breach
of Article 8 of the Convention. Article 13 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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 5 of the Convention
In
his initial application, the applicant complained under Article 5
§ 1 of the Convention that his detention between 4 August
2000 and 5 June 2001 had been unlawful. However, in his
observations on the admissibility and merits, he asked the Court not
to proceed with the examination of this complaint. The Court finds no
reason to examine it.
B. The complaint under Article 6 of the Convention
The
applicant submitted that the criminal proceedings against him had
been unfair, because some important items of evidence relied upon by
the courts, such as the recordings of his telephone conversations,
had been unlawfully admitted, and the courts had not given sufficient
reasons in their judgments for admitting them and had failed to
address some of the important submissions he raised. Moreover, the
courts convicting him had failed to give arguments in support of
their disagreement with the findings and conclusions of the Bălţi
Regional Court's judgment of 5 June 2001. He argued that the
proceedings as a whole had been unfair.
The
Government disagreed with the applicant and submitted that the
applicant had had an effective possibility to contest the
admissibility of the impugned evidence. He had participated in person
at the hearings and had been represented by an attorney, and the
courts had given ample reasons in their judgments for finding him
guilty.
The
Court recalls that Article 6 of the Convention does not lay down any
rules on the admissibility of evidence as such, which is therefore
primarily a matter for regulation under national law. The Court
cannot exclude as a matter of principle that unlawfully obtained
evidence of the present kind may be admissible (Schenk v.
Switzerland, judgment of 12 July 1988, Series A no. 140, §
46).
The
Court further reiterates that the effect of Article 6 § 1 is,
inter alia, to place a “tribunal” under a duty to
conduct a proper examination of the submissions, arguments and
evidence put forward by the parties (see Perez v. France [GC],
no. 47287/99, § 80, ECHR 2004 I). A corollary of this
obligation of the courts is their duty to give reasons in their
judgments (see, among other authorities, Hirvisaari v. Finland,
no. 49684/99, § 30, 27 September 2001). However, a detailed
answer to every single argument cannot be expected (see Van de
Hurk v. the Netherlands, judgment of 19 April 1994, Series A
no. 288, p. 20, §§ 59 and 61, and Burg and Others
v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to
which the duty to give reasons applies may vary according to the
nature of the decision and must be determined in the light of the
circumstances of the case (see Ruiz Torija v. Spain, judgment
of 9 December 1994, Series A no. 303-A, § 29, and
Helle v. Finland, judgment of 19 December 1997, Reports
of Judgments and Decisions 1997 VIII, § 55). In any
event, reasons must be given in answer to every argument, which, if
accepted, could be decisive for the outcome of the case.
The
Court notes that in examining the criminal case against the applicant
the domestic courts did not address some of the issues raised by the
applicant, such as the admissibility of the audio recordings, the
admissibility of the minutes of the marking of the bribe money, the
submission concerning the probative value of one of the recordings
and of one of the videos of the flagrante delicto.
However,
against this it must be observed that in reaching their conclusion
concerning the applicant's guilt, the domestic courts ascertained
that the applicant was involved in his capacity as inspector in the
investigation of a case concerning L.M. The bribers testified that
the applicant had requested a bribe and a video of the applicant's
arrest clearly showed him dipping his fingers in a mug of beer,
apparently attempting to wash away traces of the powder used to mark
the banknotes handed over to him; the video also showed the applicant
trying to bend down, apparently in an attempt to expel something from
the pocket of his shirt. This turned out to be the USD 4,000 which
had been powder-marked. It appears clearly from the first video (see
paragraph 7 above) that the man who obscured the image of the
applicant during his arrest (see paragraph 8 above), only checked the
pockets of the applicant's trousers and did not do anything to the
pocket of his shirt. In the presence of such evidence, it is
difficult to imagine that even if all the issues raised by the
applicant had been addressed and accepted by the courts, their
conclusion would have been different. For the Court, what is
important is the overall fairness of the proceedings (see Khan v.
the United Kingdom, no. 35394/97, § 34, ECHR 2000 V).
On
that latter point, the Court notes that the applicant was legally
represented throughout the proceedings and it does not appear that
there was any breach of the principle of equality of arms or that the
applicant was unable personally or through his counsel to present his
arguments and submissions.
The
applicant also complained that the courts convicting him had failed
to give arguments in support of their disagreement with the findings
and conclusions of the Bălţi Regional Court's judgment of 5
June 2001. The Court finds this argument unmeritorious. After the
quashing of that judgment, a full rehearing took place. All the
evidence was examined anew and all the witnesses were heard again. In
such circumstances, it cannot be said that the domestic courts were
under an obligation to give reasons for departing from the earlier
judgment of 5 June 2001 (compare and contrast with Salov v.
Ukraine, no. 65518/01, §§ 90-92, ECHR 2005 ...
(extracts)).
In
the light of the above, the Court considers that the applicant's
complaint about the unfairness of the proceedings must be rejected as
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
C. The complaint under Article 8 of the Convention
concerning the recording of the applicant's telephone conversations
The
applicant complained that his telephone conversations had been
illegally recorded and stressed that the recording had been carried
out by a private person, A.M., but not by State agents.
The
Court notes that the applicant failed to lodge a complaint with the
competent authorities against the person responsible for the
recording. He has therefore not exhausted the remedies available to
him under Moldovan law. Furthermore, examination of the case has
disclosed no special circumstances which could have exempted the
applicant from the requirement to exhaust domestic remedies.
Accordingly, this complaint must be declared inadmissible under
Article 35 §§ 1 and 4 for failure to exhaust domestic
remedies.
D. The complaint under Article 8 of the Convention
concerning the refusal to provide the applicant with copies of some
materials of his criminal file
The
applicant complained that the authorities had refused to give him
copies of the minutes of the hearings in his criminal proceedings and
a copy of the video of his arrest.
The
Court notes that it has already recognised the entitlement of an
individual to have access to restricted documents held by public
authorities, when these documents are of importance for the exercise
of his private life. In Gaskin v. the United Kingdom (judgment
of 7 July 1989, Series A no. 160, § 36), the documents
in question contained information concerning highly personal aspects
of the applicant's childhood, development and history and were
considered to constitute his principal source of information about
his past and formative years. In Rotaru v. Romania ([GC],
no. 28341/95, § 44, ECHR 2000 V) the restricted
documents contained information about the applicant's life, his
studies, his political activities and his criminal record. In Roche
v. the United Kingdom ([GC], no. 32555/96, § 155,
ECHR 2005 ...) the restricted documents contained information,
which could either have allayed the applicant's fears concerning his
health or enabled him to assess the danger to which he had been
exposed.
In the present case, the copies in question related to
public proceedings, at which the applicant was present in person, and
most importantly, were not restricted documents. Even if it could be
argued that they formed part of his past and of his memory, as every
element of a person's daily life does to a certain degree, it is
undisputed that the applicant could have had access to them through
his representative while in prison and in person after release. In
such circumstances, the Court considers that the present case is
distinguishable from the above mentioned Gaskin, Rotaru
and Roche cases and that the documents in question did not
have such importance for the applicant's enjoyment of his private
life as to fall within the scope of application of Article 8 of the
Convention. It follows that, in accordance with Article 35 §§
3 and 4 of the Convention, this part of the application must be
dismissed as being incompatible ratione materiae with the
Convention provision relied on.
E. The complaint under Article 13 of the Convention
taken together with Article 8 of the Convention
The
applicant argued that he did not have an effective remedy before a
national authority in respect of the breach of Article 8 of the
Convention concerning the refusal to issue him with copies of certain
documents from his criminal file.
The Court reiterates that Article 13 applies only
where an individual has an “arguable claim” to be the
victim of a violation of a Convention right (see Boyle and Rice v.
the United Kingdom, judgment of 27 April 1988, Series A
no. 131, § 52). The Court has found the applicant's complaint
under Article 8 incompatible ratione materiae with the
provisions of the Convention (see paragraph 56 above). Accordingly,
the applicant does not have an “arguable claim” in this
respect and his complaint under Article 13 must be dismissed in
accordance with Article 35 §§ 3 and 4 of the Convention.
F. The rest of the complaints
The
Court considers that the rest of the applicant's complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and no
other grounds for declaring them inadmissible have been established.
The Court therefore declares these complaints 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 complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant submitted that he had been beaten up by the police during
his arrest and that that could clearly be seen in the video of his
arrest. He also argued that the Prosecutor's Office and the court
which examined his complaint about ill-treatment had not conducted an
effective investigation.
The
Government disputed the applicant's allegations and argued that his
complaint about ill-treatment had been carefully examined by the
domestic authorities and had been found to be ill-founded. They
stressed that it could clearly be seen from the video of the
applicant's arrest that he had resisted the police officers.
The
Court notes at the outset that this complaint was not communicated to
the parties, however, the parties addressed it from both the
substantive and procedural angles.
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, judgment of 28 October
1998, Reports 1998-VIII, p. 3288, § 93).
The Court reiterates that in the process of arrest of a person, any
recourse to physical force which has not been made strictly necessary
by his or her own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 of the
Convention (see, mutatis mutandis, Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 38).
The
Court further reiterates that where an individual makes a credible
assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other agents of the State, that provision,
read in conjunction with the State's general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000-IV).
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 et seq.). They must take all reasonable steps available to them
to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see, Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et
seq., and Gül v. Turkey, no. 22676/93, § 89, 14
December 2000). Any deficiency in the investigation which undermines
its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard.
In
the instant case the Court notes that one of the videos of the
applicant's arrest clearly shows that he received at least three
blows from a police officer (see paragraph 8 above) while being
restrained by several others. Indeed, the Bălţi Regional
Court made the same finding in its judgment of 5 June 2001. Although
the applicant struggled for approximately five minutes with the
police officers restraining him, it clearly appears he did not
attempt to hit them but was merely struggling to bend down. In any
event the balance of force was unequal as he was being restrained by
five police officers of approximately the same size and build as he.
In such circumstances the blows received by him do not appear to have
been strictly necessary and the police officers could have certainly
achieved their goal of calming the applicant by other less brutal
methods.
The
Court must also have regard to the manner in which the domestic
authorities examined the applicant's complaint about ill-treatment.
It notes that the Prosecutor's Office and the Râşcani
District Court limited their examination to the questioning of
several police officers who had participated in the applicant's
arrest and who denied his allegations of ill-treatment. They appear
to have ignored the applicant's statements that the video of the
arrest contained evidence in support of his allegations, which, in
the Court's view, is surprising, since that would normally be the
first and most reliable piece of evidence for the examination of such
a complaint. It is to be noted that the Bălţi Regional
Court in its judgment of 5 June 2001 concluded from the video
evidence that the applicant has been surrounded by police officers,
his hands had been twisted and he was kicked in the area of the
liver. The sound of blows could still be heard even when the
applicant was not being filmed (see paragraph 14 above).
In
the light of the above, the Court concludes that there has been both
a substantive and procedural violation of Article 3 of the
Convention. In so far as the substantive aspect is concerned, the
Court considers that the ill-treatment to which the applicant was
subjected amounted to inhuman and degrading treatment.
V. 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 153,604 euros (EUR) in respect of pecuniary and
non-pecuniary damage made up as follows: EUR 3,604 for loss of
earnings for the period of his detention lasting fifty-three and a
half months and EUR 150,000 for non-pecuniary damage.
The
Government contested the claim and argued that the applicant's claims
were ill-founded and excessive.
The
Court's finding of a breach is limited to the applicant's Article 3
complaint. As to the non-pecuniary damage claimed, the Court accepts
that the ill-treatment to which the applicant has been subjected
caused him non-pecuniary damage, which cannot be made good by the
mere finding of a violation. The Court, making its assessment on an
equitable basis, awards the applicant EUR 6,000 in respect of
non-pecuniary damage. The claim for pecuniary damage is
unsubstantiated and is rejected.
B. Costs and expenses
The
applicant also claimed EUR 4,590 for costs and expenses incurred
before the Court. He submitted a detailed time-sheet indicating the
time spent by his lawyer on the case and an itemised list of other
expenses linked to the examination of the case. He also submitted a
copy of a contract between him and his lawyer and two receipts
proving the payment of the entire amount claimed.
The
Government disagreed with the amount claimed for representation and
disputed, inter alia, the number of hours spent by the
applicant's lawyer on the case and the hourly rate charged by him.
They also argued that the claims were excessive in view of the
economic situation in Moldova.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 information in
its possession, the above criteria, the complexity of the case and
the fact that several complaints have been declared inadmissible, the
Court considers it reasonable to award the applicant the sum of EUR
2,000 for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares admissible the complaint under Article
3 of the Convention and the remainder of the complaints inadmissible;
Holds that there has been a substantive
violation of Article 3 of the Convention;
Holds that there has been a procedural violation
of Article 3 of the Convention;
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, EUR 6,000 (six thousand
euros) in respect of non-pecuniary damage and EUR 2,000 (two thousand
euros) in respect of costs and expenses, 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
