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LIPENCOV v. MOLDOVA - 27763/05 [2011] ECHR 135 (25 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/135.html
Cite as:
[2011] ECHR 135
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FOURTH
SECTION
CASE OF LIPENCOV v. MOLDOVA
(Application
no. 27763/05)
JUDGMENT
STRASBOURG
25 January
2011
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 Lipencov v.
Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Lech Garlicki,
Ljiljana Mijović,
David
Thór Björgvinsson,
Ledi Bianku,
Mihai
Poalelungi,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27763/05) 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 two Moldovan nationals, Mr Valentin Lipencov
and Mrs Lilia Lipencov (“the applicants”), on 27 July
2005.
The
applicants were represented by Ms N. Mardari, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
The
applicants alleged that the first applicant had been treated in an
inhuman and degrading manner by police and that the authorities had
failed to investigate their complaint. They further alleged that the
conditions in which the first applicant had been detained were
incompatible with Article 3 of the Convention. Additionally, they
complained that the final part of the first applicant's detention had
been unlawful, and that their home had been unlawfully searched by
police.
On
21 November 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1987, and is the son of the second
applicant, who was born in 1966. They live in Chişinău. The
first applicant was 17 years old at the time of the events giving
rise to the present application. According to the second applicant,
he has an intellectual impairment and has been medically supervised
by a psychiatrist since childhood. In view of his condition, he
received his schooling at home.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
According
to police records, the first applicant was arrested by police
officers at 10 a.m. on 24 October 2004 after they were called to a
private apartment building where the applicant had already been
apprehended by some of the residents.
According
to the applicants, he had been taken to the building forcibly by two
persons of his acquaintance who had accosted him in the street some
hours earlier and assaulted him. Their intention had been to push him
from the roof of the building, but their presence had been detected
by three of the residents. Believing that there was a robbery in
progress, these men seized the first applicant and beat him. He had
already sustained some injuries when the police arrived. The
applicants maintained that he received a further beating from the
police.
According
to the Government, at the time of his arrest the first applicant was
already under police suspicion of having committed a number of
thefts. An ordinance had been issued against him charging him under
Article 186(2) of the Criminal Code. As he had failed to present
himself to the police to be informed of the charge, an ordinance to
search for him was issued by a prosecutor on 22 October 2004. On the
morning of 24 October the first applicant was caught in the act of
theft inside an apartment building. As for his injuries, the
Government speculated that these could have been caused by the
persons who apprehended him, or may have been self-inflicted when the
applicant had tried to conceal himself in a ventilation duct.
The
applicants alleged that following his arrival at Ciocana police
station, the first applicant was punched by police officers and
beaten with rubber truncheons in an attempt to make him confess to a
number of thefts. He was repeatedly sworn at and refused food, drink
and access to the toilet. No medical treatment was provided for his
injuries.
The
second applicant stated that she came to the police station that same
day to visit him and to give him food and clothes, but was not
permitted to see him. The applicants maintained that the following
day, 25 October, the first applicant was taken by the police to
a marketplace for certain procedural acts. No lawyer was present. The
applicant's other son witnessed this, and noted his brother's visible
injuries. That afternoon, between 3 p.m. and 5.30 p.m., the first
applicant was questioned by police officers in the presence of a
lawyer as well as of the second applicant. During the interrogation,
the first applicant complained of pain in his head and of strong
nausea. It appeared to the second applicant that he had been badly
beaten, and he was hungry. Despite his complaints, he was required to
answer the questions put to him and was refused access to the toilet.
After the interrogation he was returned to his cell, having received
no medical assistance.
On
the morning of 27 October 2004, the second applicant returned to the
police station, expecting that her son would be released by 10 a.m.,
which marked the end of the 72-hour period during which he could be
detained without a court order. She was denied access to the
building. The first applicant was again taken to the marketplace for
undisclosed purposes. He was brought back at 3.20 p.m. The second
applicant, assisted by three lawyers from the Helsinki Committee for
Human Rights in Moldova, requested the first applicant's release,
which was initially refused. According to police records, he was
eventually released at 4.30 p.m. that day.
The
day after his release, the first applicant underwent a medical
examination. This recorded a bruise covered with a red-brown crust
measuring 2x1 centimetres on the right side of his head, and an
adjacent one measuring 3x2 centimetres. A similar bruise measuring
2x0.7 centimetres was found in his right parietal region. Multiple
oval bruises were found on his right, central and left lumbar region,
covered by a brown crust and each measuring 7x0.8 centimetres. The
doctor noted the first applicant's explanation of what happened to
him (see paragraphs 8 and 10 above) and concluded that this was
consistent with the injuries recorded. The applicant attended a
hospital for treatment for eight days.
The
second applicant made several written complaints to the authorities
regarding the events set out above. On 26 October 2004 she complained
to the Prosecutor General's Office and to the investigating judge of
the ill-treatment of her son by the police. She referred to his
intellectual disability and to the fact that he was a minor. On 5
November 2004 she lodged a complaint with the investigating judge and
described the events of 27 October 2004. She referred, inter alia,
to Articles 165 (1) and 166 (4) of the Code of Criminal Procedure
(see below) and asked that those responsible for abusing her son be
punished. On 9 November 2004 the second applicant complained to the
Prosecutor General's Office that her apartment had been searched the
previous day by the police, who had refused to identify themselves or
show a search warrant. She requested that those responsible be
identified and punished.
All
of these complaints were investigated by prosecutor S. of the Ciocana
prosecutor's office. He interviewed the applicants, other family
members, the lawyer who attended the interrogation on 25 October, the
applicants' neighbours, and the police officers involved. By a letter
of 13 December 2004 the prosecutor informed the second applicant
that he had decided not to initiate a criminal investigation since
there was no evidence that the police had committed a crime. He added
that “in view of the irregularities that have been allowed, a
note was sent to the Ciocana police station”.
On
28 December 2004 the second applicant challenged the prosecutor's
decision before the investigating judge. In her complaint, she
reiterated the circumstances of the case and submitted that the first
applicant had been ill-treated by the police during his detention;
that he had not been given any medical assistance even though he
clearly needed it; that she had been refused access to him; that he
had been detained for more than 72 hours contrary to the law;
and that an unlawful search had taken place at the applicants'
apartment on 8 November 2004. She criticised the prosecutor's answer
as very general. Although he mentioned that the police had committed
“certain irregularities”, he had not explained what these
were and had not provided a copy of the note sent to the Ciocana
police station. Moreover, the prosecutor had not sent a reasoned
decision, as required by law. The complaint referred to both the
substantive and procedural obligations of the authorities under the
Convention in respect of the first applicant's ill-treatment and the
obligation to respect the inviolability of their home.
On
6 January 2005 the investigating judge of the Ciocana District Court
rejected the complaint as unfounded. He found that the first
applicant had been accused of a number of thefts and that all the
investigative acts had been carried out within the framework of
lawfully conducted criminal proceedings. Since the first applicant
had failed to appear before the investigator after several summonses
had been sent to him, it had been necessary to be compel his
attendance at the police station. All procedural acts that had
required authorisation had been properly authorised. Moreover, the
prosecutor had fully and objectively verified the complaints
concerning ill-treatment and had found no confirmation of the
allegations.
That
decision was final. It was sent to the second applicant on 21 January
2005 and reached her on 27 January 2005.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law has been set out in Mancevschi v. Moldova
(no. 33066/04, § 26, 7 October
2008).
In
addition, the relevant provisions of the Code of Criminal Procedure
read as follows at the material time:
Article 165. Notion of short-time arrest
“1. Short-time arrest is the
deprivation of liberty for a short period, but not exceeding 72
hours, in accordance with the law. ...”
Article 166. Grounds for short-time detention of
a person suspected of a crime
... 4. Detention of a person in accordance
with the present Article cannot exceed 72 hours from the moment
when the deprivation of liberty started.”
III. RELEVANT NON-CONVENTION MATERIALS
21. The
European Committee for the Prevention of Torture has visited Moldova
several times, and has inspected Ciocana police station. The
following extract, taken from the report of the visit of 27-31 July
2009, is relevant to the present case:
“29. The right of persons in police custody to
have access to a
doctor (including to one of their own choice), is still
not expressly guaranteed by law. In the report on the 2007 visit, the
CPT considered that the form of words in Section 64, paragraph 2,
sub-paragraph 15 of the CCP (i.e. the right “to submit
requests, including for independent medical assistance”) fell
short of meeting the Committee's long-standing recommendation in this
respect. Many persons who were in police custody in the context of
the April 2009 events complained that, despite repeated requests for
independent medical assistance, they had been refused such
assistance. In some cases, police staff allegedly denied access to a
doctor in order to obtain a confession or other statement from the
injured detained persons concerned. Further, it appeared in a few
cases of persons who had presented visible injuries that medical care
had not been provided to them on the grounds that they had not
specifically requested it. Such situations not only deprive detained
persons of a safeguard which can play a significant role in the
prevention of ill-treatment, but it may also have serious
repercussions on the health of persons in police custody. Clearly,
access to an independent doctor should not be left to the discretion
of police officers.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained under Article 3 of the Convention of the first
applicant's ill-treatment by the police during his detention and the
authorities' failure to conduct a proper investigation into the
complaints concerning ill-treatment. They also complained of the
failure to give the first applicant medical assistance and of the
very poor conditions in which he was detained. The second applicant
complained that her son's ordeal had caused her intense anguish.
Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties' submissions
The
Government submitted that the complaint about ill-treatment should be
declared manifestly ill-founded since the applicants had not
immediately complained of it, but had only raised it with the
authorities in December 2004, thereby depriving them of the
opportunity of investigating immediately. In their opinion, no
relevant and conclusive evidence had been presented that would
substantiate the allegation that the police had ill-treated the first
applicant. The Government further argued that the applicants had
failed to exhaust domestic remedies in relation to their complaint of
inhuman and degrading conditions of detention. They could have
complained under Articles 274 (6) and 313 of the Code of Criminal
Procedure (CCP).
The
applicants observed that the second applicant had submitted written
complaints almost immediately, and that she had in fact made use of
the remedy referred to by the Government, i.e. a complaint to the
investigating judge, but that it had proved ineffective.
2. The Court's assessment
The
Court finds, having regard to the various complaints filed by the
second applicant from 26 October 2004 onwards, that the applicants
did in fact raise their complaint of ill-treatment with the competent
authorities, who dismissed it by a final decision. Domestic remedies
have therefore been exhausted in this respect. Furthermore, in view
of the medical evidence provided on the injuries sustained by the
applicant, the complaint of ill-treatment cannot be considered
manifestly ill-founded.
As
for the complaint about the conditions in which the applicant was
detained, the Court notes from the file that the applicants also
raised various aspects of this, namely the failure to provide medical
treatment to the first applicant, the restrictions placed on contact
between the first and second applicants, restricted access to the
toilet, and limited food and water. The Government's objections must
accordingly be dismissed as regards these points too. The Court
considers that these complaints involve questions of fact and law
which are sufficiently serious to warrant an examination of the
merits, and that no grounds for declaring them inadmissible have been
established. It therefore declares them admissible.
The
complaints under Article 3 have been made in the name of both
applicants. The victim status of the first applicant is beyond
question. The second applicant has described herself as an “indirect
victim” who had been deeply worried about her son's welfare
during the time he was detained, in view of his age and his
disability. While not doubting that the events described above were a
cause of anxiety and distress to her, the Court considers that it is
only required to examine these complaints with respect to the first
applicant (Glass v. the United Kingdom, no. 61827/00, §
72, ECHR 2004 II).
B. Merits
1. The parties' submissions
The
applicants submitted that the first applicant was badly beaten by the
police at the point of arrest and later at the police station,
causing the injuries recorded by the doctor the day after his
release. The police also humiliated him. This treatment had been
compounded by the failure to provide any medical assistance, by
restricting contacts with the second applicant and by the failure to
provide adequate food and allow reasonable access to the toilet. The
first applicant's age and vulnerable state were aggravating factors.
The treatment he had endured was inhuman and degrading. Moreover, the
authorities failed to conduct an effective investigation into the
complaints of ill-treatment. They had instead reached a hasty and
perfunctory conclusion for which no reasons were given.
The
Government denied any responsibility on the part of the police for
the first applicant's injuries, arguing that there was no plausible
evidence to support the applicants' allegations. It was only after
his release that the first applicant had sought to blame the police.
The second applicant had not been directly informed of her son's
arrest since he had given the name of another person that should be
contacted. As for medical assistance, the Government indicated that
this would have been provided had it been requested, but no such
request was mentioned in the custody record. The Government further
asserted that the second applicant's complaints had been the subject
of an efficient and impartial investigation. The results of the
investigation had led the competent authorities to conclude that
there had been no wrongdoing on the part of the police.
2. The Court's assessment
(a) The allegation of ill-treatment.
(i) Recapitulation of the relevant
principles
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 most recently Gäfgen v. Germany [GC], no.
22978/05, § 87, ECHR 2010 ...).
According to the Court's settled 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 of severity is 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, among other authorities, Gäfgen,
cited above, § 88, Price v. the United Kingdom,
no..33394/96, § 24, ECHR 2001-VII; Mouisel
v. France, no. 67263/01, § 37, ECHR 2002-IX; and
Jalloh v. Germany [GC], no. 54810/00, § 67,
11 July 2006). The Court emphasises that, in respect of a person
deprived of his liberty, any recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3 of the Convention. It reiterates that the requirements of
an investigation and the undeniable difficulties inherent in the
fight against crime cannot justify placing limits on the protection
to be afforded in respect of the physical integrity of individuals
(Ribitsch v. Austria, 4 December 1995, § 38, Series
A no. 336; Tomasi v. France, 27 August 1992, § 115,
Series A no. 241 A).
Persons in custody are in a vulnerable position and
the authorities are under an obligation to account for their
treatment. The Court's case-law establishes that where an individual
is harmed during detention, a strong presumption of ill-treatment
will arise (Bursuc v. Romania, no. 42066/98, § 80,
12 October 2004). It is then for the State to provide a plausible
explanation of the situation, failing which a clear issue will arise
under Article 3 of the Convention (Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V).
In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie wholly
or in large part within the exclusive knowledge of the authorities,
as in the case of persons within their control in custody, strong
presumptions of fact will arise in respect of injuries occurring
during such detention. Indeed, the burden of proof may be regarded as
resting on the authorities to provide a satisfactory and convincing
explanation (see Salman v. Turkey [GC], no. 21986/93, §
100, ECHR 2000-VII).
(ii) Application of these principles to
the present case
The
medical evidence in this case, which the Government did not contest,
showed that the first applicant suffered a severe beating (see §
13 above). In the view of the Court, the severity of this treatment
was certainly such as to bring it within the scope of Article 3.
The issue to be determined is whether this
ill-treatment is attributable to the police. The Court is
sensitive to the subsidiary nature of its role and recognises that it
must be cautious in taking on the role of a first-instance tribunal
of fact where this is not rendered unavoidable by the circumstances
of a particular case (see, among other authorities, McKerr v. the
United Kingdom (dec.), no. 28883/95, 4 April 2000). However,
where allegations are made under Article 3 of the Convention, the
Court must conduct a particularly thorough scrutiny (see Ülkü
Ekinci v. Turkey, no. 27602/95, § 135, 16 July
2002) and will do so on the basis of all the material submitted by
the parties.
The
Government denied any responsibility for the first applicant's
injuries, arguing that all of these were sustained before arrest. The
Court notes that there is nothing in the file to suggest that the
first applicant resisted arrest. The three men who apprehended the
first applicant also denied harming him, and confirmed that the
police did not ill-treat him. They stated that he received a head
wound when he tried to hide in a ventilation duct. The Court observes
that this does not fully account for the injuries documented on the
first applicant. At the same time, it accepts that some of the first
applicant's injuries were sustained before the arrival of the police
(see § 8 above). The origin and extent of those injuries are
unclear, though. The statements made by the police and the three men
suggest that most of the first applicant's injuries were inflicted by
the two persons alleged to have brought him to the building in the
first place. It does not appear however that the authorities took any
steps to question these persons. The Court will revert to this point
in considering the procedural aspect of Article 3.
Since
the first applicant was not medically examined upon arrival at
Ciocana police station, his physical condition at that point in time
is not known. While some of his injuries, in particular the bruises
on his back, were consistent with his allegations of being struck by
truncheons, the possibility that these were inflicted before his
arrest cannot be excluded. The Court finds it impossible to establish
whether or not the first applicant's injuries were caused as alleged.
This calls into question the effectiveness of the investigation into
the applicants' allegations, which the Court will consider below (see
Petru Roşca v. Moldova, no. 2638/05, §
42, 6 October 2009).
Even
though it has not been established that the first applicant was
actively ill-treated by the police, the fact remains that despite his
obvious signs of serious injury, he received no medical care or
treatment during the whole period of detention. The Government merely
stated in their observations that detainees have the right to request
medical assistance, and that there was no record of the applicant
having made any such request. The Court considers this a wholly
inadequate response, all the more so given that the first applicant
was a minor at the time. In this respect it refers to and endorses
the criticism expressed by the CPT of the attitude taken at Ciocana
police station towards detainees requiring medical attention (see §
21 above). The Court therefore considers that the first applicant was
subjected to inhuman treatment.
In
view of these findings, the Court does not consider it necessary to
make further findings in relation to the other matters complained of,
i.e. regarding contacts between the applicants during the period of
detention, food and access to the toilet.
The
Court concludes that the first applicant has been subjected to
inhuman treatment in violation of Article 3 of the Convention.
(b) The authorities' investigation.
(i) Recapitulation of the relevant
principles
According
to the Court's settled case-law, where an individual raises an
arguable claim that he has been subjected to ill-treatment by agents
of the State unlawfully and in breach of Article 3 of the Convention,
that provision, read in conjunction with the State's general duty
under Article 1 to “secure to everyone within [its]
jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. Such an
investigation, as with that under Article 2, 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 Gäfgen,
cited above, § 117, with further references). The investigation
into serious allegations of ill-treatment must be thorough, with the
authorities making a serious attempt to find out what happened (see
Assenov and Others v. Bulgaria, 28 October 1998, Reports of
Judgments and Decisions 1998 VIII, §§ 102 et
seq.). They must take all reasonable steps available to them to
secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, §§ 104 et seq.,
ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89,
14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard.
(ii) Application of these principles to
the present case
In
this case, the second applicant promptly raised with the competent
authorities allegations of the ill-treatment of her son by police
officers even before his detention ended, and drew their attention
both to his age and to his intellectual impairment. Shortly
afterwards, the results of the medical examination of the first
applicant were made known. There was therefore a serious allegation
of ill-treatment that called for investigation. This was carried out
by a prosecutor, who began his work in a timely manner and concluded
it within a matter of weeks. The Court notes from the prosecutor's
decision of 10 December 2004 that he interviewed a considerable
number of persons in the course of his investigation, including both
applicants, three other members of the Lipencov family, the three men
who had apprehended the first applicant, several police officers who
had been involved in the first applicant's detention at some stage,
and the lawyer who had attended the interrogation. The prosecutor
also had a copy of the results of the medical examination.
The
investigation did not succeed in establishing the circumstances in
which the first applicant was assaulted. As already mentioned (see §
37 above) it does not appear that the two persons who allegedly
accosted and assaulted him some hours earlier were questioned. The
Court recalls that the obligation on the authorities under Article 3
to conduct an effective investigation into credible allegations of
ill-treatment does not vary according to the status of the alleged
perpetrators, i.e. State agent or private party. Such investigation
must be capable of both identifying and punishing those responsible
(Macovei and Others v. Romania, no. 5048/02, § 46,
21 June 2007). Although in this case the prosecutor's decision
indicates that he took a relatively detailed approach to the
situation, recording both the allegations of the applicants and the
denials of the police, the Court considers that the conclusion that
there was no evidence of a crime is inadequately reasoned. The
prosecutor did not clearly explain why the police version of events
should be accepted over that of the applicants. Furthermore, the
cryptic reference to “irregularities” that occurred in
relation to the first applicant's detention called, in light of the
serious allegations made, for further explanation. The Court
reiterates the imperative of maintaining the public's confidence in,
and support for, the rule of law and for preventing any appearance of
the authorities' tolerance of or collusion in unlawful acts (Okkalı
v. Turkey, no. 52067/99, § 65, ECHR 2006 XII
(extracts)).
The
deficiencies noted above were not cured by the subsequent challenge.
The investigating judge did little more than assert the lawfulness
and correctness of the police's behaviour in relation to the first
applicant. The conclusion of the prosecutor was simply endorsed
without any further reasoning.
The
Court therefore finds that the domestic authorities did not fulfil
their obligation to investigate thoroughly and effectively the first
applicant's complaint of ill-treatment.
There
has, accordingly, been a violation of Article 3 of the Convention in
this respect also.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants complained of a violation of Article 5 of the Convention
due to the first applicant's detention for a period longer than was
authorised by law. The relevant part of Article 5 reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
A. Admissibility
The
Government did not raise any objection to the admissibility of this
complaint. The Court considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 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
The
applicants complained that the first applicant was not released from
police custody for over six hours after the expiry of the maximum
period during which a person may be detained without a court order.
The Government admitted that this was correct.
2. The Court's assessment
The
Court finds that on 27 October 2004, the first applicant's detention
ceased to be lawful at 10 a.m. Consequently, he was unlawfully
deprived of his liberty from that moment until his release that
afternoon. There has therefore been a violation of Article 5 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained of a violation of Article 8 of the Convention
by reason of the unlawful search at their apartment and the failure
to investigate properly their complaint concerning that search. They
further complained that, in relation to the search on 2 November,
that the warrant issued was both imprecise and contained errors.
Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Government stated that the applicants' home was searched twice, on 2
November and 21 November 2004, and provided copies of the relevant
warrants and search reports. Regarding the applicants' allegation of
an unauthorised search on 8 November, the Government enclosed copies
of the statements given by the applicants' closest neighbours,
neither of whom corroborated the applicants' allegation. The
prosecutor had considered the complaint, but had found it to be
groundless.
The
applicants provided a copy of the second applicant's complaint about
the alleged search, in which she had provided details of the
incident. They insisted that there had been a flagrant and abusive
intrusion into their home.
The
Court notes, first, that the applicants did not did not raise their
complaint about formal irregularities in relation to the search
conducted on 2 November 2004 at domestic level. This part of their
complaint must therefore be declared inadmissible for failure to
exhaust domestic remedies.
Regarding
the search that allegedly took place on 8 November 2004, there is no
firm evidence before the Court that it actually happened. While the
second applicant gave a relatively detailed description of the
alleged incident in her complaint to the Prosecutor General, there
was no corroboration of this in the statements made by the persons
living beside the applicants' apartment. One neighbour recalled a
search at the beginning of November, which refers more plausibly to 2
November rather than 8 November, and did not mention any of the
commotion described in the second applicant's complaint. The other
neighbour stated that he had not heard anything. Although the
applicants consider that the prosecutor treated their complaint in a
superficial manner, the fact that the neighbours were interviewed
soon afterwards indicates that he took some action on the complaint.
The situation in the present case can therefore be distinguished from
that in H.M. v. Turkey, no. 34494/97, §§ 28-29, 8
August 2006, in which the Court found a procedural violation of
Article 8 on account of the Turkish authorities' failure to
investigate properly that applicant's complaint of an illegal search
of his home. The Court therefore considers that the applicants have
not substantiated this complaint.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed 4,000 euros (EUR) in respect of the non-pecuniary
damage caused to the first applicant by the violation of Article 3,
and EUR 2,000 in respect of non-pecuniary damage caused by the
violation of Article 5. The applicants did not allege any pecuniary
damage.
The
Government did not comment on these claims.
Having regard to the substantive
and procedural violations found under Article 3 of the Convention
(see paragraphs 42 and 48 above), and the violation of Article 5 (see
paragraph 52 above), the Court finds it appropriate to award the
first applicant the sum of EUR 5,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The
applicants also claimed EUR 1,680 in legal costs, their lawyer having
billed them for 21 hours' work on their application at a rate of
EUR 80 per hour.
The
Government did not comment on this claim.
According
to the Court's case-law, 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 were
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 1,000 for the legal
costs incurred by the applicants in bringing their case before the
Court.
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 inadmissible the complaint under
Article 8, and the remainder of the complaint admissible;
Holds that there has been a substantive
violation of Article 3 of the Convention in respect of the failure to
provide medical treatment to the first applicant;
Holds that there has been a procedural violation
of Article 3 in respect of the authorities' duty to investigate
effectively the first applicant's allegations of ill-treatment by the
police;
Holds that it is not necessary to examine the
other complaints raised under Article 3;
Holds that there has been a violation of Article
5 of the Convention in relation to the first applicant;
Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement:
(i)
EUR 5,000 (five thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 1,000 (one thousand euros), plus any tax that may be chargeable,
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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
