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IPATE v. MOLDOVA - 23750/07 [2011] ECHR 975 (21 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/975.html
Cite as:
[2011] ECHR 975
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THIRD
SECTION
CASE OF
IPATE v. MOLDOVA
(Application
no. 23750/07)
JUDGMENT
STRASBOURG
21 June 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 Ipate v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on this date:
PROCEDURE
The
case originated in an application (no. 23750/07) 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 Nichita Ipate (“the
applicant”), on 3 May 2007.
The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
The
applicant alleged, in particular, that he had been ill-treated while
in detention and that there had been no effective investigation into
his allegation of ill-treatment.
On
20 January 2010 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 1 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 was born in 1971 and lives in Chişinău.
1. The applicant’s alleged ill-treatment
According
to the applicant, he was in pre-trial detention in Prison no. 13
in Chişinău (previously known as Prison no. 3) when he was
approached on 2 May 2006 by a prison officer and requested to move to
cell 121. The applicant refused to do so until he was given an
explanation for the reason for his transfer.
On
3 May 2006 three officers approached him and requested him to follow
them. As they reached cell 121 he was ordered to go into that cell,
which was empty. He refused, asking for an explanation from the
prison administration, but was then allegedly assaulted by the
officers, helped by two other staff members, who punched and kicked
him and hit him with rubber truncheons, then banged his head against
the wall, causing him severe pain. They swore at him and told him
that they were fed up with his complaints about various alleged
violations of his rights. When he could no longer resist, he was
pushed into cell 121, where he ran to the window and broke it, took a
piece of glass and slit his wrist in the hope that that would stop
the ill-treatment and would ensure a visit from a doctor. However,
the assailants continued to beat him up in the cell, and then took
him to a psychiatrist.
According
to the Government, the applicant refused all medical assistance on 3
May 2006. According to the applicant, he refused assistance from the
doctors of Prison no. 13, who were his attackers’ colleagues
and could not be trusted to be independent and impartial in their
findings.
On
4 May 2006 the applicant complained to the governor of Prison no. 13
that he had been ill-treated by prison staff and asked to be seen by
medical experts and by representatives of Amnesty International. He
declared himself to be on hunger strike until those visits took
place. On the same day, the prison administration informed the
Ministry of Justice that the applicant was on hunger strike and of
the reasons for that form of protest, namely a request to be visited
by Amnesty International and a medical expert.
On
5 May 2006 the applicant’s complaint of ill-treatment was
registered with the Prosecutor General’s Office.
On
12 May 2006 the applicant stopped his hunger strike, informing the
prison administration that the reason was his poor state of health.
He referred to the failure to allow him to be seen by a medical
expert or Amnesty International. On the same day, the prison
administration informed the Ministry of Justice that the applicant
had stopped his hunger strike.
Also
on 12 May 2006 the applicant complained to the Ministry of Justice
that he had been ill-treated. In reply, the head of the Prison
Department of the Ministry of Justice informed the applicant that his
complaint had been examined and found to be untrue. In fact, owing to
his refusal to comply with the lawful order to move to cell 121, he
had been taken there after being handcuffed.
On 15 May 2006 the applicant was transferred to
Criuleni police station so that he could attend a hearing of his
criminal case on 18 May 2006 in that town. Excerpts from his medical
file from his stay in that prison included the following statements:
On 16 May 2006: multiple cuts on his left hand; the
applicant complains of pain in the thoracic region and the back; need
for an examination by a traumatology doctor and a neurologist and for
an X-ray of the thoracic region.
On 21 May 2006: the patient declares that three weeks
ago he was ill-treated by the staff of Prison no. 3 in Chişinău,
when he was kicked in the ribs and liver. At present he complains of
pain in the region of ribs nos. V-IX on the right side, with greater
pain when breathing in or during physical effort. Recommendation:
X-ray of the thoracic region in order to exclude broken bones.
On 26 May 2006: the applicant complains of pain in the
left leg, where there is a brownish-grey haematoma measuring 14 x
7cm. On the left hand there is a haematoma measuring 3 x 2 cm and a
moderately severe graze measuring 3.2 x 0.2 cm covered
with a brown-red crust under the skin.
During the court hearing on 18 May 2006 the applicant
complained of ill-treatment on 3 May 2006 and asked to be seen by a
medical expert to have his injuries confirmed. The court decided to
request the doctor from the Criuleni police station to examine the
applicant. It also instructed the applicant to ask for a medical
examination at Prison no. 13 on his return there.
On 30 May 2006 the applicant made another complaint of
ill-treatment to the Prosecutor General’s Office. He mentioned,
inter alia, his request to be seen by a medical expert, which
had been refused. He also stated that he had at least seven witnesses
who could confirm his statements.
According to excerpts from the applicant’s
medical file in Prison no. 13, on 3 May 2006 a medical
report was produced which stated “the applicant categorically
refused to undergo a medical examination”. On 30 June 2006
another medical report was produced, which stated that the applicant
had six cuts on his hand.
According
to documents submitted by the Government, the applicant is considered
a violent person prone to conflicts with the prison administration
and other detainees, due to which conduct he has been disciplined on
many occasions. One such disciplinary measure was applied in February
2006, after the applicant had attacked another detainee. All other
disciplinary measures concern the events of 3 May 2006 and
thereafter. In their subsequent observations, the Government
acknowledged that a number of the decisions to discipline the
applicant had been overturned, on procedural grounds, by the courts.
2. Investigation of the applicant’s allegations
of ill-treatment
On 15 August 2006 the prosecutor’s office
informed the applicant that on 14 August 2006 it had decided not to
initiate criminal proceedings concerning his complaint of
ill-treatment, since no crime had been committed.
On 4 December 2006 Criuleni District Court overturned
the prosecutor’s decision of 14 August 2006 and ordered a
re-examination of the case by the prosecutor. The court found, inter
alia, that the prosecutor had not heard detainees identified by
the applicant as having witnessed the ill-treatment. Moreover, no
request had been made to Criuleni police station for the medical
documents concerning the injuries noted on the applicant’s body
when he was transferred to that prison on 15 May 2006.
On 2 February 2007 the prosecutor adopted another
decision, refusing to initiate a criminal investigation into the
applicant’s alleged ill-treatment. He noted that the
applicant’s complaint had been received on 28 July 2006.
He relied on the medical documents produced in Prison no. 13, which
did not confirm the applicant’s allegation of ill-treatment on
3 May 2006. He also referred to the fact that the applicant was
considered hostile to the prison administration, for which attitude
he had been punished many times. Moreover, his resistance to the
lawful orders of the prison staff on 3 May 2006, during which he
had threatened the lives of prison staff, was the subject of an
ongoing criminal investigation.
On
3 May 2007 the applicant asked the governor of Prison no. 13 for the
video recording of the events of 3 May 2006. He submitted that he had
made similar requests on 18 September, 30 October and
13 November 2006, but had received no response.
On 8 June 2007 Rîşcani
District Court quashed the decision of 2 February 2007,
finding that the prosecutor had disregarded the court decision of 4
December 2006 by failing to ask for the medical documents and not
hearing the witnesses identified by the applicant. Moreover, the
applicant had submitted transcripts of court hearings during which
those witnesses had confirmed the applicant’s statements
concerning ill-treatment. The court ordered a re-examination of the
case by the prosecutor.
On 13 July 2007 the prosecutor adopted another
decision, refusing to initiate a criminal investigation into the
applicant’s alleged ill-treatment. The prosecutor relied on the
same arguments as those in his decision of 2 February 2007. In
addition, he referred to two witnesses (A.F. and I.C.) who had
declared that they and others had been asked by the applicant to sign
a petition declaring that they had witnessed his ill-treatment. They
had not seen any ill-treatment, but had signed “to do him a
favour”. Since the applicant was being examined by a
psychiatric panel, it had been impossible to obtain further details
from him.
On 15 November 2007 Rîşcani District Court
rejected the applicant’s complaint and upheld the decision of
13 July 2007. The court found that the prosecutor had fully
investigated the circumstances of the case by interviewing members of
the staff of Prison no. 13 and examining the applicant’s
medical reports from that prison. Also, two witnesses (referred to in
the previous paragraph) stated that they and everybody else in the
cell had signed the petition supporting the applicant to do him a
favour, but they had not seen any ill-treatment. One of them added
that he had been in a cell near cell 121 and had heard screams, which
had made him think that the applicant had been ill-treated, but he
had not witnessed any ill-treatment. As for the alleged ill-treatment
at Criuleni police station, that had already been investigated in a
previous case and did not need to be investigated again.
Moreover,
the applicant was considered hostile to the prison administration, an
attitude for which he had been punished many times. In addition, his
resistance to the lawful orders of the prison staff on 3 May 2006,
during which he had threatened the lives of prison staff, was the
subject of an ongoing criminal investigation.
On 2 May 2007 the applicant complained to the governor
of Prison no. 13, asking for access to the video recordings made
on 3 May 2006. In reply he was informed that such video materials
were routinely destroyed thirty to forty-five days after the day of
filming.
3. Criminal proceedings against the applicant
concerning the events of 3 May 2006
On
an unknown date after the events on 3 May 2006 mentioned above, a
prosecutor initiated criminal proceedings against the applicant for
threatening officers of Prison no. 13 with violence. That case was
joined with another case against the applicant, in which he was
accused of murder.
During court hearings on 1 December 2006 and 16 and 18
January 2007 six witnesses were heard, who had been detainees in
Prison no. 13 at the time of the events. Witness M.I. stated that he
had been detained in cell 123b near cell 121, and had seen the
applicant being kicked while on the ground by several prison staff
members. He did not hear the applicant swear or throw anything; he
had only been shouting at them to stop beating him and asking to be
seen by the prison governor. Some ten detainees in his cell signed a
petition in which they confirmed the applicant’s ill-treatment.
Thereafter the prison staff started intimidating them. M.I. was
personally threatened to induce him to declare that he had not seen
anything.
Witness
V.Gh. was detained in Criuleni police station when the applicant was
detained there in a neighbouring cell. He could see the applicant
when the latter was taken to the toilet, half naked, and saw that the
applicant had several “apple-size” haematomas on his
body.
Witness
P.I. stated that on 3 May 2006 he was returning together with other
detainees from outside the prison under escort and saw a detainee on
the floor of cell 121, covered in blood, and being kicked by five or
six prison officers. In the evening he was able to approach cell 121
and ask the person inside whether he needed anything. The person
replied that he needed to be seen by a doctor. However, when P.I.
told the doctor about that, the latter replied that he had been
ordered not to go to cell 121. Another staff member then told him
that the applicant was in cell 121.
Witness
Z.Gh. stated that he had seen the applicant being taken somewhere by
two prison staff members, with his hands behind his back, his face
almost on the ground, and being beaten on the way.
Witness
G.I. stated that he had been transferred to Criuleni police station
on the same day as the applicant, and that they were placed together
in the same cell. The applicant then told him about the ill-treatment
and showed the signs of ill-treatment on his body. He was in a bad
shape and could not sleep.
Witness S.N. had not seen the applicant in the
relevant period and had only heard from another detainee that the
latter had witnessed the applicant’s ill-treatment.
On 29 March 2007 the applicant was convicted of the
murder of one person and the attempted murder of another. He was also
convicted of threatening with violence five officers of Prison no. 13
who had been escorting him to another cell. In this latter respect,
the court summarised the witness statements made by various prison
officers and detainees (see paragraphs 28-33 above). The court
considered that the detainees who had confirmed the applicant’s
statements concerning his ill-treatment by the prison officers who
accused him of threatening them, had made the statements to protect
the applicant from criminal liability.
On 6 December 2007 the Chişinău Court of
Appeal upheld the lower court’s judgment. In respect of the
events of 3 May 2006 the court referred to the applicant’s
punishment for breaching prison regulations on 3 May 2006 and the
results of the medical examination of some of the staff attacked by
the applicant on that day. It considered, like the lower court, that
the statements by other detainees had been made with the aim of
helping the applicant avoid criminal responsibility. The court added
that the applicant’s complaints of ill-treatment had been the
subject of a separate investigation, and that similar complaints were
being examined.
On
16 April 2008 the Supreme Court of Justice upheld the lower courts’
judgments. That judgment was final.
4. Civil court action lodged by the applicant
On
20 October 2007 the applicant lodged a civil court action against
Prison no. 13, the Prisons Department, the Prosecutor General’s
Office and the Ministry of Finance, asking them to determine that he
had been ill-treated on 3 May 2006 in Prison no. 13, and claiming
damages.
On 22 May 2008 Botanica District Court rejected the
applicant’s action as unfounded, finding that he could not
claim any compensation without a criminal conviction of the prison
officers he had accused of ill-treatment. During the hearing on
that day the applicant noted that the prosecutor had been well aware
of the existence of video materials, as well as that they had been
destroyed very soon afterwards, but had done nothing to obtain the
materials in order to substantiate his complaint of ill-treatment. In
reply, a prosecutor representing the Prosecutor General’s
Office informed the court that the prosecution had been aware of the
fact that Prison no. 13 was under video surveillance, but had
decided at that time that video recording was not necessary in view
of the other materials in the file, which were sufficient to adopt a
lawful decision. Moreover, the materials had been destroyed by the
time the verification had taken place.
On
15 December 2008 the Chişinău Court of Appeal upheld the
first-instance court judgment.
THE LAW
The
applicant complained under Articles 1, 3, 6, 13 and 14 of the
Convention that he had been ill-treated by prison staff on 3 May
2006, that his complaint in that respect had not been investigated
and that there was no effective mechanism for the prevention of
ill-treatment. The Court considers that the complaints under Articles
1, 6, 13 and 14 essentially repeat that made under Article 3 of the
Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
I. ADMISSIBILITY
The
Government considered that the present application was vexatious, and
asked the Court to strike it out of its list of cases. In particular,
they considered defamatory and offensive the following passages from
the applicant’s submissions to the Court:
“... My opinion is that the Soviet mentality and
methods used are very present in the words and actions of this new
temporary so-called ‘democratic’ Government of the
Republic of Moldova”; “... And they [the prosecuting
authorities] have never investigated my allegations, because they are
like a family (the prosecutors, the guards, the judges, etc.) –
that satisfies the interests and the needs of the Government. And
anyone, especially a detainee, who makes a complaint against them
(allegations of ill-treatment or detention in inhuman and degrading
conditions) immediately becomes their no. 1 enemy, and they know how
to treat an enemy (by KGB methods)...”; “... These courts
denied me the right to have my case tried properly in a civil court.
With regret, this is the whole Justice System of the Republic of
Moldova. The Court knows better than me and anyone, this completely
dysfunctional justice system of Moldova...”; “... The
problem is much larger. This is the first case of such complaints
that reached the Court, but in the detention facilities of Moldova
such methods are widely practiced by the prison authorities together
with the Prosecutor’s Office, against detainees who make
allegations of ill-treatment against the guards in order to force
them to withdraw their allegations from the Prosecutor’s
Office. It is a very effective tool of the State authorities which is
used often and widely and the torture, ill-treatment of detainees in
detention facilities goes on uninterrupted. [He] who refuses to
withdraw his complaint is charged and then convicted under the same
charges of Article 349 of the Criminal Code ... or under Article 321
of the Criminal Code... just upon the same reports made by the
guards, just as in my case... It’s the Government’s
problem to sort out, in a democratic way, but not using torture,
ill-treatment and such methods and should not submit these reports to
the Court as justification for ill-treating me.”.
The
Government added that the applicant’s reference to the alleged
ill-treatment of another detainee, T. I., without adducing any
evidence thereof, was akin to actio popularis. It had aimed at
creating a false image of the prosecution and other authorities of
human rights violations in Moldovan prisons on a massive scale, an
argument which could not serve as a basis for examining an individual
case and should therefore be treated as having as its sole purpose to
disparage the respondent Government.
The
Court considers that an application would not normally be rejected as
vexatious under Article 35 § 3 of the Convention on the basis
that it was “offensive” or “defamatory”,
unless it was knowingly based on untruths (see Varbanov
v. Bulgaria, no. 31365/96, § 36, ECHR 2000 X;
Rehak v. the Czech Republic, (dec.), no. 67208/01, 18 May
2004; and Popov v. Moldova (no. 1), no. 74153/01, §
49, 18 January 2005). However, on the basis of the material in its
possession, the Court is unable to conclude that the applicant has
based part of his allegations on facts concerning his complaint which
he knew to be untrue. Accordingly, this submission is to be
dismissed.
The
Court considers that the applicant’s complaint under Article 3
of the Convention raises questions of law which are sufficiently
serious that their determination should depend on an examination of
the merits, and no other grounds for declaring it inadmissible have
been established. The Court therefore declares this complaint
admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The applicant’s alleged ill-treatment
The
applicant complained that he had been ill-treated by prison staff on
3 May 2006. He added that the courts which examined the criminal case
against him for threatening the prison staff had not dealt with the
issue of whether those officers had ill-treated him.
The
Government submitted that the applicant had not been ill-treated. He
had threatened prison staff and had caused injuries to himself. In
order to stop him from disobeying and engaging in provocative
behaviour, the prison staff had to handcuff him. He had been known
for provocative behaviour while in detention and had also been
punished for physically attacking a co-detainee. Moreover, the
allegation of ill-treatment was examined by the domestic courts as
part of the criminal proceedings against the applicant. The courts
found that the applicant had resisted legitimate orders by the prison
staff and had threatened them with physical violence, which was a
punishable offence. There was no reason to doubt the domestic courts’
findings, which had not established that the applicant had been
ill-treated. Therefore, the applicant’s allegation of
ill-treatment was merely his argument in his defence in the domestic
proceedings, which had been dismissed by the courts.
The
Government also submitted an “informative note” written
on 12 May 2010 by the head of the organisational and preventive
medicine department of the Prisons Department within the Ministry of
Justice. According to this document, the applicant had refused all
medical assistance on 3 May 2006 in Prison no. 13. As to the medical
record made by the medical staff at Criuleni police station (see
paragraph 13 above), the document stated that the findings on 16 and
21 May 2006 made no reference to objective evidence of ill-treatment
(except for self-inflicted wounds on his arms) and only noted
subjective information such as pain on the right side of the chest. A
neurological consultation was prescribed, but that could have
referred to a neurological condition, with no connection to any
alleged ill-treatment. As to the findings made on 26 June 2006, they
were made fifty-three days after the date of the relevant events and
did not have anything in common with the alleged ill-treatment.
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 its Protocols, 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, for
instance, Selmouni v. France [GC], no. 25803/94, § 95,
ECHR 1999 V; Assenov and Others v. Bulgaria, 28 October
1998, § 93, Reports of Judgments and Decisions
1998-VIII; and Gäfgen v. Germany [GC], no. 22978/05, §
87.., ECHR 2010 ...).
The
Court reiterates that where a person is injured while in detention or
otherwise under the control of the police, any such injury will give
rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80,
12 October 2004). It is incumbent on the State to provide a plausible
explanation of how the injuries were caused, failing which a clear
issue arises under Article 3 of the Convention (see Selmouni cited
above, § 87). It is not sufficient for the State to refer
merely to the acquittal of the accused police officers in the course
of a criminal prosecution, and consequently the acquittal of officers
on a charge of assaulting an individual will not discharge the burden
of proof on the State under Article 3 of the Convention to show that
the injuries suffered by that individual whilst under police control
were not caused by the police officers (see Ribitsch v. Austria,
4 December 1995, §§ 34, 38, Series A no. 336).
In
the present case, the Court notes that the parties disagree as to the
circumstances in which the applicant was injured. At the same time,
it observes that it has not been disputed by the parties that on 15
May 2006, two weeks after the alleged ill-treatment, the applicant
was transferred to Criuleni police station and was seen by the local
doctor the following day. The doctor noted that the applicant had
pain in his chest and back and needed to see a traumatology doctor
and a neurologist, as well as to have an X-ray of his pectoral area.
Five days later, on the basis of a court order (see paragraph 14
above) another doctor noted that the applicant had complained that he
had been beaten by the staff of the prison in Chişinău
three weeks earlier; he had been kicked in the ribs and liver. The
doctor again prescribed an X-ray of the thoracic region in order to
exclude broken bones, which apparently was never carried out.
Finally, on 26 June 2006 a doctor noted objective evidence of
injuries caused to the applicant (see paragraph 13 above).
It
has not been argued before the Court that other assaults on the
applicant had taken place after the alleged ill-treatment on 3 May
2006 and before the doctors had reported their findings on 15 and 21
May and 26 June 2006. At the same time, the Government did not
give any plausible explanation as to the origin of the injuries noted
by the doctors at Criuleni police station, injuries which had
appeared during the applicant’s detention.
The
Court also notes that the Government did not argue that the applicant
had been injured as part of a legitimate use of force which had been
made strictly necessary by his own actions. Their position was,
rather, that no injuries at all had been caused to the applicant, as
established by the doctors at Prison no. 13 and the domestic courts.
However, as noted above, that finding is at clear odds with the
findings of the doctors at Criuleni police station.
On
the basis of all the material placed before it, the Court concludes
that the Government have not satisfied the burden on them to persuade
it that the applicant’s injuries were caused otherwise than by
his ill-treatment while in custody.
In the light of the above, the Court concludes that
there has been a violation of Article 3 of the Convention in its
substantive limb.
B. Alleged failure to investigate the applicant’s
ill-treatment properly
The
applicant complained of a failure by the domestic authorities to
carry out an effective investigation into his allegations of
ill-treatment, contrary to the requirements of Article 3 of the
Convention. His complaint was not immediately forwarded to the
prosecutor’s office and no medical examination was carried out
immediately in order to verify the presence of injuries before they
disappeared. Moreover, video materials from the prison which could
reveal whether he had in fact resisted the prison staff and attacked
them was not requested from the prison authorities and was allowed to
be destroyed.
The
Government considered that a thorough investigation had been carried
out which established that there was no evidence of ill-treatment.
The prosecuting authorities and courts examined his complaints and
found them unfounded, both in response to his complaints and during
the criminal proceedings concerning his assault on the prison staff.
It was important to note that the applicant had refused any medical
assistance on 3 May 2006, which prevented the verification of his
claims of ill-treatment. The injuries found on his body ten days
later at Criuleni police station did not have anything to do with the
events of 3 May 2006. Moreover, two of the witnesses who had
confirmed the applicant’s version of events later withdrew
their statements and confessed that they had signed a petition in the
applicant’s support in order “to do him a favour”.
They also noted that the others had signed for the same reason.
The
Court 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 an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition on 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, and Boicenco v. Moldova,
no. 41088/05, § 120, 11 July 2006).
An
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, § 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.
In
the case of Batı and Others v. Turkey (nos. 33097/96 and
57834/00, §§ 133 and 136, ECHR 2004 IV (extracts)) the
Court held, inter alia, that “whatever the method of
investigation, the authorities must act as soon as an official
complaint has been lodged” and that “it is beyond doubt
that a requirement of promptness and reasonable expedition is
implicit in this context. A prompt response by the authorities in
investigating allegations of ill-treatment may generally be regarded
as essential in maintaining public confidence in their adherence to
the rule of law and in preventing any appearance of collusion in or
tolerance of unlawful acts”.
Turning
to the facts of the present case, the Court notes that the applicant
lodged his complaint with the prison authorities on 4 May 2006, while
the prosecutor in charge of the case received that complaint only on
28 July 2006 (see paragraph 20 above). The Court considers that
a fifty-five-day delay during which the complaint was forwarded by
the State authorities to the relevant prosecutor and during which
time there was, accordingly, no investigation into the facts of the
case, is inconsistent with the obligation to carry out a prompt
investigation, as there is a risk that evidence of ill-treatment
disappears as time goes by and injuries heal (see Pădureţ
v. Moldova, no. 33134/03, § 63, 5 January 2010).
Moreover,
as acknowledged by the prosecution itself (see paragraph 38
above), it considered it unnecessary to request access to the video
materials and in any event, by the time it had started looking into
the facts of the case the video recording made at the prison had
already been destroyed under the regulations in force. The Court
cannot speculate as to the content of the video materials in
question, and in any event it is primarily for the domestic courts to
asses the relevance of such materials for the outcome of any domestic
proceedings. However, the Court cannot but note that by allowing an
unwarranted and unexplained delay before initiating any kind of
investigation the authorities effectively deprived the domestic
courts of access to evidence which could have objectively confirmed
or disproved the applicant’s claims.
The
Court further notes the repeated overturning, by the investigating
judge, of the prosecutor’s decisions not to initiate a criminal
investigation on the basis of the applicant’s complaint of
ill-treatment (see paragraphs 19 and 22 above). On each of these
occasions the judge referred to the prosecutor’s failure to
carry out essential investigating measures, such as interviewing
alleged eyewitnesses to the events of 3 May 2006 and examining the
medical records at Criuleni police station which revealed the
existence of injuries on the applicant’s body. Even though some
of those failures had not been rectified (for instance, the
examination of medical records at Criuleni police station), the
domestic court accepted the prosecutor’s decision not to
initiate a criminal investigation.
Finally,
the Court notes that the applicant refused to be seen by doctors from
Prison no. 13 after the events of 3 May 2006. However, he declared
himself to be on hunger strike and asked to be seen by an independent
doctor and Amnesty International, which can hardly be reconciled with
the Government’s submission that the applicant obstructed any
medical examination intended to verify his allegations. The Court
reiterates that it has already found that “in accordance with
Articles 93, 96 and 109 of the Code of Criminal Procedure, no
investigative measures at all could be taken in respect of the
offence allegedly committed ... unless criminal proceedings were
formally instituted” (see Guţu v. Moldova,
no. 20289/02, § 61, 7 June 2007). Since the prosecutor did
not receive the applicant’s complaint until 28 July 2006, any
findings of doctors in Prison no. 13 on 3 May 2006 could not
have been used for any criminal investigation against the applicant’s
alleged assailants. Moreover, the prosecutor has not ordered the
applicant’s examination by a doctor specialising in
establishing the existence and nature of physical injuries, which was
required by domestic law, but relied on his medical record kept by
the prison doctors.
The
Court notes with concern that the applicant’s lack of
confidence in the independence of the doctors in Prison no. 13 in
proceedings against their colleagues in the same prison was
apparently not without foundation: while the doctor at Criuleni
police station had clearly found injuries on the applicant’s
body on 26 June 2006 (see paragraph 13), the doctors in Prison no.
13 did not note any injuries (except the self-inflicted ones on the
wrist) only four days later (see paragraph 16 above). This
selectivity in noting injuries has not been explained.
The
Court concludes that the investigation into the applicant’s
complaint of ill-treatment has been inefficient and protracted as a
result of repeated refusals to institute criminal proceedings and the
failure to carry out in a timely manner essential investigative
measures, as established by the investigating judge. These
shortcomings are incompatible with the procedural obligations under
Article 3 of the Convention.
There has, therefore, been a violation of that
provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
The
applicant claimed 15,000 euros (EUR) in compensation for the damage
caused to him, in particular as a result of his ill-treatment on
3 May 2006.
The
Government submitted that any award made by the Court would
implicitly run counter to the final domestic judgments convicting the
applicant, who would therefore be paid for the crime which he had
committed. There was no causal link between the damage allegedly
caused to him and the compensation sought. In any event, the claims
were excessive in the light of the Court’s relevant case-law.
The
Court considers that its findings in respect of the applicant’s
ill-treatment while in detention and the failure to carry out an
effective investigation of his complaint are not incompatible with
the domestic courts’ finding that the applicant himself had
threatened and assaulted prison staff. It notes in this connection
that the proceedings in which the applicant was accused of assaulting
the prison staff were separate from those in which the applicant
tried in vain to have a criminal investigation initiated in respect
of his own ill-treatment by the same staff members, and the courts
did not decide on that issue (see, for instance, paragraph 35
above).
The
Court considers that the applicant must have been caused a certain
amount of pain and suffering by the violation of his rights protected
under Article 3 of the Convention. Ruling on an equitable basis, the
Court awards the applicant EUR 15,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant claimed EUR 500 for costs and expenses, adding that he had
not kept copies of documents proving his expenses.
The
Government considered that no more than EUR 100 was to be paid to the
applicant in case of a finding of a violation, taking into account
that he had not been represented and had not submitted any evidence
of his expenses.
Regard
being had to the information in its possession, the Court considers
it reasonable to award the applicant the sum of EUR 100 for
incidental 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 the complaint under Articles 3
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention in its substantive limb;
Holds that there has been a violation of Article
3 of the Convention in its procedural limb;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros) in respect of non-pecuniary damage and EUR
100 (one hundred euros) for costs and expenses, to be converted into
Moldovan lei at the rate applicable on 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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
