European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF BULGARU v. THE REPUBLIC OF MOLDOVA

 

(Application no. 35840/09)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

30 September 2014

 

 

 

 

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 Bulgaru v. the Republic of Moldova,

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

         Josep Casadevall, President,
         Alvina Gyulumyan,
         Ján Šikuta,
         Luis López Guerra,
         Johannes Silvis,
         Valeriu Griţco,
         Iulia Antoanella Motoc, judges,
and Marialena Tsirli, DeputySection Registrar,

Having deliberated in private on 9 September 2014,

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

PROCEDURE

1.  The case originated in an application (no. 35840/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Ion Bulgaru(“the applicant”), on 18 June 2009.

2.  The applicant was represented by Mr L. Chirtoaca, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3.  The applicant alleged, in particular, that he had been subjected to severe police brutality and that the authorities had failed to carry out an adequate investigation into the incident, in breach of Article 3 of the Convention.

4.  On 29 November 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1982 and is currently detained in theCricova prison.

6.  At the time of the events, the applicant was serving a ten-year sentence and was detained in the same detention facility. In August 2008 a murder was committed there and the applicant was one of the suspects. In December 2008 he was taken to the Chişinău Central police station for questioning. According to him,he was told to confess to the murder and was ill-treated after refusing to do so. On 21 January 2009 the applicant was taken to the police station detention facility again. Since he refused to make a confession,he was subjected to such acts of violence as being struck and slapped all over, and was detained in a very cold cell. As a result, he attempted to commit suicide by cutting the veins in his wrist.On 23 January 2009 he was taken to hospital for medical treatment where, according to the documents in the casefile, he was seen by a doctor and given stitches and a bandage. After returning from hospital the ill-treatment continued and intensified. According to the applicant, his arms and feet were tied together behind his back and he was suspended on a metal bar placed on two chairs. He was left in that position until he fainted. As a result, his right hand became numb and stopped functioning. He was also beaten on his lower back with a plastic bottle full of water. As a result, he suffered kidney pain and had blood in his urine. The Government disputed the applicant’s allegations concerning ill-treatment.

7.  On 28 January 2009 the applicant was seen by a medical assistant in the police station detention facility,who noted in his medical records that the applicant had complained of pain around his right bicep and that the tissue in that area was swollen. On 30 January 2009 the samemedical assistant noted that the applicant had complained of numbness and tingling in his right arm. On 31 January 2009 the same medical assistant concluded that the applicant’s problem was a result of the self-inflicted laceration to his ligament.

8.  In the meantime, on 28 January 2009 the applicant’s family learned of his situation and employed a lawyer. As a result of the lawyer’s involvement, on 30 January 2009 the applicant was transferred back to Cricova prison.

9.  On 12 February 2009 the applicant’s state of health deteriorated and he was hospitalised in a prison hospital, where he was examined by a neurologist anddiagnosed with severeradial neuropathyof the right arm (damage to the radial nerve running down the length of the arm, which controls movement in the triceps and is responsible for extending the wrist and fingers). He was released from hospital on 9 April 2009, but returned later on several occasions.

10.  In the meantime, the applicant’s lawyer complained to the prosecutor’soffice that his client had been subjected to ill-treatment, but on 31 July 2009 the complaint was dismissed as ill-founded. The investigating authorities found the applicant’s allegations of ill-treatment to be ill-founded, in view of the absence of any physical evidence except for that resulting from his self-harm. In reaching this conclusion, the investigating authorities relied on the statements of the accused police officers, who denied ill-treating the applicant, and on the conclusion of the medical assistant from the police station detention facility (see paragraph 7 above). The findings of the doctors from the prison hospital (see paragraph 9 above) were not considered.

II.  RELEVANT DOMESTIC LAW

11.  The relevant provisions of the Criminal Code read as follows:

Article 309 Extorting of confessions

(1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by up to three years’imprisonment ...

(2) The same act accompanied by:

(a) violence;

(b) cruel, inhuman or degrading treatment;

...

Shall be punishable by three to eight years’imprisonment...

Article 309¹ Torture

(1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or statements ... shall be punishable by two to five years’imprisonment...

(3) The acts referred to in paragraph 1 ...carried out:

(c) by two or more persons;

(e) with the use of special instruments of torture or other objects adapted for that purpose;

(f) by an official,

shall be punishable by five to ten years’imprisonment ...

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

12.  The applicant complained of ill-treatment while in police custody and of a lack of aneffective investigation in that regard. Article 3 of the Convention reads as follows:

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

A.  Admissibility

13.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

14.  The applicant submitted that he had been tortured during his detention and that the authorities had failed to properly investigate his complaint.

15.  The Government contested the applicant’s allegations concerning ill-treatment,submitting that it was he who had cut the veins in his wrist and that the authorities had provided him with urgent medical care.

16.  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, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII).

17.  Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 61, Reports 1996‑VI; Selmouni cited above § 87).Where an individual has an arguable claim that he has been ill-treated or tortured while at the hands of agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, and without prejudice to any other remedy available in domestic law, a thorough and effective investigation. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that torture or ill-treatment has been used (see, among other authorities, Özbey v. Turkey (dec.), no. 31883/96, 8 March 2001). The authorities must take into account the particularly vulnerable situation of victims of torture and the fact that people who have been subjected to serious ill-treatment will often be less ready or willing to make a complaint (see Aksoy cited above §§ 97-98).

18.  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 (see, among other authorities, Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001, and Özgür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (see, Buzilo v. Moldova, no. 52643/07, § 30, 21 February 2012).

19.  Turning to the facts of the present case, the Court notes that after the alleged ill-treatment, the applicant was hospitalised for almost two months in a prison hospital and that the doctorsdiagnosed him with severeradial neuropathy of the right arm (see paragraph 9 above). The initial diagnosis concerning the laceration to the applicant’s ligament as a result of his cutting his wrist, made by a medical assistant from the police station detention facility, was not confirmed.The applicant’scondition, which was not disputed by the Government,appeared to be consistent with hisallegations concerning being tied up and suspended from a metal bar. Since the Government have failed to provide an explanation for this injury, the Court concludes that it was the result of ill-treatment while in police custody, namely a result of being tied up and suspended.

20.  The Court considers this form of ill-treatment particularly reprehensible, as it presupposes an intention to obtain information, inflict punishment or intimidate. In such circumstances, the Court considers that the violence inflicted upon the applicant was of a particularly serious nature, capable of provoking severe pain and cruel suffering, and that it falls to be treated as acts of torture. Accordingly, there has been a violation of Article 3 of the Convention under its substantive head.

21.  Lastly, the Court notes that after receiving the applicant’s complaint of ill-treatment, the prosecutor’s office did not even make reference to his hospitalisation between 12 February and 9 April 2009 and to the condition with which he was diagnosed at the hospital, but limited its investigation to the initial conclusion made by a medical assistant from the police station detention facility. In fact, the prosecutor’s office did not undertake any decisive steps to investigate the applicant’s complaint but was content to accept, without reservation, the statements of the accused police officers. It is therefore impossible for the Court to conclude that an effective official investigation took place. Thus, there has been a violation of Article 3 of the Convention under its procedural head as well.

22. Accordingly, there has been a violation of Article 3 of the Convention in both its substantive and procedural aspects.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23.  In his initial application, the applicant also complained under Articles 5, 6 and 13 of the Convention; however, he did not substantiate these complaints in his subsequent submissions to the Court. In such circumstances and in view of the materials in its possession, the Court does not discern any signs of a violation in respect of these complaints. Accordingly, they must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  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

25.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of pecuniary damage.

26.  The Government disagreed with the amounts claimed by the applicant and argued that they were unjustified and excessive.

27.  Having regard to the violation found above and its gravity, the Court considers that an award for non-pecuniary damage is justified in this case and awards the applicant the entire amount claimed. As for the claim concerning pecuniary damage, the Court dismisses it in view of the lack of details provided by the applicant.

B.  Costs and expenses

28.  The applicant did not make any claim in respect of costs and expenses.

C.  Default interest

29.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declaresthe complaint under Article 3 admissible and the remainder of the application inadmissible;

 

2.  Holdsthat there has been a violation of Article 3 of the Convention in both its substantive and procedural limbs;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be applicable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismissesthe remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli                                                                  Josep Casadevall
Deputy Registrar                                                                        President