European Court of Human Rights

 

 

SECOND SECTION

CASE OF CRETU v. THE REPUBLIC OF MOLDOVA

(Application no. 24737/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

1 February 2022

 

This judgment is final but it may be subject to editorial revision.

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

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

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 24737/15) 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 Sergiu Cretu (“the applicant”) who was represented by Ms N. Moloșag, on 7 May 2015;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint under Article 3;

the parties’ observations;

Having deliberated in private on 11 January 2022,

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

INTRODUCTION

1.  The present case concerns the applicant’s ill-treatment during his arrest and the failure to carry out an effective investigation into his allegations of ill-treatment.

THE FACTS

2.  The applicant was born in 1987 and lives in Antonești. The applicant was represented by Ms N. Moloșag, a lawyer practising in Chișinău.

3.  The Government were represented by their Agent, Mr O. Rotari.

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

5.  The general background of the large-scale unrest in Chișinău on 7 April 2009 has been described in the case of Taraburca v. Moldova (no. 18919/10, §§ 7-10, 6 December 2011).

6.  According to the applicant, on 8 April 2009 he was with his sister at a bus station in the centre of Chișinău when a car stopped near them. Three plain-clothed police officers exited the car and approached them, twisted the applicant’s hand behind his back and forced him into their car.

7.  The applicant was taken to the Buiucani police station in Chișinău, where an officer, whom he later identified as R.S., allegedly brought him up to his office and beat him severely, breaking his arm.

8.  In the early hours of 9 April 2009 an ambulance was called because the applicant’s left hand had swollen. The doctors insisted on taking the applicant to the hospital, which was opposed by the police. However, after the doctors insisted, he was taken to the hospital, where he underwent a surgical intervention on his hand. He stayed at the hospital for two weeks. The doctors informed the prosecutor’s office of the event and of the applicant’s explanation that he had been ill-treated by a police officer.

9.  On 21 April 2009 a forensic report found a fracture on a bone in the applicant’s left hand caused by a blunt object which resulted in a long-term effect on his health (more than 21 days). The expert noted that the same diagnosis had been established in the emergency hospital documents which he had examined.

10.  On 22 July 2009 the Centru prosecutor’s office in Chișinău refused to start a criminal investigation into the information about the applicant’s ill-treatment received from the emergency hospital.

11.  The applicant made a formal complaint to the prosecutor’s office on 3 September 2009, describing in detail the manner in which he had been ill-treated. On 24 September 2009 the prosecutor’s decision of 22 July 2009 was annulled and a criminal investigation started.

12.  On 20 June 2011 the Centru District Court acquitted R.S., finding that it had not been proved that he had ill-treated the applicant.

13.  On 10 April 2012 the Chișinău Court of Appeal quashed that judgment and adopted a new one, finding R.S. guilty of having committed torture. On 13 November 2012 the Supreme Court of Justice quashed that judgment and sent the case for a re-examination by the Chișinău Court of Appeal.

14.  On 16 April 2013 the Chișinău Court of Appeal again found R.S. guilty as charged. On 13 December 2013 the Supreme Court of Justice again sent the case for a re-examination by the Chișinău Court of Appeal.

15.  On 13 May 2014 the Chișinău Court of Appeal found R.S. guilty as charged.

16.  On 9 December 2014 the Supreme Court of Justice quashed the lower court’s judgment and upheld that of the first-instance court of 20 June 2011. The court found, inter alia, that the investigators committed procedural errors, which made several pieces of evidence inadmissible. In particular, the applicant was asked to identify the person who had ill-treated him from several photographs but this was done only on 19 October 2009. In the court’s opinion, had the applicant been offered the opportunity to identify the perpetrator at the start of the investigation, by examining the photographs of all the officers present at the police department on the relevant night, this would have resulted in a valid piece of evidence. The court concluded that the investigators did not ensure an effective investigation.

17.  The investigation into the applicant’s ill-treatment was reopened as a result of R.S.’s acquittal. It was subsequently suspended owing to the impossibility of identifying the perpetrators.

18.  On 4 April 2012 the applicant and other alleged victims of the events of April 2009 were each awarded an ex gratia allowance of 7,000 Moldovan lei (MDL, the equivalent of approximately 450 euros (EUR) at the time).

THE LAW

        I.   ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19.  The applicant complained that he had been ill-treated by the police and that no effective investigation into his complaint had been carried out. He relied on Article 3 of the Convention, which reads as follows:

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

A.    Admissibility

20.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

21.  The Government argued that there had been no violation of Article 3 of the Convention since the applicant had given inconsistent and contradictory statements, leading to R.S.’s acquittal. Moreover, he and his lawyer were actively involved in the investigation, which had been prompt, objective and complete. Furthermore, the authorities had carried out an effective investigation into the applicant’s allegations, which did not result in the identification of the persons responsible for the applicant’s injuries. The Government also stated that, following the events of April 2009, Moldovan law had been amended in a number of ways, including: by requiring that masked officers be identifiable either by personal numbers or badges; by creating a torture prevention department at the Prosecutor General’s Office; by assigning specialised officers in each prosecutor’s office, and by further training the officers with the aim of preventing ill-treatment.

22.  Having been invited to make submissions in response to those made by the Government, the applicant did not make any submissions, he only expressed his wish to continue with the examination of the case.

23.  The Court notes that the applicant suffered a serious injury - his broken hand - which led to his emergency and then in-patient treatment. In such circumstances, it finds that Article 3 was applicable in the present case.

24.  It is further noted that at no point during the domestic investigation did the authorities question the veracity of the applicant’s statement that he had been injured by a police officer. While the courts noted inconsistencies in his statements made at various stages of the proceedings against R.S., none of them altered the crucial point that his injury had been caused to him during his detention by the police. Moreover, since no injuries were mentioned when the applicant was taken to the Buiucani police station, it must be presumed that he was in good health at that time. A few hours later his hand was broken (see paragraphs 8 and 9 above). The Court can thus conclude that this injury was caused whilst in detention at the Buiucani police station in Chișinău.

25.  As for the investigation into the applicant’s allegation of ill-treatment, the Court notes the findings of the Supreme Court of Justice (see paragraph 16 above), notably regarding shortcomings such as the delay in showing him the photographs of police officers working at the Buiucani police station and the overall finding that the investigators had not ensured an effective investigation into the applicant’s allegations.

26.  In view of the shortcomings found by the Supreme Court of Justice, which the Court has no reason to question, it concludes that the investigation into the applicant’s allegations has not been effective.

27.  The applicant was awarded ex gratia compensation by the Government (see paragraph 18 above). However, in the absence of an acknowledgment of the violation of his Article 3 rights and of compensation corresponding to the seriousness of that violation, the applicant can still claim to be a victim of a violation of his Article 3 rights.

28.  There has accordingly been a violation of Article 3 of the Convention in both its substantive and procedural limbs.

     II.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.   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.”

30.  The applicant did not make any claims. Accordingly, the Court will not make any award.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

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

Done in English, and notified in writing on 1 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Hasan Bakırcı                                                   Branko Lubarda
          Deputy Registrar                                                      President