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FOURTH
SECTION
CASE OF
COLIBABA v. MOLDOVA
(Application
no. 29089/06)
JUDGMENT
STRASBOURG
23
October 2007
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 Colibaba v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29089/06) 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 Vitalie Colibaba (“the applicant”)
on 22 June 2006.
- The
applicant was represented by Mr R. Zadoinov, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been subjected to
severe police brutality while in detention and that the authorities
had failed to carry out an adequate investigation into the incident,
in breach of Article 3. He also complained under Article 13 of the
lack of effective remedies in respect of ill-treatment and under
Article 34 of the Convention that he had been hindered by the
domestic authorities in bringing his case before the Court.
- On
3 October 2006 the Fourth Section of the Court communicated the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Vitalie Colibaba, is a Moldovan national who was born
in 1978 and lives in Chişinău.
- On
21 April 2006 the applicant was arrested on charges of assaulting a
police officer.
- On
25 and 27 April 2006 the applicant was allegedly tortured by police
officer I.M. and two other police officers in order to extract a
confession from him. According to the applicant, his hands and feet
were tied together behind his back and a metal bar from a coat hanger
was passed under his arms. The metal bar was placed on two chairs and
his body was suspended for more than forty minutes. His hands had
been covered with cloth so that no traces of rope would remain on
them. Loud music was played so that his cries would not be heard.
While being suspended in this manner, his head was covered with a
coat and he was beaten with a chair on the back of his head. These
acts of brutality were accompanied by verbal and psychological
aggression. The Government contested the allegations of
ill-treatment.
- The
same day, after being taken to his cell, the applicant attempted to
commit suicide by cutting his veins. However, his attempt was not
successful and he was taken to hospital.
- On
27 April 2006 the applicant was allowed for the first time to have
contact with his lawyer, but only in the presence of police officers.
The applicant complained to the lawyer that he had been tortured.
- According to the applicant, as a retaliatory measure
for his complaint to the lawyer, the same evening he was again
tortured. He was hit on the head with a two-litre plastic bottle full
of water and also punched and kicked. The Government disputed these
allegations.
- On 28 April 2006 the applicant's lawyer lodged with
the Buiucani prosecutor's office a criminal complaint concerning the
alleged ill-treatment of the applicant.
- On 29 April 2006 the applicant was taken by the police
officers who had allegedly ill-treated him to the Centre of Forensic
Medicine, where he underwent a medical check-up in their presence.
His lawyer was not present and, according to the applicant, the
medical examination only lasted several minutes and was superficial.
- The medical report issued by the Centre of Forensic
Medicine was dated 28 April 2006 and concluded that besides the
injury caused by his attempted suicide, the applicant did not have
any other signs of violence on his body.
- On 30 April 2006 the Buiucani prosecutor's office
ordered that police officer I.M. be removed from the applicant's case
on account of the latter's complaint alleging ill-treatment. The
police officer was prohibited even from accompanying the applicant to
and from the detention centre. The removal was justified by the need
to ensure the objectivity of the investigation into the applicant's
complaints.
- On 2 May 2006 the applicant's lawyer requested the
prosecutor of the Buiucani District to authorise the applicant to
undergo, inter alia, neurological, ophthalmological,
psychiatric and other medical examinations. He requested that the
medical examinations be carried out by independent doctors in the
presence of the applicant's relatives. This request was refused.
- On
3 May 2006, following complaints by the applicant's lawyer, Amnesty
International organised action in support of the applicant by
publishing on their Russian internet site a description of the
applicant's case and an appeal to people from all over the world to
write to the Prosecutor General of Moldova, the Moldovan Ministry of
Internal Affairs and the Moldovan Embassy in their country asking
them to take action, such as conducting a medical examination of the
applicant and carrying out an effective investigation into his
complaints of torture, and allowing the applicant to meet his lawyer
in conditions of confidentiality.
- Following
Amnesty International's action, the Moldovan authorities received
twenty-seven letters from different countries and the applicant's
case was widely reported in the mass media.
- On 16 May 2006 the applicant was released from
detention. On the same day he sought medical assistance at the
“Memoria” Rehabilitation Centre for Torture Victims, a
non-governmental organisation financed by the European Union and a
member of the General Assembly of the International Rehabilitation
Council for Torture Victims (IRCT). He appears to have been subjected
there to detailed medical tests and examinations by various medical
specialists. In a document entitled “Extract from the medical
file” (“Extras din Fişa
Medicală”), dated 16 June 2006, issued by the
Centre, it was stated, inter alia, that the applicant had
suffered the consequences of cranial trauma, post-traumatic otitis
and mixed deafness on the right side and hypoacusis (slightly
diminished auditory sensitivity, with hearing threshold levels above
normal) on the left side.
- On 18 May 2006 the applicant underwent a medical
check-up at the Institute of Neurology and Neurosurgery of the
Ministry of Health. It appears that he was directed there by doctors
from the “Memoria” Rehabilitation Centre for Torture
Victims who had diagnosed cranial trauma. He was seen by a
neurosurgeon, who confirmed that the applicant had suffered cranial
trauma and concussion with permanent vegetative disorder and
intracranial hypertension. Moreover, the doctor found that the
applicant was experiencing loss of consciousness, post-traumatic
otitis and sleep disorder. The medical report of the Institute of
Neurology and Neurosurgery was not issued to the applicant until 12
June 2006.
- On
24 May 2006 the prosecutor G.B. from the Buiucani prosecutor's office
dismissed the applicant's torture complaint. In his decision he
stated, inter alia, that the three policemen allegedly
involved in acts of torture had been questioned and had denied all
the accusations; that according to the medical report dated 28 April
2006, the applicant did not have any signs of torture on his body;
and that in the office where he had allegedly been tortured no coat
hanger had been found. As to his attempted suicide, the prosecutor
considered that it had been simulated so as to avoid criminal
responsibility.
- On 30 May 2006 the applicant appealed to the Buiucani
District Court against the decision of 24 May 2006. He argued, inter
alia, that the prosecutor had refused to allow him to undergo a
complete medical examination, as requested by him on 2 May 2006, and
that this was contrary to the authorities' positive obligations under
Article 3 of the Convention. He also informed the court that
immediately after his release from detention he had undergone a
medical examination which established that he had been tortured
during his detention.
- On 15 June 2006 the Buiucani District Court held a
hearing in the case concerning the applicant's complaint of torture.
The applicant's lawyer requested that the medical report of the
Institute of Neurology and Neurosurgery dated 18 May 2006 be included
in the case file. Judge M.D. admitted the report in evidence.
However, in a decision of the same date he dismissed the appeal as
unfounded without giving an assessment of any of the above evidence.
He simply repeated the reasons given by the prosecutor G.B. in his
decision of 24 May 2006 dismissing the complaint of torture.
- On 24 June 2006, after the medical report from the
“Memoria” Rehabilitation Centre for Torture Victims had
become available to him, the applicant wrote to the Buiucani
prosecutor's office asking it to re-examine his ill-treatment
complaint in the light of the medical report. However, on 5 July
2006 he was informed that there were no grounds for reopening the
investigation.
- In
the meantime, on 22 June 2006, the applicant had lodged an
application with the Court in which he complained under Article 3 of
the Convention that he had been tortured and that there had been no
effective investigation into his allegations of torture.
- On
26 June 2006 the Prosecutor General of the Republic of Moldova,
Valeriu Balaban, wrote a letter to the Moldovan Bar Association, in
which he stated, inter alia, the following:
“Lately, the Prosecutor General's Office has been
confronted with the phenomenon whereby some Moldovan lawyers involve
international organisations specialising in the protection of human
rights in the examination by the national authorities of criminal
cases. These organisations are used as an instrument for serving
personal interests and for avoiding the criminal responsibility of
suspected persons.
Examples of such incidents are the case of G., triggered
by the lawyer A.U., and the case of Vitalie Colibaba, triggered by
the lawyer R. Zadoinov. The international mediatisation of these
cases prompted active action by the representatives of Amnesty
International with a view to safeguarding the rights of the above
lawyers' clients.
After having examined sufficiently thoroughly the
complaints alleging torture and abuse on the part of the police ...
the Prosecutor's Office dismissed the complaints on the ground of
lack of proof that offences had been committed. ...
... In such circumstances the irresponsible attitude and
behaviour of the lawyers A.U. and R. Zadoinov give rise to concern.
They knew that no acts of torture had been committed against their
clients. However, they complained to international organisations
without first attempting to use the national mechanism for solving
such problems. They presented the facts erroneously in order to win
their cases...
Such practices by lawyers will be investigated by the
Prosecutor General's Office in order to determine whether they have
committed the offence provided for in Article 335 § 2 of the
Criminal Code, by making public on an international scale false
information about alleged breaches of human rights which gravely
prejudice the image of our country.
Accordingly, the Bar Association is called upon to take
account of the facts described above, to bring to the attention of
lawyers the situation so created and to prevent as far as possible
any prejudice to the authority of the Republic of Moldova.”
- The above letter generated a heated debate in the
media. On 30 June 2006 the Moldovan Bar Association issued an
official statement in which it qualified the Prosecutor General's
letter as an attempt to intimidate lawyers. In an interview to the
newspaper Ziarul de Garda the President of the Bar Association
declared, inter alia, that this was an attempt to intimidate
lawyers so that they would not complain to the Court any more. At the
same time Amnesty International organised action in support of the
lawyers mentioned in the Prosecutor General's letter and issued a
statement in which it declared, inter alia, the following:
“[Amnesty International] is concerned that the
letter to the Bar Association of Moldova is a deliberate attempt to
intimidate A.U. and Roman Zadoinov, and to prevent lawyers in Moldova
from making public information about human rights violations. It is a
violation of the right to freedom of expression, and if the lawyers
were to be imprisoned for this offence Amnesty International would
consider them prisoners of conscience.”
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Criminal Code read as follows:
“Article 335. Abuse of official duties
1. Intentional use by a person... of his or
her official duties for personal gain or for other personal
interests... shall be punishable by a fine of ... or by imprisonment
for up to three years.
2. The same offence committed by a notary,
auditor or lawyer shall be punishable by a fine of MDL 10,000 to
16,000, or by imprisonment for 2 to 5 years...”
THE LAW
- The
applicant complained under Article 3 of the Convention that he had
been ill-treated by the police during his detention and that he had
not been provided with food and water between 25 and 27 April 2006.
He also complained of the failure of the domestic authorities to
investigate properly his allegations of ill-treatment. Article 3 of
the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant argued that he did not have an effective remedy before a
national authority in respect of the breaches of Article 3 and
alleged in this connection a violation of Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ....”
- Lastly,
the applicant complained under Article 34 of the Convention that the
Prosecutor General's letter of 26 June 2006 was intended to
intimidate his lawyer and therefore constituted a breach of his right
of petition. The relevant part of Article 34 reads:
“...The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 3 concerning the
conditions of the applicant's detention
- The
applicant complained that between 25 and 27 August 2006 he had not
been provided with food and water. The Government disputed this
allegation.
- The
Court notes that the applicant failed to adduce any evidence in
support of this allegation. Accordingly, it concludes that this
complaint is manifestly ill-founded and therefore inadmissible within
the meaning of Article 35 §§ 3 and 4 of the Convention.
B. The rest of the complaints
- The
Court considers that the rest of the applicant's complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and no
other grounds for declaring them inadmissible have been established.
The Court therefore declares this part of the application admissible.
In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of the relevant complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The submissions of the parties
1. Concerning the alleged ill-treatment
- The
applicant argued that the medical report dated 28 April 2006 (see
paragraph 13 above) was not credible as it was based on a very
superficial examination conducted by a generalist and not by a
specialist in neurology, ophthalmology and psychiatry. The doctor had
not used any special medical tests or medical equipment and had only
examined him visually. Moreover, the applicant expressed doubts about
the doctor's independence and pointed to the fact that the police
officers who had ill-treated him had been present during the
examination, whereas his lawyer had not been allowed to be present.
- The
applicant pointed to the medical reports of 16 and 18 May 2006 (see
paragraphs 18 and 19 above) and argued that they clearly showed that
upon his release from detention, he had had injuries which supported
his allegations that he had been tortured on 25 and 27 April 2006. He
argued that these medical examinations had been conducted by several
independent doctors and were therefore credible.
- The
applicant contested the Government's allegations that he was a drug
addict and argued that the Government had not submitted any medical
evidence to that effect.
- The
Government argued that the applicant had not been subjected to any
form of ill-treatment because no traces of violence had been found on
his body during the medical examination of 29 April 2006 (see
paragraphs 12 and 13 above). His attempted suicide had not been due
to torture but to a state caused by the lack of narcotics to which he
was addicted.
- Referring
to the medical examinations conducted by the doctors from the
“Memoria” Rehabilitation Centre for Torture Victims, the
Government argued that it was not conclusive as it had been carried
out one month after the applicant's release from detention. In their
view, the date of 16 June 2007 indicated on the document issued by
the Centre was the date on which the medical examination had been
conducted (see paragraph 19 above).
- As to the medical report dated 18 May 2006 (see
paragraph 18 above), the Government advanced two different positions.
In their observations of 2 January 2007 they did not dispute its
authenticity or credibility; however, they argued that it was
irrelevant since the examination had been carried out two days after
the applicant's release and that in the meantime he could have
injured himself. In their observations of 17 April 2006 the
Government expressed doubts about the credibility of the report
because when referring to the dates of the alleged ill-treatment
reference was made to “25, 27.05.2006” instead of “25,
27.04.2006”.
2. Concerning the alleged inadequacy of the
investigation
- The
applicant argued that the same prosecutors who had conducted the
criminal investigation against him had investigated his complaint of
ill-treatment and that no independent bodies had been involved in the
investigation.
- The
Government argued that as soon as the applicant had complained of
ill-treatment he had been subjected to a medical examination. Shortly
afterwards, the police officer accused of ill-treatment had been
removed from the case so that the objectivity of the investigation
would not be endangered (see paragraph 14 above). After the accused
police officers had been questioned and an objective examination of
all the evidence had been carried out, it was concluded that the
applicant had not been ill-treated. That conclusion had been
confirmed by the court that had examined the case objectively in
adversarial proceedings. Accordingly, the investigation had been
effective and the State had satisfactorily discharged its procedural
obligations.
B. The Court's assessment
1. Concerning 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 Protocols Nos. 1 and 4,
Article 3 makes no provision for exceptions and no derogation from it
is permissible under Article 15 § 2 even in the event of a
public emergency threatening the life of the nation (see Selmouni
v. France [GC], no. 25803/94, § 95, ECHR 1999 V,
and Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998-VIII, p. 3288,
§ 93).
- 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).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). 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).
- It
is undisputed that between 21 April 2006 and 16 May 2006
the applicant was under the control of the police. It is disputed,
however, whether during that period of time the applicant sustained
injuries, other than those resulting from his attempted suicide.
- The
Government relied on the medical report dated 28 April 2006 and
argued that the applicant had not been injured on the dates alleged.
At the same time they argued that the medical reports dated 16 June
and 18 May 2006 did not prove that the applicant had been
suffering from cranial trauma when he was released from detention.
- The Court is not convinced by the latter arguments and
notes that while the medical document issued by the “Memoria”
Rehabilitation Centre for Torture Victims was dated 16 June 2006, it
clearly states at the very beginning that the applicant came to the
Centre on 16 May 2006. Moreover, even its title indicated that it was
a summary of the applicant's medical file (see paragraph 18 above).
- As to the medical report dated 18 May 2006, the Court
notes that it confirmed the findings made by the Rehabilitation
Centre concerning the applicant's cranial trauma. Therefore the
Government's assertion that the applicant could have been injured
after his release, between 16 and 18 May 2006 (see paragraph 39
above), appears implausible. As to the Government's assertion
concerning the problem with the dates of the alleged injuries
indicated in the report (see paragraph 39 above), the Court considers
that an obvious drafting mistake had been made by the doctor, as it
was clearly alleged by the applicant at all stages of the proceedings
that his ill-treatment had occurred in April and not in May 2006.
Indeed, the Court notes a similar problem with the dates in the
medical report relied on by the Government in support of their
position. While that report is dated 28 April 2006, it clearly
appears from its content and from the parties' submissions that the
actual medical examination took place on 29 April 2006 (see
paragraphs 12 and 13 above).
- At the same time the Court has doubts about the
credibility of the report dated 28 April 2006. It notes with concern
that the applicant was taken to the Centre of Forensic Medicine by
the police officers who had allegedly ill-treated him and that the
applicant's medical examination took place in their presence (see
Batı and Others v. Turkey, nos. 33097/96 and
57834/00, § 100, ECHR 2004 IV (extracts)). In such
circumstances, the Court cannot rule out the possibility that the
applicant felt intimidated by the persons whom he had accused of
having tortured him. The Court refers to the applicant's allegation
that on 27 April 2006 he was repeatedly subjected to torture in
retaliation for his complaint to the lawyer (see paragraph 10 above).
Moreover, the Court notes that even the prosecutor's office
considered it necessary to remove police officer I.M. from the
applicant's case and to exclude any contact between the two in order
to ensure the objectivity of the investigation into the allegations
of ill-treatment (see paragraph 14 above). In such circumstances, the
Court finds it difficult to give weight to a medical report based on
a medical examination conducted in the presence and under the
supervision of the applicant's alleged torturers.
-
In the light of the above considerations, the Court comes to the
conclusion that the applicant's cranial trauma was caused during his
detention.
- Since
the Government did not give any explanations concerning the origin of
the above injury, and having regard to the strong presumption which
arises in such matters (see paragraph 43 above), the Court concludes
that the Government have not satisfied the burden on them to persuade
it that the applicant's cranial trauma was caused by anything other
than ill-treatment while in police custody. Accordingly, there has
been a violation of Article 3 of the Convention in that he was
subjected to ill-treatment.
2. Concerning the alleged inadequacy of the
investigation
- 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
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000-IV).
- The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see Assenov and Others v. Bulgaria,
judgment 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.
- The
Court notes a series of serious shortcomings in the investigation
conducted by the national authorities. In the first place, it notes
that the applicant's request of 2 May 2006, addressed to the
prosecutor's office, to undergo an independent medical examination in
the presence of his relatives was rejected without any plausible
reasons being given (see paragraph 15 above). Secondly, the court
which examined the applicant's appeal against the prosecutor's
office's decision of 24 May 2006 disregarded the applicant's
submission that he had not been allowed to undergo an independent
medical examination and did not even consider it necessary to give
reasons (see paragraph 21 above). Moreover, the court did not pay any
attention to the applicant's submission in his appeal that on 16 May
2006 he had been examined by independent doctors who had found signs
of ill-treatment on his body. The court manifested no interest in
seeing the medical report of 18 May 2006 submitted by the applicant
on 15 June 2006 (see paragraph 22 above). Later, the prosecutor's
office refused to examine the applicant's request for a
re-examination of his case in the light of the document issued by the
“Memoria” Rehabilitation Centre for Torture Victims (see
paragraph 23 above).
- In
the light of the serious deficiencies referred to above, the Court
considers that the domestic authorities did not make a serious
attempt to investigate the applicant's complaints of ill-treatment.
Accordingly, there has been a violation of Article 3 of the
Convention in this respect also.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that there had been no effective remedies
in respect of his complaint of ill-treatment, contrary to Article 13
of the Convention.
- The
Government disagreed and asked the Court to reject the complaint.
- The
Court considers that the complaint under Article 13 of the Convention
essentially repeats the complaint about the lack of an effective
investigation made under Article 3 and examined above. Accordingly,
it does not consider it necessary to examine this complaint
separately.
IV. ALLEGED FAILURE TO OBSERVE ARTICLE 34 OF THE
CONVENTION
A. The submissions of the parties
- The
applicant argued that the Prosecutor General's letter of 26 June 2006
was intended to intimidate his lawyer by threatening him with
criminal proceedings so that he would not apply to international
organisations specialising in human rights protection such as Amnesty
International, the European Court of Human Rights and others.
- The
letter represented a serious threat and proof of that was the fact
that the other lawyer mentioned in it, A.U., had given up
representing her client shortly afterwards. The applicant's lawyer
had also felt discouraged and intimidated.
- The
Government argued that the Prosecutor General's letter was not
intended to discourage lawyers from applying to the Court and such
could not even be inferred from its content. Moreover, none of the
lawyers who had represented clients before the Court had ever been
criminally prosecuted for doing so.
- In
the Government's opinion the Prosecutor General's letter was nothing
more than a call to lawyers to comply with the professional code of
ethics and to submit only true information to international
organisations and not suppositions.
- The
Prosecutor General's statement that lawyers' practices would be the
subject of criminal investigations, and his reference to Article 335
§ 2 of the Criminal Code, did not mean that following such
investigations particular lawyers would be criminally prosecuted on
the ground that they represented clients before the Court. His
message had been wrongly interpreted by certain lawyers.
- The
Government described the applicant's complaint under Article 34
as slanderous towards the Moldovan State authorities and denied the
existence of any causal link between the Prosecutor General's letter
and the subsequent decision of the lawyer A.U. to give up
representing her client.
B. The Court's assessment
- The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants or potential applicants should be
able to communicate freely with the Court without being subjected to
any form of pressure from the authorities to withdraw or modify their
complaints (see, among other authorities, Akdivar and Others v.
Turkey, judgment of 16 September 1996, Reports 1996 IV,
§ 105; and Aksoy v. Turkey, judgment of 18 December 1996,
Reports 1996 VI, § 105). In this context,
“pressure” includes not only direct coercion and flagrant
acts of intimidation but also other improper indirect acts or
contacts designed to dissuade or discourage applicants from pursuing
a Convention remedy (see Kurt v. Turkey, judgment of 25 May
1998, Reports 1998 III, § 159).
Whether
or not contacts between the authorities and an applicant are
tantamount to unacceptable practices from the standpoint of Article
34 must be determined in the light of the particular circumstances of
the case (see Akdivar and Others and Kurt, both cited
above, § 105 and §160 respectively).
- The
applicant argued that he considered the Prosecutor General's letter
to be a form of intimidation, while the Government submitted that it
was not intended to intimidate anyone but simply to call on lawyers
to comply with their professional ethics.
- Having
examined the Prosecutor General's letter, the Court tends to agree
with the applicant that it does not seem to have been merely a call
to lawyers to observe professional ethics as suggested by the
Government. The language employed by the Prosecutor General, the fact
that he expressly named the applicant's lawyer in the context of this
case and the warning that a criminal investigation would be initiated
as a result of the latter's allegedly improper complaint to
international organisations could, in the Court's view, easily be
construed as amounting to pressure on the applicant's lawyer and on
all lawyers in general. Indeed, that also appears to have been the
perception of Moldovan lawyers and of Amnesty International (see
paragraph 26 above).
- The
Court further notes that the Prosecutor General's letter did not
refer expressly to lawyers' complaints lodged with the Court but
rather to complaints to “international organisations
specialising in the protection of human rights”, and that it is
not clear whether the Prosecutor General knew about the present
application when he wrote his letter. However, in the Court's
opinion, none of the above is decisive for the purpose of determining
the present complaint as the wording of the impugned letter could in
any event have had a chilling effect on the applicant's lawyer's
intention to bring or pursue his client's application before the
Court.
- In
view of the foregoing, the Court considers that the respondent State
has failed to comply with its obligations under Article 34 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 65,000 euros (EUR) in respect of the non-pecuniary
damage suffered as a result of the ill-treatment to which he had been
subjected and of the breach of his right of petition. He argued that
he had experienced mental and physical suffering, anguish, distress,
fear for his life and humiliation.
- The
Government contested the amount claimed by the applicant and argued
that there was no proof that he had suffered any damage. They asked
the Court to dismiss the applicant's claim.
- Having
regard to the violations found above and their gravity, the Court
considers that an award for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
the applicant EUR 14,000.
B. Costs and expenses
- The
applicant also claimed EUR 12,067 for the costs and expenses incurred
before the Court. He submitted a detailed time-sheet indicating the
time spent by his lawyer on the case and an itemised list of other
expenses linked to the examination of the case. He also submitted a
copy of a contract between him and his lawyer.
- The
Government disagreed with the amount claimed for representation and
disputed, inter alia, the number of hours spent by the
applicant's lawyer and the hourly rate charged by him. They also
argued that the claims were excessive in view of the economic
realities in Moldova.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the applicant
the sum of EUR 2,500 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of the
Convention concerning the conditions of the applicant's detention
inadmissible and the remainder of the application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant's ill-treatment while
in detention;
- Holds that there has been a violation of
Article 3 of the Convention in respect of the failure to conduct
an effective investigation into the applicant's complaints of
ill-treatment while in detention;
- Holds that it is not necessary to examine
separately the complaint under Article 13 of the Convention;
- Holds that the respondent State has failed to
comply with its obligations under Article 34 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 14,000 (fourteen
thousand euros) in respect of non-pecuniary damage and EUR 2,500 (two
thousand five hundred euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
