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FOURTH
SECTION
CASE OF
PĂDUREŢ v. MOLDOVA
(Application
no. 33134/03)
JUDGMENT
STRASBOURG
5 January
2010
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 Paduret v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33134/03) 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 Aurel Pădureţ
(“the applicant”), on 25 August 2003.
- The
applicant, who had been granted legal aid, was represented by Mr Ş.
Uritu, Mr A. Briceag and Mrs D. Străisteanu,
at the time all working for the Helsinki Committee for Human Rights
in Moldova, a non-governmental organisation based in Chişinău.
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 the authorities had failed to carry out an
effective investigation into his ill-treatment within a reasonable
time, allowing the perpetrators to escape all responsibility.
- On
13 May 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1979 and lives in Bozieni.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- At
the time of the events, the applicant was a student at the State
University in Tiraspol located in Chişinău.
1. The applicant's arrest and alleged ill-treatment
- On
3 February 2000 P. complained to the Centru Police Station in
Chişinău that he had been robbed on 27 December 1999 by
three unidentified persons. He suspected that one of those persons
was the applicant.
- A
criminal investigation was initiated. On 31 March 2000 a student
of the police academy, A.P., knocked at the applicant's door at
approximately 7.30 in the morning. Having opened the door, the
applicant was forced to follow A.P. out to the street, where he was
forced into a car belonging to P. Another student from the police
academy, A.R., was waiting in the car.
- According
to the applicant, he received blows from A.P. and A.R. all the way to
the Centru Police Station. Upon his arrival at the station, the
applicant was taken up to office no. 508. The applicant alleges that
he was ill-treated in that office by A.P. and A.R. and by another
plain-clothed person, whose identity he did not know at the time. He
made this complaint to the prosecution.
- The applicant was invited to confess to having robbed
P. When he refused, A.P. and A.R. tied his hands and feet together
behind his back and he was suspended on a metal bar placed on two
adjacent tables (a position called “swallow” akin to
“Palestinian hanging”). He then received truncheon blows
to the soles of his feet and was kicked and punched in various parts
of his body. A gas mask was put on his face and cigarette smoke was
blown into the air access tube, causing him to suffocate. That tube
was later attached to his penis. His captors also inserted a glass
bottle into his anus three times. At one time he lost consciousness.
- Later on that day the applicant was taken to a
prosecutor's office. In view of clear signs of ill-treatment on the
applicant's body, the prosecutor ordered a medical examination to
establish whether he had been ill-treated.
- According
to the applicant, the investigator responsible for the criminal
investigation into P.'s complaint was officer O. This officer had
never delegated any power of investigation or arrest to any other
officer, including officers C., A.P. and A.R..
- On 3 April 2000 the applicant was examined by a group
of forensic doctors, who found that he had been injured. In
particular, he had a black eye and a bruise on his chest of 10 x 7
cm, and had suffered head trauma and anal damage. The doctors
excluded the possibility that the injuries could have been sustained
as a result of a fall. Later that day he was admitted to hospital
with a diagnosis of head trauma.
- On
the same date the criminal investigation against the applicant was
discontinued, but he was allegedly not informed about it until much
later, on an unspecified date.
- In a statement made on 12 April 2000 A.P. mentioned,
inter alia, that while the applicant was being questioned a
person who was not part of the police force, R.B., was also present.
No violence had been used against the applicant, who had been
arrested on the orders of investigator C.
2. Investigation into the applicant's alleged
ill-treatment and trial of A.P. and A.R.
- On 15 June 2000 a criminal investigation was initiated
against A.P. and A.R.
- The
applicant underwent two more medical examinations, on 28 June
and 24 July 2000, which confirmed the injuries caused to him. The
last examination concluded that it could not be excluded that the
applicant had caused the injuries himself.
- On 21 September 2000 an investigator decided to
discontinue the criminal case against A.P. and A.R. for lack of
evidence. On 29 November 2000 the applicant complained to a
prosecutor about the discontinuation, noting that he had not been
informed of it until he insisted on receiving an update on 21
November 2000. On 1 December 2000 the prosecutor annulled the
investigator's decision.
- According
to an order issued by the Minister of Internal Affairs on 26 August
1999, police academy students A.P. and A.R. had been temporarily
authorised to act as police inspectors until 1 March 2000. On
25 December 2000 inspector C. was reprimanded for ordering A.P.
and A.R. to arrest the applicant on 31 March 2000, despite being
aware that they were no longer authorised to act as police
inspectors, actions which led to bodily harm being caused to the
applicant.
- On
30 December 2000 a prosecutor decided to discontinue the criminal
proceedings against A.P. and A.R. under Article 185 (2) of the Penal
Code (abuse of authority, see paragraph 41 below) for lack of
evidence and opened an investigation under article 116 (2) of the
Penal Code for unlawful deprivation of the applicant's liberty (see
paragraph 41 below).
- On
20 February 2001 a prosecutor decided to discontinue the
investigation against A.P. and A.R. under Article 116 (2) of the
Penal Code and to initiate an administrative investigation against
them for causing minor injuries to the applicant. On 23 March 2001
the Centru District Court annulled that decision and sent the case
file to the prosecution for re-qualification of the acts committed by
A.P. and A.R. under the provisions of the Penal Code.
- On
11 April 2001 the prosecutor annulled his decision of 30 December
2000 and sent the case file to the investigator for further
investigation.
- On 28 April 2001 the prosecutor decided that the
actions of A.P. and A.R. came within the ambit of Articles 101 and
207 of the Penal Code (beating an usurpation of powers respectively,
see paragraph 41 below). On 8 May 2001 the applicant asked the
Prosecutor General's Office for a re-qualification of the acts from
beating to torture, as provided by Article 101/1 of the Penal
Code (see paragraph 41 below). The applicant emphasised that he had
been caused suffering with the aim of forcing him to confess to a
crime which he had not committed. This could only be characterised as
torture. On 14 May 2001 he made a similar complaint to the prosecutor
in charge of the case.
- A.P.,
A.R. and their lawyers failed to appear at the court hearing on
28 May 2001. At the next hearing on 4 June 2001, the applicant's
lawyer asked the court to re-qualify the acts committed by A.P. and
A.R. from beating to torture. This request was rejected since the
prosecution was responsible for such a re-qualification.
- Further
court hearings were held on 13 and 20 June, 9, 17 and 20 July,
17 and 26 September 2001. After the hearing of 26 September 2001 the
applicant was arrested by the police on the orders of officer Adajii,
who was a witness for the defence in the case against A.P. and A.R.
The applicant lodged a separate complaint in respect of this arrest
with the Court. The applicant also submitted that he had been openly
insulted and intimidated in court by A.P. and A.R., who often came
armed to court hearings, and by other police officers.
- On
8 October 2001 the applicant lodged a civil action against A.P. and
A.R. within the criminal proceedings.
- On 27 November 2001 R.B. was called to court as a
witness for the defence. The applicant identified R.B. as the
plain-clothed person who had ill-treated him in office no. 508
alongside A.P. and A.R. He asked the prosecution and court to charge
R.B. with the crime of torture, together with A.P. and A.R. On 29
November 2001 the applicant's lawyer made a similar request. The
lawyer complained that the investigators had not made sufficient
efforts to verify the involvement of the third person in the
applicant's ill-treatment, referring to the consistent submissions
the applicant had made since his first complaint about the
participation of a third person in the events. They received no reply
and no investigation was initiated in respect of R.B.
- On
22 April 2002 the Centru District Court found A.P. and A.R. guilty as
charged and sentenced them to two years' imprisonment, suspended for
one year. The applicant was awarded 1,235 Moldovan lei (MDL,
equivalent to 102 euros (EUR)), to be paid by A.P. and A.R.
- In
response to a request by the Helsinki Committee of Human Rights in
Moldova, on 14 May 2002 the Ministry of Internal Affairs confirmed
that A.P. and A.R. had not been suspended from their positions during
the investigation against them, based on the principle of presumption
of innocence.
- The
applicant and the accused appealed. On 29 October 2002 the Chişinău
Regional Court allowed the applicant's appeal and awarded him MDL
11,058 (EUR 826) in respect of pecuniary and non-pecuniary damage.
The applicant and the accused appealed.
- On
26 December 2002 and 16 and 30 January 2003 the defence lawyer did
not appear in court. The hearings were postponed each time.
- On
6 February 2003 the Court of Appeal annulled the lower courts'
judgments and sent the case file for re-examination by the
first-instance court, finding that the accused could not be tried for
usurpation of powers.
- Further
hearings were scheduled for 20 March, 14 and 29 April, 13 May, 1
and 23 June, 5, 20 and 27 July and 2 August 2003. All except one of
these hearings were postponed due to the absence of the prosecutor or
the defence attorney.
- On
26 March 2003 the Centru District Court sent the case file to the
prosecution for re-qualification of the acts committed by the
accused. According to the applicant, he was not informed about the
course of the proceedings after that date.
- On
7 April 2003 the applicant's lawyer asked the prosecution to qualify
the acts of the accused as torture. Having received no reply, she
repeated the request on 25 August 2003 and subsequently complained to
the Centru District Court that there had been no response from the
prosecution. On 18 September 2003 a similar request was made to
the same court. On 8 October 2003 the Centru District Court
found that the prosecution had failed to respond to the applicant's
lawyer's requests, for no reason. It ordered the prosecution to give
an answer.
- In August 2004 A.R. died. The applicant made numerous
unsuccessful attempts to access the criminal file. He was not
informed about the course of the proceedings.
- On
10 June 2005 the Centru District Court acquitted A.P. of the charge
of usurping police powers. He was sanctioned administratively and
fined MDL 1,000 (EUR 65). The applicant was awarded MDL 2,263
(EUR 147) in damages.
- On 8 December 2005 the Chişinău Court of
Appeal partly quashed that judgment. The court found A.P. guilty
under Article 101 of the Penal Code (see paragraph 41 below), but
relieved him from criminal responsibility due to the expiry of the
five-year limitation period applicable in his case. The court awarded
the applicant MDL 15,000 (EUR 997).
- That judgment was upheld by the Supreme Court of
Justice on 30 May 2006. The judgment was final.
II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS
1. Relevant provisions of domestic law
- The relevant provisions of the Penal Code, applicable
at the relevant time, read as follows:
“Article 46. Limitation period for criminal
responsibility.
A person cannot incur criminal responsibility if the
following periods of time have expired from the date of committing
the crime:
...
(3) five years from the date when the crime was
committed for crimes which, under the present Code, are punishable
with deprivation of liberty of up to five years;
(4) ten years from the date when the crime was committed
for crimes which, under the present Code, are punishable with more
than five years of deprivation of liberty.”
“Article 101. Beating or committing other
violent acts.
Causing physical or mental and emotional suffering
through beating and other violent acts, if they did not result in
damage mentioned under Articles 95 and 96 of the present Code,
- shall be punished with deprivation of liberty for a
period of up to three years. ...”
“Article 101/1. Torture.
Actions which intentionally cause pain or severe
physical or mental and emotional suffering to a person, especially
with the aim of obtaining from that person or from a third party
information or confessions, punishing an act which that person or a
third party has committed or is suspected of having committed, or
intimidating or putting pressure on such a person or on a third
party, or for any other reason based on a form of discrimination,
regardless of the ground, when such pain or suffering is caused by an
agent of a public authority or by any other person acting in an
official capacity or is, expressly or implicitly provoked or condoned
by such an agent, with the exception of pain or suffering which
results exclusively from lawful sanctions and is inherent in such
sanctions or is caused thereby,
- shall be punished with deprivation of liberty for a
period of between three and seven years”
“Article 116. Unlawful deprivation of liberty.
Unlawful deprivation of liberty,
- shall be punished with deprivation of liberty for a
period of up to a year.
The same action, if it has endangered the victim's life
or health, or if it has caused physical suffering,
- shall be punished with deprivation of liberty for a
period of one to five years.”
“Article 185. Abuse of authority or ultra
vires acts.
Abuse of authority or ultra vires acts, that is,
acts by a public official which manifestly exceed the limits of the
rights and powers given by law, shall, if they cause substantial
damage to a public interest or to the rights and lawful interests of
natural and legal persons,
- be punished with either deprivation of liberty for a
period of up to three years, or a fine of between 30 and 100 times
the minimum salary, or with removal from office, in all cases
accompanied by disqualification from occupying certain functions or
engaging in certain activities for a period of up to five years.
Abuse of authority or ultra vires acts,
accompanied by acts of violence or the use of a weapon or by acts of
torture and which harm the victim's personal dignity,
- shall be punished with deprivation of liberty for a
period of three to ten years, and disqualification from occupying
certain functions or engaging in certain activities for a period of
up to five years.”
“Article 207. Usurpation of the powers or title
of a public official.
Usurpation of the powers or title of a public official,
and the carrying out of socially dangerous acts on that basis,
- shall be punished with deprivation of liberty for a
period of up to two years or with a fine of up to thirty times the
minimum salary.”
- The Code of Ethics and Deontology for the Police was
adopted on 10 May 2006 (Law no. 481, in force since 18 May 2006).
According to that Code, it is prohibited to ill-treat and to tolerate
or encourage ill-treatment and inhuman or degrading treatment or
punishment “regardless of the circumstances”.
2. Other relevant materials
- At its thirtieth session (8-9 May 2003) devoted to the
consideration of reports submitted by States Parties to the
Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, the United Nations Committee Against Torture
examined the initial report submitted by the Republic of Moldova
(document CAT/C/32/Add.4 30 August 2002).
In
paragraph 72 of that report the Moldovan Government stated:
“Another example of illegal actions is the case of
the citizen Paduret - a student at the State University in Tiraspol,
evacuated to Chisinau - who was arrested by police and brought to the
police station of the Centre district charged with committing an
offence. He was beaten, tortured and later released. A case was
brought by the General Magistracy, but it was filed and disposed of
without informing the suspect. The Helsinki Committee made a
complaint to the General Magistracy and the file was reopened, but
the expedition of the file to the court is delayed.”
- The relevant parts of the CPT report concerning its
visit to Moldova from 10 to 22 June 2001 read as follows:
“25. As indicated in paragraph 13 above, in
response to the deterioration in the situation, the delegation
invoked Article 8, paragraph 5 of the Convention to request the
Moldovan authorities to carry out, without further delay, a thorough
and independent inquiry into the methods used by operational police
units throughout the country during the questioning of detained
persons. In their letter dated 5 November 2001, the Moldovan
authorities simply indicate that 'the Ministry of Interior declares
that it is not aware of concrete cases of recourse to inhuman methods
of interrogation of persons detained by the police' and recalls the
procedures in force in case of complaints of ill-treatment. Such a
position is, in the view of the Committee, clearly untenable,
considering all the information gathered during the 2001 visit.
With reference to Article 3 of the Convention, the CPT
urges the Moldovan authorities to carry out without delay the
aforementioned investigation and to inform the Committee, within
three months of transmission of the report on the 2001 visit, of the
results thereof.”
- The relevant parts of the response submitted on 26
June 2002 by the Moldovan Government to the 2001 CPT report read as
follows:
“28. The CPT would like comments from the Moldovan
authorities concerning the development of modern methods of
investigation.
In this respect, regretfully, no progress has been
achieved.
29. The CPT would like to obtain information on the
progress achieved in drafting a Code of Deontology for the police.
To our great regret, no progress was achieved in this
respect.”
THE LAW
- The
applicant complained under Article 3 of the Convention of
ill-treatment while in detention and about the authorities' failure
to carry out an effective investigation and to punish those
responsible for his ill-treatment.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant also complained under Article 5 of the Convention of his
unlawful arrest and detention on 31 March 2000.
The
relevant part of Article 5 reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
... (c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
- He
further complained that the length of the criminal proceedings
against A.P. and A.R. had been excessive, contrary to Article 6 of
the Convention. The relevant part of Article 6 reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
applicant finally complained of a violation of Article 13 of the
Convention because he had been awarded only a small amount of
compensation, because the authorities did not ensure prompt
investigation and punishment of A.P. and A.R., and because the law
ceased to provide for punishment for torture after June 2003. Article
13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
I. ADMISSIBILITY
- The
Court notes that in his initial application the applicant complained
of violations of his rights guaranteed under Articles 5, 6 and 13 of
the Convention. However, in his subsequent observations he did not
refer to these complaints. In such circumstances, the Court considers
that it is unnecessary to examine these complaints.
- The
Government submitted that the applicant had abused his right of
individual petition by failing to inform the Court of the judgment of
8 December 2005, which had awarded him MDL 15,000 in
compensation. In any event, he could no longer claim to be a victim
of a violation of his rights guaranteed by the Convention in view of
the compensation awarded to him and the conviction and sentencing of
the perpetrators.
- The
applicant disagreed, stating that he had not yet obtained the
entirety of the sum awarded, since the bailiff had allowed A.P. to
pay in instalments by transferring to the applicant 25% of his
monthly salary until full payment. On 26 April 2007 the bailiff
decided to ask A.P.'s employer, the Ministry of Internal Affairs, to
enforce the sentence against A.P. There was no mention in the
decision of any attempt to locate property belonging to A.P. On 25
June 2007 that decision was sent to the Ministry. The applicant
received the first payment in October 2007, a year and a half after
the final court judgment awarding him compensation. Moreover, due to
the length of the investigation and proceedings against A.P., the
authorities effectively allowed him to escape responsibility.
Finally, the applicant submitted that he had informed the Court in
due time of the judgment of 8 December 2005. This was also clear
from the facts of the case, which had noted both that judgment and
the judgment of the Supreme Court of Justice which subsequently
upheld it (see paragraphs 39 and 40 above).
- The
Court notes that the applicant informed it of the relevant
developments, which were mentioned in the statement of facts
communicated to the respondent Government. The objection concerning
the alleged abuse of the right of petition must therefore be
rejected.
- As
for the objection concerning the loss of victim status, the
Court considers that it raises issues closely related to the merits
of the complaint lodged under Article 3 of the Convention. It will
therefore examine this preliminary exception together with the merits
of the case.
- The
Court considers that the applicant's complaint under Article 3 of the
Convention raises questions of law which are sufficiently serious
that its determination should depend on an examination of the merits.
No grounds for declaring it inadmissible have been established. The
Court therefore declares this complaint 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
these complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The submissions of the parties
- The
applicant submitted that he had been ill-treated by officers A.R. and
A.P., as well as a third officer who remained unidentified. As a
result of the lengthy investigation and court proceedings, and by
incorrectly applying a shorter limitation than that provided for by
law, the authorities allowed A.P. to escape criminal responsibility.
The applicant had therefore not obtained sufficient satisfaction and
could continue to claim that he was a victim of a violation of
Article 3 of the Convention. Moreover, the prosecuting and judicial
authorities had taken all possible steps to delay the proceedings and
to shield the police officers from responsibility. The applicant
allegedly received threats from anonymous persons to withdraw his
complaint. On 26 September 2001 he was allegedly arrested following
an order of officer Adajii, who had been called as a defence witness
by A.R. and A.P.
- None
of the perpetrators was suspended from his position during the
proceedings and A.P. continues to work as a police officer. The
preventive effect of his conviction was thus non-existent, since it
did not even prevent A.P. from continuing to work for the police and
since the case in fact provided an example of impunity for
ill-treatment by the police. The award made in the applicant's favour
was not only small in the light of the seriousness of the violations
of his rights, but he obtained only a small part of it in
instalments, which did not suffice even for his medical expenses and
to pay his lawyer.
- The Government submitted that the applicant's
ill-treatment had been the subject of a thorough investigation which
resulted in the identification and punishment of the perpetrators.
The punishment received by the police officers was proportionate to
the seriousness of the crimes which they had committed. Moreover,
Moldovan law distinguished between petty crimes, crimes of average
gravity, as well as serious, very serious and exceptionally serious
crimes. Since the crime committed by the police officers was
considered an average level one, the punishment of two years'
imprisonment passed on 22 April 2002 constituted an appropriate
punishment. The quashing of that judgment had been the result of a
desire by the domestic courts to observe the accused's rights under
Article 6 of the Convention to have a fully reasoned judgment.
- The
expiry of the limitations period for criminal responsibility was the
sole reason for discontinuing the proceedings against A.P. Moreover,
he was still ordered to pay MDL 15,000 in compensation to the
applicant. The sentence adopted by the courts reached its preventive
goal by educating A.P. not to commit such a crime again and by
showing the rest of society that crimes were not tolerated.
B. The Court's assessment
- 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).
1. The applicants' ill-treatment and the authorities'
positive obligations under Article 3 of the Convention
- The
Court notes that it is not in dispute between the parties that the
applicant was ill-treated by officers A.R. and A.P. on 31 March 2000.
Criminal proceedings were initiated against A.R. and A.P., which were
discontinued because of the death of A.R. and the expiry of the
limitations period in respect of A.P. Given the nature of the acts
against the applicant and degree of his suffering (see paragraphs 11
and 14 above), his ill-treatment can only be considered as torture
within the meaning of Article 3 of the Convention. A violation of
that provision will be found unless the authorities fully redressed
the damage caused to the applicant and discharged their positive
obligations under Article 3 concerning the investigation and
punishment of those responsible for the ill-treatment.
(a) The investigation of the applicants'
ill-treatment
- The
Court observes that in the case of Batı and Others v. Turkey
(nos. 33097/96 and 57834/00, ECHR 2004 IV (extracts)) it held:
“133. ... Where an individual has an arguable
claim that he has been tortured while in 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 v. Turkey[, judgment of
18 December 1996, Reports of Judgments and Decisions 1996 VI,]
pp. 2286-87, §§ 97-98).
...
136. 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, mutatis mutandis,
Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §
72, ECHR 2002 II).”
- Turning
to the facts of the present case, the Court notes that the prosecutor
ordered a forensic doctor to examine the applicant on the day on
which he had been ill-treated, 31 March 2000 (see paragraph 12
above). Despite that order, the applicant was taken to the doctor
only on 3 April 2000 (see paragraph 14 above). The domestic
authorities and the Government did not offer any explanation for that
delay. This 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 the injuries heal.
- Moreover,
after the applicant's ill-treatment was confirmed by the forensic
doctor on 3 April 2000, a criminal investigation was not initiated
against A.R. and A.P. until 15 June 2000 (see paragraph 17 above).
Again, no explanation was offered for that delay of more than two
months.
- According
to the applicant one more person, whose identity was initially
unknown, had participated in his ill-treatment on 31 March 2000. A.P.
himself confirmed at an interview that another person was present
while the applicant was “interviewed” (see paragraph 16
above). Subsequently, the applicant recognised R.B. as the third
person who ill-treated him on 31 March 2000 and requested that
charges be brought against that person. However, the applicant
received no reply to that request and no investigation was carried
out (see paragraph 28 above).
- In
addition, the applicant was not kept informed of the course of the
investigation against A.R. and A.P. For instance, he was not promptly
informed of the discontinuation of those proceedings on 21 September
2000 and found out about it only after insisting to obtain an update
on 21 November 2000 (see paragraph 19 above).
- The
Court finally notes that the investigation and the criminal
proceedings against the perpetrators lasted for almost six years
between 15 June 2000 and 26 March 2006.
- It
follows that the investigation in the present case was initiated with
an unexplained delay and was, together with the criminal proceedings,
very lengthy; the applicant was not kept informed of its progress and
there was no investigation into the allegation that one more person,
R.B., had ill-treated the applicant. The Court considers that each of
the above shortcomings was incompatible with the procedural
obligations assumed by Member States under Article 3 of the
Convention.
- It
follows from the above that the applicant can continue to claim to be
a victim of a violation of his rights and the Government's
preliminary objection must therefore be rejected.
(b) Preventive effect of the prohibition
of ill-treatment
- The
Court observes that in the case of Okkalı v. Turkey
(no. 52067/99, § 65, ECHR 2006 XII (extracts)) it
held:
“... the procedural requirements of
Article 3 go beyond the preliminary investigation stage when ... the
investigation leads to legal action being taken before the national
courts: the proceedings as a whole, including the trial stage, must
meet the requirements of the prohibition enshrined in Article 3.
This means that the domestic judicial authorities must
on no account be prepared to let the physical or psychological
suffering inflicted go unpunished. This is essential for
maintaining the public's confidence in, and support
for, the rule of law and for preventing any appearance of the
authorities' tolerance of or collusion in unlawful acts (see, mutatis
mutandis, Öneryıldız [v. Turkey [GC],
no. 48939/99, § 96, ECHR 2004 XII]).”
- In
the present case, the applicant claimed that the authorities had
taken steps to shield the perpetrators from responsibility and had
done little to compensate him for the suffering caused to him.
- The Court notes that none of the three persons accused
of ill-treating the applicant was convicted of that crime. While one
of them died and could thus not be convicted, the allegation against
R.B. was never examined by the investigators or the courts, while
A.P. was relieved of all responsibility by the application of the
limitations period.
- In this latter respect the Court reiterates its
case-law, according to which (see Abdülsamet Yaman v. Turkey,
no. 32446/96, § 55, 2 November 2004):
“where a State agent has been charged with crimes
involving torture or ill-treatment, it is of the utmost importance
for the purposes of an “effective remedy” that criminal
proceedings and sentencing are not time-barred and that the granting
of an amnesty or pardon should not be permissible. The Court also
underlines the importance of the suspension from duty of the agent
under investigation or on trial as well as his dismissal if he is
convicted (see Conclusions and Recommendations of the United Nations
Committee against Torture: Turkey, 27 May 2003, CAT/C/CR/30/5).”
- In
the present case, the domestic courts found that the applicant had
been ill-treated, and the Government characterised the applicant's
ill-treatment as torture in its own report to the United Nations
Committee Against Torture (see paragraph 43 above). The medical
reports confirmed that he had been caused head trauma and anal
damage, consistent with his claim that he was beaten and raped with a
glass bottle. All these actions were carried out with the purpose of
extracting a confession. For the Court, these acts can only be
considered torture within the meaning of Article 3 of the Convention.
In such circumstances, the failure to initiate criminal proceedings
under Article 101/1 of the Criminal Code (torture), without any
explanation as to the choice of a less serious type of offence
(Article 101 – causing bodily harm), is insufficient to ensure
the preventive effect of the legislation passed specifically to
address the problem of ill-treatment.
The
Court believes that the preventive effect of legislation passed
specifically in order to address the phenomenon of torture can only
be ensured if such legislation is applied whenever the circumstances
so require, as they did in the present case.
- Moreover,
A.P. was never suspended from his position. The investigation and
court proceedings lasted for a long time, which was the sole reason
for the limitations period becoming applicable. Moreover, in the
light of Article 46 of the Criminal Code (see paragraph 41 above),
Articles 101 and 101/1 carried limitations periods of five and ten
years respectively. Thus, by refusing to apply Article 101/1 of the
Criminal Code to the present case (see the next paragraph), the
domestic authorities applied a shorter (five-year) limitations period
and allowed A.P. to escape criminal responsibility. In any event, no
limitation period should apply to acts of ill-treatment by a State
agent (see paragraph 73 above).
- The Court also notes the position adopted by the
Ministry of Internal Affairs which, even after it became aware of the
findings of the CPT, stated that it was “not aware of concrete
cases of recourse to inhuman methods of interrogation of persons
detained by the police” (see paragraph 44 above). It further
observes the acknowledged absence of efforts to develop modern
methods of investigation (see paragraph 45 above) and a substantial
delay in adopting a Code of Ethics for the police (which was adopted
almost four years after the CPT inquired about it, see paragraph 45
above).
- The
Court notes with great concern the Government's assertion that in
Moldova torture was considered an “average-level crime”,
to be distinguished from more serious forms of crime and thus
warranting reduced sentences (see paragraph 58 above). Such a
position is absolutely incompatible with the obligations resulting
from Article 3 of the Convention, given the extreme seriousness of
the crime of torture. Together with the other shortcomings mentioned
in paragraphs 72-76 above, this confirms the failure of the Moldovan
authorities to fully denounce the practice of ill-treatment by the
law-enforcement agencies and adds to the impression that the
legislation adopted to prevent and punish acts of ill-treatment is
not given full preventive effect. This conclusion is reinforced by
the fact that A.P. continues to work for the police and by the very
small amount of damages which he has had to pay, in instalments,
despite the lack of any evidence that the bailiff attempted to find
any property which A.P. may own. As such, the case gives the
impression not of preventing any future similar violations, but of
being an example of virtually total impunity for ill-treatment by the
law-enforcement agencies.
(c) Conclusion
- The
Court finds that not only was the applicant subjected to torture
while in police custody, but that the authorities had failed to offer
sufficient redress by failing to properly investigate within a
reasonable time his ill-treatment, as well as to ensure the
preventive effect of the law.
Therefore,
the Government's preliminary objection concerning the applicant's
alleged loss of victim status must be dismissed.
- There
has, accordingly, been a violation of Article 3 of the Convention.
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 EUR 20,000 in compensation for non-pecuniary damage
caused to him. He submitted that he had been suffering as a result of
his ill-treatment and continued to have health problems despite his
young age, and that there had not been an effective investigation,
also that he had been threatened and obstructed in the course of the
criminal proceedings against the perpetrators. The sum awarded to him
domestically (MDL 15,000, the equivalent of EUR 997 at the time), was
completely disproportionate to his suffering and the delay and small
increments in which he receives even that sum only added to his
humiliation.
- The
Government submitted that in the absence of a violation of any
articles of the Convention the applicant could not claim
compensation. In any event, the amount claimed was exaggerated and
abusive. By contrast with other cases referred to by the applicant,
in the present case the domestic courts found a violation of his
rights and awarded him compensation.
- The
Court reiterates that it has found not only that the applicant has
been ill-treated by police officers, in violation of the State's
obligation under Article 3 of the Convention to prevent such
treatment, but also in respect of the quality of the investigation
into the applicant's ill-treatment and of the domestic authorities'
failure to ensure the preventive effect of the law prohibiting
ill-treatment. It finds that the manner in which the authorities
treated the applicant during and after the criminal proceedings
against two of the perpetrators, and the absence of any form of
investigation of the alleged participation of a third officer, only
added to the applicant's sufferings. In the light of the above, the
Court fully accepts his claim.
B. Costs and expenses
- The
applicant claimed EUR 3,150 for legal costs. He referred to an
itemised list of the hours spent by his three lawyers working on the
case, according to which they had worked for 35 hours at an hourly
rate of EUR 90. He also included a copy of the recommendation
made by the Moldovan Bar Association on 29 December 2005, according
to which lawyers were advised to charge between EUR 40 and 150 per
hour or EUR 1,000 to 15,000 per case when they participated in
proceedings before international courts.
- The
Government submitted that no compensation for costs and expenses was
due to the applicant because he had not submitted a copy of his
contract with the lawyers. They challenged the number of hours worked
on the case and considered that the hourly fee was exaggerated.
- In
the present case, regard being had to the itemised list submitted by
the applicant and the complexity of the case, the Court awards EUR
2,500 for costs and expenses, less EUR 850 received by way of legal
aid from the Council of Europe, together with any value-added tax
that may be chargeable.
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
- Joins to the merits the Government's
preliminary objection concerning the applicant's victim status;
- Declares admissible the complaint under Article
3 of the Convention and dismisses the Government's preliminary
objection;
- Holds that there has been a violation of
Article 3 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 20,000
(twenty thousand euros) in respect of non-pecuniary damage and EUR
1,650 (one thousand six hundred and fifty euros) for 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 5 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
