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FOURTH
SECTION
CASE OF CIORAP v. MOLDOVA (No. 3)
(Application
no. 7481/06)
JUDGMENT
STRASBOURG
20 July
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 Ciorap v. Moldova
(no. 3),
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 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7481/06) 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 a Moldovan national, Mr Tudor Ciorap (“the
applicant”), on 26 January 2006.
- The
applicant was represented by Mr V Iordachi, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged that he had been ill-treated by the police and
detained in inhuman conditions.
- On
15 December 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Chişinău. He works
for “Social Amnesty”, an organisation which provides
legal help to persons in detention.
- On
11 October 2000 the applicant underwent an operation to drain fluid
from his liver. He was released from hospital on 21 October 2000.
- On
23 October 2000 he was arrested by the Department for Fighting
Organised Crime and Corruption on suspicion of fraud and was placed
in detention at the Hînceşti
police station. He alleged that he was suspended from an iron bar and
beaten with machine guns and rubber truncheons and that the beating
re-opened his surgical wound. He was placed in a small cell in the
police station, without a bed, mattress or blankets and without
access to a toilet or washing facilities, where he had to sleep on
the concrete floor. He was seen by a doctor on 29 October 2000,
who observed that the applicant’s surgical wound had reopened
and recommended that he be admitted to hospital immediately. However,
police officer Ş. refused a transfer
to the hospital.
- On
6 November 2000 the applicant was transferred to prison no. 13, where
he was placed into the medical treatment unit with the diagnosis
“post-surgery state” (see further Ciorap v. Moldova,
no. 12066/02, 19 June 2007). According to medical reports, on 7
November 2000 the applicant swallowed a nail and was hospitalised in
order to extract it. According to medical evidence, during 2000-2001
the applicant underwent 10 operations made necessary by acts of
self-harm, such as swallowing sharp objects and cutting himself (see
Ciorap v. Moldova (dec.), no. 12066/02, 11 October 2005).
- The
applicant made a number of complaints in respect of his alleged
ill-treatment by the police, the failure to give him medical
treatment and the inhuman conditions of detention. The prosecutor
opened a criminal investigation and interviewed the applicant, the
police officers involved and their colleagues, as well as the medical
personnel who had examined the applicant during his arrest. The
doctors confirmed that they had been called twice to attend the
applicant on the night of his arrest but that this had been in
connection with a post-surgery problem. The prosecutor found that the
applicant had made no complaint of ill-treatment when examined by the
doctors or by the superior police officers (see Ciorap v. Moldova
(dec.), no. 12066/02,
11 October 2005). All the applicant’s complaints were dismissed
as unfounded. This decision was confirmed by the investigating judge
on 21 June 2006 and 30 October 2006.
- In
a final judgment of 7 November 2006 the Supreme Court of Justice
found that on 7 October 2002 and 29 April 2003 the applicant had been
informed of the prosecutor’s decision to reject his request for
the initiation of a criminal investigation into his alleged torture
in October 2000. He was also informed of his right to challenge that
decision in court within ten days of the date on which he was
informed of it. However, the applicant did not challenge that
decision until three years later, without having asked for an
extension of the time-limit. The court therefore rejected his
complaint for failure to challenge the prosecutor’s decision
within the time-limit provided for by law.
- On
an unspecified date, the applicant initiated new court proceedings
against the Hînceşti police
station, the Prosecutor’s Office and the Ministry of Finance,
claiming compensation for the damage caused to him through his
ill-treatment upon his arrest on 23 October 2000, the failure to give
him medical treatment while in detention and the inhuman conditions
of detention.
- On
15 March 2007 the Hînceşti
District Court rejected his claims as unfounded. On 7 June 2007 the
Chişinău Court of Appeal quashed that judgment and partly
accepted the applicant’s claims. The court found that the
documents in the file established that police officer Ş.
had refused to allow the applicant to be treated in hospital even
though an urgent examination by a surgeon had been recommended by the
doctor who saw the applicant on 29 October 2000. The court also found
that the applicant had been detained at Hînceşti
police station in conditions that breached the requirements of
domestic law. In particular, the Law on preventive arrest (no.
1226-XIII, 27 June 1997) required that individuals detained pre-trial
had a minimum of two square metres of cell space, access to daylight
and fresh air, access to a toilet in sanitary conditions not
degrading human dignity, access to a shower once every ten days and
access to a bed with bed linen. The court referred to a letter from
the Ministry of Interior which acknowledged that at the time of the
applicant’s detention Hînceşti
police station had been insufficiently equipped to offer appropriate
conditions of detention, including proper ventilation. The court
awarded the applicant 100 Moldovan lei (MDL) (6 euros (EUR) at
the time) for non-pecuniary damage caused. The applicant appealed.
- On
21 November 2007 the Supreme Court of Justice accepted the
applicant’s appeal in cassation and partly quashed the lower
court’s judgment. The court confirmed the findings of the
Chişinău Court of Appeal concerning the failure to give the
applicant required medical treatment and to provide the applicant
with adequate conditions of detention. In reaching this conclusion,
the court referred to Article 3 of the Convention and the Court’s
judgments such as Kudła v. Poland [GC] (no. 30210/96,
ECHR 2000 XI), Sarban v. Moldova (no. 3456/05, 4
October 2005) and Ostrovar v. Moldova (no. 35207/03, 13
September 2005). The court added that while there was no domestic
legislation giving the applicant a right to compensation, the
Convention should be applied directly as it was part of the domestic
legal system and had precedence over domestic legislation by virtue
of the express provisions of Article 4 of the Constitution. The same
conclusion had been reached by the Constitutional Court in a judgment
of 14 October 1999. The court also relied on the findings of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment made during its visits in 1998,
2001 and 2004 concerning the substandard conditions of detention in
the Hînceşti police station. The
court held that the denial of medical treatment combined with the
conditions of detention, which had aggravated the applicant’s
medical condition, had amounted to inhuman treatment in breach of
Article 3 of the Convention. The court increased the award made to
the applicant in compensation for non-pecuniary damage to MDL 10,000
(EUR 600 at the time) and awarded him MDL 210 (EUR 12.6) in
compensation for pecuniary damage.
-
The applicant again requested the Hînceşti
Prosecutor’s Office to open a criminal investigation into his
alleged ill-treatment by the police, but the prosecutor rejected the
request. The applicant challenged this decision before the Hînceşti
investigating judge and subsequently the Supreme Court, which
dismissed his appeal on 1 October 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- In
the present application, the applicant complained about his detention
and treatment by the police between 23 October and 6 November 2000.
He contended under Article 8 of the Convention that he had been
ill treated by the police, detained in inhuman conditions and
denied medical treatment. He submitted that the compensation awarded
in the judgment of 21 November 2007 was inadequate. The Court
considers that it is more appropriate to consider these complaints
under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant contended that he had been beaten with machine guns and
rubber truncheons at the police station and that this caused his
surgical wound to reopen and to extend from 2 to 4 centimetres in
length. He alleged that the medical authorities had refused to
confirm his injuries in order to protect the police from
responsibility. He was denied medical treatment and forced to sleep
on a cold concrete floor. He was in extreme pain and repeatedly lost
consciousness. The award of damages by the Supreme Court was
completely inadequate, particularly in view of the fact that the
applicant had been deliberately mistreated by the police. It followed
that the applicant was still a victim of the violation of Article 3.
- The
Government submitted that the medical evidence indicated that the
applicant might have deliberately reopened his surgical wound as a
basis for his false accusations against the police. The domestic
courts had found that there had been a breach of Article 3 because
the applicant was denied the medical treatment he needed for eight
days following the doctor’s recommendation on 29 October 2000
and also because he had been detained in inhuman conditions between
23 October and 6 November 2000. They did not find that the applicant
had been tortured or that the breaches of Article 3 had had any
lasting effect on his health. The applicant had been awarded
compensation in respect of these breaches of Article 3 and no longer
had victim status. The award made by the Supreme Court was reasonable
in the light of the relatively minor breaches of Article 3.
- The
Court must first consider whether the applicant can still claim to be
a victim of a violation of Article 3 within the meaning of Article 34
of the Convention. In this connection it emphasises that it falls
first to the national authorities to redress any alleged violation of
the Convention. The question whether a person may still claim to be
the victim of an alleged violation of the Convention essentially
entails on the part of the Court an ex post facto
examination of his or her situation. A decision or measure of the
domestic authorities favourable to the applicant is not in principle
sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention. The question whether he has received reparation for the
damage caused – comparable to just satisfaction as provided for
under Article 41 of the Convention – is an important issue. It
is the Court’s settled case-law that where the national
authorities have found a violation and their decision constitutes
appropriate and sufficient redress, the party concerned can no longer
claim to be a victim within the meaning of Article 34 of the
Convention (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 179-181, ECHR 2006 V).
- In
the present case the Court considers that the question whether the
remedy provided by the national courts was sufficient, so that the
applicant can no longer claim to be a victim of a violation of
Article 3, is inextricably linked to the merits of this complaint. It
therefore joins the Government’s preliminary objection to the
merits and will determine, first, whether, and to what extent, the
applicant’s rights under Article 3 have been violated.
- The
Court takes as its starting point the fact that the applicant was
examined by a doctor on 29 October 2000 and found to be in need of
surgical treatment because his surgical wound had reopened. It
recalls its constant case-law to the effect that where an individual
is taken into police custody in good health but is found to be
injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused,
failing which a clear issue arises under Article 3 of the Convention
(see, for example, Selmouni v. France [GC], no. 25803/94,
§ 87, ECHR 1999 V). However, in the present case the
applicant was not in entirely good health when he was taken into
custody. He was arrested only two days after being released from
hospital following abdominal surgery. The applicant alleges that he
was beaten by police officers and that this caused the incision to
reopen. The medical evidence submitted to the Court does indicate
that the applicant experienced problems linked to the surgical wound
while in custody, but there is no medical evidence of any other
injury which could have been caused by a beating. The prosecutor who
investigated the applicant’s allegations was told by the
doctors who saw him during his detention at the police station that
they had been called twice to attend the applicant on the night of
his arrest but that this had been in connection with a post-surgery
problem and that the applicant had made no complaint to them of
ill-treatment. The applicant was examined by a doctor on 6 November
2000 and found to be in a “post-surgery” condition.
Moreover, to the extent that the condition of the applicant’s
abdominal wound deteriorated during his time in detention, the
Government have provided a plausible explanation. The applicant has a
history of self-harm in prison; on 7 November 2000 he needed an
operation to remove a nail that he had swallowed and this was the
first of ten operations made necessary by incidents of self-harm. The
medical evidence indicates that the applicant could have reopened the
wound by picking and scratching at it. On the basis of the material
before it the Court does not find the applicant’s allegations
of torture to be substantiated.
- There
is, however, evidence that the conditions at Hînceşti
Police Station where the applicant was detained for two weeks were
very poor. In particular, the applicant who was suffering from
problems with his surgical wound, had to sleep on a concrete floor
with no bedding. In addition, the applicant was denied hospital
treatment for eight days contrary to medical advice. These facts were
established by the domestic courts which, moreover, determined that
they amounted to inhuman treatment in breach of Article 3.
- The
object and purpose underlying the Convention, as set out in Article
1, is that the rights and freedoms should be secured by the
Contracting State within its jurisdiction. It is fundamental to the
machinery of protection established by the Convention that the
national systems themselves provide redress for breaches of its
provisions, with the Court exercising a supervisory role subject to
the principle of subsidiarity (see A. and Others v. the
United Kingdom [GC], no. 3455/05, §
174, ECHR 2009 ...). In the circumstances of the
present case, where the Supreme Court has examined the issues and
found a violation of Article 3 of the Convention, the Court considers
that it would be justified in reaching a contrary conclusion only if
satisfied that the national court had misinterpreted or misapplied
the relevant legal principles or reached a conclusion which was
manifestly unreasonable (see, mutatis mutandis, A. and
Others, cited above, § 174).
- That
is not the case here. Indeed, in the light of the principle of
subsidiarity referred to above, the Supreme Court’s decision to
apply the Convention directly, in the absence of a provision of
domestic legislation giving the applicant a right to compensation, is
to be commended. Moreover, the parties do not contest this part of
the Supreme Court’s judgment. The Court therefore accepts the
conclusion of the Supreme Court that the applicant was subjected to
inhuman treatment in breach of Article 3 as a result of being held
for two weeks in substandard conditions and being denied hospital
treatment for eight days, which aggravated his pre-existing medical
condition.
- The
only issue which remains to be determined is the amount of
compensation. The Supreme Court awarded the applicant the equivalent
of EUR 600 in respect of non-pecuniary damage. Even taking into
account the relatively short period of the detention in inhuman
conditions, this is considerably below the minimum generally awarded
by the Court in cases in which it has found a violation of Article 3
(see, for a recent example, Gavrilovici v. Moldova, no.
25464/05, 15 December 2009, where the Court awarded the
applicant EUR 6,000 in respect of five days’ detention in
inhuman conditions following an unwarranted criminal conviction in
violation of Article 10 of the Convention, and see also, for
example, Istratii and Others v. Moldova, nos. 8721/05, 8705/05
and 8742/05, 27 March 2007, where the Court awarded EUR 6,000 to Mr
Istratii, who had been held for approximately two months in inhuman
conditions of detention and who had suffered a delay of three hours
in the provision of emergency medical treatment).
- In
the light of the foregoing, the Court considers that the applicant
can still claim to be a victim of a violation of Article 3. It
therefore dismisses the Government’s preliminary objection and
declares part of the application admissible.
- It
also finds that there has been a violation of Article 3, arising out
of the inhuman conditions of detention and the failure to provide
timely medical assistance.
II. OTHER CONVENTION COMPLAINTS
- The
applicant complained under Articles 3 and 6 that a confession
extracted from him by torture was admitted in evidence against him
during the criminal proceedings. He complained in addition about
various alleged breaches of his rights under Articles 5 and 6 of the
Convention which took place at the time of his arrest in October 2000
and immediately thereafter. He also complained under Article 10 that
he was denied access to his medical file. Finally, he invoked Article
17 because of the untrue and contradictory statements made by various
State officials.
- The
Court repeats that the applicant’s allegation that he was
tortured is not substantiated. The complaint that the confession was
induced by torture is, therefore, manifestly ill-founded. It does not
appear from the information before the Court that the applicant
exhausted domestic remedies in respect of the other complaints, by
bringing them before the domestic authorities within the applicable
time-limits. Moreover, these complaints were not introduced before
the Court within the six months’ time limit laid down by
Article 35 § 1 of the Convention.
- In
conclusion, therefore, the Court considers that the remainder of the
application must be declared inadmissible in accordance with Article
35 §§ 3 and 4 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. Damage
- The
applicant claimed EUR 20,000 euros in respect of non-pecuniary
damage.
- The
Government maintained that the compensation awarded by the Supreme
Court had been sufficient. In the event that the Court decided to
award additional compensation, the sum claimed by the applicant was
excessive in view of the relatively minor nature of the breach.
- In
the light of all the circumstances, the Court awards the applicant
EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,540, representing 22 hours’ work
done by his legal representative, charged at EUR 70 per hour,
together with EUR 14.50 translation fee, for the costs and expenses
incurred before the Court.
- The
Government submitted that the claim was unrealistic in the light of
national economic conditions.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 limited nature of the issue before it, the Court considers it
reasonable to award EUR 1,000 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
- Joins to the merits the Government’s
preliminary objection about lack of victim status;
- Declares the complaint concerning conditions of
detention and failure to provide timely medical assistance admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention and dismisses in consequence the Government’s
preliminary objection;
- 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 4,000 (four
thousand euros), in respect of non-pecuniary damage and EUR 1,000
(one thousand euros) in respect of costs and expenses, plus any tax
that may be chargeable, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
