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FOURTH
SECTION
CASE OF
MĂTĂSARU AND SAVIŢCHI v. MOLDOVA
(Application
no. 38281/08)
JUDGMENT
STRASBOURG
2 November
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 Mătăsaru and
Saviţchi 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
Lawrence Early, Section
Registrar,
Having
deliberated in private on 12 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38281/08) 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 two Moldovan nationals, Mr Anatol Mătăsaru
and Mrs Djulieta Saviţchi (“the applicants”), on 28
July 2008.
- The
applicants were represented by Mr V. Gribincea from “Lawyers
for Human Rights”, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicants alleged, in particular, that they had been illegally
detained and that their right to freedom of assembly had been
breached as a result. The first applicant alleged, in addition, that
he had been ill-treated and that the authorities had failed to
conduct an effective investigation into the matter.
- The
application was allocated to the Fourth Section of the Court. On
25 March 2009 the President of the Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were both born in 1970 and live in
Chişinău. They are married to each other.
1. The first applicant's alleged ill-treatment and the
investigation into his complaint of ill-treatment
- The
first applicant is the owner of an Internet café. On 22
October 2006 at around 6.10 p.m. he ejected a boy from the café
because he had prevented another boy from using the Internet. The
first applicant then went to another address and brought a plumber
(C.) back in order to do some repair work at the café.
- While
he was away, two persons (C.A. and D.A.; C.A. was the Commander of
the Special Forces police regiment “Scut”) came to the
café and asked L.C., the café manager who was on duty
on that day, about the first applicant's whereabouts.
- L.C.
told them that the first applicant would return shortly and they went
outside. L.C. then called the second applicant, the first applicant's
wife, and told her that two men had been looking for the first
applicant. She asked L.C. to ask one of the men to come to the
telephone. When L.C. went outside to do so, he saw the first
applicant on the ground, unconscious. One of the men who had been
looking for him earlier was giving him emergency assistance. He
informed the second applicant of what he had just seen and then
called an ambulance and the police.
a. The first refusal to open a criminal
investigation
- On
25 October 2006 the first applicant lodged a complaint with the
police, stating that when he had approached the Internet café
he had seen two men and a boy near the entrance. The boy was the one
whom he had ejected earlier from the café. One of the men
asked the boy: “Is that him?”. Having received an
affirmative response, the man punched the first applicant in the
face. When the first applicant tried to resist, the second man hit
him on the back of his head with a hard object, following which he
lost consciousness. When he regained consciousness, he was on the
ground and one of the attackers was giving him emergency medical
assistance. That man told the persons who had gathered around that
the first applicant had had an epileptic fit.
- The first applicant was taken to hospital and was
prescribed in-patient treatment. On 25 October 2006 he was examined
by a doctor, who noted that he had a hematoma around his right eye
and on his nose (5x3 and 2.5x3 cm), and one on the back of his head
measuring 0.3x0.2 cm. The specialist also noted a neurologist's
diagnosis dated 23 October 2006, according to which the first
applicant had suffered a head trauma. The specialist finally
established that, given the location of the various injuries suffered
by the first applicant, it was “unlikely that they could have
been caused by a fall”.
- On 23 November 2006 the prosecutor's office decided
not to initiate criminal proceedings against C.A. and D.A., “because
the act was not prohibited by criminal law”. The prosecutor
found that C.A. had offered the first applicant medical help and had
not attacked him.
b. The second refusal to open a criminal
investigation
- On
10 January 2007 the hierarchically superior prosecutor annulled that
decision, finding it premature and taken in the absence of a thorough
examination of the circumstances of the case. In particular, there
had been no verification of whether the first applicant had had an
epileptic fit and whether he had previously suffered from epilepsy.
In addition, the statements of C.A. and D.A. were contradicted by the
statement by L.C., according to which they had been looking for the
first applicant before the alleged attack. Moreover, other witnesses
identified by the first applicant, including C.I., had not been
heard.
- On
25 January 2007 the prosecutor inquired with the local medical
authorities about the first applicant's alleged medical condition. On
29 January 2007 the local territorial medical association
replied that it did not have the first applicant's medical file and
that it could not confirm whether the first applicant suffered from
epilepsy.
- On
30 January 2007 L.C. was questioned again and repeated his earlier
statement, reiterating that C.A. and D.A. had been looking for the
first applicant before the attack.
- On 15 February 2007 the prosecutor decided not to
initiate criminal proceedings against C.A. and D.A. The decision was
almost identical to that of 23 November 2006, although it contained a
summary of the statement made by L.C.
c. The third refusal to open a criminal
investigation
- On
6 June 2007 the hierarchically superior prosecutor annulled that
decision, finding it premature. The prosecutor in charge of the case
was ordered to hear the second applicant and the ambulance doctor who
had given the first applicant medical treatment.
- On
an unknown date the second applicant made a statement to the
prosecutor and confirmed having received a call from L.C., informing
her that two men had been looking for the first applicant.
- On 10 September 2007 the prosecutor decided not to
initiate criminal proceedings against C.A. and D.A. The decision was
almost identical to the two previous decisions, although it mentioned
that the ambulance doctor had been interviewed and had confirmed that
he had diagnosed the first applicant's condition on 22 October 2006.
However, he had not filled in the first applicant's medical file and
did not know who had done so.
d. The fourth refusal to open a criminal
investigation
- The
first applicant complained about that decision to the hierarchically
superior prosecutor. The latter rejected the complaint on 18 February
2008, finding it ill-founded.
- The
first applicant challenged that decision before the Centru District
Court. On 15 April 2008 the investigating judge of the Centru
District Court accepted the request and annulled the decisions of
10 September 2007 and 18 February 2008. The court found that the
facts of the case had not been properly verified, as was obvious from
the decisions themselves, which had failed to analyse the first
applicant's statements and the medical report of 25 October 2006.
Moreover, the prosecutor had not inquired as to whether the first
applicant had had a history of epileptic attacks or had been seeing a
psychiatrist, and whether the injuries suffered by the first
applicant could have been the result of a fall.
- On
30 May 2008 the prosecutor obtained a copy of the first applicant's
medical file, which contained only data registered on or after
22 October 2006.
- On 11 June 2008 the prosecutor decided not to initiate
criminal proceedings against C.A. and D.A. The decision was almost
identical to the three previous decisions, adding that the specialist
who had filed the report of 25 October 2006 had stated that the
injuries suffered by the first applicant could have been caused by a
fall. In addition, the first applicant had refused to submit a
medical certificate which attested that he had lost consciousness
after a blow to the occipital area of his cranium.
e. Opening of the criminal
investigation
23. On
9 July 2008 the first applicant challenged that decision in court. He
referred to the fact that he had never suffered from epilepsy and
that there was no statement by the medical expert in the file
indicating that the injuries could have been caused by a fall. He
also noted that C.A. was known for his violent
behaviour, mentioning that on 10 May 2008 he had
attacked the journalist Ghenadie Brega (see
Brega v. Moldova, no. 52100/08, 20 April 2010).
24. The
complaint was forwarded to the hierarchically superior prosecutor,
who rejected it on 17 July 2008. The prosecutor found that the first
applicant's allegations had not been confirmed by facts and that the
statements of witnesses showed that he had not been hit by C.A.
and D.A. but had been helped by them.
- The first applicant challenged that decision in court.
On 20 October 2008 the Centru District Court accepted the request and
annulled the decisions of 11 June 2008 and 17 July
2008. The court found that not all the circumstances of the case had
been fully examined. Moreover, the medical evidence and witness
statements on which the prosecutor had relied could not be used as
evidence since they had not been obtained as part of a proper
criminal investigation. The case was sent back for examination by the
prosecutor.
26. On 25 November 2008 the Centru
district prosecutor's office initiated criminal proceedings on the
basis of the first applicant's complaint of 25 October 2006. However,
he did not receive a copy of that decision, and saw it for the first
time among the documents attached to the Government's observations.
27. On 2 February 2009 the first applicant
asked the Prosecutor General to assign the case to another prosecutor
in view of the perceived bias of the prosecutor dealing with the
case. On 3 February 2009 the Deputy Prosecutor General
assigned the case to the Chişinău Prosecutor's Office. The
reason for this re-assignment was that “several tendentious
circumstances appeared within the framework of the relevant criminal
proceedings which could cause the investigation to be excessively
lengthy”.
- In late February 2009 both applicants were questioned,
but were not shown the minutes of the interviews on the ground of
protecting the confidentiality of the investigation.
- On 29 June 2009, after communication of the present
case to the respondent Government, the prosecutor formally named C.A.
and D.A. as suspects in the case. The applicants found out about that
decision from the Government's observations.
- On 21 September 2009 the first applicant asked the
prosecutor to inform him about the progress of the investigation. He
was shown a recent medical report concerning the injuries caused to
him in 2006, but he was refused permission to make a copy of that
report for confidentiality reasons. The first applicant had not been
informed before the second report had been ordered and he had
therefore not been able to exercise any of his rights under Article
145 of the Code of Criminal Procedure (“the CCP”, see
paragraph 61 below).
- On 28 September 2009 the charges against C.A. and D.A.
were dropped. According to the applicants, they received a copy of
the decision when they received the Government's observations of 30
December 2009.
- On 23 October 2009 the Chişinău Prosecutor's
Office transferred the case back to the Centru district
prosecutor's office, which had territorial competence to investigate
it.
33. On 6 November 2009 the Centru
district prosecutor's office suspended the
investigation because the identity of the perpetrator(s) had not been
established. On 15 December 2009 the first applicant complained to
the Prosecutor General's Office about the suspension of the
investigation. He also noted that he had not been informed about the
suspension and had only found out about it on 8 December 2009 when he
had called the prosecutor and then visited his office on 15 December
2009. The first applicant added that the charges against C.A. and
D.A. had apparently been dropped but that he had not seen any
decision in that respect. Moreover, on an unknown date and for
unknown reasons the case had been re-assigned back to the Centru
district prosecutor's office, again without his having been informed.
In addition, no cross examination with the applicants' participation
and that of C.A. and D.A. had ever been organised. No attempt had
been made to find the boy who had been ejected from the internet
café, despite L.C.'s witness statement confirming that the two
persons whom he had seen with the first applicant had been
accompanied by a boy. L.C. was never asked to identify C.A. and D.A.
at an identity parade, even though he had given a complete
description of the two persons who had been looking for the first
applicant immediately before he was attacked.
- On
15 January 2010 the first applicant was informed that the decision of
6 November 2009 had been quashed and the investigation had been
reopened.
- On
22 January 2010 the first applicant repeated his request, noting that
he had received no response to his complaint concerning the dropping
of charges against C.A. and D.A. or to that concerning the transfer
of the case back to the Centru district prosecutor's
office. On 2 March 2010 the Prosecutor General's Office informed him
that no unlawful act had been apparent in the dropping of the charges
or in transferring the case to the Centru district
prosecutor's office.
36. The
investigation is pending before the Centru district
prosecutor's office.
2. The protest
of 29 January 2008
37. On
29 January 2008 the applicants organised a
protest march in the centre of Chişinău,
which had been authorised by the Chişinău
municipality. The aim of the protest was to draw public attention to
the first applicant's ill-treatment and the prosecution's inertia in
investigating the case. Only the applicants participated in the
protest, holding banners with inscriptions such as:
“Prosecutors, you should respect the law and human rights!”,
“The Moldovan prosecutor's office protects police criminals!”,
“NO to corruption in the Moldovan prosecutor's office!”,
“NO to bandits in the law-enforcement agencies!” and
“The prosecutor's office covers up the crimes of police officer
[C.A.]!”.
38. The
applicants protested in front of the Centru police station, then in
front of the Prosecutor General's Office. The applicants were
approached by plain-clothed officers, who were shown the
authorisation for the march and who
accompanied the applicants until they reached the Ministry of
Internal Affairs. The applicants stood across the road from the
Ministry and protested by displaying banners and blowing a whistle.
At 10.15 a.m. the plain-clothed officers asked the applicants to
follow them to the police station because the applicants had insulted
them.
39. The
protest and the arrest were filmed by reporters. The video footage
shows the applicants next to a building with no officer in the
vicinity until the time of the arrest. The plain-clothed officers who
arrested the applicants were asked by the applicants and the
reporters about the reasons for the arrest. They answered that the
applicants' identities needed to be verified and that they had
“insulted the law-enforcement authority” through the
messages on the banners. They did not specify which banner was
considered insulting, other than to ask: “Bandits, is that not
insulting?” It appears from the video materials that the
applicants were not asked to provide identification documents.
40. According
to the applicants, they were released immediately after a short
period in detention in front of the police station on the morning of
29 January 2008. It appears from the video materials submitted
by the parties that one plain-clothed officer explained that “[the
applicants] were not arrested but only brought in for identification.
The protest has been authorised, so they are
free to continue it”. They were subsequently rearrested in
front of the Prosecutor General's Office at 10.15 a.m. and detained
until 5 p.m.
41. On
the same day the applicants were charged with having committed
several administrative offences, provided for under Article 174 §
1 of the Code of Administrative Offences (“the CCA”)
(refusal to abide by the lawful orders of a police officer), Article
174/1 §§ 2-4 of the CCA (violation of the order on holding
assemblies), Article 174/5 § 1 of the CCA (resisting a police
officer), and Article 174/6 § 1 of the CCA (insulting a police
officer). On the same day, a judge of the Centru District Court
decided to postpone the hearing, ordering the applicants' release at
5 p.m.
42. On
21 April 2008 the Centru District Court dismissed all the charges
against the applicants, except for the charge of insulting a police
officer on account of the inscription “The prosecutor's office
covers up the crimes of police officer [C.A.]!”. The applicants
were found guilty of having committed the administrative offence
provided for under Article 174/6 § 1 of the CCA (see below).
43. The
applicants appealed, arguing that the statement on the banner
concerning the prosecution's failure to properly investigate their
alleged ill-treatment by C.A. had been based on facts. The aim of the
message had not been to disseminate insults but rather to provoke an
effective investigation by the prosecutor's office. Moreover, the
applicants had not seen C.A. on 29 January 2008. Therefore, even
if the banner could be seen as insulting to C.A., it could not be
said that they had intentionally insulted him while he was carrying
out his duty to maintain public order.
44. On
7 August 2008 the Chişinău Court of
Appeal quashed the decision of 21 April 2008, finding that the lower
court had not analysed the applicants'
arguments and had not fully determined the circumstances of the case.
The case was sent for a retrial.
45. On
13 November 2008 the Centru District Court found the applicants
guilty of the administrative offences provided for under Articles 174
§ 1, 174/1 §§ 2-4, 174/5 § 1, and 174/6 § 1
of the CCA.
46. On
10 February 2009 the Chişinău Court of Appeal quashed the
decision of 13 November 2008 and discontinued the proceedings against
the applicants. The court found that the lower court had not
indicated the evidence on which it had based its decision and that
the arresting police officers who had witnessed the events were
unsure whether the applicants had resisted or insulted them.
3. The protest
of 18 December 2008
- On
18 December 2008, national police day, the first applicant intended
to protest in the centre of Chişinău against the
prosecution's failure to properly investigate his ill-treatment by
C.A. He had previously obtained the Chişinău mayor's
permission to bring domestic animals to the protest.
- On
18 December 2008 at 9.15 a.m. the first applicant parked his minibus
in front of his garage. Inside were a mule, dressed in uniform and
bearing the inscription “miliţioner”
(officer of Soviet-time militia),
and a pig, dressed in black and bearing the inscription “porcuror”
(a play on the words “pig” and “prosecutor”,
roughly translated as “pigsecutor”).
- At
9.30 a.m. a car belonging to the Special Forces police regiment
“Scut” with four men inside arrived at the garage. Ten
minutes later a traffic police car arrived. Minutes later an
operative group of the Ministry of Internal Affairs arrived, followed
by the Centru sector deputy head of the police station, some
plain-clothed police officers, a criminal investigator and a
specialist. The media arrived at the garage shortly afterwards.
- The
Special Forces officers who had arrived first prevented the applicant
from leaving the garage area with his minibus by blocking the exit
with their own car and later took his car keys and papers, while the
criminal investigator sealed off the area with yellow tape. The first
applicant took his animals out of the minibus in order to go on foot
to the protest area. At 10.30 a.m. his minibus was driven away by the
traffic police, without answering the protests of the second
applicant and questions put by the media.
- At
11.30 a.m. the deputy head of the Centru police station ordered the
applicant's arrest because he had urinated in a public place. The
first applicant declared that he had not done so.
- It
is apparent from the video footage aired on several TV channels in
Chişinău that the first applicant asked repeatedly for
witnesses of the alleged act to be identified, and the second
applicant asked to be shown the place where the alleged wrongdoing
had taken place. They received no reply. One journalist commented
“After several hours during which more than 20 police officers
present had been looking for a reason to make the protester show
respect, they finally found a pretext for his arrest: that he had
urinated in a public place”.
- On
18 December 2008 the first applicant was charged with having
committed the administrative offences provided for
under Article 164 § 1 of the CCA (hooliganism), Article 174 §
1 of the CCA (refusal to abide by the lawful orders of a police
officer), Article 174/5 § 1 of the CCA (resisting a police
officer), and Article 174/6 § 1 of the CCA (insulting a police
officer). The report concerning the events of the day noted that on
18 December 2008 at approximately 11.10 a.m. the operative group of
the Centru police station was on route in response to a call for
assistance when it discovered the first applicant's minibus and two
animals next to it, dressed in uniform and bearing the names
“miliţian”
and “porcuror”.
The operative group stopped to find out what was going on, but the
first applicant “reacted negatively” to their presence
and made direct comparisons between the animals and the police
officers, thus insulting them. He then went behind the police car and
openly urinated. Having been asked to stop, he refused and resisted
the officers when they forced him into the police car and brought him
to the police station.
54. On
22 December 2008 the Centru District Court found the first applicant
guilty of having committed the administrative offences provided for
under Articles 164 § 1, 174 § 1 and 174/5 § 1 of the
CCA.
55. The
first applicant appealed, noting the absence of any evidence that he
had committed any wrongdoing. Moreover, the reports filed by the
police officers mentioned that the first applicant had already been
asked to follow them to the police station, before the alleged
offence had taken place. It was therefore unclear what the reason for
the limitation of his liberty before the alleged wrongdoing had been.
Since he had not committed any act that warranted his being
brought to the police station, the police officers' request to follow
them had been unlawful. Therefore, his refusal to abide by that
request, and his resistance to unlawful orders, could not be
considered a violation of the law. The first applicant added that
the hearing had never been officially opened and had taken place in
the absence of witnesses and his lawyer. He had not been allowed to
describe the circumstances of the case, since after about one minute
of presenting the arguments he had been interrupted and the judge had
declared that he was guilty of having committed three administrative
offences and was fined 200 Moldovan lei (approximately 14 euros (EUR)
at the time).
56. On
2 February 2009 the Chişinău Court of Appeal quashed the
decision of 22 December 2008 and ordered a re-trial by the
first-instance court. The court found that the lower court had not
fully examined the circumstances of the case, had not heard witnesses
and had examined the case in the absence of the applicant's lawyer,
failing to note that absence in the minutes of the hearing.
57. On 11 May 2009 the Centru District
Court discontinued the administrative proceedings against the first
applicant, finding that there was not sufficient evidence in the file
to prove that he had committed any offence and that the police
officers who had reported on the offence allegedly committed by the
first applicant had refused to appear in court. The court added that
the reports, which were the only evidence in the file, were
insufficient to establish that an offence had been committed. The
court found that “the actions of the police officers were not
well-founded and lawful, [as] they did not have a ground on which to
bring [the first applicant] by force to the police station.”
58. On
24 July 2009 the Chişinău Court of Appeal dismissed the
appeal lodged by the Centru Police Commissariat as out of time. That
judgment was final.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Law
no. 26 of 22 February 2008, in force since 22 April 2008,
provides that no authorisation is needed for holding a peaceful
demonstration with less than fifty participants.
- The relevant provisions of Law no. 1545 on
compensation for damage caused by the illegal acts of the criminal
investigation organs, prosecution and courts have been set out in
Sarban v. Moldova, no. 3456/05, § 54, 4 October
2005.
- The relevant part of Article 145 of the Code of
Criminal Procedure reads as follows:
“Article 145. Actions preceding an expert report
(1) The investigating authority or the court,
when ordering an expert report, shall summon the parties and the
expert, if the latter has been assigned by the investigating
authority or the court.
(2) On the date set in the summons, the
parties and the expert shall be informed of the object of examination
and of the questions which the expert will have to answer, and it
shall be explained [to the parties] that they have the right to make
remarks concerning those questions or to ask for them to be amended
or added to. At the same time, the parties shall be informed of their
right to select an expert of their choice to participate in the
expert report.”
- The applicants referred to reports by the Moldovan
Centre for Human Rights (the Ombudsman's office) for 2007 and 2008,
which had found that various provisions of administrative law had
been frequently abused by the police by unlawfully detaining
individuals. They also noted that members of the Hyde Park
non-governmental organisation had been arrested at least 11 times
during 2006-2009, while the first applicant had been arrested six
times during the same period.
- The applicants submitted copies of five judgments
adopted by the Supreme Court of Justice concerning unlawful
administrative detention or prosecution. These judgments allegedly
constituted that court's entire case-law on that issue during 2009.
The awards made in those cases varied between the equivalent of EUR
62 and EUR 206.
- The applicants referred to a number of court actions
lodged under Law no. 1545, cited above, the examination of which had
lasted for approximately two years or was still pending before the
domestic courts. In many of these cases the courts postponed numerous
hearings due to the failure of the defending State authorities'
representatives to appear before the courts. Moreover, enforcement of
final judgments against the State was a long-standing problem in
Moldova, as established in numerous cases decided by the Court.
THE LAW
- The
first applicant complained of a violation of Article 3 of the
Convention as a result of the insufficient investigation into his
ill-treatment.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicants complained of a violation of Article 5 § 1 of the
Convention as a result of their detention on 29 January 2008. The
first applicant also complained, under the same Article, that his
arrest on 18 December 2008 had been unlawful. 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;
...”
- The
applicants also complained of a violation of their right to peaceful
assembly, contrary to Article 11 of the Convention, as a result of
the disruption of the protest of 29 January 2008. The first applicant
also complained about the disruption of his protest of 18 December
2008.
Article
11 reads as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
- The
first applicant finally complained that, contrary to Article 13 of
the Convention, he did not have an effective remedy in respect of his
complaint under Article 3 of the Convention. 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
Government conceded that there had been a violation of the
applicants' rights guaranteed under Article 5 of the Convention as a
result of their unlawful detention. Moreover, that violation was
established by the domestic courts, which in itself offered partial
satisfaction to the applicants. In order to obtain full compensation
they needed to claim it under Law no. 1545 (see paragraph 60
above). However, they had failed to do so and thus they had not
exhausted the available domestic remedies. Moreover, the applicants
could have relied directly on Article 5 § 5 of the Convention in
their submissions to the domestic courts, which could have awarded
them compensation.
- The
applicants acknowledged that they could have claimed compensation for
their unlawful detention under Law no. 1545. However, in practice
that remedy was not effective. They noted that in Scordino
v. Italy (no. 1) ([GC] no. 36813/97, § 195,
ECHR 2006 V) the Court already established that excessive delays
in an action for compensation would render the remedy inadequate. In
the same judgment, the Court found that “in respect of a
compensatory remedy designed to redress the consequences of
excessively lengthy proceedings, that period should not generally
exceed six months from the date on which the decision awarding
compensation becomes enforceable” (§ 198 in fine).
In the applicants' opinion, recent case-law of the Supreme Court of
Justice proved that court actions lodged under Law no. 1545 were
examined for long periods of time and years could pass before the
decisions adopted were enforced (see paragraph 64 above).
In
addition, the awards made by the courts in 2009 were very small and
did not offer sufficient just satisfaction for the violations
established (see paragraph 63 above).
- The
Court notes that the existence and applicability of the remedy
referred to by the Government was not in dispute between the parties,
the applicants having challenged only the effectiveness of the
remedy. In doing so, they relied on specific examples of recent
case-law showing that the remedy was both slow in its effect and
generally resulted in awards not capable of offering sufficient just
satisfaction. The Government did not rely on any other case-law to
counter these arguments, but only stated in a general manner that the
applicants could not prove the alleged inefficiency of the remedy
under examination without first attempting to use it. The Court
considers that the awards made by the domestic courts in similar
cases (see paragraph 63 above) were small in comparison to what the
Court has awarded in its own judgments in respect of Moldova (see,
for instance, David v. Moldova, no. 41578/05, § 47, 27
November 2007, and Hyde Park and Others v. Moldova (no. 4),
no. 18491/07, § 70, 7 April 2009).
- At
the same time, the Court notes that the applicants did not argue that
their case was special in any manner, but rather argued generally
that the domestic courts never made awards of a nature capable of
offering sufficient just satisfaction in cases concerning illegal
administrative detention. They therefore sought a finding that an
entire class of cases should not be dealt with by the domestic courts
but rather by the Court directly. The Court considers that it would
need to be presented with clear evidence of systematic denial of
sufficient just satisfaction to victims of Article 5 violations
before accepting such an argument. It finds that the applicants did
not submit sufficient evidence in this respect. It notes that in at
least one case the Moldovan courts awarded an applicant a substantial
amount of compensation, exceeding EUR 10,000 (see Duca v. Moldova
(striking out), no. 1579/02, § 13, 10 June 2008). The Court
is aware of the differences between that case and the present one:
the Duca case concerned a criminal prosecution, rather than
administrative arrest as in the present case; the unlawful
deprivation of liberty in that case lasted for a much longer period
of time and the award made included compensation for violations of
Article 3 of the Convention. Nevertheless, the Court considers that
this case reinforces the presumption that domestic courts in Moldova,
in principle, may award sufficient just satisfaction.
- As
for the alleged excessive length of the proceedings under Law
no. 1545, the Court notes that the examples relied on by the
applicants do not suffice to establish a de facto denial of
compensation, given that the proceedings in most of those cases
lasted for approximately two years. Moreover, no evidence was
submitted of any delays in enforcing judgments awarding such
compensation. As for the two examples of cases where proceedings
lasted for more than six years, the Court considers that they are not
representative enough to show that proceedings brought under Law no.
1545 have systematically lasted for excessive periods of time.
- The
Court would observe, however, that it will for future purposes
examine carefully the evolution of judicial practice in the
respondent State and that it cannot be excluded that it will change
its stance if it becomes clear that the awards made by domestic
courts are systematically manifestly inconsistent with those which
the Court would make in its own judgments or if compensation
proceedings, including enforcement of awards made, routinely exceed
reasonable periods of time.
- In
view of the findings above, the Court considers that the applicants
did not exhaust available domestic remedies by failing to initiate a
civil court action under Law no. 1545. Accordingly, their complaints
under Article 5 of the Convention must be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
- In the Government's opinion, the applicants could have
raised their complaint under Article 11 before the domestic courts,
but had failed to do so. The Court accepts this objection for the
same reasons for which it accepted the objection concerning Article 5
of the Convention, even though Law no. 1545 was not applicable. In
this respect, the Court notes that all the proceedings in the present
case were initiated by the police due to the applicants' alleged
violation of various provisions of the law. The courts eventually
dismissed all the charges against the applicants, but they could not
exceed the parties' claims by awarding compensation to the applicants
in the absence of a request on their part. It was the combination of
a full acquittal by the courts and the absence of any claim for
compensation on the part of the applicants which leads the Court to
the conclusion that this complaint must be rejected for failure to
exhaust domestic remedies, pursuant to Article 35 §§ 1 and
4 of the Convention.
- The
Government also submitted that the first applicant had failed to
exhaust available domestic remedies in respect of his complaints
under Articles 3 and 13 of the Convention by lodging his application
with the Court while the criminal investigation was still pending.
The
Court considers that this objection is closely related to the merits
of the first applicant's complaints under Articles 3 and 13 of the
Convention. It will therefore examine this preliminary objection
together with the merits of the case.
- The
Court therefore concludes that all of the complaints made by the
second applicant are inadmissible, as are those made by the first
applicant under Articles 5 and 11 of the Convention. It also
considers that the first applicant's complaints under Article 3 and
13 of the Convention 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. In accordance with its decision
to apply former Article 29 § 3 of the Convention (see paragraph
4 above), the Court will immediately consider the merits of the
complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The submissions of the parties
- The
first applicant complained of a violation of Article 3 as a result of
the ineffective investigation of his ill-treatment. The investigation
was lengthy and affected by procedural shortcomings such as the lack
of independence of the prosecutor dealing with the case, the failure
to initiate criminal proceedings for a long time, and the failure to
sufficiently involve and inform the victim. In respect of the length
of the investigation, the applicant submitted that by November 2006
most of the evidence in the case had been collected, and subsequent
evidence-gathering measures were sporadic. For over three years the
investigation was limited to hearing the few witnesses and obtaining
a couple of medical reports. Moreover, the investigation was formally
discontinued for 18 months during that period. While the Government
referred to the first applicant's alleged refusal to allow access to
his medical file in order to verify the issue of epilepsy, they did
not mention that the prosecutor had been instructed to do so on 6
July 2007, but in fact requested access only on 11 June 2008 and was
granted access on the same day. Finally, the applicant was never
asked to provide any kind of medical information, the documents in
the file showing simply that he had been summoned and interviewed.
- The first applicant submitted that he was completely
excluded from the investigation and only found out about some of the
decisions taken from the Government's observations. Moreover, on some
occasions the authorities actively resisted his attempts to access
the materials of the investigation. For instance, on 7 December 2007
and 3 July 2008 he requested access to materials and permission to
make copies in order to lodge an appeal. Having been granted such
access by the higher ranking prosecutor, it was then blocked by the
prosecutor dealing with the case. Only after a direct order by an
investigating judge on 20 October 2008 did the prosecutor finally
give him access to the materials. The first applicant also noted the
prosecutor's refusal to grant him access to the minutes of his own
interview in February 2009, as well as a medical report on his own
injuries in September 2009. Finally, the investigation was not
thorough. For instance, there was no attempt to establish whether the
first applicant had indeed ejected a boy from the Internet café
and whether that boy was the son of one of the alleged attackers;
there was no attempt to find that boy and interview him. No attention
was given to the report made by the police on the day of the attack,
nor was there any analysis of the discrepancy between the accused's
statement concerning the first applicant's alleged epileptic fit and
the medical evidence excluding the possibility that the injuries had
been the result of a fall, with the obvious conclusion that the first
applicant had been hit by someone.
- The
Government submitted that the investigation into the first
applicant's alleged ill-treatment had been prompt, as proved by the
many investigative measures taken immediately after the complaint had
been lodged. The case was examined thoroughly, and the superior
prosecutors and courts ordered repeated examinations in order to
ensure a complete investigation. Moreover, the contradictory evidence
submitted by the parties slowed down the proceedings.
B. The Court's assessment
- The
Court notes that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the
nature of things, relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see Kudła v. Poland [GC], no. 30210/96,
§ 91, ECHR 2000 XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001 III). Although the
purpose of such treatment is a factor to be taken into account, in
particular whether it was intended to humiliate or debase the victim,
the absence of any such purpose does not inevitably lead to a finding
that there has been no violation of Article 3 (see Peers,
cited above, § 74).
- The
Court recalls that the obligation on the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
together with Article 3, requires States to take measures designed to
ensure that individuals within their jurisdiction are not subjected
to torture or inhuman or degrading treatment or punishment, including
such ill-treatment administered by private individuals (see, mutatis
mutandis, H.L.R. v. France 29 April 1997, § 40,
Reports of Judgments and Decisions 1997 III; A. v. the
United Kingdom, 23 September 1998, § 22, Reports 1998 VI;
Z and Others v. the United Kingdom [GC], no. 29392/95, §§
73-75, ECHR 2001 V; E. and Others v. the United Kingdom,
no. 33218/96, § 88, 26 November 2002; and M.C. v. Bulgaria,
no. 39272/98, § 149, ECHR 2003 XII).
- In
a number of cases, Article 3 of the Convention gives rise to an
obligation to conduct an official investigation (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102, Reports
1998-VIII). Such an obligation cannot be considered in principle to
be limited solely to cases of ill-treatment by State agents (see,
mutatis mutandis, Calvelli and Ciglio v. Italy
[GC], no. 32967/96, ECHR 2002 I, and M.C. v. Bulgaria,
cited above, § 151).
- An
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, mutatis mutandis, Assenov and
Others v. Bulgaria, 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.
- In
the present case, the Court notes that the applicant suffered
injuries, allegedly after being attacked by two persons. Given the
location of his injuries (the eye and nose as well as the back of his
head), it was “unlikely that they could have been caused by a
fall”, as was established by the medical expert (see paragraph
10 above). The medical evidence would therefore support the
applicant's claim that he was the victim of an attack. At the same
time, it is undisputed that the applicant lost consciousness and
required urgent first aid, followed by several days' in-patient
treatment. In the Court's view, such actions putting a person's life
and health in danger attain the minimum level of severity so as to
fall within the ambit of Article 3 of the Convention. Accordingly,
the authorities had to comply with their procedural obligations under
Article 3 to investigate the alleged attack thoroughly.
- Moreover,
the procedural obligations under Article 3 took on a special
importance after June 2008, when the domestic courts established that
C.A., a high ranking police officer accused of having attacked the
first applicant, had attacked without any ground a journalist and
subsequently made statements in an attempt to deceive the courts with
a view to convicting the journalist of resisting the lawful orders of
the police and insulting police officers (see Brega, cited
above, §§ 8, 17 and 18).
- The
investigation into the first applicant's ill-treatment started in
October 2006 and is still ongoing after four years. During that
period, it was officially suspended or interrupted several times. On
one occasion the Prosecutor General's Office noted a certain bias on
the part of the prosecutors in the Centru district prosecutor's
office, which could have led to the protraction of the investigation,
and re-assigned the case to another office (see paragraph 27 above).
However, some eight months later the same office referred the case
back to the same Centru district prosecutor's office, despite the
previously established risk of bias and of delays, and without giving
any reasons except territorial competence (see paragraph 32 above).
Two weeks later the Centru district prosecutor's office suspended the
investigation, a decision which was annulled after the first
applicant's complaint (see paragraph 33 above). The Court finds that
the many interruptions in the criminal investigation, all found
unwarranted by the domestic authorities, contributed to the delay
with which the case has been examined.
- In
the Court's view, the re-assignment of the case to the Centru
district prosecutor's office despite the recognised “tendentious
circumstances” capable of delaying the investigation raised a
legitimate concern for the first applicant that his case was not
being examined without bias and unnecessary delay.
- On
20 October 2008 a court found that evidence in the file could not be
used since it had been obtained outside proper criminal proceedings
(see paragraph 25 above). The Court has already found that “in
accordance with Articles 93, 96 and 109 of the Code of Criminal
Procedure, no investigative measures at all could be taken in respect
of the offence allegedly committed ... unless criminal proceedings
were formally instituted” (see Guţu v. Moldova,
no. 20289/02, § 61, 7 June 2007). Therefore, by refusing to
formally institute criminal proceedings on four occasions the
prosecutors knowingly prevented any evidence obtained from being used
in court. It follows that the investigation could not be considered
to be effective at least until 25 November 2008,
when the criminal proceedings were formally instituted. The delay of
more than two years before instituting the criminal proceedings is
incompatible with the procedural obligation under Article 3 of the
Convention (see, for instance, Valeriu and Nicolae Roşca v.
Moldova, no. 41704/02, §§ 66-70, 20 October 2009, and
Pădureţ v. Moldova, no. 33134/03, §§ 64
and 68, 5 January 2010).
- The
Court observes that the first applicant was not informed of several
important decisions taken by the prosecutors, such as the formal
recognition of C.A and D.A. as suspects in the case or the dropping
of the charges against them (see paragraphs 29, 31 and 33 above).
Moreover, when the prosecutor decided to order a new medical expert
report concerning the injuries caused to the first applicant, the
latter was not informed, nor given the opportunity to exercise his
rights under Article 145 of the CCP (see paragraphs 30 and 61 above).
On certain occasions the prosecutor refused to allow the first
applicant access to the materials of the case, including those which
could not be considered confidential since they concerned evidence
obtained from the first applicant himself (see paragraphs 28, 30 and
80 above).
- The
Government commented that the law required the authorities to inform
the first applicant of decisions such as the instituting of criminal
proceedings, and that it was unclear from the observations whether
the first applicant had been informed or not. In any event, access to
materials could only be given on the basis of written requests and
the first applicant had made none. The Court notes that the
Government did not submit evidence that the first applicant had been
informed, as required by law, of all the important decisions taken,
while the content of some of the first applicant's complaints
suggests that he was not informed (see, for instance, paragraph 33
above). Moreover, it must be emphasised that the first applicant was
the victim of an alleged crime. He therefore needed to be kept
informed of the course of the events and cannot be held responsible
for asking the prosecution to update him only occasionally and not on
a constant basis. It appears from the materials in the file that he
was often unaware of the course of the proceedings and reacted each
time he found out about new decisions taken, each time obtaining the
annulment of the relevant decision.
- The
Court finally notes that witness L.C. was never invited to identify
the two persons whom the first applicant accused as his aggressors at
an identity parade and that no attempt was made to identify witnesses
in order to verify the claim that the first applicant had ejected a
boy – allegedly one of the attackers' son – from the
Internet café.
- The
Court concludes that the investigation into the first applicant's
ill-treatment has been inefficient and protracted as a result of
repeated refusals to institute criminal proceedings and unwarranted
suspension of the investigation, and was affected by serious
shortcomings such as a failure to sufficiently inform and involve the
first applicant. These shortcomings are incompatible with the
procedural obligations under Article 3 of the Convention.
- There
has, therefore, been a violation of that provision. In view of this
finding, the Government's objection as to the premature nature of the
complaint because of the ongoing investigation is to be dismissed.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
first applicant alleged that the lack of a remedy in domestic law and
practice in respect of the inefficient investigation into his
ill-treatment had violated his rights guaranteed under Article 13 of
the Convention. He noted that under Law no. 1545 he could not claim
compensation for the substandard quality of the investigation and
that the Government had not referred to other legal provisions –
and accompanying practice – to show that an effective remedy
had been available.
- The
Government disagreed and submitted that it was open to the first
applicant to institute civil proceedings and claim compensation,
relying directly on the Convention before the domestic courts.
- In
view of its finding of a violation of Article 3 under its procedural
limb, the Court considers that it is not necessary to examine
separately the complaint under Article 13 of the Convention taken
together with Article 3.
IV. 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
first applicant claimed EUR 35,000 in compensation for the damage
caused to him. He noted that for more than three years the
investigation into his ill-treatment had been inefficient and
protracted and that he had suffered on account of the biased attitude
of prosecutors and the police. His protests against the inefficiency
of the investigation were disrupted on a number of occasions and he
spent many hours in detention as a result, all of which caused him
immense psychological suffering and a feeling of injustice.
- The
second applicant claimed EUR 7,000 for her unlawful detention for
seven hours on 29 January 2008 and the disruption of the protest she
had staged with the first applicant.
- The
Government submitted that the claims were extremely excessive in the
light of the Court's relevant case-law. They considered that the
applicants could claim compensation before the domestic courts and
that they had therefore failed to exhaust available domestic
remedies.
- The
Court notes that it found a violation only in respect of the first
applicant and there is no reason to make an award in respect of the
second applicant. It also recalls that the violations found concern
the procedural aspect of Article 3 and Article 13 of the Convention.
Deciding on an equitable basis, the Court awards the first applicant
EUR 8,000.
B. Costs and expenses
- The
applicants claimed jointly EUR 12,666 for legal costs. They relied on
a contract with their lawyer, as well as an itemised list of hours
(87.3 hours) which the lawyer spent on the case at an hourly rate of
EUR 120 (EUR 60 for the first applicant's representation at the
domestic level). They referred to the complexity of the case, in
particular the need to manually search through more than 1,000
decisions adopted by the Supreme Court of Justice in 2009, in the
absence of an automatic search engine for that court's database.
Finally, they noted that the fees charged were in conformity with the
recommendations made by the Moldovan Bar Association.
- The
Government considered that the sum claimed was excessive in the light
of the average monthly salary in the Republic of Moldova. They also
doubted that the lawyer had spent as much time on the case as he had
claimed, especially at the domestic level.
- In
view of the complexity of the case and the substantial amount of work
carried out by the lawyer, the Court awards the first applicant
EUR 4,000 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
- Decides to join to the merits of the case the
Government's objection concerning the first applicant's complaints
under Articles 3 and 13 of the Convention, declares these
complaints admissible and declares the remainder of the
application inadmissible in respect of both applicants;
- Holds that there has been a violation of Article
3 of the Convention in its procedural aspect in respect of the first
applicant and dismisses in consequence the Government's
above-mentioned objection;
3. Holds that it is not necessary to examine separately the
first applicant's complaint under Article 13 taken in
conjunction with Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Moldovan lei at the rate
applicable at the date of settlement:
(i) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable to
him, in respect of costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 2 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
