THIRD SECTION
CASE OF
EDUARD POPA v. THE REPUBLIC OF MOLDOVA
(Application no.
17008/07)
JUDGMENT
STRASBOURG
12 February 2013
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 Eduard Popa v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 22 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
17008/07) 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 Eduard Popa (“the
applicant”), on 4 April 2007.
The applicant was represented by Mr V. Gribincea,
a lawyer practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
The applicant complained, in particular, of a
breach of Articles 2 and 3 of the Convention.
On 7 September 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981 and lives in Ialoveni.
At the time of the events the applicant was serving
a prison sentence in an open detention facility in Goian. During the day he
worked outside the prison, returning to it at night. On 18 November 2005 he
applied for home leave but his application was refused. However, in spite of
the refusal he did not return to the prison that evening but spent the night at
his parents’ home in the neighbouring town of Ialoveni.
On 19 November 2005, at approximately 9 a.m., the
applicant went to a pharmacy to buy medication for back pain. On his way home, at
approximately 10 a.m., a red car stopped in front of him. According to the
applicant’s statement, a police officer got out of the car, punched him in the
face and then pushed him into the car, whereupon he lost consciousness. The
Government did not confirm this allegation but admitted that it could be one possibility
among many.
Meanwhile, at approximately 9.30 a.m., two
police officers arrived at the home of the applicant’s parents. They searched
the house and asked the applicant’s mother about his whereabouts. While there, one
of the officers received a telephone call and informed his caller that he was
at the applicant’s house. Later he received another telephone call which lasted
only some five seconds, from which the applicant’s mother understood that her
son had allegedly been found by the police. The two police officers left
immediately. The applicant’s mother followed them for a while and implored them
not to beat up her son. They then came across a neighbour who knew the police
officers, and who asked why they were there. The police officers replied that
they were looking for criminals, and when the neighbour asked if they had found
them, the police officers replied in the affirmative.
On 20 November 2005, at approximately 11 a.m.,
two men found the applicant lying on the ground near a pond located
approximately 1.5 kilometres from Ialoveni. The applicant could not speak
or walk, he had facial injuries consistent with the results of a violent
assault and his clothes were wet and dirty. He was carried to a security guards’
lodge located nearby where he was warmed up and his clothes dried. Some time
later he began to respond to some questions put to him and to display signs of
strange behaviour. In particular, he stated his own name and also from time to
time shouted out a name which later transpired to be that of his brother. The
applicant also began eating mud, which made the people who had found him think
that he was under the influence of drugs. The applicant was given a coat and a
pair of boots and then he set off, on foot, towards Ialoveni. The applicant’s
mother disputed the statement that the applicant had made the journey by
himself and submitted that the people who found him had thought that he was a
drug addict and had sent him out of doors instead of calling an ambulance.
On 21 November 2005 the same people found the
applicant again, lying some thirty metres from their lodge. They called an
ambulance and the applicant was taken to hospital.
On 21 November 2005 at approximately 4.30
p.m. the applicant’s family received a telephone call from a hospital in
Chişinău and was informed that the applicant had been admitted in a
critical condition.
The next day the applicant’s parents visited him
at the hospital and learned from him that he had been beaten up by police
officers and left lying on the bank of a lake near Ialoveni. Owing to the low
temperatures he had suffered severe frostbite to his limbs, and later, on 8 December
2005, both his feet and eight of his fingers were amputated. According to
medical records, the applicant had not been under the influence of alcohol or
drugs at the time of his admission to hospital.
On an unspecified date the applicant’s mother
lodged a complaint with the prosecutor’s office, alleging that the applicant
had been ill-treated by police officers on 19 November 2005. She stated that
he was prepared to identify the police officers who had assaulted him.
On 28 November 2005 the applicant’s mother went
to the Ialoveni prosecutor’s office, where she met the superintendent of the
Ialoveni police station. She was allegedly told by the latter that her son had
been ill-treated by staff at the detention facility. In the hall of the
prosecutor’s office she met one of the police officers who had previously
visited her home on 19 November 2005. The officer appeared to be surprised
to learn that her son was still alive.
On 2 December 2005 a criminal investigator,
accompanied by a police officer, attempted to question the applicant at the
hospital but he refused to respond, on account of poor health.
On 17 January 2006 the applicant was heard by a
prosecutor and stated that on 19 November 2005 he had been walking along the
street when a red car stopped and someone got out and punched him in the face.
He could not remember anything after that. The applicant’s mother informed the
prosecutor that following the applicant’s admission to hospital on 21 November
2005, a red car carrying police officers had come to the pond where the
applicant had been found, enquiring about the applicant’s whereabouts. The
applicant’s mother also gave the name of one of the police officers who had
allegedly assaulted her son on 19 November 2005. It transpired from the transcript
of the questioning, that the prosecutor did not put any questions to the
applicant or to his mother.
On 20 January 2006 criminal proceedings were
formally instituted by the Ialoveni prosecutor’s office. Despite allegations by
the applicant’s mother that the applicant had been assaulted by police officers
driving a red car, the investigation focused on the suspicion of robbery and
the allegation of police assault was not investigated.
On 28 January 2006 the applicant was interviewed
by a prosecutor. He confirmed that he had been assaulted on 19 November 2005.
On 10 February 2006 a forensic medical report
was issued, according to which, on 21 November 2005, the applicant had
sustained bruises and scratches to his face and body and that, following severe
frostbite, his feet and eight of his fingers had had to be amputated. It
appears that the report was prepared on the basis of the applicant’s medical
documents rather than personal observation.
In a letter of 3 February 2006 the Prosecutor
General’s Office informed the applicant that there was no reason to believe
that he had been beaten up by police officers and that the investigation was
directed at finding the perpetrators who had beaten the applicant up and had
stolen his watch and coat.
The applicant’s mother wrote several letters to
the prosecutor’s office expressing her discontent with the way the
investigation was being conducted and insisted that an identity parade be held
of police officers from Ialoveni police station so that the applicant could
identify the relevant officers.
It appears that, as a result of the applicant’s
letters, the investigation was reopened. However on 14 September 2007 the prosecutor’s
office again dismissed the applicant’s complaint without conducting an identity
parade. In its dismissal of the complaint, the prosecutor’s office relied on
the fact that the applicant’s statements had been vague and that he had failed
to cooperate properly with the investigators. The applicant challenged this
decision.
On 6 February 2009 the Prosecutor General’s
Office quashed the above-mentioned decision and ordered the continuation of the
investigation. It was decided that in the reopened proceedings, the applicant
was to be interviewed again and this time he would be asked to identify his aggressors.
It had to be determined whether he had used any medication or illegal substances
on 19 November 2005 and confrontations between the applicant and witnesses were
to be arranged in the event of conflicting statements.
In a letter dated 12 March 2009 addressed to the
prosecutor’s office the applicant’s mother continued to make accusations that police
officers had beaten up her son on 19 November 2005 but also accused those persons
who had allegedly, instead of calling an ambulance on 20 November 2005, turned
the applicant out of doors and let him sleep rough overnight. Moreover, she also
accused the same persons of stealing the applicant’s coat and giving him an old
coat in its place.
On 14 March 2009 the applicant was interviewed.
He stated that he had been walking down the street when a red car stopped nearby
and several policemen had got out and knocked him to the ground. He recognised
one of them and was prepared to identify him. He had only regained
consciousness in hospital.
On 30 July 2009 the Ialoveni prosecutor’s office
again dismissed the criminal complaint lodged by the applicant. In so doing it did
not mention any of the statements made by the applicant on 14 March 2009. The
applicant challenged that decision.
On 3 December 2009 the Prosecutor General’s
Office quashed the above-mentioned decision and ordered a fresh re-examination
of the case. The Prosecutor General’s Office removed the case from the Ialoveni
prosecutor’s office, finding that irregularities had taken place in its investigation
and that it had not been conducted within a reasonable time. The case was sent,
instead, to the military prosecutor’s office with an order to find out, amongst
other things, whether the applicant was known to be a user of drugs, alcohol or
other intoxicating substances before the date of the alleged events. The
military prosecutor’s office was also asked to determine, from the medical
documents, whether the applicant had suffered a head injury during the alleged
attack of 19 November 2005 and also to arrange a confrontation between the
applicant, his mother and witnesses.
On 9 September 2010 a new forensic medical
investigation was conducted, which produced the same results as before. The
forensic experts also concluded that the injuries on the applicant’s face could
have been caused by a fall.
For unknown reasons, the case ended up again
being examined by the Ialoveni prosecutor’s office which, on 9 March 2011
dismissed the applicant’s complaint of ill-treatment by the police on similar
grounds to those it had relied on previously. It does not appear that a
confrontation was arranged between the applicant and the police officers who
had allegedly ill-treated him.
On 11 May 2011 a higher-ranking prosecutor from
the Ialoveni prosecutor’s office quashed the above-mentioned decision on the
grounds that it had been adopted as the result of a superficial investigation
and that not all the persons involved had been questioned.
The investigation is still pending.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Criminal Code
read as follows:
Article 151.
Deliberate inflicting of severe bodily injury or damage to health
“1. The deliberate inflicting of severe bodily
injury or damage to health which is life-threatening or which causes the loss
of sight, hearing, speech or damage to or loss of function of another organ, or
mental illness or some other form of damage to health accompanied by the
permanent loss of at least one-third of the capacity to work, or which results in
a miscarriage or an incurable disfiguration of the face and/or adjacent areas,
shall be punishable by imprisonment for three to ten years.
2. The same action committed:
[point (a) repealed by Law no.
277-XVI of 18 December 2008, which came into force on 24 May 2009]
(b) against a person known to be a juvenile or
against a pregnant woman or by taking advantage of the victim’s known or visibly
frail condition caused by advanced age, disease, physical or mental disability or
any another factor;
(c) against a person in connection with his or her
performance of official or public duties;
(d) by two or more persons;
(e) by mutilation or torture;
(f) by methods endangering the health and lives of
multiple persons;
(g) for the purposes of profit;
[point h) repealed by Law no. 277-XVI of 18 December 2008,
which came into force on 24 May 2009]
(i) from motives of social, racial or religious
hatred;
(j) against two or more persons;
(k) by an organised criminal group or a criminal
organisation;
(l) in order to remove and/or use or sell the victim’s
organs or tissues; or
(m) as ordered by contract;
shall be punishable by imprisonment for five to twelve years.
[Paragraph (3) repealed by Law no. 277-XVI of 18 December 2008,
which came into force on 24 May 2009]
(4) Actions described in paragraphs 1. or 2. above which
cause the death of the victim shall be punishable by imprisonment for eight to fifteen
years.”
Article 157.
Grievous or less severe bodily injury or damage to health caused
by negligence
“Grievous or less severe bodily injury or damage to health
caused by negligence shall be punishable by a fine of up to 300 conventional
units or by community service for 180 to 240 hours or by imprisonment for up to
two years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3, 8 AND 13
OF THE CONVENTION
The applicant complained of ill-treatment by the
police which had seriously endangered his life and had led to serious
consequences for his health. He also complained of the lack of an effective
investigation into his allegations. The applicant further submitted that there had
been a violation of Article 8 of the Convention as a result of the physical
harm suffered by him and that, in breach of Article 13 of the Convention, he
had had no effective remedies against the breaches enumerated above. Articles 2,
3, 8 and 13 of the Convention, on which the applicant relied, read as follows:
Article 2
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the use of
force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of
quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 8 § 1
“Everyone has the right to respect for his private ... life
...”
Article 13
“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.”
A. Admissibility
The Government submitted that the investigation into the events of the present
case was ongoing and no final decision had yet been taken at the domestic level.
They maintained, for that reason, that the application was premature and
that the applicant had failed to exhaust the domestic remedies available to
him.
The Court reiterates that the purpose of Article
35 § 1 of the Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them before those
allegations are submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they have had the
opportunity to put matters right through their own legal systems (see, for
example, Remli v. France, 23 April 1996, § 33, Reports of Judgments
and Decisions 1996-II, and Selmouni v. France [GC], no. 25803/94, §
74, ECHR 1999-V).
In the instant case it is true that the
proceedings are still pending before the domestic courts. Nevertheless, the
Court finds that the question of the exhaustion of domestic remedies is
inextricably linked to the merits of the complaint under Article 3 of the
Convention, namely, the question of the effectiveness of the investigation into
the applicant’s allegations of ill-treatment. Therefore, it considers that both
questions should be joined and examined together (see Buzilo v. Moldova, no. 52643/07, § 24, 21 February
2012).
The Court further notes that the complaints are
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring the application inadmissible has been
established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that his allegations of
ill-treatment were supported by medical reports stating that he had been
admitted to hospital on 21 November 2005 with facial injuries consistent with
the results of a violent assault. The applicant maintained that there was sufficient
evidence to prove that he had been in police custody at the time of his
ill-treatment. In particular, he argued that the police had started to search
for him on the morning of 19 November 2005, when it had been discovered that he
had not returned to prison the previous evening. Two police officers had immediately
been sent to his parents’ home to look for him. However, shortly thereafter, the
police had ended the search and had not undertaken any further measures to find
him until 24 November 2005. In the applicant’s submissions, that was a clear
indication that the police had known his exact whereabouts after his assault on
the morning of 19 November 2005, otherwise they would have continued to look
for him.
The applicant also submitted that two police
officers had been at his parents’ home when one of them had received a
telephone call from which the applicant’s mother had understood that he had
been found. Immediately afterwards, the police officers had left his parents’
house, telling a nearby neighbour that they had found “the criminals” (see
paragraph 8 above). The applicant submitted, further, that his mother had been
informed by the superintendent of Ialoveni police station that the applicant had
been ill-treated by State agents.
In addition, the applicant stated he had become
unconscious after having been assaulted by police officers on the morning of 19
November 2005. He assumed that he had been unconscious throughout the entire
day of 19 November 2005 and had been taken to the lake during the night of
19 to 20 November 2005. His assumption was based on the fact that while
the outside temperatures had been the same on 19 and 20 November, he had not contracted
frostbite during the first night, which could be an indication of the fact that
he had spent only part of that night at the pond. On the next night, however,
he had contracted severe frostbite, because he had spent much more time in the
open air. The applicant noted in that connection that one of the police
officers who had met his mother on 28 November 2005 had been very surprised to
learn that he was alive (see paragraph 14 above). In his view, this was a clear
indication of the fact that, in abandoning him at the pond, the police officers
had been convinced that he was either dead or that he had no chance of survival.
The applicant concluded that State agents had
been responsible for having assaulted him severely on the morning of 19
November 2005 and for not having provided him with medical assistance during
the time he was unconscious. Moreover, State agents had been responsible for leaving
him, unconscious on the edge of a pond in severe weather conditions, thus putting
his life at risk. As a result of their actions, he had suffered serious injuries
and had been severely disabled. In the applicant’s view, there has therefore
been a substantive violation of Articles 2 and 3 of the Convention.
The applicant further complained that the
authorities had failed to properly investigate his complaint and had only shielded
the police officers responsible for his assault. In his view, there had also
been a procedural breach of Articles 2 and 3 of the Convention and a breach of
Article 13 of the Convention.
The Government chose not to make any submissions
in respect of the merits of the case and submitted that they would only be
ready to express an opinion after the termination of the proceedings at
domestic level.
2. The Court’s assessment
(a) General principles
Article 2 of the Convention, which safeguards
the right to life, ranks as one of the most fundamental provisions in the
Convention. The object and purpose of the Convention as an instrument for the
protection of individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and effective
(see McCann and Others v. the United Kingdom, 27 September 1995, §§
146-47, Series A no. 324; Salman v. Turkey [GC], no. 21986/93, § 97,
ECHR 2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI).
An individual whose life is put at serious risk
may also claim to be a victim under Article 2 of the Convention (see, for
example, Osman v. the United Kingdom, 28 October 1998, §§ 115-22 Reports
1998-VIII, and L.C.B. v. the United Kingdom, 9 June 1998, §§ 36-41, Reports
1998-III.
Where an individual has an arguable claim that
he has been tortured while in the hands of State agents, 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, 18 December
1996, §§ 97-98, Reports 1996-VI).
The effective investigation required under
Articles 2 and 3 serves to maintain public confidence in the authorities’
maintenance of the rule of law, to prevent any appearance of collusion in or
tolerance of unlawful acts, to secure the effective implementation of the
domestic laws which protect the right to life and the right not to be subjected
to ill-treatment and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their responsibility
(see, among many other authorities, McKerr v. the United Kingdom, no. 28883/95,
§§ 111 and 114, ECHR 2001-III, and Paul and Audrey Edwards v. the
United Kingdom, no. 46477/99, §§ 69 and 72, ECHR 2002-II).
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 to prevent any
appearance of collusion in or tolerance of unlawful acts (see, mutatis
mutandis, Paul and Audrey Edwards § 72, cited above).
(b) Application of the general principles to the
present case
Turning to the facts of the present case, the
Court notes that after being found on 21 November 2005 lying on the ground near
a pond in the open air, suffering from severe frostbite to his limbs, the
applicant was also reported as having sustained facial and bodily injuries
apparently consistent with the results of a violent assault. No traces of
alcohol or drugs were found in his blood at the time he was admitted to hospital
(see paragraph 12 above). In such circumstances, the applicant’s allegation that
the two nights he had spent in the open air were the result of having been
assaulted on 19 November 2005 does appear to be arguable. Furthermore, the
Court agrees with the applicant’s claim that his aggressors put his life at
risk by leaving him unconscious at the edge of a pond at below-zero
temperatures. It therefore considers that the facts of the present case fall to
be examined under both Articles 2 and 3 of the Convention.
That being said and having examined the material
before it, the Court finds it impossible to establish beyond reasonable doubt
whether or not the applicant was in police custody on the morning of 19
November 2005 and whether he was ill-treated by police officers. As it will be
shown below, this difficulty is due to the failure of the authorities to conduct
an effective investigation into the applicant’s complaints (see Petru
Roşca v. Moldova, no. 2638/05,
§ 42, 6 October 2009).
The Court notes that the investigation into the
applicant’s complaint was heavily flawed. It will therefore refer only to the
most grievous shortcomings. It notes that in spite of the very serious
allegations made against the police officers by the applicant’s mother, and in
spite of the very serious injuries sustained by the applicant, no criminal
investigation was formally instituted until 20 January 2006, almost two months
after the alleged applicant’s assault. Moreover, it would appear that the
applicant’s allegation that police brutality was the cause of his injuries was
ignored rather than treated seriously. For unknown reasons, the prosecutors
preferred to investigate the possible robbery of the applicant’s coat and watch
even though the applicant did not make an allegation of any such crime.
In the Court’s opinion, in order to determine
the cause of the applicant’s disturbed mental condition between 19 and 21
November 2005 (see paragraph 9 above), it was essential to determine whether at
the time of the alleged assault he had sustained any brain damage. No medical
forensic investigation appears to have been carried out until February 2006 and,
even then, the doctors do not seem to have been questioned about a possible
head injury.
It does not appear that the investigators made
any attempts to identify whether the police officers charged with picking up
the applicant on 19 November 2005 drove a red car. Moreover, it does not appear
that the investigators attempted to find out the identity of the drivers of a
red car who were seen to be making enquiries, in the vicinity of the pond,
about the applicant’s whereabouts after his admission to hospital.
In spite of numerous requests by the applicant and
direct instructions from the higher-ranking prosecutor’s office, no formal identification
parade of the alleged perpetrators was held, nor was a confrontation between
the applicant and witnesses arranged. It appears that the instructions given by
the higher-ranking prosecutor’s office were disregarded by the investigators to
such a degree that even the decision of the Prosecutor General’s Office to
remit the case to a different prosecutor’s office was not acted upon, the case having
been handled, right up to the present time, by the Ialoveni prosecutor’s office.
In the light of the shortcomings described above
and the overall length of the criminal investigation, the Court concludes that
the investigation into the applicant’s allegations of ill-treatment was not
adequate or sufficiently effective. The Court thus dismisses the Government’s
objection of non-exhaustion of domestic remedies and holds that there has been
a procedural violation of Articles 2 and 3 of the Convention.
In view of the above, it also holds that no
separate issue arises under Articles 8 and 13 of the Convention.
II. 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 209,187 euros (EUR) in
respect of pecuniary damage suffered as a result of the violations found above.
He submitted that the amount claimed could be broken down to cover his lost
income as well as expenses for nursing, prostheses and various other expenses
related to his medical treatment, and travel costs. The applicant also claimed
EUR 120,000 in respect of non-pecuniary damage.
The Government disagreed with the applicant and
asked the Court to dismiss his just satisfaction claims along with the
application.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 20,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 8,009 for the
costs and expenses incurred before the Court. He submitted documents in support
of his claims.
The Government objected and asked the Court to
dismiss them.
In view of the violations found above and
judging on an equitable basis, the Court awards EUR 4,000 for costs and
expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Joins to the merits the Government’s
preliminary objection concerning the exhaustion of domestic remedies by the
applicant and rejects it;
2. Declares the application admissible;
3. Holds that there has been a procedural
violation of Articles 2 and 3 of the Convention;
4. Holds that no separate issue arises under
Articles 8 and 13 of the Convention;
5. 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, plus any tax that
may be chargeable, and EUR 4,000 (four thousand euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant, 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
