THIRD SECTION

CASE OF IURCU v. THE REPUBLIC OF MOLDOVA

(Application no. 33759/10)

JUDGMENT

STRASBOURG

9 April 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 Iurcu 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,
	Nona Tsotsoria,
	Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33759/10) 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 Vitalie Iurcu (“the applicant”), on 19 May 2010.
2.  The applicant was represented by Mr I. Oancea, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3.  The applicant alleged, in particular, that he had been ill-treated by the police and that the investigation into his complaint of ill-treatment had not been effective. He also alleged that he did not have effective remedies in respect of the alleged breaches.
4.  On 6 December 2010 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). Both the applicant and the Government submitted observations on the admissibility and the merits of the case.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1994 and lives in Chişinău.
A.  General background of the case
6.  On 5 April 2009 general elections took place in Moldova. The preliminary results of the election were announced on 6 April 2009. According to those results, the ruling Communist Party of Moldova had narrowly won the elections.
7.  On 6 April 2009 there was growing discontent, notably in various online forums, with the results of the elections and with alleged electoral fraud. At 6 p.m. several hundred people, mostly young, gathered in front of the monument to Stephen the Great (Ştefan cel Mare) in the centre of Chişinău. Half an hour later there were already 3-4,000 people assembled, and they began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.
8.  On 7 April 2009 the protest resumed, with the participation of some 5‑6,000 people. Although the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. It was established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), that two incidents of poorly planned intervention by a fire truck and riot police had brought the crowd to a point beyond which mass acts of violence could no longer be prevented. Following violent attacks and stone throwing, which met with very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building, some of them after full control over the building was recovered by the authorities at around 11 p.m.
9.  At approximately 1 a.m. on 8 April 2009, various police and special forces units began a massive operation aimed at re-establishing public order. However, according to the Commission, excessive force was used and all those still present in the main square were arrested, regardless of whether or not they had acted violently. The arrests continued for several days. The media reported cases, and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothes officers in the city centre on 8 April and thereafter, long after the protests had ended on the evening of 7 April 2009.
B.  The applicant’s arrest and alleged ill-treatment
10.  According to the applicant, who was fifteen years old at the time, during the evening of 7 April 2009 he was returning home from a birthday party and was walking along the main boulevard in Chişinău. At approximately 10.20 p.m. he was stopped by a group of persons wearing military uniforms and was ordered to lie on the ground and put his hands on his head. The applicant complied and received numerous kicks and baton blows to his body and head. He screamed with pain and shouted that he was only fifteen years old. He was then released and ordered to go home. He began to run but after several hundred metres was stopped again by a group of persons wearing black clothes and balaclavas and was again ordered to lie down. He was again kicked and beaten with batons and received, inter alia, a kick to the area of his right eye. He was then forced into a pick‑up truck together with other young persons and taken to a police station.
11.  At the police station he and many other persons were placed in the basement and forced to kneel with their hands on their heads for approximately three hours. He was approached once by a police officer, who punched him in the back and ordered him to straighten up.
12.  The Government accepted the facts relating to the applicant’s arrest and detention. They did not, however, endorse the applicant’s allegations concerning the ill-treatment, submitting that they only accepted the version of the facts established in the criminal proceedings at the domestic level.
13.  On 8 April 2009, at approximately 2.30 a.m., the applicant was taken to an office for questioning. The questioning lasted for approximately ten minutes, during which he was asked about his involvement in the previous day’s demonstrations.
14.  At approximately 3 a.m., the applicant was taken by car to a centre for the temporary detention of minors, where he was placed, together with numerous other youths, in a small room with only two beds. He and many of the others slept on the floor. The next day, the applicant felt unwell because of the injury to his face and received medical assistance from a doctor. According to a medical report issued by that doctor at a later date, the applicant had bruises on his back, and bruising to the soft tissues around his right eye. At 3.30 p.m. the applicant was taken to an office, where he explained to a woman the reason why he had had to spend the night at the centre. At approximately 4 p.m. his mother took him home. It appears that she had been informed of his whereabouts at approximately 1 p.m. on that day.
15.  On 9 April 2009 national television presented a news item concerning the events of 7 April. The applicant and the group of youths with whom he had been detained at the centre for the temporary detention of minors were presented as being the persons responsible for the disorder and the devastation to the Parliament building and the Presidential Palace.
16.  After his release, the applicant often felt pain in the region of his kidneys and had headaches. On 29 April 2009 he sought medical assistance at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have undergone detailed medical tests and examinations by various medical specialists. The Centre issued a report which stated, inter alia, that the applicant had suffered cranial trauma and experienced psychological problems typical of victims of torture.
C.  Investigation into the applicant’s complaints of ill-treatment
17.  On 19 June 2009 the applicant lodged a criminal complaint with the Prosecutor General’s Office, complaining about his ill-treatment on 7 April 2009.
18.  On 15 October 2009 the Prosecutor’s Office dismissed the applicant’s criminal complaint as ill-founded, without formally initiating a criminal investigation. After a preliminary examination of the facts of the case, it found that the applicant had been taken to the police station on the evening of 7 April 2009 for being a vagrant minor and not because of his involvement in the violent demonstrations of that day. He was later taken to the centre for the temporary detention of minors. A police officer present at the police station that night stated that the applicant had not been ill-treated. Therefore, the Prosecutor’s Office found that the applicant’s account of his alleged ill-treatment was not credible. Moreover, according to the prosecutor’s office, he would have had more bruises on his body if he had indeed been ill-treated in the manner in which he claimed.
19.  The applicant appealed against the prosecutor’s decision to the Buiucani District Court, which, on 3 December 2009, quashed the prosecutor’s decision. The court found, inter alia, that the Prosecutor’s Office had not explained how the injuries found on the applicant’s body after his arrest and detention had been caused, and that the preliminary investigation had been incomplete.
20.  On 18 December 2009 a criminal investigation was formally initiated for the first time and on 5 February 2010 the applicant was recognised as having victim status in the criminal proceedings.
21.  On 9 February 2010 a police officer from the police station where the applicant was taken on the night of 7 April 2009 was questioned. It does not appear from the materials submitted by the parties that any other measures have been taken in the criminal proceedings to date.
II.  RELEVANT NON-CONVENTION MATERIAL
22.  The relevant non-Convention material was summarised in Taraburca v. Moldova (no. 18919/10, §§ 33-37, 6 December 2011).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
23.  The applicant submitted that he had been ill-treated by the police during his arrest and detention and that the State authorities had failed to effectively investigate his allegations of ill-treatment. In his view, the treatment had amounted to a violation of Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
24.  The Government submitted that the investigation into the circumstances of the present case was still being conducted and no final decision had yet been taken at the domestic level. For that reason, they maintained that the application was premature and that the applicant had failed to exhaust the domestic remedies available to him.
25.  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). At the same time, “an applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach” (see Yoyler v. Turkey, no. 26973/95, 13 January 1997, and Akdivar and Others v. Turkey, § 68, 30 August 1996, Reports 1996-IV).
26.  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, that is, to 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 Mikheyev v. Russia, no. 77617/01, § 88, 26 January 2006).
27.  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
28.  The applicant submitted that he had been ill-treated during his arrest and detention and argued that the Government had not given any credible explanation as to the cause of the injuries found on his body. He maintained that his allegations were to be examined in the light of the events which had been taking place in Moldova at that time, as described in numerous reports by national and international non-governmental organisations. He also submitted that he had not lodged a criminal complaint concerning his ill-treatment until June 2009 because he had been afraid of further reprisals and because he had been intimidated by the news item broadcast by the National Television in which he was presented as being responsible for the damage to the Government buildings. The applicant also argued that the authorities had failed to properly investigate his complaint. Finally, he argued that owing to the lack of an effective criminal investigation in respect of his ill-treatment, he was prevented from bringing a civil action for damages against the perpetrators.
29.  The Government argued that the applicant’s allegations of ill-treatment were ill-founded and stressed that the applicant had not undergone a medical check-up until some twenty-two days after his release, on 29 April 2009 at the Memoria centre. In any event, only medical reports issued by authorised forensic doctors could be taken into consideration, and therefore that report had no probative value. The Government expressed doubt as to conclusions of the Memoria centre as to the cause of the injuries found on the applicant’s body, and submitted that they could have been caused by acts of violence during the manifestations of 7 April 2009 or by co-detainees. In any event, according to the Government, the injuries found on the applicant’s body had not been not sufficiently serious as to raise an issue under Article 3 of the Convention. As to the effectiveness of the investigation, the Government submitted that the prosecutors had done everything which it had been necessary to do in order to investigate the applicant’s allegations. Therefore, the investigation had been effective within the meaning of Article 3 of the Convention.

2.  The Court’s assessment
(a)  General principles
30.  As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII).
31.  The Court reiterates that in the process of arrest of a person, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (Selmouni v. France, § 87).
32.  The Court further reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, the investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
33.  For an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, among others, Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Ergı v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).
34.  The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, 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, ECHR 1999-IV, § 104 et seq., 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.
(b)  Application of the general principles to the present case
35.  Turning to the facts of the present case, the Court notes that, unlike other cases which it has examined in respect of Moldova concerning individual cases of alleged ill-treatment, the present case appears to be part of a large number of similar allegations concerning ill-treatment committed during a relatively short period of time (see Taraburca v. Moldova, cited above, § 48).
36.  While keeping in mind this background of what appears to have been systematic and large-scale ill-treatment of detainees by the police, the Court still has to verify that the applicant has adduced sufficient evidence that he personally was ill-treated before it can find a violation of Article 3 of the Convention. In this connection, it notes that on 7 April 2009 the applicant was arrested by the police (see paragraph 10 above) and that on 8 April 2009 the applicant was examined by a doctor from the centre for the temporary detention of minors who found numerous bruises on his back and on his face (see paragraph 14 above). The nature of the injuries to the applicant’s body is consistent with his account of the events.
37.  It is the Government’s case that the injuries could have been inflicted on the applicant before his arrest or during his detention, by co-detainees. The Court is not convinced by these reasons and considers that the Government have failed to provide a plausible explanation as to how the applicant’s injuries were caused. A mere theoretical possibility that the applicant’s injuries were inflicted in the circumstances described by the Government is not sufficient to rebut the strong presumption against the Government in the absence of evidence to the contrary, especially in the special circumstances of the present case.
38.  The Government also contended that the injuries found on the applicant’s body were not so serious as to raise an issue under Article 3 of the Convention. The Court is not convinced of this, especially taking into consideration the applicant’s vulnerable state due to his very young age (fifteen at the time of the events). It considers that the treatment applied to the applicant could be qualified as inhuman and degrading. Accordingly, there has been a violation of Article 3 of the Convention in its substantive limb.
39.  The Court further notes that the investigation into the applicant’s complaint was heavily flawed. It notes firstly that, in spite of the serious allegations made against police officers by the applicant, no criminal investigation was formally instituted until 18 December 2009, almost six months after the applicant lodged his complaint. After that date it appears that only one police officer from the police station where the applicant was taken on the night of 7 to 8 April 2009 was questioned, on 9 February 2010, and that no further action was taken. The materials of the domestic case-file provided by the parties indicate that for the last two years the investigation has remained idle and there have been no developments in the applicant’s case. In such circumstances, the Court concludes that the investigation into the applicant’s allegations of ill-treatment has not been adequate or sufficiently effective.
40.  The Court reiterates that if the domestic remedy chosen by an applicant is adequate in theory, but, with the course of time, proves to be ineffective, the applicant is no longer obliged to exhaust it (see Tepe v. Turkey, 27244/95, Commission decision of 25 November 1996). Having concluded above that the investigation into the applicant’s allegations was not effective, the Court considers that he is no longer required to wait for the termination of the investigation in order to exhaust domestic remedies. The Court thus dismisses the Government’s objection of non-exhaustion of domestic remedies and holds that there has also been a procedural violation of Article 3 Convention.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
41.  The applicant contended that he had had no effective remedies in respect of the breach of his right guaranteed by Article 3 of the Convention and that, therefore, there had been a breach of Article 13, which reads as follows:
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
42.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
43.  The applicant submitted that he did not have any remedies of a criminal-law nature because the criminal investigation into his allegations of ill-treatment had been ineffective, and that, as a result of that ineffectiveness, he did not have any effective civil remedies by which to claim compensation for the ill-treatment to which he had been subjected.
44.  The Government disagreed with the first part of the complaint and did not make any submissions in respect of the second part.
45.  In so far as the first part of the applicant’s complaint is concerned, namely that he did not have effective remedies of a criminal-law nature in respect of the alleged ill-treatment by police officers, the Court notes that it does not raise any separate issue from that examined under the procedural limb of Article 3.
46.  As to the other part of the complaint, the Court considers that, given the inadequacy of the investigation into the applicant’s criminal complaint against the police officers who had ill-treated him, a civil claim based on the same facts and allegations would not have had any prospects of success. Accordingly, the Court considers that it has not been shown that effective remedies existed enabling the applicant to claim compensation for the ill-treatment suffered at the hands of the police (see Corsacov v. Moldova, no. 18944/02, § 82, 4 April 2006, and Gurgurov v. Moldova, no. 7045/08, § 73, 16 June 2009). There has therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
47.  The applicant lastly complained that he had been wrongly arrested and detained on 7 and 8 April 2009 and claimed that there had been a breach of Article 5 of the Convention. However, the Court notes that this complaint was lodged more than six months after the alleged breach took place. Therefore, it must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
48.  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
49.  The applicant claimed 115,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the violations found above.
50.  The Government disagreed with the applicant and asked the Court to dismiss his just satisfaction claims along with the application.
51.  Having regard to the violations found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards him EUR 12,000.
B.  Costs and expenses
52.  The applicant also claimed EUR 5,689 for the costs and expenses incurred before the Court. He submitted documents in support of his claims.
53.  The Government objected and asked the Court to dismiss them.
54.  In view of the violations found above, and judging on an equitable basis, the Court awards EUR 1,500 in respect of costs and expenses.
C.  Default interest
55.  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 complaints concerning Articles 3 and 13 admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 3 of the Convention in both its substantive and procedural limbs;

4.  Holds that no separate issue arises under Article 13 of the Convention in so far as the applicant’s complaint about the ineffectiveness of the criminal investigation is concerned;

5.  Holds that there has been a violation of Article 13 of the Convention in so far as the applicant’s complaint of lack of civil remedies is concerned;

6.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and
(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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.

7.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President