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FOURTH
SECTION
CASE OF BREGA v. MOLDOVA
(Application
no. 52100/08)
JUDGMENT
STRASBOURG
20 April
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 Brega v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52100/08) 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 a Moldovan national, Mr Ghenadie Brega (“the
applicant”), on 24 October 2008.
- The
applicant was represented by Mr V. Jereghi and Ms N. Bayram, lawyers
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the police subjected him to
inhuman and degrading treatment and breached his right to liberty and
security and his right to freedom of expression and of assembly.
- On
18 February 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Pepeni. He is a journalist.
- The
applicant is a member of Hyde Park, an unincorporated
non-governmental organisation from Chişinău lobbying,
inter alia, for freedom of expression and the right to peaceful
assembly. Following a demonstration organised by the organisation on
8 May 2008, the applicant's brother, also a member of the
organisation, was arrested and placed in detention. As the applicant
was unable to trace his brother for two days, he decided to go on
hunger strike.
- On
10 May 2008 at 10 a.m. the applicant stood outside the Government
building in Chişinău's main square, positioned a placard
with the inscription “Hunger strike for rights” and
started his silent protest. Shortly afterwards, police officers
approached him and some asked him questions while others filmed him.
- At approximately 10.45 a.m. the applicant was
approached by two persons wearing plain clothes. In a video filmed by
the applicant, one of the persons can be seen ordering him to stop
filming. The applicant refuses and says that he is a journalist on
hunger strike. He asks them for identification. One of the two
persons hits the applicant, apparently in the hand holding the
camera, and threatens him in rude terms with violence if he does not
stop filming. The applicant backs away, insisting that he has the
right to film, and asks for the identity of the aggressor. The
aggressor says that he is C.A., Commander of the Special Forces
police regiment “Scut”. He says that he only wants to
talk and insists that the applicant stop filming. The applicant asks
why he does not want to talk with the camera on. C.A. retorts that he
is not an actor to be filmed. The applicant asks for identification
documents and, at that moment, he receives another blow from Mr C.A.
He continues to back away while being followed by the second police
officer who appears to forcefully put an end to the filming. The
video resumes for several seconds in what appears to be a police van
taking the applicant away from the scene of the event.
- In another video, filmed by the police from another
angle, the scene with the two police officers and the applicant can
be seen from a distance. The camera approaches when the second police
officer forcefully puts an end to the applicant's filming, seizing
the applicant by his clothes and hands. The applicant asks the police
officer not to use force and insists that he has the right to
protest. The police officer retorts that by protesting the applicant
is breaching the rights of other persons. At that moment two
uniformed police officers approach and apprehend the applicant. They
take him to a police van without any resistance from the applicant.
- The
applicant arrived at the police station at approximately 11 a.m. His
personal effects were taken away and he was questioned for
approximately two hours. According to him, he insisted on being
informed of the reasons for his arrest, but to no avail.
- He
was detained for forty-eight hours in solitary confinement in a cell
without windows. The temperature in the cell was approximately
fourteen degrees centigrade and he was wearing light clothes. There
was a concrete bed in the cell, covered with wooden boards but
without any bedding. There were no sanitary facilities and the
applicant had to ask the guards to be taken to a toilet. The guards
reacted to his request only one or two hours later, when he screamed
out loud in order to be heard by their superiors. The only water the
applicant had to drink was water from the sink in the toilet.
Throughout his detention he was given no food and nobody was allowed
to visit him. The cell was lit with a low-energy bulb which was on
continuously, with no possibility to switch it off.
- After
twelve hours of detention the applicant felt unwell. His request for
a doctor was ignored and only the next morning was a doctor called
and the applicant taken by ambulance to a hospital. The doctors at
the hospital diagnosed him with nephrolithiasis (kidney stones)
and renal colic
(extremely sharp and severe pain caused by a renal stone blocking
the ureter), and decided to hospitalise him. However, the police
officer accompanying him refused.
- On
12 May 2008 at 11 a.m. the applicant was taken to the Buiucani
District Court, where he learned that he had been charged with the
offences of insulting police officers and resisting arrest. In
particular, the police accused him of calling them “rats”,
“cowards” and “Voronin's dogs” when they
peacefully approached him.
- At
the end of the hearing, at 3 p.m., the applicant was released. Since
he had no money or mobile telephone, he had to walk to the police
station to pick up his belongings without laces on his shoes and
without a belt.
- At
the police station he discovered that the memory of his video camera
(approximately forty-five minutes of film) had been erased. He sealed
the camera in the presence of two witnesses who signed a document
attesting to the sealing. The police officer responsible for the
storage of the applicant's belongings refused to sign the document.
The same day the applicant took his camera to an expert who succeeded
in recovering 7-10% of the contents of the erased memory, including
the images described in paragraph 8 above.
- On
15 May 2008, the applicant lodged a criminal complaint with the
Prosecutor's Office, complaining about the actions of the police
officers. He complained that the police officers had breached several
provisions of the Criminal Code. In particular, they had physically
and verbally aggressed him, dispersed a peaceful protest held in
accordance with the law, unlawfully deprived him of his liberty for
forty-eight hours, and unlawfully searched him, seized his
possessions and erased the memory of his video camera. However, on 26
May 2008 the complaint was dismissed. The applicant appealed. In his
appeal he added that he had been held in inhuman and degrading
conditions and that he had not been provided with appropriate medical
assistance.
- In
the meantime, the video of the applicant's verbal and physical abuse
in front of the Government building (see paragraph 8 above) became
the subject matter of a media scandal. Several television stations
reported on the event and broadcast the video footage. As a result,
on 28 May 2008 the Minister of Internal Affairs formally admonished
the two police officers, C.A. and V.O. The applicant was accused of
having provoked the police officers by insulting them and resisting
arrest. He was also described as someone with a systematic tendency
to disturb public order. Without any explanations, the police
officers received an admonishment for breaching several rules of
police conduct, in particular unprofessional conduct, dishonesty and
failure to indentify themselves.
- On 5 June 2008 the Buiucani District Court delivered
its judgment, acquitting the applicant of all charges. After
examining the videos of the applicant's encounter with the police and
his arrest of 10 May 2008 (see paragraphs 8 and 9 above) and after
hearing witnesses, the court found that the accusations against the
applicant were false and that he had not insulted the police officers
or resisted arrest.
- On
15 June 2008 the Chişinău Prosecutor's Office dismissed the
applicant's appeal on the ground that the police officers' behaviour
did not disclose an offence. It was noted that the applicant had
insulted the police officers by calling them “rats”,
“cowards” and “Voronin's dogs” and that the
two police officers who had physically and verbally assaulted the
applicant had been admonished for their behaviour. The applicant
lodged an appeal on points of law against that decision.
- On
2 July 2008 the Buiucani District Court dismissed the applicant's
appeal against the Chişinău Prosecutor's Office's decision
of 15 June 2008.
II. RELEVANT DOMESTIC LAW
- According to Law No. 26 of 22 February 2008, in force
at the time of the events, no authorisation is needed to hold a
peaceful demonstration with fewer than fifty participants.
- According
to Article 308 of the Criminal Code, unlawful arrest or detention is
punishable with up to two years' imprisonment.
- According
to Article 184 of the Criminal Code, breach of the right to peaceful
assembly by a public official is punishable with a fine, community
service or up to two years' imprisonment.
- According
to Article 328 of the Criminal Code, abuse of authority accompanied
by acts of violence is punishable with up to ten years' imprisonment.
- According to Article 249 of the Code of Administrative
Offences, persons who disobey in bad faith the lawful orders of
police officers, or resist or insult police officers, may be detained
until their case is examined by a court.
THE LAW
- The
applicant complained under Article 3 of the Convention that he
had been subjected to inhuman and degrading treatment. In particular
he complained about the verbal and physical abuse to which he had
been subjected before being arrested, and the poor conditions of
detention. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant alleged that his right to liberty provided for under
Article 5 § 1 of the Convention had been breached since he
had been detained for approximately forty-eight hours without any
legal grounds. The relevant parts of Article 5 read 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 applicant also complained that his arrest and
detention had violated his right to freedom of peaceful assembly as
guaranteed by Article 11 of the Convention, which provides:
“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.”
I. ADMISSIBILITY OF THE CASE
- The Government submitted that the application was
inadmissible on the grounds of non-exhaustion of domestic remedies.
In particular, they argued that the applicant's complaint under
Article 3 had been raised for the first time before the Court. In so
far as the complaints under Articles 5, 10 and 11 were concerned, the
applicant should have initiated civil proceedings and claimed
compensation for the alleged breaches. The applicant disagreed with
the Government and argued that he had exhausted domestic remedies.
- As
to the applicant's complaint under Article 3 of the Convention, the
Court notes that the applicant explicitly complained to the
Prosecutor's Office about the treatment to which he had been
subjected, namely about the verbal and physical abuse and about the
conditions of his detention. Accordingly, the Government's objection
cannot be upheld.
- In
so far as the complaints under Articles 5, 10 and 11 are concerned
and the Government's contention that the applicant should have
initiated civil proceedings in respect thereof, the Court reiterates
that an individual is not required to try more than one avenue of
redress when there are several available (see, for example, Airey
v. Ireland, 9 October 1979, § 23, Series A no. 32). It
clearly appears from the facts of the case that the applicant made a
criminal complaint against the police officers under the provisions
of the Criminal Code. The Government have not argued that such a
procedure is ineffective in respect of the alleged breaches of the
applicant's rights guaranteed by Articles 5, 10 and 11. Accordingly,
their objection that he should have tried to complain also under the
provisions of the Civil Code must be dismissed.
- The
Court considers that the applicant's complaints raise questions of
fact and law which are sufficiently serious that their determination
should depend on an examination of the merits, and that no other
grounds for declaring them inadmissible have been established. The
Court therefore declares the complaints admissible. In accordance
with its decision to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider the merits of
the complaints.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant argued that his arrest and subsequent detention had been
unlawful and arbitrary.
- The
Government argued that the actions of the police officers had been
lawful under domestic law and pointed to Article 249 of the CAO,
which provided for the possibility of detaining a person for failure
to comply with the lawful orders of a police officer. The Government
did not specify exactly what those lawful orders were.
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion (see Anguelova v. Bulgaria, no. 38361/97, § 154,
ECHR 2002-IV, and Fedotov v. Russia, no. 5140/02, § 74,
25 October 2005).
- The
Court considers that the applicant's detention fell within the ambit
of Article 5 § 1 (c) of the Convention, as it was imposed for
the purpose of bringing him before the competent legal authority on
suspicion of having committed an offence.
- There
is no dispute as to the fact that the police, when arresting the
applicant and taking him to the police station, followed the
procedure provided for in Article 249 of the CAO.
- The Court notes that the applicant was arrested and
charged with the offences of insulting police officers and resisting
arrest. It appears clearly from the video and it was confirmed by the
domestic court which acquitted the applicant (see paragraph 18 above)
that the accusations against him were false and that he had not done
any of the things imputed to him. In such circumstances, and given
the absence of any “reasonable suspicion” within the
meaning of Article 5 § 1(c), the Court considers that the
applicant's detention on false charges that he had resisted arrest
and insulted police officers cannot be considered “lawful”
under Article 5 § 1 of the Convention. There has therefore been
a breach of that provision.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant submitted that the police officers should have been
punished in accordance with the Criminal Code and not merely
reprimanded, and that there has been a breach of Article 3 of the
Convention in particular after he had been left suffering without
medical assistance for twelve hours. According to him, his arrest and
detention in harsh conditions were intended to punish him for having
protested in front of the Government building and to discourage him
from doing so in the future.
- The
Government argued that the police officers had not hit the applicant
but merely ordered him to stop filming and pushed away the camera. In
any event the State authorities had examined the complaint lodged by
the applicant and the police officers in question had been admonished
by the Minister of Internal Affairs for their behaviour. In so far as
the conditions of the applicant's detention were concerned, the
Government contended that the detention had been too short for the
suffering to attain the minimum threshold of severity necessary to
trigger a violation of Article 3 of the Convention. The Government
pointed to the case of Hyde Park and Others v.
Moldova (no. 4) (no. 18491/07, §§
37-39, 7 April 2009), in which a complaint concerning poor conditions
of detention had been declared inadmissible on account of the short
duration of the detention.
- The
Court recalls 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
Government argued that the police officers had merely pushed the
applicant's camera away but had not hit him. The Court agrees that
the physical aggression was not such as to cause physical pain but
was rather an act of intimidation. After that the applicant was
abusively arrested and placed in detention for forty-eight hours (see
paragraph 38 above). While in detention the applicant suffered a
renal colic
attack, a condition which, although not life-threatening, usually
causes extreme pain. Despite the applicant's request to be seen by a
doctor in the evening of 10 May 2008, a doctor was called only the
next morning, some twelve hours later. Moreover, throughout his
detention the applicant was cold, as the temperature in his cell was
about fourteen degrees centigrade and he was wearing light clothes
and was given no bedding.
- The
Government submitted that in view of the short duration of the
detention, the threshold of severity required by Article 3 was not
attained. The Court is not convinced by this, especially when looking
at all the above elements cumulatively and taking into consideration
the applicant's state of health at the time. It considers that the
treatment applied to the applicant could be qualified at least as
degrading. Accordingly, there has been a violation of Article 3 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicant maintained that there had been a violation of Article 11
of the Convention.
- The
Government contended that there had been no interference with the
applicant's freedom of assembly because he was not arrested for
protesting but merely for his failure to cooperate with the police
officers. In particular, according to the Government, the police had
arrested him because he had refused to talk to them with his camera
turned off.
- Unlike
the Government, the Court considers that the applicant's arrest
constituted “interference by [a] public authority” with
his right to freedom of assembly under the first paragraph of Article
11. Such interference will entail a violation of Article 11 unless it
is “prescribed by law”, has an aim or aims that are
legitimate under paragraph 2 of the Article and is “necessary
in a democratic society” to achieve such aim or aims.
- The
Court notes that the applicant's protest was staged in accordance
with the law concerning assemblies (see paragraph 21 above), that he
remained peaceful and did not disturb public order in any way. Nor
was his filming the encounter with the police officers contrary to
the law. He continued to be peaceful and polite even after being
manhandled by the police and did not resist the abusive arrest in any
way. In such circumstances, the interference with his right of
assembly cannot be considered lawful under domestic law. Accordingly,
there has been a violation of Article 11 of the Convention.
V. alleged violation of Article 10 of the Convention
- The
applicant also alleged a violation of Article 10 of the Convention.
As this complaint relates to the same matters as those considered
under Article 11, the Court does not consider it necessary to examine
it separately.
VI. 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government disagreed and argued that the amount was excessive and
unsubstantiated.
- Having
regard to the violations found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
the applicant EUR 8,000.
B. Costs and expenses
- The
applicants also claimed EUR 1,000 for the costs and expenses incurred
before the Court.
- The
Government contested the amount and argued that it was excessive.
- In
accordance with its case-law, the Court must consider whether the
costs and expenses claimed were actually and necessarily incurred by
the applicant and are reasonable as to quantum (see Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR
1999-VIII). It may have regard in that connection to such matters as
the number of hours worked and the hourly rate sought (see Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, §
55, ECHR 2000-XI).
In
the instant case, however, the applicant has not produced any
evidence in support of his claims. The Court therefore decides not to
award any sum under this head.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there is no need to examine the
complaint under Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000 (eight thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Moldovan lei at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
