THIRD SECTION
CASE OF
BUHANIUC v. THE REPUBLIC OF MOLDOVA
(Application no.
56074/10)
JUDGMENT
STRASBOURG
28 January 2014
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 Buhaniuc v. the Republic of Moldova,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 7 January 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
56074/10) 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 Sergiu Buhaniuc (“the
applicant”), on 30 September 2010.
The applicant was represented by Mr V. Zama, a
lawyer practising in Chișinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr L. Apostol.
The applicant alleged, in particular, that he had
been ill-treated during his arrest and that there had been no effective
examination of his complaint in that regard.
On 12 December 2011 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1990 and lives in
Chișinău.
The facts of the case, as submitted by the
parties, may be summarised as follows.
On 5 April 2009 general elections took place in
Moldova. On 6 and 7 April 2009 large crowds gathered in the streets to
protest against alleged electoral fraud. Hundreds of persons were arrested on 7
April 2009 and thereafter.
A. The applicant’s arrest and alleged ill-treatment
The applicant was
arrested in the evening of 7 April 2009 and on the next day was sentenced by a
court to ten days’ administrative detention. According to the applicant, he was
punched in the eye by a plain-clothes police officer during his arrest and then
subjected to ill-treatment in the Buiucani police station and subsequently at
the General Police Directorate (“the GPD”). He was hit by groups of five to
twelve persons, both in uniform and plain clothes, taken through a “death
corridor” in which officers lined up and kicked or hit each victim as he or she
passed through the corridor while being taken to or from the police station or,
especially, the GPD.
He was also hit on both ears simultaneously (a
form of torture known as “the telephone”), and struck on the head with fists
and rubber sticks, all while his hands were handcuffed behind his back. He was
also forced to keep his hands up for long periods of time while being hit
periodically. He lost consciousness several times as a result of the
ill-treatment.
The applicant was also
allegedly held with eight other persons in a damp humid cell measuring 4 x 4
metres, where he had no access to daylight or any means of determining the time
of the day or the date; he also had no access to the outside world, his
relatives, a lawyer or a doctor.
No water was
provided to him during the first twenty-four hours of his detention. Thereafter
dirty water was distributed in unhygienic plastic bottles to be used by
everyone in the cell. The applicant was subsequently diagnosed with hepatitis
of an unknown origin. No food was provided. In the congested damp cell he had
no opportunity to sleep for three days. There was no toilet in the cell and access
to the toilet outside the cell was allowed at random and only after subjecting
the person to humiliation.
Psychological ill-treatment was also allegedly
used: the applicant was threatened with a lengthy term of imprisonment, with
rape and death. He was subjected to interrogation by several persons
simultaneously and was forced to sign blank papers.
B. Investigation into the applicant’s complaint of
ill-treatment
On 11 April 2009 the applicant was seen by a doctor, who found a
haematoma on his left eye.
On 15 April 2009 the applicant complained to the
military prosecutor of ill-treatment by the police.
On 29 April 2009 the applicant was examined at the “Memoria” Rehabilitation
Centre for Torture Victims, a non-governmental organisation financed by the
European Union and member of the General Assembly of the International
Rehabilitation Council for Torture Victims (IRCT). On 15 December 2009 it
issued an “Extract from the medical file” (Extras din Fişa Medicală) concerning the
applicant’s examination. He appears to have undergone detailed medical tests
and examinations by various medical specialists. According to the document, the
applicant was suffering from, inter alia, the consequences of a head
injury, which included intracranial hypertension syndrome and post-traumatic
stress disorder, as well as a post-traumatic ear condition.
The
prosecutor in charge of the case interviewed the police officers in charge of
the applicant’s arrest, who declared that they had not used force against him.
On 29 May 2009 the prosecutor decided not to initiate a criminal investigation
into the applicant’s allegations as he found that there was no evidence that a
crime had been committed. On 5 February 2010 the applicant complained to the
Prosecutor General’s Office, noting that he had been sent a copy of the
prosecutor’s decision only on 22 January 2010. On 18 February 2010 the
Prosecutor General’s Office confirmed the decision of 29 May 2009.
On 25
March 2010 the applicant challenged in court the decisions of 29 March 2009 and
18 February 2010. On 19 April 2010 the investigating judge at the Buiucani
District Court annulled the two decisions and ordered that a supplementary
investigation be carried out. The court found that the prosecutors’ decisions
had been based only on the statements of the police officers accused of
ill-treating the applicant. Moreover, while one of the prosecutors had found
that force had been used to apprehend the applicant, which could explain any
injuries on his body, the arresting officers had denied the use of any force.
On an unknown
date prior to 10 May 2010 a formal criminal investigation into the applicant’s
allegations was initiated.
On 19 May 2010 the applicant was officially
recognised as a victim in the investigation of the alleged crime. He described
the circumstances of his alleged ill-treatment and participated in a photograph
identity parade, but did not recognise any of the persons in the photographs.
On 25 May
2010 the prosecutor in charge of the case suspended the investigation on the
basis that no suspect had been identified.
Following
the Court’s communication of the present application to the respondent
Government on 12 December 2011, on 8 February 2012 the Prosecutor General’s
Office recommended to the Chișinău Military Prosecutor that the
proceedings in respect of the applicant’s complaints should be reopened. The
prosecutor considered that the decision of 25 May 2010 had been groundless and
drew up a list of twelve investigative actions be taken in the new
investigation of the complaint. This list included actions such as hearing S.,
who had been arrested together with the applicant; hearing the persons detained
together with the applicant during the events of April 2009; hearing the doctor
who had examined him at the Buiucani police station; obtaining various medical
evidence concerning the applicant’s state of health prior to and after his
detention in April 2009, including the report of the “Memoria” centre;
examining the documents in the file concerning the accusations against the
applicant; and organising cross-examinations involving both the applicant and
the officers who had arrested him on 7 April 2009.
On 22 March
2012 the doctor who had examined the applicant at the Buiucani police station
was heard as a witness. He declared that he had noted all the injuries present
on the applicant’s body. He added that a police officer had been present in the
room during the examination, but had not put pressure of any kind on the
applicant.
On 26
March 2012 two officers were officially declared suspects in the case and were
interviewed by a military prosecutor. The parties did not inform the Court of
any further developments in this regard.
II. RELEVANT NATIONAL AND
INTERNATIONAL REPORTS
. The
relevant non-Convention material is summarised in Taraburca v.
Moldova (no. 18919/10, §§ 33-37, 6 December 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained of ill-treatment by the
police, and that there had not been an effective investigation into his
allegation of ill-treatment. He relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government argued that the applicant had not
exhausted all available domestic remedies since the investigation into his complaints
was still pending.
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).
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).
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 he had been
ill-treated while in police custody and that the investigation into his
allegation of ill-treatment had been slow and ineffective. Before the
communication of the present application to the respondent Government, it had
been limited to questioning several police officers. He had not been given the
opportunity to identify the perpetrators by participating in a
cross-examination. Moreover, no criminal investigation as such had been
initiated, which had limited the powers of the prosecutors to fully investigate
the case. Only after communication of the present application had the
authorities identified two police officers as suspects in the case. Finally, at
least part of the investigation had been carried out by officers employed by
the Ministry of Internal Affairs - the same institution which employed the
police officers suspected of the ill-treatment.
The Government submitted that they could not
take the place of the prosecutors and courts, thus undermining an ongoing
investigation. They argued that when new information had become available the
investigators had taken swift action. Therefore, the apparent delays, which had
been due to objective factors such as the fact that no suspects had been
identified, should not be taken into consideration in determining the
effectiveness of the investigation.
2. The Court’s assessment
(a) General principles
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).
The Court reiterates that in the process of
arresting 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). In such a situation
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 see (Selmouni v. France, cited above, § 87).
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).
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).
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
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).
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 (see Taraburca, cited above, §
48). In this connection, it notes that on 7 April 2009 the applicant was
arrested by the police (see paragraph 8 above), and that on 11 April 2009 he
was examined by a doctor, who found a haematoma on his left eye (see paragraph 13
above). The nature of that injury to the applicant’s eye is consistent with his
account of the events.
The Court also notes the doctor’s statement
about the presence of a police officer during the applicant’s medical
examination. This must necessarily have undermined any attempt by the applicant
to show more of his injuries to the doctor, for fear of further ill-treatment.
Considering the general state of insecurity in the various places of detention
in the aftermath of the disturbances of 7 April 2009, the applicant’s fear was
not without foundation (compare Taraburca, cited above, § 52). The
findings of the “Memoria” centre (see paragraph 15 above) only confirm the
applicant’s account of events, notably his head trauma and the post-traumatic
ear condition.
Having regard to the failure to carry out a
medical examination upon the applicant’s entry into detention, and the absence
of any record concerning any use of force or any sign of injury to his body, the
Court finds that the authorities have not submitted any evidence that the
applicant had been injured before his arrest or provided a plausible
explanation of the origin of the hematoma under his eye. The doctors at the
“Memoria” centre found further signs of severe ill-treatment.
Moreover, the applicant complained of inhuman
conditions of detention (see paragraphs 10 and 11 above). The Court notes that
he was detained for a relatively short period of time at the Buiucani police
station and on the premises of the GPD, which was extremely overcrowded between
7 and 12 April 2009 (see Taraburca, cited above, § 33). The Government
did not dispute his claims that no water was available during the first 24
hours of his detention, that no food was distributed thereafter, and that the
applicant was deprived of sleep and of regular access to a toilet. While the
above circumstances may raise a separate issue under Article 3 of the
Convention, the Court considers that in the present case these are additional
elements contributing to the anguish and suffering which the applicant must
have suffered as a result of his ill-treatment (see Taraburca,
cited above, § 51).
In view of the above, the
Court concludes that there has been a violation of Article 3 of the Convention
in its substantive limb.
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 early May 2010 (see
paragraph 18 above), more than a year after the applicant had lodged his
complaint. Moreover, as found by the investigating judge, the decisions not to
initiate an investigation adopted on 29 May 2009 and on 18 February 2010 were
based only on the statements of police officers (see paragraph 17 above).
It is to be noted that the decision of 29 May
2009 was not notified to the applicant until 22 January 2010, and this amounted
to an unexplained delay which was too long in such a case (see, for instance, Pădureţ
v. Moldova, no. 33134/03, §§ 63, 64 and
68, 5 January 2010). The Court is therefore not convinced by the
Government’s assertion that the prosecutor acted swiftly when new information
became available.
The Court lastly observes that after the case
was reopened following communication of the present application to the
respondent Government, the prosecution identified twelve different
investigative measures to be taken in the course of the investigation (see
paragraph 21 above). It is for the investigators to organise their work in the
manner which they deem fit for the investigation of a particular crime. However,
the Court cannot but note that by February 2012, almost three years after the
allegations of ill-treatment had been made, the list of twelve actions mentioned
above and which had not yet been taken included basic steps without which the
investigation cannot be considered to have been effective (see paragraph 21 above).
. 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 and Mikheyev v. Russia, no. 77617/01,
§ 86, 26 January 2006). Having concluded above that the investigation into the
applicant’s allegations has not been 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. 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. Pecuniary damage
The applicant submitted that the cost of future
medical treatment necessitated by his condition following his ill-treatment could
not be determined. He therefore asked the Court to reserve the question of
pecuniary damage for a subsequent judgment.
The Government considered that the applicant
made no claim under this head.
The Court notes that the applicant did not
submit in due time his claims and any evidence of on-going or planned medical
treatment, or otherwise substantiate or estimate his future costs. In such
circumstances, the Court makes no award in this respect.
B. Non-pecuniary damage
The applicant claimed
30,000 euros (EUR) in respect of non-pecuniary damage suffered as a
result of the violations found above.
The Government submitted that, should the Court
find a breach of Article 3 of the Convention, it should make an award only in
respect of the procedural aspect of the applicant’s complaint. They added that
he still had a chance of obtaining compensation domestically, depending on the
outcome of the on-going criminal investigation. In any event, the amount sought
was exaggerated in the light of similar case-law.
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 the applicant EUR 15,000.
C. Costs and expenses
The applicant also claimed EUR 1,370 for
the costs and expenses incurred before the Court. He submitted documents in
support of his claim.
The Government objected and asked the Court to
dismiss the claim.
In view of the violations found above, the Court
awards the applicant’s claim in full.
D. 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. Declares the
application admissible;
2. Holds that
there has been a violation of Article 3 of the Convention in both its
substantive and procedural limbs;
3. 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 currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,370 (one thousand three hundred and
seventy 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;
4. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 January 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
