CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5) - 7232/07 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 265 (15 March 2016)

In the case of Ciorap v. the Republic of Moldova (no. 5),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Nebojša Vučinić,
          Paul Lemmens,

          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström,
          Georges Ravarani, judges,

Ján Šikuta, ad hoc judge,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 23 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 7232/07) 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 Tudor Ciorap (“the applicant”), on 15 November 2006.

2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged that he had been ill-treated while in detention, and that the investigation of his complaint in that respect had been ineffective.

4. On 12 July 2013 the complaints concerning the alleged ill-treatment and insufficient investigation thereof, as well as the lack of an effective remedy in respect of the complaint of ill-treatment, were communicated to the Government, and the remainder of the application was declared inadmissible.

5. Mr Valeriu Grițco, the judge elected in respect of the Republic of Moldova, withdrew from the case (Rule 28 of the Rules of Court). Accordingly, the President of the Court decided to appoint Mr Ján Šikuta to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1965 and lives in Chișinău.

A. The applicant’s alleged ill-treatment

7. The applicant was serving a sentence of eleven years’ imprisonment in Prison no. 13 in Chișinău. On 28 October 2006 he and five other detainees were in cell no. 20, reserved for the medical treatment of detainees with mental problems. Three of them, including the applicant, had a Category 2 disability. The applicant’s diagnosis was, inter alia, personality disorder.

8. At around 3 p.m. several men entered the cell to search for prohibited items. Some of the men wore dark masks and they were armed with rubber truncheons and metal shields. They ordered everyone out. According to the applicant, the masked men shouted at the detainees and insulted them, while hitting and pushing them. The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell. While in the corridor the detainees were ordered to stand with their faces to the wall. The search lasted for approximately half an hour. One prison officer recorded the events on video.

9. The detainees were then ordered back into the cell. According to the applicant, when he saw their possessions, including food brought to them by their relatives, medication and documents, scattered on the floor and in total disorder, he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused. He was then hit and thrown to the floor, kicked in the stomach, and the cell door was slammed with force while his foot was between the door and the doorpost, causing him great pain. His reading glasses fell to the ground and were smashed by one of the masked men. The Government submitted that no force had been used and that the cell had been left in good order.

10. After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in Chișinău at around 7 p.m. The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone. His foot was then put in plaster.

B. Investigation into the applicant’s complaint of ill-treatment

1. Complaints about ill-treatment

11. On 31 October 2006 the applicant complained about ill-treatment to the Prosecutor General’s Office, the military prosecutor’s office and other State authorities. Four other detainees who had been held in the same cell made similar complaints.

12. On 28 November 2006 the applicant was examined by another doctor, who confirmed the diagnosis of a broken bone and found a haematoma on his right foot, corresponding to signs of violence and leading to long-lasting health problems (over twenty-one days). Further forensic examinations were carried out on 1 and 28 December 2006 and 3 May 2007. According to the applicant, these certificates confirmed that he had suffered an injury to his right foot. According to the Government, a further forensic examination carried out on 31 October 2007 contradicted the results of the previous ones, finding no conclusive evidence that the applicant had had a broken bone. The parties did not submit full copies of the last three reports mentioned above.

13. On 6 December 2006 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the complaints made by the applicant and other detainees.

14. On 8 December 2006 a prosecutor from the Chișinău Prosecutor’s Office started a criminal investigation into the applicant’s allegations.

15. Between 28 November and 5 December 2007 several individuals, members of the “Pantera” special forces battalion who had taken part in the action of 28 October 2006, were charged with exceeding their powers by using excessive force against the applicant.

2. Discontinuation of the criminal investigation

16. On 15 February 2008 a prosecutor from the Chișinău Prosecutor’s Office discontinued the criminal investigation. He found that on 28 October 2006 the applicant had disobeyed lawful orders of the prison staff during the search of his cell, acted provocatively, and refused to return to his cell. He had had to be taken there by force. Moreover, it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill-treatment. The prosecutor noted that the applicant and four other detainees in cell no. 20 had confirmed, in their complaints and statements made to the investigator during the criminal investigation, that the masked men who had entered the cell on 28 October 2006 had caused great disorder, had insulted the detainees, and had hit them with rubber truncheons.

17. According to the statement of detainee S.B., on 28 October 2006 the detainees were taken out of cell no. 20 and ordered to stand facing the wall for approximately half an hour while their cell was being searched. They were then moved back to their cell, again by force. S.B. witnessed one of the masked officers slamming the cell door and crushing the applicant’s foot, threatening to break his hands if he continued to write complaints. Having watched the videotape of the search, S.B. submitted that the filming was selective, not showing the acts of violence in order to shield those who had carried them out from responsibility. At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident.

18. Detainees A.G., V.Z. and B.I. made similar statements, each declaring that he had been personally hit and insulted and that the applicant’s foot had been shut in the cell door. The applicant’s statement was similar to those of the other detainees. He added that the video footage shown to him was only about six minutes long, while the entire event had lasted for approximately thirty minutes. Moreover, the various parts of the film were clearly not in chronological order.

19. One detainee, (V.S.), who had been taking his daily exercise during the search, confirmed seeing upon his return great disorder in the cell, with all the food and personal items broken up and thrown to the ground, and the detainees cleaning up the mess and complaining about being hit during the search.

20. Another witness, a member of the prison staff (I.V.), stated that he did not see any violence towards the detainees or any disorder being created in cell no. 20 during the search of 28 October 2006. Another member of the prison staff (P.P.), who was the head of the medical unit of Prison no. 13, stated that after the search on 28 October 2006 he saw disorder in cell no. 20, but did not see any food on the ground. The search lasted for approximately thirty minutes. He did not see the detainees re-enter their cell, but heard the conflict between the applicant and the masked men. He did not see any violence being used, but could admit that force had been used. Later on the applicant complained of pain in his foot and was taken to the emergency hospital, from which he returned with his foot in plaster.

21. According to witness A.P., who worked as a nurse in Prison no. 13, on 28 October 2006 she came to work at 4 p.m. and was called to cell no. 20, where the applicant was complaining of sharp pain in his foot. He was then taken to hospital by ambulance and returned with his foot in plaster. The cell was in disorder; the patients were agitated and were asking for urgent medical assistance for the applicant. During the initial examination A.P. found that the applicant’s foot was seriously swollen. He then told her that he had been hit by the officers during the search.

22. Witness E.B., a medical assistant in Prison no. 13, stated that she had not seen any of the events and had only heard the noise. She was later told by A.P. that after the search the applicant had asked for medical assistance to treat his foot.

23. According to witness P.C., a supervisor in Prison no. 13, on 28 October 2006 he was informed that someone was asking for medical assistance in cell no. 20, and sent A.P. there. When he himself entered the cell P.C. saw personal belongings and food scattered on the ground. The applicant then told him that the masked men had caused the disorder and had beaten them up, and that his foot hurt as a result of that beating. He also declared that during that day the applicant had not made any complaints about his state of health, but immediately after the search had complained of sharp pain in the foot. He was limping when he was taken to the ambulance.

24. According to witness M.M., a feldsher (paramedic) in Prison no. 13, on 28 October 2006 at 5 p.m he saw the applicant, who complained that he had been beaten up earlier, during the search. M.M. did not see any visible injury on the applicant’s body; the applicant could move his feet freely, but his right foot was swollen in the ankle area. The applicant limped when taken to the ambulance.

25. Three witnesses (A.V., O.H., and V.D.), all members of the prison staff, declared that they did not witness any violence against the detainees, or any disorder in cell no. 20.

26. (V.N.) stated that he had filmed “certain parts of the search” on a video recorder, using an 8 mm video cassette. He had not witnessed any disorder or violence towards the detainees.

27. Witnesses V.B. and I.I., who coordinated the actions of the various groups of prison staff and the Pantera special forces regiment (the masked men), declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with. Only the applicant had been uncooperative, but he was eventually persuaded to return to the cell without using force.

28. The prosecutor’s decision further analysed several reports in the file, including a report confirming the destruction of the applicant’s reading glasses. A video filmed by V.N. during the event, lasting for six minutes and thirty-six seconds and registered on a compact disk, showed the detainees leaving their cell voluntarily; the presence in the cell of masked men; the applicant’s request to be allowed to take his belongings with him and the refusal of that request; it showed various objects in the cell and the presence in it of detainee V.Z. The cell was in good order. The next scene showed the applicant refusing to comply with I.V.’s order to return to the cell. The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called, affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event. The last scene showed the cell door being closed. Someone could be heard hitting the door from the inside and the applicant’s voice shouting “I’m going to kill myself, I’m going to cut myself” and “where is the map with documents, they took my map with documents”.

29. The prosecutor found that the video recording did not prove that violence had been used, and that the sound of the cell door being struck, heard at the end of the recording, allowed the supposition that the injury to the applicant’s foot could have been self-inflicted.

3. The reopening of the investigation and its final discontinuation

30. On 10 March 2008 the deputy Prosecutor General quashed the decision of 15 February 2008 and ordered a more thorough investigation.

31. On 17 April 2008 a prosecutor discontinued the criminal investigation, essentially for the same reasons as those mentioned in the decision of 15 February 2008.

32. By a final decision of 12 August 2008 an investigating judge of the Buiucani District Court upheld the decision of 17 April 2008. The judge found that while the law allowed complaints about violations of fundamental rights and freedoms, the applicant’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings. However, the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial.

33. The applicant lodged an extraordinary appeal (recurs în anulare) to the Supreme Court of Justice, and asked for the decision of 12 August 2008 to be quashed.

34. On 1 October 2009 the Supreme Court of Justice rejected his request, finding that the Buiucani District Court had adopted a lawful decision after analysing the evidence in the file.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

35. The applicant complained that he had been ill-treated during his detention, and that the investigation into his allegation of ill-treatment had been ineffective. 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

36. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The alleged ill-treatment

a. The parties’ submissions

37. The applicant submitted that in response to his legitimate refusal to return to the cell in protest against the disorder created and the destruction of food and personal belongings, and until such time as these events were properly recorded in a report, the masked men attempted to put him into the cell by force. He resisted by sitting down and clinging to the cell door. He was then hit and the cell door was slammed against his foot several times, causing him severe pain. His reading glasses were smashed.

38. For an unexplained reason, unlike all the previous searches of his cell, the search by masked men on 28 October 2006 was not carried out in the presence of a doctor. The video material submitted to the prosecutor was selective or edited, and included only approximately six minutes of recording, while the search took about thirty minutes.

39. The applicant referred to the many witness statements, complaints of ill-treatment by the other detainees of cell no. 20, and medical reports confirming his version of events, notably the injury to his foot.

40. The Government submitted that neither the applicant nor any other detainee had been ill-treated. The video made during the search did not confirm his version of events, but rather showed his provocative and uncooperative behaviour. There was no report about any use of force on that day.

41. The applicant did not have a broken bone, but only contusion, as established by a forensic report dated 31 October 2007 (see paragraph 12 above). In addition, he had suffered since 2005 from deep vein thrombophlebitis in his right foot. He had also swallowed an object and at the relevant time was suffering from pain in the stomach, and according to the prison feldsher there was no need to call an ambulance for him to have treatment (see paragraph 24 above).

42. Moreover, it could not be ruled out that the injury to the applicant’s foot had been self-inflicted in order to accuse the prison personnel of violence against him. He had been known in the past for numerous acts of self-mutilation (he had swallowed various objects) and was heard immediately after the search threatening to injure himself, as is also recorded on the video in the file. That video also recorded blows to the cell door, which could have been the origin of the applicant’s injury. In addition, one of the detainees present in the cell on the relevant date declared that he had no complaints against the prison staff.

b. The Court’s assessment

43. 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, Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII, and, more recently, Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015). Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises under Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 61, Reports 1996-VI, and Selmouni, cited above § 87).

44. Turning to the facts of the present case, the Court notes that, according to a prison supervisor, on 28 October 2006 the applicant had not complained of any health problems before the search. However, immediately after it he complained of sharp pain in his foot, and declared that he had been injured by the masked men during the search (see paragraph 23 above). He was then seen by a nurse, who found that his foot was swollen and noted that the other detainees were agitated and were asking for medical assistance to be given to the applicant (see paragraph 21 above).

45. In the Court’s opinion, the question whether the applicant had a broken bone or a lesser injury is much less important than the origin of such an injury caused to a person while he is deprived of his liberty. For the Court, the statements by some of the prison staff mentioned in the preceding paragraph, together with those of the detainees in cell no. 20 who confirmed the applicant’s version of events (see paragraphs 17 and 18 above), are sufficient to establish that the applicant did not have any injury to his foot before the search, and that such an injury appeared after that search. It is therefore for the Government to provide a plausible explanation as to the cause of the injury.

46. The Court takes note of the Government’s assertion that, in the absence of any evidence corroborating the applicant’s allegations, the injury must have been self-inflicted, the more so as he was known for previous acts of self-mutilation and had threatened further such acts at the end of the search. However, it observes that this version of events is contradicted by the statements of four witnesses (co-detainees in cell no. 20, see paragraph 18 above) and a prison supervisor, who declared that immediately after the search the applicant complained of pain in his foot (see paragraph 23 above).

47. Accordingly, the Government have failed to provide a reasonable explanation for the applicant’s foot injury. Since the injury appeared while the applicant was detained in prison, and since his allegation is supported by the statements of a number of witnesses, including prison staff and medical personnel, and by forensic reports in the file, the Court concludes that it was the result of treatment during the search. Immediately after the incident the applicant complained about sharp pain in his leg and he was urgently brought to a hospital for treatment, his leg having been fixed in plaster (see paragraph 10 above). In the Court’s view, the presence of an actual bodily harm and of pain sufficiently intense so as to require urgent medical assistance at a hospital attains a minimum level of severity so as to fall within the scope of Article 3. It must be qualified as inhuman treatment within the meaning of that provision (see, amongst many other authorities, Bouyid v. Belgium [GC], no. 23380/09, §§ 86 et seq., ECHR 2015).

48. The Court also considers that the manner in which the search of the applicant’s cell was conducted raises a separate issue under Article 3 of the Convention. Those who conducted that search should have known that the cell was reserved for people undergoing medical treatment, and that at least some of the inmates, including the applicant, had psychiatric problems, while three of them had disabilities (see paragraph 7 above). Given the particular vulnerability of such inmates, it could be expected that any actions in their respect such as searches of their cell would be carried out with special precautions against unnecessarily affecting their psychological state. Indeed, the applicant’s unchallenged submission (see paragraph 37 above) that before the search of 28 October 2006 all previous such actions had taken place in the presence of a doctor would suggest that the prison authorities were well aware of this special situation in cell no. 20.

49. However, the search during 28 October 2006 was different not only owing to the absence of a doctor, but also to what appears to have been a rough handling of the detainees’ food and belongings. In this respect the Court notes that, besides the concordant statements of the five detainees in the cell, several prison staff members confirmed seeing considerable disorder in the cell (see paragraphs 19, 21 and 23 above), while a report confirmed that the applicant’s reading glasses had been broken (see paragraph 28 above).

50. As regards the video material filmed during the search, the Court notes that it was significantly shorter than the length of the search. Moreover, near the end of the film the applicant asked for the interior of the cell to be filmed, to show the mess left there, but either no such recording was made, or it was not included on the disk submitted to the prosecutor (see paragraph 28 above).

51. The Court observes that it has found in a number of cases concerning Prison no. 13 that the quantity and quality of food there were substandard (see, for instance, Rotaru v. Moldova, no. 51216/06, §§ 34 and 37, 15 February 2011; Ciorap v. the Republic of Moldova (no. 3), no. 32896/07, § 36, 4 December 2012; and Segheti v. the Republic of Moldova, no. 39584/07, § 31, 15 October 2013). Given that the applicant tried to cope with this situation by consuming food sent to him by his relatives (see paragraph 9 above), its destruction during the search may have further increased his suffering. The Court is also mindful that a prison cell is the place where a detainee spends a significant amount of his time. Causing disorder and the destruction of food, reading glasses and other belongings there, in the absence of any specific need, was even more degrading to the applicant.

52. The Court concludes that the search of 28 October 2006 not only failed to take special precautions against unnecessarily disturbing the applicant as a mentally ill and disabled person undergoing medical treatment in a cell reserved for that purpose, but in fact humiliated him without any need, amounting to degrading treatment within the meaning of Article 3 of the Convention.

53. There has accordingly been a violation of that provision in its substantive limb.

2. The investigation of the alleged ill-treatment

a. The parties’ submissions

54. The applicant submitted that the investigation had been ineffective. He was not heard by the prosecutor until 16 February 2007, almost four months after the incident, when he was recognised as an injured party for the first time. He was not sent a copy of the decision to initiate the criminal investigation of 8 December 2006 until 28 February 2007.

55. He questioned the integrity of the video recording relied on by the prosecutor, since it recorded only six minutes out of a total of over thirty minutes filmed. Moreover, four of his cellmates lodged complaints about ill-treatment that day and were recognised as injured parties, which contradicted the Government’s submission that no other complaints had been made.

56. The Government submitted that the criminal investigation into the applicant’s allegations had been thorough and effective. All the reports related to the search and the video filmed there were analysed by the prosecutor before a decision was taken. Moreover, after the first time the investigation was discontinued the Prosecutor General’s Office ordered a more thorough investigation, ensuring that all aspects of the case were examined. After examining all the relevant materials in the file and carrying out a significant number of investigative acts, while observing the applicant’s rights, the prosecutor adopted a well-reasoned decision to discontinue the investigation, since there was no evidence that a crime had been committed.

57. It was evident from the video of the events that no force had been used and that it was the applicant who had acted in a provocative manner. There was no other evidence to the contrary, and a final court decision had confirmed the lawful and well-founded character of the prosecutor’s decision (see paragraph 32 above). The simple allegations made by the applicant, in the absence of any evidence to support them, could not lead to any other result than dismissing them as ill-founded.

b. The Court’s assessment

58. The Court reiterates that, having regard to the general duty on the State under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, the provisions of Article 3 require by implication that there should be some form of effective official investigation where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of State authorities (see, for instance, Bouyid, cited above, §§ 114-123). 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).

59. 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, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 323, ECHR 2014 (extracts), and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 178, 14 April 2015). 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 Buzilo v. Moldova, no. 52643/07, § 30, 21 February 2012).

60. An investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see, mutatis mutandis, Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of those responsible for them will risk falling foul of this standard.

61. Turning to the facts of the present case, the Court notes that the authorities were aware of the applicant’s allegation of ill-treatment on the day it was made (see, for instance, paragraphs 21-23 above). However, there was apparently no immediate response to these allegations. On 31 October 2006 the applicant made a formal complaint. However, it was only on 8 December 2006 that a criminal investigation was initiated.

62. In this connection the Court reiterates that it has already found that “in accordance with Articles 93, 96 and 109 of the Code of Criminal Procedure, no investigative measures at all could be taken in respect of the offence allegedly committed ... unless criminal proceedings were formally instituted” (see Guţu v. Moldova, no. 20289/02, § 61, 7 June 2007; Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 25 and 90, 2 November 2010; and Gasanov v. the Republic of Moldova, no. 39441/09, § 53, 18 December 2012). It follows that by not initiating a proper criminal investigation for more than a month after becoming aware of the applicant’s allegation of ill-treatment (until 8 December 2006, see paragraph 14 above) the investigator knowingly prevented any evidence obtained during that period from being used in court. That evidence included the first three medical examinations (of 28 October, 28 November and 1 December 2006, see paragraphs 10 and 12 above). Given how crucial the first days are for establishing the existence and nature of any injury before the passage of time heals it, and given the seriousness of the allegation, supported by the evidence that the applicant had to be taken to a hospital to treat his foot, the delay of more than a month before instituting a criminal investigation is incompatible with the procedural obligations under Article 3 of the Convention (see, for instance, Pădureţ v. Moldova, no. 33134/03, §§ 64 and 68, 5 January 2010).

63. The Court also notes that the first medical examination was carried out by a doctor at the hospital with a view to treating the applicant’s injury, but not to fully resolve all related issues such as the cause of that injury. Given the applicant’s allegation and its denial by the prison staff, a forensic examination would have been required as soon as possible to ascertain all the aspects of the applicant’s injury. However, such an examination was not carried out until a month after the event (see paragraph 12 above). No explanation for this delay is apparent from the file.

64. The Court further notes that at no time did the authorities interview the masked men who had been accused of ill-treating the applicant. It has, in the past, expressed concern about incidents involving armed and masked police officers taking part in interventions against individuals, as well as the failure to identify and question such officers (see, for instance, Kučera v. Slovakia, no. 48666/99, §§ 122-124, 17 July 2007, Rachwalski and Ferenc v. Poland, no. 47709/99, 28 July 2009, Hristovi v. Bulgaria, no. 42697/05, §§ 80-93, 11 October 2011 and Ataykaya v. Turkey, no. 50275/08, § 53, 22 July 2014).

65. As regards the video material filmed during the event, the Court notes that it lasts for less than seven minutes, while the search lasted approximately thirty minutes. It is also clear that the footage includes scenes from both the start of the search and its end, which implies that the filming did not start near the end of the search in response to the applicant’s disobedience. During the investigation the applicant and the other detainees who had complained of ill-treatment declared that the recording was incomplete (see paragraphs 17 and 18 above). The Court further notes that while a compact disk was handed to the public prosecutor, the officer who had filmed the event, or at least certain parts of it, declared that he had filmed it on an 8 mm video cassette (see paragraph 26 above).

66. In such circumstances, where there was controversy as to the contents and integrity of the video, it is unclear why the investigator did not ask for the original video cassette, but contented himself with viewing whatever part of the video had been submitted to him on a compact disk (see paragraph 28 above). It is to be noted that content saved in an electronic form on a compact disk is easily editable to exclude parts of the recording, much less so than content on the original video cassette. Given that the video was of such crucial importance, providing objective evidence of what had happened (the prosecutor’s final conclusion being in large part based on it, see paragraph 29 above), the failure to obtain the original cassette is a serious flaw in the investigation, leading to the conclusion that the authorities did not “take all reasonable steps available to them to secure the evidence concerning the incident” (see paragraph 60 above).

67. The Court concludes that the criminal investigation into the applicant’s allegation of ill-treatment started with an unexplained delay which, under the applicable domestic law, prevented the evidence gathered during the crucial initial month from being used in court. Moreover, the authorities failed to take all reasonable steps to secure the evidence concerning the incident, by failing to obtain one of the most objective types of evidence that was available, namely the original of the video recording of the event.

68. In view of the above, the Court finds that there has been a violation of Article 3 of the Convention also in its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3

69. The applicant complained of a violation of Article 13 of the Convention taken in conjunction with Article 3.

70. The Government contested that argument.

71. The Court notes that, in view of its conclusions concerning the complaints under Article 3 of the Convention (see paragraphs 53 and 68 above), the applicant had an arguable claim within the meaning of Article 13 of the Convention. Accordingly, 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.

72. Having regard to the findings relating to Article 3 of the Convention (see paragraphs 53 and 68 above), the Court considers that it is not necessary to examine separately whether in this case there has been a violation of Article 13 (see, among other authorities, I.G. v. Moldova, no. 53519/07, § 45, 15 May 2012).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. 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

74. The applicant claimed 500 euros (EUR) in respect of pecuniary damage. He relied on documents confirming the purchase of new reading glasses, crutches and a stick which he used while recovering from his foot injury.

75. The Government considered that the sum claimed was excessive.

76. The Court considers that the expenses for the equipment mentioned by the applicant were a direct consequence of the injury caused to him and which has led the Court to find a violation of Article 3 of the Convention. The Government did not submit that any of those expenses had been covered by the State. The Court therefore allows in full the applicant’s claim for pecuniary damage.

B. Non-pecuniary damage

77. The applicant claimed EUR 60,000 in respect of non-pecuniary damage. He referred to the Court’s case-law concerning similar cases.

78. The Government considered that the sum claimed was excessive.

79. The Court considers that the applicant must have been caused a certain amount of suffering as a result of the violation of his rights under Article 3 of the Convention. Deciding on an equitable basis, it awards the applicant EUR 9,000.

C. Costs and expenses

80. The applicant also claimed EUR 1,500 for costs and expenses incurred before the Court. He submitted receipts for translation of submissions and postal charges.

81. The Government submitted that the sum claimed was excessive.

82. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 150 covering costs under all heads.

D. Default interest

83. 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 its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention in its procedural limb;

4. Holds that there is no need to examine separately the complaint under Article 13;

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, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 150 (one hundred and fifty 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5) - 7232/07 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 265 (15 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/265.html Cite as: [2016] ECHR 265