O.R. AND L.R. v. THE REPUBLIC OF MOLDOVA - 24129/11 (Judgment : Article 3 - Prohibition of torture : Second Section) [2018] ECHR 897 (30 October 2018)

In the case of O.R. and L.R. v. the Republic of Moldova,

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

Robert Spano, President,
Julia Laffranque,
Ledi Bianku,
Paul Lemmens,
Valeriu Griţco,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 2 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 24129/11) 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 two Moldovan nationals, Ms O.R. (the first applicant) and Ms L.R. (the second applicant), on 15 April 2011.

2. The applicants were represented by Mr V. Gribincea, a lawyer practising in Chişinău. The Moldovan Government ("the Government") were represented by their Agent, Mr L. Apostol.

3. The applicants alleged, in particular, about the ineffectiveness of the investigation into their allegation of ill-treatment and about the impunity of the police officers who had ill-treated them.

4. On 20 February 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1979 and 1987 respectively.

6. On 5 April 2009 general elections took place in Moldova. On 6 and 7 April 2009 a large crowd protested in the streets against alleged electoral fraud. Hundreds of young persons were arrested on 7 April 2009 and later dates; many of them were ill-treated during arrest (for more details, see Taraburca v. Moldova , no. 18919/10, §§ 7-10 and 33-37, 6 December 2011, Buhaniuc v. the Republic of Moldova , no. 56074/10, § 7, 28 January 2014 and Iurcu v. the Republic of Moldova , no. 33759/10, §§ 7-9, 9 April 2013).

1. The applicants' arrest and alleged ill-treatment

7. On 7 April 2009 the applicants were returning from Chişinău to their home village when the minibus in which they were travelling was stopped by masked armed men at 11.10 p.m. The men ordered the bus driver to drive to the police headquarters in Chişinău ("the police headquarters"), where the applicants, together with other passengers, were ordered to stand with their hands behind their heads.

8. Upon entering the detention centre in the police headquarters, the applicants were taken to a room where five police officers registered their arrest. The applicants and other female detainees were ordered to stand with their faces to the wall and not to look to the sides. When one of them (N.) looked to the side, Officer A.C. hit her head against the wall.

9 . The first applicant was asked to identify her bag. According to her, A.C. threatened to throw away the bag instead of registering all of the items inside. She then proposed to register only the documents, the mobile phone and the contents of her wallet. The first applicant noticed that her arrest had been wrongly mentioned as having taken place at 2.20 p.m. and told that to the officer. A.C. allegedly threatened her with death if she did not sign, after which she signed the arrest record. In the meantime, several young men were lined up against the wall and were periodically hit if they tried to look around. The applicants heard sounds of people being beaten from the adjacent room, following which A.C. escorted one young man out of there.

10. After signing the arrest record, A.C. took the applicants one by one to another adjacent room. Two officers were there (V.D., a male officer, and M.T., a female officer). V.D. ordered each of the applicants to undress. After they initially removed only a part of their clothes, V.D. shouted at them to fully undress. Each of the applicants was also ordered to do sit-ups while naked, while both officers smiled. The door remained partly open throughout the procedure. M.T. allegedly called the first applicant a prostitute.

11. The applicants were placed, together with five other female detainees, in a cell, where they were held until 9 April 2009. No food was provided for them and they were not allowed to contact anyone outside the detention centre. During 7 and 8 April 2009 the officers would come every three hours to the cell where the applicants were being detained, officially in order to verify their presence. All those inside had to stand up, their hands behind the back. During one of such visits on 8 April 2009, A.C. told everyone in the applicants' cell to be thankful to President Voronin, who had not ordered shots to be fired into the crowd during the unrest of 7 April 2009.

12. On the morning of 9 April 2009 a prosecutor visited their cell and asked whether anyone had been ill-treated or had any other complaints. Several police officers from the police headquarters were standing just behind the prosecutor, which, according to the applicants, prevented them from complaining. The first applicant asked for permission to call home to see how her child was doing, but the prosecutor replied that he could not help and that she needed to negotiate that with the head of the detention facility.

13. On the same day at 3.30 p.m. the applicants were taken, one by one, to a room in the police headquarters where a judge asked each of them their names. After finding their files and reading them for several seconds, the judge declared that five days of detention for each of the applicants would suffice. The entire "trial" took not more than five minutes.

14. On the same day at around 11 p.m. the applicants and five other female detainees were ordered to enter the back section of a police minivan measuring 2.5 square metres and were taken to an unknown destination, without any explanation of the reasons for the move. Four hours later they arrived at Drochia police station. They spent the remainder of their detention at that police station and were released on 13 April 2009. After their release the applicants were so afraid that they did not leave their houses for a week.

2. Proceedings against the police officers

(a) Internal investigation against the police officers

15 . On 16 April 2009 a Moldovan news agency reported the allegation that three young women had been ordered to fully undress in front of male police officers. Following that the Internal Security Department of the Ministry of Internal Affairs conducted, in April-May 2009, an internal investigation into the matter in order to verify the allegations. The applicants and N., another person detained together with the applicants, made statements to the investigator on 23 and 22 April 2009 respectively and recounted the facts as summarised in the preceding paragraphs. N. noted that she had been taken by Officer A.C. to the room in which she had been verbally abused and forced to fully undress by V.D., in the presence of a uniformed woman.

16 . On 18 May 2009 a prosecutor interviewed the applicants, who repeated their statements made to the police. These statements were then forwarded to the Prosecutor General's Office. On 20 May 2009 the results of the internal investigation (see paragraph 15 above) were also submitted to the Prosecutor General's Office. It would appear that the latter did not take any decision in respect of the material submitted to it.

17 . On 23 July 2009 the applicants made a complaint to the Prosecutor General's Office, referring to the verbal abuse to which they had been subjected, as well as to the order to undress in front of male officers.

18 . On 18 and 20 August 2009 a prosecutor interviewed A.C. and V.D., who declared that they had not been at work on the relevant night.

19 . On 10 September 2009 the military prosecutor's office, which had been tasked with examining all complaints of ill-treatment during the events of April 2009, decided not to launch a criminal investigation in response to the applicants' complaint of 23 July 2009 to the Prosecutor General's Office, in the absence of any evidence that an offence had been committed. He noted that M.T. had declared that she alone had conducted body searches of the applicants and that A.C. and V.D. had not been at work that day. The applicants found out about that decision on 14 October 2009. On 15 October 2009 their lawyer challenged the decision, noting that the investigation had not been prompt or thorough; that they had not undergone any expert psychological examination to verify whether it could be concluded that they had suffered psychological trauma; that the decision had been based solely on the declaration by the officers involved that they had not been at work on the relevant day, without verifying whether they had been urgently called in to work to deal with the emergency situation on 7 April 2009; and that no criminal investigation had been launched by that date. This complaint was rejected by a more senior prosecutor on 9 November 2009.

20 . On 16 November 2009 the applicants' lawyer received a letter from the prosecution informing her of the decision of 9 November 2009. On 20 November 2009 the applicants challenged the decisions of 10 September and 9 November 2009 before the Rîşcani District Court. On 19 January 2010 the court allowed their application and annulled both those decisions. The court found that the investigation had been superficial and listed a series of actions which had not been carried out, such as interviewing the arresting officers and those responsible for escorting them and registering their arrest; verifying the reasons for their transfer to Drochia police section, the person who had ordered the transfer and the reason why the prosecutor had not established a breach of applicable legislation as a result of that transfer; determining the reason for the prosecutor's failure to examine the applicants' complaint within the statutory seventy-two hours.

(b) Criminal proceedings against the police officers

21 . On 2 February 2010 the Chişinău prosecutor's office launched a criminal investigation on suspicion that Officers A.C., V.D. and M.T. had ill-treated the applicants by means of psychological intimidation and forcing them to undress in front of persons of the opposite sex.

(i) Proceedings against Officers V.D. and M.T.

22. On 15 March 2010 the prosecution charged V.D. and M.T. with ill-treating the applicants.

23. On 23 April 2010 the case against V.D. and M.T. was submitted to the Centru District Court for trial.

24. The Centru District Court scheduled hearings in the case approximately once a month. From the beginning of the trial, that court had held four hearings and postponed five others for various reasons such as the absence of the prosecutor, of one of the applicants or of their lawyers, as well as annual leave taken by the prosecutor and the judge.

25. On 15 July 2011 the Centru District Court of Chișinău found the two police officers guilty of ill-treating the applicants. It sentenced V.D. to six years' imprisonment and M.T. to five years' imprisonment, conditionally suspending the execution of both sentences for a probation period of five years. The officers were also prohibited from holding positions in the police for five years. Although the operative part of the judgment was read out on 15 July 2011, the applicants were sent the fully reasoned decision by post on 7 December 2011.

26. On 3 May 2012 the Chișinău Court of Appeal upheld that judgment, reducing V.D.'s imprisonment term to five years and maintaining all the other sanctions. The court found that the law did not allow suspension of a sentence for which the punishment exceeded five years' imprisonment and that the lower court had made an error. It corrected the error by reducing V.D.'s sentence to five years' imprisonment.

27. On 23 October 2012 the Supreme Court of Justice quashed the judgment of 3 May 2012 and ordered a rehearing by the Chișinău Court of Appeal.

28 . On 13 March 2013 the Chișinău Court of Appeal adopted a judgment, convicting V.D. and M.T. and sentencing both to five years' imprisonment, conditionally suspending the execution of both sentences for a probation period of five years. The officers were also prohibited from holding positions in the police for five years and were sentenced to 240 hours' community service. In reply to the applicants' arguments in respect of the leniency of the lower court's judgment and about impunity, with reference to the Court's judgments in Valeriu and Nicolae Roşca v. Moldova (no. 41704/02, 20 October 2009) and Pădureţ v. Moldova (no. 33134/03, 5 January 2010), the court found that those cases were not applicable to the present case since in both of them serious physical ill-treatment had been caused, while the applicants in the present case had only been psychologically ill-treated. Moreover, one witness who had been subjected to the same treatment as the applicants during the relevant events had refused to completely undress and had not been ill-treated as a result. The court also noted that the accused had committed the offence "owing to the situation obtaining on 7-8 April 2009 in Chișinău, [when] peaceful protests [had] escaped the control of law-enforcement authorities ... result[ing] in mass disorder, with the destruction of sites of national importance".

29. In their appeal the applicants argued, inter alia , that suspending the sentence imposed on V.D. and M.T. was unlawful since it was contrary to Article 3 of the Convention, which was effectively part of domestic law. They relied on the judgments in Roşca and Pădureţ (cited above) and referred to Gäfgen v. Germany ([GC] no. 22978/05, ECHR 2010) as evidence that even threats of torture were sufficient to constitute ill-treatment. They added that following the Moldovan judgments mentioned above the Criminal Code had been amended so as to exclude the possibility of suspending the serving of sentences imposed for torture. Sentencing the officers to the minimum allowed by law, with the effect of shielding them from serving any prison time and in view of their persistent denial of having committed the crime, had not ensured the required preventive effect.

30 . On 13 September 2013 the Supreme Court of Justice found "no grounds for doubting the [victims'] statements". However, it upheld the judgment adopted since the applicants had not indicated any specific errors in the application of the law by the lower court, which had taken a lawful and reasoned decision and had properly individualised the sentences in view of the nature and seriousness of the offence.

31. During the criminal investigation and the trial V.D. and M.T. were not suspended from their duties.

(ii) Proceedings against Officer A.C.

32 . On 16 April 2010 the criminal investigation that had started on 2 February 2010 against the three police officers (see paragraph 21 above) was discontinued in respect of A.C. The prosecutor summarised the applicants' statements and referred to the results of the identity parades during which each of the applicants had identified A.C. as the person who had taken them to the room in which they had been ordered to undress and do sit-ups. The first applicant stated that A.C. had ordered everyone to face the wall and not to look back. When one young woman (N.) had looked away, he had hit the back of her head, as a result of which her forehead had struck the wall. The first applicant added that when another officer had been describing the personal items in her purse, A.C. had threatened to throw it away. Subsequently she had been ordered to sign a document. When she had pointed out that the time of arrest had been noted incorrectly, A.C. had told her "I'll give you one [that is to say 'hit you'] so that you'll join your grandmother in the grave". The second applicant had given a similar description, noting that when she had entered the detention facility she had seen many persons against the wall, many of whom had been beaten by the police, while not offering any resistance. The prosecutor found that A.C. had clearly exceeded his powers as a police officer, but that the applicants had not sustained such serious damage as to qualify as torture. Accordingly, his actions were qualified as excess of powers under the Contravention Code ( Codul contravenţional ). Since the three-month prescription period for this administrative offence had already expired, the case against A.C. could not be pursued. He continued to work as a police officer throughout the proceedings.

33 . On 22 April 2010 the applicants' application to have the decision of 16 April 2016 annulled was rejected by the prosecutor who had adopted it. On 4 June 2010 the lawyer asked a more senior prosecutor to annul the decisions taken on 16 and 22 April 2010. She argued, inter alia , that A.C. should not have been relieved of criminal responsibility since he had acted at least as an accomplice of V.D. and M.T., in respect of whom the prosecution had continued to press criminal charges. In particular, A.C. had been fully aware of V.D.'s presence in the room to which he had escorted the applicants and three other female detainees and had known that they would be subjected to a strip search. Moreover, he had acted brutally towards the applicants, humiliating them and hitting one of the female detainees (N.) and other persons in their presence. This treatment had had a considerable effect on the applicants, taking into consideration their gender and age (the second applicant was 21 at the relevant time) and the dominant position held by the police officer. Moreover, having witnessed A.C.'s openly hitting N. in front of the applicants had caused them to fear being subjected to similar treatment. In addition, the applicants' will to resist police intimidation had been completely broken since the reason for their detention had not been explained to them, nor had they been informed of the rights which they had had, in the absence of a guarantee of being able to defend those rights. They had thus been forced to sign documents which had subsequently led to their detention. It had been also unclear why the prosecutor had not charged A.C. with the criminal offence of excess of powers (Article 328 of the Criminal Code, see paragraph 37 below), but had preferred to examine the case under the Contravention Code, with the effect of letting A.C. go unpunished.

34. On 10 June 2010 her lawyer was informed that her complaint had been rejected and that the decision could be appealed against to the investigating judge.

35. On 26 July 2010 the applicants challenged in court the decisions of 16 and 22 April 2010, as well as that of 10 June 2010. The lawyer formulated essentially the same arguments which she had made in her complaint to the prosecutor (see paragraph 33 above).

36 . On 15 October 2010 the investigating judge of the Rîşcani District Court rejected the applicants' complaint as unfounded. The court found that under Article 287 of the Code of Criminal Procedure a criminal investigation lawfully discontinued by a prosecutor could be reopened only if new circumstances had been discovered or where the decision had been affected by a fundamental defect in the proceedings. Since the prosecution had decided to discontinue the criminal proceedings against A.C. and in the absence of any new circumstances warranting the reopening of the investigation, it was contrary to Article 4 of Protocol No. 7 to the Convention for the court to order the reopening of the criminal proceedings against him. The judge also found that the prosecutor had fully and objectively examined the case, taking into account all the evidence available. That decision was final.

II. RELEVANT DOMESTIC LAW

37 . The relevant provisions of the Penal Code, applicable at the relevant time, read as follows:

Article 309 1 Torture

"1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or testimonies ... shall be punishable by imprisonment of two to five years. ...

3) The actions referred to in paragraph 1 ..., carried out:

...

c) by two or more persons;

...

e) with the use of special instruments of torture or other objects adapted for that purpose;

f) by an official,

shall be punishable by imprisonment of five to ten years ..."

Article 328. Excess of power or excess of duties

"(1) The commission by a person in power of actions which manifestly exceed the limits of powers and duties provided by law, if they caused considerable damage to the public interest or to the lawful rights and interests of natural or legal persons

shall be punishable by a fine ... or by imprisonment of up to three years...

(2) The same actions accompanied

a) by the use of violence

...

c) by torture or actions which debase the victim's dignity

shall be punishable by imprisonment of two to six years ..."

38. The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, read as follows:

Article 287

"(1) The re-opening of an investigation after its discontinuation, the closing of the investigation ( clasarea cauzei penale ) or the dropping of charges is ordered by a senior prosecutor by means of a decision, if it is thereafter discovered that there was no reason for taking the measure or that the circumstance which had led to the discontinuation of the investigation, its dismissal or the dropping of the charges has disappeared.

...

(4) Where a decision to discontinue the investigation, to close it or to drop the charges was adopted lawfully, the investigation can only be re-opened if new or recently discovered circumstances have been revealed or if the decision was affected by a fundamental flaw in the previous investigation. Where a fundamental flaw in the investigation is discovered, the criminal prosecution can be re-opened not later than one year following the taking effect of the order discontinuing the criminal investigation, dismissing the criminal case or dropping the criminal charges."

39 . On 15 October 2010 Government adopted its Decision no. 956 to help persons who had suffered as a result of the events of April 2009. All the persons mentioned in that decision, including the applicants, received a fixed amount of 5,000 Moldovan lei (MDL - the equivalent of approximately 307 euros (EUR) at the time).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40. The applicants complained under Article 3 of the Convention about the impunity of officer A.C. as a result of the failure to prosecute him under applicable criminal-law provisions. They also complained, under the same Article, that the investigation of their forced undressing in front of V.D. had not been prompt and about the impunity of V.D. and M.T. Article 3 reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

41. The Government argued that the applicants could no longer claim to be victims of a violation of Article 3 of the Convention in view of the conviction of the two officers and of the compensation awarded by the domestic courts (see paragraphs 30 and 39 above).

42. The Court considers that the issue is inextricably linked to the merits of the complaints under Article 3 of the Convention, that is to say to the question of the effectiveness of the investigation into the applicants' allegations of ill-treatment and alleged impunity. Therefore, it considers that both questions should be joined to the merits of the complaints under Article 3.

43. The Court notes that the application 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

1. The applicants' submissions

44. The applicants submitted that Article 3 was applicable since they had been subjected to torture at the hands of State agents. That ill-treatment had been caused not only by V.D. and M.T., but also by A.C., who had hit another person (N.) in the applicants' presence and had threatened one of the applicants with death; he had been the officer who had brought them to the room where they had been forced to undress and had said to V.D. that he had brought in another person. They had been scared of A.C.'s threats since they had witnessed N. being hit and had heard screams by many persons being ill-treated in neighbouring rooms. They had been two young women in a position of inferiority to the officers depriving them of their liberty without explaining the reasons for their detention; they had been refused access to a lawyer or permission to contact a relative (especially the first applicant, who had not known the fate of her minor child whom she had been raising alone) and had been held in inhuman conditions of detention. All of this had intensified their suffering. These facts had never been put in doubt and had served as the basis for charging A.C.

45. The applicants complained of the effective impunity of the three officers involved in their ill-treatment. In particular, A.C. had been ultimately charged with an administrative offence (excess of power) while the seriousness of his actions had meant he should have been charged with a criminal offence (Article 328 of the Criminal Code, see paragraph 37 above). That criminal law had clearly been applicable, notably owing to the violence used (the hitting of N. in front of the applicants), the threats of using similar violence against the applicants and the debasement of human dignity, which the legislature had expressly qualified as an aggravating circumstance in Article 328 § 1 (c) of the Criminal Code. Neither the prosecutor nor the court made any analysis of why the criminal provision had not been applicable and why administrative proceedings had been preferred. The applicants relied on Gäfgen (cited above) to argue that even in the absence of any actual physical harm damage could be caused by threats of ill-treatment. Moreover, the authorities had not mentioned any reason for not charging A.C. as an accomplice in the commission of the offence by V.D. and M.T., since it had been established that he had been the officer who had brought the applicants to the room where they had been forced to undress. In addition, A.C. had never been suspended from his functions during the investigation.

46. While V.D. and M.T. had been charged with a criminal offence, they too had not been suspended from their functions during the investigation and trial. The proceedings had been protracted, with frequent delays allowed by the courts. When the officers had eventually been convicted, they had been sentenced to the minimum punishment allowed by law and their sentences had been suspended, despite their denial of any guilt and attempts to mislead the courts about their role in the events. These mild punishments had not corresponded to the obligation to ensure the preventive effect of anti-torture legislation. Moreover, the domestic courts' reliance on the exceptional circumstances during the public disturbances in April 2009 had been at odds with the principle that no derogation from the requirements of Article 3 was allowed even in exceptional circumstances.

47 . The applicants submitted statistical data, according to which during 2011 and 2012 some fifty-six judgments had been adopted in cases concerning torture and excess of power related to ill-treatment. Of these, 35.7% had been acquittals, a rate fifteen times higher than the average rate of acquittals in Moldova. Of the twenty-nine cases in which the accused had been convicted, in only one had the court ordered the effective serving of the sentence imposed and that too had been quashed by the higher courts. As a result, following those twenty-nine convictions no one had spent any time in prison since the sentences had all been suspended. Many more complaints in respect of ill-treatment had not even reached the courts, the prosecutors often refusing to launch criminal investigations or launching and then discontinuing them.

48. The applicants argued that the investigation of their complaints of ill-treatment had not been prompt. While the authorities had been aware of these complaints since April 2009, a criminal investigation had been initiated only on 2 February 2010. Thereafter it had taken the courts more than three years - until 13 September 2013 - to adopt a final decision in this case. During that time significant delays had been allowed, such as the fact that the fully reasoned judgment of 15 July 2011 had been sent to the parties only in December 2011, despite a statutory time-limit for doing so of ten days.

49. They lastly submitted that the payment of MDL 5,000 by the Government to all the victims of the events of April 2009 had not deprived them of "victim status" in respect of their complaints. This sum had not been intended to compensate for the protracted criminal proceedings or for the impunity of the police officers, but rather to offer "help to the persons who [had] suffered from the events of 7 April 2009", as had been emphasised in the title of the relevant Government decision.

2. The Government's submissions

50 . The Government submitted that following the conviction of V.D. and M.T. and the payment of compensation (see paragraph 39 above), the applicants could no longer claim to be victims of a breach of their rights protected by the Convention.

51. They also argued that the domestic prosecutors and courts had properly determined that A.C.'s actions had not caused particularly serious suffering to the applicants and that Article 309 1 § 3 (c) of the Criminal Code (torture) had been inapplicable. He had thus been prosecuted for his actions under the Contraventions Code.

52. The applicants had not made any requests for medical assistance while in detention; nor had they made any complaints to the prosecutor, who had visited them every day, as confirmed by the relevant records.

53. In seeking to have the Court find that A.C. had been responsible for their ill-treatment, the applicants were effectively asking the Court to carry out a criminal prosecution which the domestic authorities had refused. Unlike in previous cases in which a breach of Article 3 had been found owing to a failure to investigate complaints of ill-treatment during the April 2009 events (such as Taraburca , cited above), in the present case a criminal investigation had taken place, which had even resulted in convictions. The sentences imposed on the officers had corresponded to the seriousness of their actions, as determined by the domestic courts. Moreover, the offences had been committed as a result of the mass disorders that had led to the destruction of sites of national importance.

54. Moreover, previous cases against Moldova in which the Court had found a breach of Article 3 owing to the impunity of the torturers (such as Pădureţ , cited above) were not applicable to the present case since those cases had involved serious bodily harm aimed at obtaining confessions. In the present case the torture had involved psychological violence which had provoked severe psychological suffering, aimed at intimidating the applicants.

3. The Court's assessment

(a) General principles

55 . As the Court has stated on many occasions, Article 3 of the Convention 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, among other authorities, Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08and 43441/08, § 113, ECHR 2014 (extracts); and Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

56. 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 depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Gäfgen , cited above, § 88, and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08and 43441/08, § 114, ECHR 2014 (extracts)). Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (compare, inter alia , Aksoy v. Turkey , 18 December 1996, § 64, Reports 1996-�VI; Krastanov v. Bulgaria , no. 50222/99, § 53, 30 September 2004; Gäfgen , cited above, § 88; and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 196, ECHR 2012), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-�IX, and Svinarenko and Slyadnev , cited above, § 114). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for example, Selmouni , cited above, § 104, and Gäfgen , cited above, § 88).

57. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's psychological and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see, among other authorities, Gäfgen , cited above, § 89; Svinarenko and Slyadnev , cited above, § 114; Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts), and Van der Ven v. the Netherlands , no. 50901/99, §§ 60-63, ECHR 2003-�II). It should also be pointed out that it may well suffice that the victim has been humiliated in his or her own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom , 25 April 1978, § 32, Series A no. 26; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011; and Bouyid v. Belgium [GC], no. 23380/09, §§ 87, 28 September 2015).

58. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar 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, such 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).

59. Furthermore, the outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as disciplinary measures taken, has been considered decisive. It is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined (see Gäfgen , cited above, § 121 and Jeronovičs , cited above, § 106).

(b) Application of the above principles to the present case

60. The Court must first determine whether the treatment complained of falls within the scope of Article 3 of the Convention. It takes into account the fact that the domestic courts have already found that the applicants had been subjected to psychological ill-treatment. In examining the manner in which the applicants were treated, namely being forced under threats of violence to undress in front of an officer of the opposite sex and perform sit-ups and being threatened with violence or even death (see paragraph 9 above), the Court sees no reason to disagree with the findings of the domestic courts (see, for instance, Gäfgen , cited above, § 108; Dejnek v. Poland , no. 9635/13, § 60, 1 June 2017, and Valašinas v. Lithuania , no. 44558/98, § 117, ECHR 2001-�VIII).

(i) Effectiveness of the investigation

61. The applicants complained under Article 3 that the investigation into their allegations against officers V.D. and M.T. had been inefficient and protracted. The Government considered that the investigation had been effective and had resulted in the conviction of the relevant officers.

62. The Court reiterates that it is beyond doubt that a requirement of promptness and reasonable expedition is implicit in the context of investigating alleged ill-treatment by the authorities. A prompt response 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; Özgür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002; and Batı and Others v. Turkey , nos. 33097/96and 57834/00, § 136, ECHR 2004-�IV (extracts)).

63. In the present case, the Court notes that on 16 April 2009 the authorities were alerted that a crime had possibly been committed. On 23 April 2009 the applicants were interviewed and made very specific allegations against police officers, whom they identified (see paragraph 15 above). They repeated their allegations in an interview with a prosecutor on 18 May 2009 and the resulting material was forwarded to the Prosecutor General's Office (see paragraph 16 above). Despite all this specific information indicating that the applicants had been subjected to psychological violence, it is clear from the decisions taken by the prosecutors that they were reacting only to the formal complaint made by the applicants on 23 July 2009 (see paragraph 19 above). However, the Court reiterates that when a State authority realises that treatment contrary to Article 3 may be occurring, it must react on its own motion (see, mutatis mutandis , Aksoy v. Turkey , 18 December 1996, § 56, Reports 1996-VI; Ostrovar v. Moldova (dec.) no. 35207/03, 22 March 2005; and Levinţa v. Moldova , no. 17332/03, § 79, 16 December 2008). By failing to react during the crucial first three months after the information about the alleged offence became known (23 April-23 July 2009), the authorities jeopardised the effectiveness of the investigation.

64. Moreover, on 19 January 2010 a court found that the investigation had been superficial and identified a number of shortcomings (see paragraph 20 above).

65. The Court also notes that in accordance with domestic law the failure to launch a criminal investigation limits the latter's effectiveness in terms of admissibility in court of any evidence obtained (see, for instance, Guţu v. Moldova , no. 20289/02, § 61, 7 June 2007; Ipate v. Moldova , no. 23750/07, § 63, 21 June 2011; and Taraburca , cited above, § 57).

66. The Court concludes that in view of the late and superficial internal investigation, coupled with the failure to launch a proper criminal investigation until more than nine months after the information about the alleged offence had become known to the authorities, the investigation into the applicants' allegations has not been effective (see, for instance, Taraburca , cited above, § 59 and Buhaniuc v. the Republic of Moldova , no. 56074/10, §§ 43-45, 28 January 2014).

(ii) Alleged impunity of the police officers

67. The applicants also complained of the effective impunity of all three officers whom they had accused. The Government considered that the domestic authorities had properly applied the law and individualised the sentences.

68. The Court will first examine the proceedings against A.C. and then those against the other two officers.

69. In respect of the proceedings against A.C., the Court notes that while finding that he had clearly exceeded his powers and thus committed an administrative offence, the prosecutors and the domestic courts never identified which of his specific actions had constituted such a breach of the Contravention Code. The only factual description in all the decisions taken in his regard reproduced the applicants' accounts, including the fact that they had identified him during identity parades (see paragraph 32 above). The Government did not submit any further details, nor did they challenge the veracity of the applicants' account of events concerning A.C.'s role.

70. In the light of the apparent acceptance by the domestic authorities of the applicants' description of A.C.'s conduct and in the absence of any evidence contradicting that description, the Court considers it established that A.C. acted in the manner described by the applicants (see paragraph 33 above).

71. The Court also notes that it has already established in previous cases concerning the events of April 2009 that there were (see Taraburca v. Moldova , no. 18919/10, § 48, 6 December 2011; see also Buhaniuc , cited abive, § 37):

"... a large number of similar allegations of ill-treatment committed during a relatively short period of time. The situation was considered so serious by the European Committee for the Prevention of Torture as to conclude, after having reviewed 'a remarkably large number of credible and consistent allegations of police ill-treatment in the context of the post-election events in April 2009' that 'rather than isolated incidents, there were patterns of alleged ill-treatment' ... Similar conclusions were reached by the Commissioner for Human Rights of the Council of Europe ('large-scale violations of the fundamental right to be free of ill-treatment') ... and the 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 ('most people were detained by the police arbitrarily ...; the police committed ill-treatment and acts of torture against individuals held in detention')."

72. The findings above support the applicants' allegation that they found themselves in a frightening situation, witnessing other persons being ill-treated by the police. Having witnessed such open and large-scale ill-treatment, it is understandable that the applicants took A.C.'s words (see paragraph 33 above) as a real and immediate threat (see Gäfgen , cited above, § 91, and El-Masri , cited above, § 202). They thus complied with his orders to face the wall, to sign documents with evident errors, to follow him to a room and to comply in that room with any order given, even if it meant a serious affront to their dignity, by fully undressing.

73. In the Court's view, A.C.'s actions, while not reaching the seriousness of torture, were clearly aimed at intimidating the applicants and gravely affected their dignity. They must thus be viewed as inhuman and degrading treatment within the meaning of Article 3 of the Convention (see El-Masri , cited above, § 204). While the prosecutor found that A.C.'s actions had not caused serious enough damage to the applicants to be characterised as torture, he and subsequently the domestic court devoted no part of the reasoning to explaining why that officer could not be charged with criminal excess of powers or as an accomplice to the offence committed by V.D. and M.T. Moreover, the applicants expressly argued that domestic law provided grounds for such prosecution (see paragraphs 33-36 above).

74. The prosecutor could not have been unaware of the fact that choosing to apply administrative law would preclude imposing any sanction on A.C. in view of the expiry of the three-month prescription period for prosecuting administrative offences. Indeed, he decided not to launch administrative proceedings against A.C. as time-barred in the same decision in which he decided to discontinue the criminal investigation in favour of the administrative one (see paragraph 32 above). The Court reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance for the purposes of an "effective remedy" that criminal proceedings and sentencing are not time-barred (see, for instance, Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004). The fact of knowingly choosing such a course of investigation which leads to it being time-barred, when there are alternative lawful grounds for prosecuting a person accused of ill-treatment as in the present case, is incompatible with the State's obligation to prevent impunity. The fact that A.C. was never suspended from his functions throughout the proceedings only adds to the doubts which the public may have concerning the authorities' resolve to eradicate the practice of police ill-treatment.

75. The Court lastly notes that the domestic courts did not examine the substance of the arguments raised by the applicants in challenging the decisions adopted by the prosecutor. In doing so it found that domestic law and Article 4 of Protocol No. 7 to the Convention prohibited the reopening of a criminal investigation after it had been discontinued by a prosecutor, unless new circumstances had been discovered or where the decision had been affected by a fundamental defect in the previous proceedings (see paragraph 36 above). The Court finds it important to reiterate that one of the key elements in determining whether Article 4 of Protocol No. 7 applies to a specific case is to determine whether, in previous proceedings, a final decision in respect of that person has been adopted. It found, in this connection (see Nikitin v. Russia , no. 50178/99, § 37, ECHR 2004-�VIII), that:

"According to the explanatory report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a "decision is final 'if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them'."

76. In the present case, the prosecutor's decisions concerned could not be considered "final decisions" since an ordinary appeal could be lodged with the courts. The applicants did lodge such an appeal, which was not found to be out of time, thus preventing the prosecutors' decisions from becoming final. Moreover, the case-law in respect of Moldova attests examples where prosecutors' decisions to discontinue investigations have been annulled by higher prosecutors or the courts (see, for instance, Corsacov v. Moldova , no. 18944/02, §§ 30-44, 4 April 2006, and Dornean v. the Republic of Moldova , no. 27810/07, §§ 23 and 28, 29 May 2018).

77. In the Court's view, the manner in which the domestic authorities dealt with the applicants' complaints against A.C., namely choosing to apply administrative rather than criminal law provisions despite the seriousness of his actions and while knowing that administrative proceedings were time-barred, as well as the refusal to examine their appeal in a supposed attempt to prevent double-jeopardy, when there was no such danger, led to virtually complete impunity for that officer. As a result not only did A.C. not incur any criminal sanction, but he avoided any real investigation into his actions. Such a situation is incompatible with the State's obligation to prevent impunity of persons accused of torture and other forms of ill-treatment.

78. As concerns the alleged impunity of V.D. and M.T., the Court notes the following. The domestic courts established that both officers were present in the room when the applicants were ordered to fully undress. They considered such unlawful actions and the particular disregard with which they had taken place to constitute psychological ill-treatment (see paragraph 30 above).

79. Despite reaching the conclusion that the applicants had been subjected to ill-treatment, the courts finally sentenced both officers to the minimum allowed by law (five years' imprisonment). Moreover, they considered it necessary to relieve them from actually serving any part of those sentences by suspending them for five years. In the Court's view, such leniency in treating police officers accused of a very serious crime is incompatible with the aim of preventing future occurrences of ill-treatment by the police. In addition, like A.C., the two officers were never suspended from their duties throughout the proceedings.

80. The Court needs to stress that Article 3 does not allow for derogations even in the most stringent situations (see paragraph 55 above). It therefore observes with concern the Court of Appeal's attempt to justify the leniency of the sanctions imposed on V.D. and M.T. by the fact that they had acted in a situation of mass disorder and by the differences in the manner in which ill-treatment had been caused in the present case as opposed to previous ones (see paragraph 28 above).

81. The Court notes with further concern that the leniency towards officers accused of ill-treating the applicants was not an isolated incident. The statistics for 2011 and 2012 relied on by the applicants and not challenged by the Government (see paragraph 47 above) suggest a general tendency of the Moldovan courts at the relevant time to shield State agents accused of ill-treatment from any serious consequences.

82. In such circumstances, neither the sentences imposed on the three officers, nor the payment of EUR 300 as help by the Government could be considered as leading to the loss of the right to complain of a breach of the applicants' rights protected by the Convention. Therefore, the Government's objection (see paragraph 50 above) must be dismissed.

83. The Court recalls that where delays in the investigation of ill-treatment do not, of themselves, "interfere with the investigation to an extent impeding its effectiveness" (see Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria , no. 3524/14, § 43, 12 January 2017), no violation of Article 2 or 3 is to be found. However, in the present case the delays in the investigation have been coupled with the failure to take a series of important investigative acts, as established by a domestic court (see paragraph 20 above). As a result, the applicants remained in a state of uncertainty as to the outcome of the proceedings for almost four and a half years (see, for instance, S.Z. v. Bulgaria , no. 29263/12, § 39, 3 March 2015). In addition, the Court considers that the manner in which the domestic authorities dealt with the complaints against all three officers, resulting in their virtual impunity, is incompatible with the prohibition of ill-treatment by the police.

There has accordingly been a violation of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84. 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

85. The applicants each claimed 22,000 euros (EUR) in respect of non-pecuniary damage, which was similar to the awards made by the Court in the above-mentioned cases of Valeriu and Nicolae Roşca and Pădureţ . They argued that they had suffered extreme brutality, which had caused them considerable stress, fear and frustration. Those feelings had been intensified by the protracted examination of the case against V.D. and M.T. and the discontinuation of the proceedings against A.C. They had had strong feelings of re-victimisation during the proceedings, particularly when V.D. and M.T. had appeared in court in police uniform, denied all guilt and accused the applicants of lying. The courts' repeated failure to deal with the arguments in their appeals, where they had argued for the need to apply much harsher sanctions to the accused, had also contributed to the intensity of the suffering.

86. The Government submitted that the applicants' reliance on the cases of Valeriu and Nicolae Roşca and Pădureţ was incorrect since the consequences of the ill-treatment in those cases could not be compared to those in the present case.

87. The Court reiterates that it has found a breach of Article 3 of the Convention. It considers that the applicants were subjected to suffering during the relevant events and, to a lesser extent, after that time when they witnessed the leniency of the authorities towards their alleged torturers and towards ill-treatment in general. In view of the seriousness of the violation found, and deciding on an equitable basis, it awards each applicant EUR 7,500.

B. Costs and expenses

88. The applicants also claimed jointly EUR 2,600 for the costs and expenses incurred before the domestic courts and EUR 6,583 for those incurred before the Court. They relied on a contract of 1 April 2012 concluded with their lawyer and on a detailed time-sheet, according to which the lawyer had worked on the case for a total of 65.47 hours at an hourly rate of EUR 125. They referred to the complexity of the case and the fact that the Court had asked for two rounds of observations. They lastly invited the Court to transfer the entire amount of any award made in respect of costs and expenses to their lawyer's account in view of the fact that one of them no longer resided in Moldova.

89. The Government considered that the sum claimed was excessive and left to the Court to determine a fair amount.

90. According to the Court's case-law (see, for a recent example, Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), 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 1,500 covering legal costs, to be transferred to the applicants' lawyer's account.

C. Default interest

91. 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 procedural limb;

3. Holds

(a) that the respondent State is to pay the applicants, 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 7,500 (seven thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be transferred to the applicants' lawyer's account;

(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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> O.R. AND L.R. v. THE REPUBLIC OF MOLDOVA - 24129/11 (Judgment : Article 3 - Prohibition of torture : Second Section) [2018] ECHR 897 (30 October 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/897.html Cite as: [2018] ECHR 897, ECLI:CE:ECHR:2018:1030JUD002412911, CE:ECHR:2018:1030JUD002412911