Information Note on the Court’s case-law No. 88
July-August 2006
Boicenco v. Moldova - 41088/05
Judgment 11.7.2006 [Section IV]
Article 3
Degrading treatment
Inhuman treatment
Severe ill-treatment immediately following arrest, lack of appropriate medical care thereafter: violation
Article 5
Article 5-1
Lawful arrest or detention
Prolongation of detention on remand without lawful order: violation
Deprivation of liberty
Automatic detention on remand: violation
Article 34
Hinder the exercise of the right of petition
Denial of access to detained applicant and his medical file: failure to comply with obligations under Article 34
Facts: The applicant was arrested on 20 May 2005 on suspicion of fraud. He alleges that he was beaten up by police officers following his arrest, as a result of which he lost consciousness; the Government deny this and it is not reflected in any police report. The applicant was taken to a civilian hospital, still unconscious; when he came to, he complained of headaches and nausea. Five days after his arrest, after having been transferred to a prison hospital, the applicant was seen by doctors who found that he had suffered a head trauma followed by loss of consciousness and noted that he had pain in his kidneys and red urine. He was later diagnosed with concussion. During his stay in the prison hospital the applicant never got out of bed. On several occasions the applicant’s wife and lawyers requested that an independent doctor be given access to the applicant but received no answer. On 1 September 2005 the applicant was moved to a prison; fifteen days later he was transferred to a psychiatric hospital. Several medical reports issued between September and November 2005 state that the applicant has suffered head trauma; during this period the applicant was in a state of stupor for most of the time. It is not known to the Court whether he has ever recovered.
In late May 2005 one of the applicant’s lawyers lodged a complaint with the Public Prosecutor about the ill-treatment. The applicant’s wife made several similar complaints between June and August 2005. Only in December 2005 was a decision received, namely a dismissal of the complaint by the same Public Prosecutor who had lodged the charges against the applicant and applied to the court for his remand in custody. An appeal against this decision lodged by one of the applicant’s lawyers was unsuccessful.
On various occasions between July and November the applicant’s wife and lawyers asked for the applicant to be examined by an independent doctor, the expense to be borne by the applicant’s family. These requests were never replied to. It seems that an independent doctor was granted access to the applicant only once, in January 2006, but not thereafter.
The warrant for the applicant’s detention on remand expired on 23 July 2005, but the applicant was not released. A request for the applicant’s release, lodged several days later inter alia on this ground by one of his lawyers, was dismissed.
Law : Exhaustion of domestic remedies – The Government argued that the applicant could have, but did not, make use of the provisions of Article 53 of the Constitution, Article 1405 of the Civil Code and of Law 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts. However, an individual is not required to try more than one avenue of redress when there are several available. It clearly appears that the applicant made appropriate complaints to the Public Prosecutor. The Government have not argued that the remedies attempted by the applicant were ineffective and should not have been exhausted by him. Preliminary objection dismissed.
Article 3 – The Government argued that the applicant lost consciousness as a result of stress and was not ill-treated, as demonstrated by the absence of bruises on his body. Moreover, the Government expressed their doubts about the diagnosis determined by the doctors from the Prison Hospital concerning the applicant’s acute head trauma and concussion. The Court does not see any reason not to trust that diagnosis. In this respect it notes that the diagnosis was determined by the doctors from the Prison Hospital. The Government have not presented any counter medical opinion and, in any event, the diagnosis was subsequently confirmed. Moreover, the applicant also suffered pain in his kidneys and had red urine, for which no explanation other than maltreatment has been put forward, and the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body. Between 20 May 2005 and 20 September 2005, given the lack of any clear diagnosis of the applicant’s condition, the only medical assistance possible for him was to keep him alive. However, even that conclusion is open to doubt, given the fact that between 1 and 15 September 2005 the applicant was kept in a regular prison and there is no evidence of any medical care being provided to him there. Accordingly, the Court concludes that the applicant was not provided with proper medical care until 20 September 2005. It is unable to determine on the basis of the material before it whether the treatment following the diagnosis on 20 September 2005 was appropriate and adequate. The investigation into the applicant’s alleged maltreatment was the responsibility of the same prosecutor who officially filed criminal charges against the applicant and who applied to the court for the applicant’s remand and for prolongations of his remand; his independence is open to doubt. Nor in any case is there any record of any effective investigative measures. The Court finds particularly striking the Public Prosecutor’s conclusion that the applicant’s ill‑treatment would in any event have been justified since he was presumed to have wanted to use a gun during his arrest.
Conclusion: violation (unanimously).
Article 5(3) – Under section 191 of the Moldovan Criminal Procedure Code no release pending trial is possible for persons charged with intentional offences punishable with more than 10 years’ imprisonment. It appears that the applicant was charged with such an offence. However, it follows from S.B.C. v. the United Kingdom (no. 39360/98, 19 June 2001) that the right to release pending trial cannot in principle be excluded in advance by the legislature. Moreover, both the first-instance court and the Court of Appeal, when ordering the applicant’s detention and the prolongation thereof, merely cited the relevant law, without showing the reasons why they considered to be well-founded the allegations that the applicant could obstruct the proceedings, abscond or re-offend. Nor have they attempted to refute the arguments made by the applicant’s defence. Their decisions concerning the applicant’s detention on remand and its prolongation were not “relevant and sufficient”.
Conclusion: violation (unanimously).
Article 5(1) – After the warrant for the applicant’s detention expired on 23 July 2005, no further detention warrant was ever issued by a court. The Government invoked several sections of the Code of Criminal Procedure which in their view constituted a legal basis for the applicant’s continued detention. Having analysed those sections, the Court notes that none of them provides for the detention of the applicant without a detention warrant.
Moreover, even assuming that any of the provisions invoked by the Government would have provided for such a detention, this would run counter to Article 25 of the Constitution and section 177 of the Code of Criminal Procedure, both of which state in clear terms that detention is possible only on the basis of a warrant and that it cannot be longer than 30 days.
Conclusion: violation (unanimously).
Article 34 – The essence of the applicant’s complaint under this head is that his lawyers wanted to have the applicant’s medical condition established by an independent source, notably a private doctor. The applicant’s lawyers clearly informed the State authorities that it would be necessary for them and a doctor to see the applicant and his medical file for the purpose of defending his rights before the Court. The request was reasonable in the Court’s view and it does not appear that there was any public interest in rejecting it. Moreover, the applicant’s lawyers were unable to present their observations in respect of pecuniary damage due to the lack of access to the applicant and to his medical file. The Court concludes that this constituted an interference with the applicant’s right of individual petition, which amounted to a failure on the part of the respondent Government to comply with their obligation under Article 34 of the Convention. In addition, the continuing denial of access amounts to an aggravated breach of Article 3.
Conclusion: violation (unanimously).
Article 41 – Pecuniary damage: not ready for decision; non-pecuniary damage: EUR 40,000.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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