THIRD SECTION
CASE OF BUHANIUC v. THE REPUBLIC OF MOLDOVA
(Application no. 56074/10)
JUDGMENT
STRASBOURG
28 January 2014
FINAL
28/04/2014
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Buhaniuc v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 7 January 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56074/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Sergiu Buhaniuc (“the applicant”), on 30 September 2010.
2. The applicant was represented by Mr V. Zama, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The applicant alleged, in particular, that he had been ill-treated during his arrest and that there had been no effective examination of his complaint in that regard.
4. On 12 December 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1990 and lives in Chișinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 5 April 2009 general elections took place in Moldova. On 6 and 7 April 2009 large crowds gathered in the streets to protest against alleged electoral fraud. Hundreds of persons were arrested on 7 April 2009 and thereafter.
A. The applicant’s arrest and alleged ill-treatment
8. The applicant was arrested in the evening of 7 April 2009 and on the next day was sentenced by a court to ten days’ administrative detention. According to the applicant, he was punched in the eye by a plain-clothes police officer during his arrest and then subjected to ill-treatment in the Buiucani police station and subsequently at the General Police Directorate (“the GPD”). He was hit by groups of five to twelve persons, both in uniform and plain clothes, taken through a “death corridor” in which officers lined up and kicked or hit each victim as he or she passed through the corridor while being taken to or from the police station or, especially, the GPD.
9. He was also hit on both ears simultaneously (a form of torture known as “the telephone”), and struck on the head with fists and rubber sticks, all while his hands were handcuffed behind his back. He was also forced to keep his hands up for long periods of time while being hit periodically. He lost consciousness several times as a result of the ill-treatment.
10. The applicant was also allegedly held with eight other persons in a damp humid cell measuring 4 x 4 metres, where he had no access to daylight or any means of determining the time of the day or the date; he also had no access to the outside world, his relatives, a lawyer or a doctor.
11. No water was provided to him during the first twenty-four hours of his detention. Thereafter dirty water was distributed in unhygienic plastic bottles to be used by everyone in the cell. The applicant was subsequently diagnosed with hepatitis of an unknown origin. No food was provided. In the congested damp cell he had no opportunity to sleep for three days. There was no toilet in the cell and access to the toilet outside the cell was allowed at random and only after subjecting the person to humiliation.
12. Psychological ill-treatment was also allegedly used: the applicant was threatened with a lengthy term of imprisonment, with rape and death. He was subjected to interrogation by several persons simultaneously and was forced to sign blank papers.
B. Investigation into the applicant’s complaint of ill-treatment
13. On 11 April 2009 the applicant was seen by a doctor, who found a haematoma on his left eye.
14. On 15 April 2009 the applicant complained to the military prosecutor of ill-treatment by the police.
15. On 29 April 2009 the applicant was examined at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). On 15 December 2009 it issued an “Extract from the medical file” (Extras din Fişa Medicală) concerning the applicant’s examination. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the applicant was suffering from, inter alia, the consequences of a head injury, which included intracranial hypertension syndrome and post-traumatic stress disorder, as well as a post-traumatic ear condition.
16. The prosecutor in charge of the case interviewed the police officers in charge of the applicant’s arrest, who declared that they had not used force against him. On 29 May 2009 the prosecutor decided not to initiate a criminal investigation into the applicant’s allegations as he found that there was no evidence that a crime had been committed. On 5 February 2010 the applicant complained to the Prosecutor General’s Office, noting that he had been sent a copy of the prosecutor’s decision only on 22 January 2010. On 18 February 2010 the Prosecutor General’s Office confirmed the decision of 29 May 2009.
17. On 25 March 2010 the applicant challenged in court the decisions of 29 March 2009 and 18 February 2010. On 19 April 2010 the investigating judge at the Buiucani District Court annulled the two decisions and ordered that a supplementary investigation be carried out. The court found that the prosecutors’ decisions had been based only on the statements of the police officers accused of ill-treating the applicant. Moreover, while one of the prosecutors had found that force had been used to apprehend the applicant, which could explain any injuries on his body, the arresting officers had denied the use of any force.
18. On an unknown date prior to 10 May 2010 a formal criminal investigation into the applicant’s allegations was initiated.
19. On 19 May 2010 the applicant was officially recognised as a victim in the investigation of the alleged crime. He described the circumstances of his alleged ill-treatment and participated in a photograph identity parade, but did not recognise any of the persons in the photographs.
20. On 25 May 2010 the prosecutor in charge of the case suspended the investigation on the basis that no suspect had been identified.
21. Following the Court’s communication of the present application to the respondent Government on 12 December 2011, on 8 February 2012 the Prosecutor General’s Office recommended to the Chișinău Military Prosecutor that the proceedings in respect of the applicant’s complaints should be reopened. The prosecutor considered that the decision of 25 May 2010 had been groundless and drew up a list of twelve investigative actions be taken in the new investigation of the complaint. This list included actions such as hearing S., who had been arrested together with the applicant; hearing the persons detained together with the applicant during the events of April 2009; hearing the doctor who had examined him at the Buiucani police station; obtaining various medical evidence concerning the applicant’s state of health prior to and after his detention in April 2009, including the report of the “Memoria” centre; examining the documents in the file concerning the accusations against the applicant; and organising cross-examinations involving both the applicant and the officers who had arrested him on 7 April 2009.
22. On 22 March 2012 the doctor who had examined the applicant at the Buiucani police station was heard as a witness. He declared that he had noted all the injuries present on the applicant’s body. He added that a police officer had been present in the room during the examination, but had not put pressure of any kind on the applicant.
23. On 26 March 2012 two officers were officially declared suspects in the case and were interviewed by a military prosecutor. The parties did not inform the Court of any further developments in this regard.
II. RELEVANT NATIONAL AND INTERNATIONAL REPORTS
24. The relevant non-Convention material is summarised in Taraburca v. Moldova (no. 18919/10, §§ 33-37, 6 December 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
25. The applicant complained of ill-treatment by the police, and that there had not been an effective investigation into his allegation of ill-treatment. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
26. The Government argued that the applicant had not exhausted all available domestic remedies since the investigation into his complaints was still pending.
27. The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal systems (see, for example, Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). At the same time, “an applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach” (see Yoyler v. Turkey, no. 26973/95, 13 January 1997, and Akdivar and Others v. Turkey, § 68, 30 August 1996, Reports 1996-IV).
28. In the instant case, it is true that the proceedings are still pending before the domestic courts. Nevertheless, the Court finds that the question of the exhaustion of domestic remedies is inextricably linked to the merits of the complaint under Article 3 of the Convention, that is, to the question of the effectiveness of the investigation into the applicant’s allegations of ill-treatment. Therefore, it considers that both questions should be joined and examined together (see Mikheyev v. Russia, no. 77617/01, § 88, 26 January 2006).
29. The Court further notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
30. The applicant submitted that he had been ill-treated while in police custody and that the investigation into his allegation of ill-treatment had been slow and ineffective. Before the communication of the present application to the respondent Government, it had been limited to questioning several police officers. He had not been given the opportunity to identify the perpetrators by participating in a cross-examination. Moreover, no criminal investigation as such had been initiated, which had limited the powers of the prosecutors to fully investigate the case. Only after communication of the present application had the authorities identified two police officers as suspects in the case. Finally, at least part of the investigation had been carried out by officers employed by the Ministry of Internal Affairs – the same institution which employed the police officers suspected of the ill-treatment.
31. The Government submitted that they could not take the place of the prosecutors and courts, thus undermining an ongoing investigation. They argued that when new information had become available the investigators had taken swift action. Therefore, the apparent delays, which had been due to objective factors such as the fact that no suspects had been identified, should not be taken into consideration in determining the effectiveness of the investigation.
2. The Court’s assessment
(a) General principles
32. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII).
33. The Court reiterates that in the process of arresting a person, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). In such a situation it is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention see (Selmouni v. France, cited above, § 87).
34. The Court further reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, the investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
35. For an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, among others, Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Ergı v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).
36. The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.
(b) Application of the general principles to the present case
37. Turning to the facts of the present case, the Court notes that, unlike other cases which it has examined in respect of Moldova concerning individual cases of alleged ill-treatment, the present case appears to be part of a large number of similar allegations concerning ill-treatment committed during a relatively short period of time (see Taraburca v. Moldova, cited above, § 48).
38. While keeping in mind this background of what appears to have been systematic and large-scale ill-treatment of detainees by the police, the Court still has to verify that the applicant has adduced sufficient evidence that he personally was ill-treated before it can find a violation of Article 3 of the Convention (see Taraburca, cited above, § 48). In this connection, it notes that on 7 April 2009 the applicant was arrested by the police (see paragraph 8 above), and that on 11 April 2009 he was examined by a doctor, who found a haematoma on his left eye (see paragraph 13 above). The nature of that injury to the applicant’s eye is consistent with his account of the events.
39. The Court also notes the doctor’s statement about the presence of a police officer during the applicant’s medical examination. This must necessarily have undermined any attempt by the applicant to show more of his injuries to the doctor, for fear of further ill-treatment. Considering the general state of insecurity in the various places of detention in the aftermath of the disturbances of 7 April 2009, the applicant’s fear was not without foundation (compare Taraburca, cited above, § 52). The findings of the “Memoria” centre (see paragraph 15 above) only confirm the applicant’s account of events, notably his head trauma and the post-traumatic ear condition.
40. Having regard to the failure to carry out a medical examination upon the applicant’s entry into detention, and the absence of any record concerning any use of force or any sign of injury to his body, the Court finds that the authorities have not submitted any evidence that the applicant had been injured before his arrest or provided a plausible explanation of the origin of the hematoma under his eye. The doctors at the “Memoria” centre found further signs of severe ill-treatment.
41. Moreover, the applicant complained of inhuman conditions of detention (see paragraphs 10 and 11 above). The Court notes that he was detained for a relatively short period of time at the Buiucani police station and on the premises of the GPD, which was extremely overcrowded between 7 and 12 April 2009 (see Taraburca, cited above, § 33). The Government did not dispute his claims that no water was available during the first 24 hours of his detention, that no food was distributed thereafter, and that the applicant was deprived of sleep and of regular access to a toilet. While the above circumstances may raise a separate issue under Article 3 of the Convention, the Court considers that in the present case these are additional elements contributing to the anguish and suffering which the applicant must have suffered as a result of his ill‑treatment (see Taraburca, cited above, § 51).
42. In view of the above, the Court concludes that there has been a violation of Article 3 of the Convention in its substantive limb.
43. The Court further notes that the investigation into the applicant’s complaint was heavily flawed. It notes firstly that, in spite of the serious allegations made against police officers by the applicant, no criminal investigation was formally instituted until early May 2010 (see paragraph 18 above), more than a year after the applicant had lodged his complaint. Moreover, as found by the investigating judge, the decisions not to initiate an investigation adopted on 29 May 2009 and on 18 February 2010 were based only on the statements of police officers (see paragraph 17 above).
44. It is to be noted that the decision of 29 May 2009 was not notified to the applicant until 22 January 2010, and this amounted to an unexplained delay which was too long in such a case (see, for instance, Pădureţ v. Moldova, no. 33134/03, §§ 63, 64 and 68, 5 January 2010). The Court is therefore not convinced by the Government’s assertion that the prosecutor acted swiftly when new information became available.
45. The Court lastly observes that after the case was reopened following communication of the present application to the respondent Government, the prosecution identified twelve different investigative measures to be taken in the course of the investigation (see paragraph 21 above). It is for the investigators to organise their work in the manner which they deem fit for the investigation of a particular crime. However, the Court cannot but note that by February 2012, almost three years after the allegations of ill-treatment had been made, the list of twelve actions mentioned above and which had not yet been taken included basic steps without which the investigation cannot be considered to have been effective (see paragraph 21 above).
46. The Court reiterates that if the domestic remedy chosen by an applicant is adequate in theory but, with the course of time, proves to be ineffective, the applicant is no longer obliged to exhaust it (see Tepe v. Turkey, 27244/95, Commission decision of 25 November 1996 and Mikheyev v. Russia, no. 77617/01, § 86, 26 January 2006). Having concluded above that the investigation into the applicant’s allegations has not been effective, the Court considers that he is no longer required to wait for the termination of the investigation in order to exhaust domestic remedies. The Court thus dismisses the Government’s objection of non-exhaustion of domestic remedies and holds that there has also been a procedural violation of Article 3 Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47. 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
48. The applicant submitted that the cost of future medical treatment necessitated by his condition following his ill-treatment could not be determined. He therefore asked the Court to reserve the question of pecuniary damage for a subsequent judgment.
49. The Government considered that the applicant made no claim under this head.
50. The Court notes that the applicant did not submit in due time his claims and any evidence of on-going or planned medical treatment, or otherwise substantiate or estimate his future costs. In such circumstances, the Court makes no award in this respect.
B. Non-pecuniary damage
51. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the violations found above.
52. The Government submitted that, should the Court find a breach of Article 3 of the Convention, it should make an award only in respect of the procedural aspect of the applicant’s complaint. They added that he still had a chance of obtaining compensation domestically, depending on the outcome of the on-going criminal investigation. In any event, the amount sought was exaggerated in the light of similar case-law.
53. Having regard to the violations found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000.
C. Costs and expenses
54. The applicant also claimed EUR 1,370 for the costs and expenses incurred before the Court. He submitted documents in support of his claim.
55. The Government objected and asked the Court to dismiss the claim.
56. In view of the violations found above, the Court awards the applicant’s claim in full.
D. Default interest
57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention in both its substantive and procedural limbs;
3. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,370 (one thousand three hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy