CASE OF EDUARD POPA v. THE REPUBLIC OF MOLDOVA

THIRD SECTION

CASE OF EDUARD POPA v. THE REPUBLIC OF MOLDOVA

(Application no. 17008/07)

JUDGMENT

STRASBOURG

12 February 2013

FINAL

12/05/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Eduard Popa v. the Republic of Moldova,

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

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 22 January 2013,

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

PROCEDURE

1. The case originated in an application (no. 17008/07) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Eduard Popa (“the applicant”), on 4 April 2007.

2. The applicant was represented by Mr V. Gribincea, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3. The applicant complained, in particular, of a breach of Articles 2 and 3 of the Convention.

4. On 7 September 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1981 and lives in Ialoveni.

6. At the time of the events the applicant was serving a prison sentence in an open detention facility in Goian. During the day he worked outside the prison, returning to it at night. On 18 November 2005 he applied for home leave but his application was refused. However, in spite of the refusal he did not return to the prison that evening but spent the night at his parents’ home in the neighbouring town of Ialoveni.

7. On 19 November 2005, at approximately 9 a.m., the applicant went to a pharmacy to buy medication for back pain. On his way home, at approximately 10 a.m., a red car stopped in front of him. According to the applicant’s statement, a police officer got out of the car, punched him in the face and then pushed him into the car, whereupon he lost consciousness. The Government did not confirm this allegation but admitted that it could be one possibility among many.

8. Meanwhile, at approximately 9.30 a.m., two police officers arrived at the home of the applicant’s parents. They searched the house and asked the applicant’s mother about his whereabouts. While there, one of the officers received a telephone call and informed his caller that he was at the applicant’s house. Later he received another telephone call which lasted only some five seconds, from which the applicant’s mother understood that her son had allegedly been found by the police. The two police officers left immediately. The applicant’s mother followed them for a while and implored them not to beat up her son. They then came across a neighbour who knew the police officers, and who asked why they were there. The police officers replied that they were looking for criminals, and when the neighbour asked if they had found them, the police officers replied in the affirmative.

9. On 20 November 2005, at approximately 11 a.m., two men found the applicant lying on the ground near a pond located approximately 1.5 kilometres from Ialoveni. The applicant could not speak or walk, he had facial injuries consistent with the results of a violent assault and his clothes were wet and dirty. He was carried to a security guards’ lodge located nearby where he was warmed up and his clothes dried. Some time later he began to respond to some questions put to him and to display signs of strange behaviour. In particular, he stated his own name and also from time to time shouted out a name which later transpired to be that of his brother. The applicant also began eating mud, which made the people who had found him think that he was under the influence of drugs. The applicant was given a coat and a pair of boots and then he set off, on foot, towards Ialoveni. The applicant’s mother disputed the statement that the applicant had made the journey by himself and submitted that the people who found him had thought that he was a drug addict and had sent him out of doors instead of calling an ambulance.

10. On 21 November 2005 the same people found the applicant again, lying some thirty metres from their lodge. They called an ambulance and the applicant was taken to hospital.

11. On 21 November 2005 at approximately 4.30 p.m. the applicant’s family received a telephone call from a hospital in Chişinău and was informed that the applicant had been admitted in a critical condition.

12. The next day the applicant’s parents visited him at the hospital and learned from him that he had been beaten up by police officers and left lying on the bank of a lake near Ialoveni. Owing to the low temperatures he had suffered severe frostbite to his limbs, and later, on 8 December 2005, both his feet and eight of his fingers were amputated. According to medical records, the applicant had not been under the influence of alcohol or drugs at the time of his admission to hospital.

13. On an unspecified date the applicant’s mother lodged a complaint with the prosecutor’s office, alleging that the applicant had been ill-treated by police officers on 19 November 2005. She stated that he was prepared to identify the police officers who had assaulted him.

14. On 28 November 2005 the applicant’s mother went to the Ialoveni prosecutor’s office, where she met the superintendent of the Ialoveni police station. She was allegedly told by the latter that her son had been ill-treated by staff at the detention facility. In the hall of the prosecutor’s office she met one of the police officers who had previously visited her home on 19 November 2005. The officer appeared to be surprised to learn that her son was still alive.

15. On 2 December 2005 a criminal investigator, accompanied by a police officer, attempted to question the applicant at the hospital but he refused to respond, on account of poor health.

16. On 17 January 2006 the applicant was heard by a prosecutor and stated that on 19 November 2005 he had been walking along the street when a red car stopped and someone got out and punched him in the face. He could not remember anything after that. The applicant’s mother informed the prosecutor that following the applicant’s admission to hospital on 21 November 2005, a red car carrying police officers had come to the pond where the applicant had been found, enquiring about the applicant’s whereabouts. The applicant’s mother also gave the name of one of the police officers who had allegedly assaulted her son on 19 November 2005. It transpired from the transcript of the questioning, that the prosecutor did not put any questions to the applicant or to his mother.

17. On 20 January 2006 criminal proceedings were formally instituted by the Ialoveni prosecutor’s office. Despite allegations by the applicant’s mother that the applicant had been assaulted by police officers driving a red car, the investigation focused on the suspicion of robbery and the allegation of police assault was not investigated.

18. On 28 January 2006 the applicant was interviewed by a prosecutor. He confirmed that he had been assaulted on 19 November 2005.

19. On 10 February 2006 a forensic medical report was issued, according to which, on 21 November 2005, the applicant had sustained bruises and scratches to his face and body and that, following severe frostbite, his feet and eight of his fingers had had to be amputated. It appears that the report was prepared on the basis of the applicant’s medical documents rather than personal observation.

20. In a letter of 3 February 2006 the Prosecutor General’s Office informed the applicant that there was no reason to believe that he had been beaten up by police officers and that the investigation was directed at finding the perpetrators who had beaten the applicant up and had stolen his watch and coat.

21. The applicant’s mother wrote several letters to the prosecutor’s office expressing her discontent with the way the investigation was being conducted and insisted that an identity parade be held of police officers from Ialoveni police station so that the applicant could identify the relevant officers.

22. It appears that, as a result of the applicant’s letters, the investigation was reopened. However on 14 September 2007 the prosecutor’s office again dismissed the applicant’s complaint without conducting an identity parade. In its dismissal of the complaint, the prosecutor’s office relied on the fact that the applicant’s statements had been vague and that he had failed to cooperate properly with the investigators. The applicant challenged this decision.

23. On 6 February 2009 the Prosecutor General’s Office quashed the above-mentioned decision and ordered the continuation of the investigation. It was decided that in the reopened proceedings, the applicant was to be interviewed again and this time he would be asked to identify his aggressors. It had to be determined whether he had used any medication or illegal substances on 19 November 2005 and confrontations between the applicant and witnesses were to be arranged in the event of conflicting statements.

24. In a letter dated 12 March 2009 addressed to the prosecutor’s office the applicant’s mother continued to make accusations that police officers had beaten up her son on 19 November 2005 but also accused those persons who had allegedly, instead of calling an ambulance on 20 November 2005, turned the applicant out of doors and let him sleep rough overnight. Moreover, she also accused the same persons of stealing the applicant’s coat and giving him an old coat in its place.

25. On 14 March 2009 the applicant was interviewed. He stated that he had been walking down the street when a red car stopped nearby and several policemen had got out and knocked him to the ground. He recognised one of them and was prepared to identify him. He had only regained consciousness in hospital.

26. On 30 July 2009 the Ialoveni prosecutor’s office again dismissed the criminal complaint lodged by the applicant. In so doing it did not mention any of the statements made by the applicant on 14 March 2009. The applicant challenged that decision.

27. On 3 December 2009 the Prosecutor General’s Office quashed the above-mentioned decision and ordered a fresh re-examination of the case. The Prosecutor General’s Office removed the case from the Ialoveni prosecutor’s office, finding that irregularities had taken place in its investigation and that it had not been conducted within a reasonable time. The case was sent, instead, to the military prosecutor’s office with an order to find out, amongst other things, whether the applicant was known to be a user of drugs, alcohol or other intoxicating substances before the date of the alleged events. The military prosecutor’s office was also asked to determine, from the medical documents, whether the applicant had suffered a head injury during the alleged attack of 19 November 2005 and also to arrange a confrontation between the applicant, his mother and witnesses.

28. On 9 September 2010 a new forensic medical investigation was conducted, which produced the same results as before. The forensic experts also concluded that the injuries on the applicant’s face could have been caused by a fall.

29. For unknown reasons, the case ended up again being examined by the Ialoveni prosecutor’s office which, on 9 March 2011 dismissed the applicant’s complaint of ill-treatment by the police on similar grounds to those it had relied on previously. It does not appear that a confrontation was arranged between the applicant and the police officers who had allegedly ill-treated him.

30. On 11 May 2011 a higher-ranking prosecutor from the Ialoveni prosecutor’s office quashed the above-mentioned decision on the grounds that it had been adopted as the result of a superficial investigation and that not all the persons involved had been questioned.

31. The investigation is still pending.

II. RELEVANT DOMESTIC LAW

32. The relevant provisions of the Criminal Code read as follows:

Article 151.

Deliberate inflicting of severe bodily injury or damage to health

“1. The deliberate inflicting of severe bodily injury or damage to health which is life-threatening or which causes the loss of sight, hearing, speech or damage to or loss of function of another organ, or mental illness or some other form of damage to health accompanied by the permanent loss of at least one-third of the capacity to work, or which results in a miscarriage or an incurable disfiguration of the face and/or adjacent areas, shall be punishable by imprisonment for three to ten years.

2. The same action committed:

[point (a) repealed by Law no. 277-XVI of 18 December 2008, which came into force on 24 May 2009]

(b) against a person known to be a juvenile or against a pregnant woman or by taking advantage of the victim’s known or visibly frail condition caused by advanced age, disease, physical or mental disability or any another factor;

(c) against a person in connection with his or her performance of official or public duties;

(d) by two or more persons;

(e) by mutilation or torture;

(f) by methods endangering the health and lives of multiple persons;

(g) for the purposes of profit;

[point h) repealed by Law no. 277-XVI of 18 December 2008, which came into force on 24 May 2009]

(i) from motives of social, racial or religious hatred;

(j) against two or more persons;

(k) by an organised criminal group or a criminal organisation;

(l) in order to remove and/or use or sell the victim’s organs or tissues; or

(m) as ordered by contract;

shall be punishable by imprisonment for five to twelve years.

[Paragraph (3) repealed by Law no. 277-XVI of 18 December 2008, which came into force on 24 May 2009]

(4) Actions described in paragraphs 1. or 2. above which cause the death of the victim shall be punishable by imprisonment for eight to fifteen years.”

Article 157.

Grievous or less severe bodily injury or damage to health caused by negligence

“Grievous or less severe bodily injury or damage to health caused by negligence shall be punishable by a fine of up to 300 conventional units or by community service for 180 to 240 hours or by imprisonment for up to two years.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2, 3, 8 AND 13 OF THE CONVENTION

33. The applicant complained of ill-treatment by the police which had seriously endangered his life and had led to serious consequences for his health. He also complained of the lack of an effective investigation into his allegations. The applicant further submitted that there had been a violation of Article 8 of the Convention as a result of the physical harm suffered by him and that, in breach of Article 13 of the Convention, he had had no effective remedies against the breaches enumerated above. Articles 2, 3, 8 and 13 of the Convention, on which the applicant relied, read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

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

Article 8 § 1

“Everyone has the right to respect for his private ... life ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

34. The Government submitted that the investigation into the events of the present case was ongoing and no final decision had yet been taken at the domestic level. They maintained, for that reason, that the application was premature and that the applicant had failed to exhaust the domestic remedies available to him.

35. 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).

36. 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, namely, 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 Buzilo v. Moldova, no. 52643/07, § 24, 21 February 2012).

37. 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

38. The applicant submitted that his allegations of ill-treatment were supported by medical reports stating that he had been admitted to hospital on 21 November 2005 with facial injuries consistent with the results of a violent assault. The applicant maintained that there was sufficient evidence to prove that he had been in police custody at the time of his ill-treatment. In particular, he argued that the police had started to search for him on the morning of 19 November 2005, when it had been discovered that he had not returned to prison the previous evening. Two police officers had immediately been sent to his parents’ home to look for him. However, shortly thereafter, the police had ended the search and had not undertaken any further measures to find him until 24 November 2005. In the applicant’s submissions, that was a clear indication that the police had known his exact whereabouts after his assault on the morning of 19 November 2005, otherwise they would have continued to look for him.

39. The applicant also submitted that two police officers had been at his parents’ home when one of them had received a telephone call from which the applicant’s mother had understood that he had been found. Immediately afterwards, the police officers had left his parents’ house, telling a nearby neighbour that they had found “the criminals” (see paragraph 8 above). The applicant submitted, further, that his mother had been informed by the superintendent of Ialoveni police station that the applicant had been ill-treated by State agents.

40. In addition, the applicant stated he had become unconscious after having been assaulted by police officers on the morning of 19 November 2005. He assumed that he had been unconscious throughout the entire day of 19 November 2005 and had been taken to the lake during the night of 19 to 20 November 2005. His assumption was based on the fact that while the outside temperatures had been the same on 19 and 20 November, he had not contracted frostbite during the first night, which could be an indication of the fact that he had spent only part of that night at the pond. On the next night, however, he had contracted severe frostbite, because he had spent much more time in the open air. The applicant noted in that connection that one of the police officers who had met his mother on 28 November 2005 had been very surprised to learn that he was alive (see paragraph 14 above). In his view, this was a clear indication of the fact that, in abandoning him at the pond, the police officers had been convinced that he was either dead or that he had no chance of survival.

41. The applicant concluded that State agents had been responsible for having assaulted him severely on the morning of 19 November 2005 and for not having provided him with medical assistance during the time he was unconscious. Moreover, State agents had been responsible for leaving him, unconscious on the edge of a pond in severe weather conditions, thus putting his life at risk. As a result of their actions, he had suffered serious injuries and had been severely disabled. In the applicant’s view, there has therefore been a substantive violation of Articles 2 and 3 of the Convention.

42. The applicant further complained that the authorities had failed to properly investigate his complaint and had only shielded the police officers responsible for his assault. In his view, there had also been a procedural breach of Articles 2 and 3 of the Convention and a breach of Article 13 of the Convention.

43. The Government chose not to make any submissions in respect of the merits of the case and submitted that they would only be ready to express an opinion after the termination of the proceedings at domestic level.

2. The Court’s assessment

(a) General principles

44. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000‑VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000‑VI).

45. An individual whose life is put at serious risk may also claim to be a victim under Article 2 of the Convention (see, for example, Osman v. the United Kingdom, 28 October 1998, §§ 115-22 Reports 1998-VIII, and L.C.B. v. the United Kingdom, 9 June 1998, §§ 36-41, Reports 1998‑III.

46. Where an individual has an arguable claim that he has been tortured while in the hands of State agents, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate and without prejudice to any other remedy available in domestic law, a thorough and effective investigation. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that torture or ill-treatment has been used (see, among other authorities, Özbey v. Turkey (dec.), no. 31883/96, 8 March 2001). The authorities must take into account the particularly vulnerable situation of victims of torture and the fact that people who have been subjected to serious ill-treatment will often be less ready or willing to make a complaint (see Aksoy v. Turkey, 18 December 1996, §§ 97-98, Reports 1996‑VI).

47. The effective investigation required under Articles 2 and 3 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts, to secure the effective implementation of the domestic laws which protect the right to life and the right not to be subjected to ill‑treatment and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, among many other authorities, McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001‑III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 72, ECHR 2002-II).

48. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001, and Özgür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts (see, mutatis mutandis, Paul and Audrey Edwards § 72, cited above).

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

49. Turning to the facts of the present case, the Court notes that after being found on 21 November 2005 lying on the ground near a pond in the open air, suffering from severe frostbite to his limbs, the applicant was also reported as having sustained facial and bodily injuries apparently consistent with the results of a violent assault. No traces of alcohol or drugs were found in his blood at the time he was admitted to hospital (see paragraph 12 above). In such circumstances, the applicant’s allegation that the two nights he had spent in the open air were the result of having been assaulted on 19 November 2005 does appear to be arguable. Furthermore, the Court agrees with the applicant’s claim that his aggressors put his life at risk by leaving him unconscious at the edge of a pond at below-zero temperatures. It therefore considers that the facts of the present case fall to be examined under both Articles 2 and 3 of the Convention.

50. That being said and having examined the material before it, the Court finds it impossible to establish beyond reasonable doubt whether or not the applicant was in police custody on the morning of 19 November 2005 and whether he was ill-treated by police officers. As it will be shown below, this difficulty is due to the failure of the authorities to conduct an effective investigation into the applicant’s complaints (see Petru Roşca v. Moldova, no. 2638/05, § 42, 6 October 2009).

51. The Court notes that the investigation into the applicant’s complaint was heavily flawed. It will therefore refer only to the most grievous shortcomings. It notes that in spite of the very serious allegations made against the police officers by the applicant’s mother, and in spite of the very serious injuries sustained by the applicant, no criminal investigation was formally instituted until 20 January 2006, almost two months after the alleged applicant’s assault. Moreover, it would appear that the applicant’s allegation that police brutality was the cause of his injuries was ignored rather than treated seriously. For unknown reasons, the prosecutors preferred to investigate the possible robbery of the applicant’s coat and watch even though the applicant did not make an allegation of any such crime.

52. In the Court’s opinion, in order to determine the cause of the applicant’s disturbed mental condition between 19 and 21 November 2005 (see paragraph 9 above), it was essential to determine whether at the time of the alleged assault he had sustained any brain damage. No medical forensic investigation appears to have been carried out until February 2006 and, even then, the doctors do not seem to have been questioned about a possible head injury.

53. It does not appear that the investigators made any attempts to identify whether the police officers charged with picking up the applicant on 19 November 2005 drove a red car. Moreover, it does not appear that the investigators attempted to find out the identity of the drivers of a red car who were seen to be making enquiries, in the vicinity of the pond, about the applicant’s whereabouts after his admission to hospital.

54. In spite of numerous requests by the applicant and direct instructions from the higher-ranking prosecutor’s office, no formal identification parade of the alleged perpetrators was held, nor was a confrontation between the applicant and witnesses arranged. It appears that the instructions given by the higher-ranking prosecutor’s office were disregarded by the investigators to such a degree that even the decision of the Prosecutor General’s Office to remit the case to a different prosecutor’s office was not acted upon, the case having been handled, right up to the present time, by the Ialoveni prosecutor’s office.

55. In the light of the shortcomings described above and the overall length of the criminal investigation, the Court concludes that the investigation into the applicant’s allegations of ill-treatment was not adequate or sufficiently effective. The Court thus dismisses the Government’s objection of non-exhaustion of domestic remedies and holds that there has been a procedural violation of Articles 2 and 3 of the Convention.

56. In view of the above, it also holds that no separate issue arises under Articles 8 and 13 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. 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

58. The applicant claimed 209,187 euros (EUR) in respect of pecuniary damage suffered as a result of the violations found above. He submitted that the amount claimed could be broken down to cover his lost income as well as expenses for nursing, prostheses and various other expenses related to his medical treatment, and travel costs. The applicant also claimed EUR 120,000 in respect of non-pecuniary damage.

59. The Government disagreed with the applicant and asked the Court to dismiss his just satisfaction claims along with the application.

60. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 20,000 in respect of non-pecuniary damage.

B. Costs and expenses

61. The applicant also claimed EUR 8,009 for the costs and expenses incurred before the Court. He submitted documents in support of his claims.

62. The Government objected and asked the Court to dismiss them.

63. In view of the violations found above and judging on an equitable basis, the Court awards EUR 4,000 for costs and expenses.

C. Default interest

64. 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. Joins to the merits the Government’s preliminary objection concerning the exhaustion of domestic remedies by the applicant and rejects it;

2. Declares the application admissible;

3. Holds that there has been a procedural violation of Articles 2 and 3 of the Convention;

4. Holds that no separate issue arises under Articles 8 and 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 4,000 (four thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(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;

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

Done in English, and notified in writing on 12 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

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