THIRD SECTION
CASE OF GOREA v. THE REPUBLIC OF MOLDOVA
(Application no. 6343/11)
JUDGMENT
STRASBOURG
23 July 2013
FINAL
23/10/2013
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Gorea v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 2 July 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6343/11) 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 a Moldovan national, Mr Mihail Gorea (“the applicant”), on 13 January 2011.
2. The applicant was represented by Mr A. Donica, 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 by the police and that the investigation into his complaint of ill-treatment had been ineffective.
4. On 5 October 2011 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 1962 and lives in Costeşti.
6. On 15 July 2008 the applicant was visited by three police officers who inquired about the whereabouts of his son and who wanted to conduct a search of the applicant’s house. According to the applicant, when he asked whether they had a warrant they beat him up, handcuffed him and took him to the police station. At the police station the ill-treatment continued. The applicant received a blow to his head as a result of which he fell over and lost consciousness. He woke up lying in a pool of blood and was made to clean it up. The applicant was detained and released five days later. The Government did not contest the above facts.
7. On 16 July 2008 the applicant lodged a criminal complaint with a prosecutor’s office, complaining about his ill-treatment the evening before.
8. On 17 and 23 July 2008 the applicant was examined by forensic doctors who reported that he had scratches and bruises on his face, chest and right foot. The doctors concluded that the injuries could have been caused by blows with a blunt object with a limited surface area, possibly in the way described by the applicant.
9. On 25 July 2008 a prosecutor from the Ialoveni prosecutor’s office dismissed the applicant’s complaint as ill-founded. The prosecutor’s office reached this conclusion on the basis of statements made by the accused police officers, who submitted that they had searched the applicant’s house in order to find his son. They alleged that the search had been conducted with the applicant’s permission, but that the applicant had kept insulting them during the search. Because of the way the applicant had been behaving, the accused police officers had decided to take him to the police station. His injuries had been caused as a result of him putting up resistance.
10. On 29 October 2008 a hierarchically superior prosecutor quashed the above decision and ordered a re-investigation of the circumstances of the case.
11. On 21 November 2008 a prosecutor from the Ialoveni prosecutor’s office again dismissed the applicant’s complaint as ill-founded, on similar grounds as the first time. The applicant appealed, but his appeal was rejected by a hierarchically superior prosecutor on 31 March 2009. The applicant appealed to an investigating judge.
12. In the meantime, the Ialoveni prosecutor’s office initiated administrative proceedings against the applicant on charges of having insulted the accused police officers and having resisted arrest. On 3 March 2009 the Chișinău Court of Appeal acquitted the applicant with final effect, after finding the charges against him ill-founded.
13. On 24 April 2009 an investigating judge from the Ialoveni District Court upheld the applicant’s appeal, quashed the decision of 31 March 2009 and ordered a fresh re-examination of the applicant’s complaint.
14. On 24 July 2009 a prosecutor from the Ialoveni prosecutor’s office again dismissed the applicant’s complaint.
15. On 20 August 2009 a hierarchically superior prosecutor rejected a further appeal by the applicant. The applicant appealed to an investigating judge.
16. On 24 December 2009 the Ialoveni District Court upheld the applicant’s appeal, quashed the decisions of 24 July 2009 and 20 August 2009 and ordered a re-examination of the case.
17. On 17 February 2010 a prosecutor from the Ialoveni prosecutor’s office again dismissed the applicant’s complaint. The applicant appealed to a hierarchically superior prosecutor.
18. On 10 May 2010 the Ialoveni District Prosecutor upheld the applicant’s appeal and quashed the decision of 17 February 2010, ordering a new examination of the case.
19. In the re-opened investigation a new forensic medical report was obtained, which confirmed the findings of the initial reports and excluded the possibility of the injuries to the applicant’s body having been self-inflicted or caused by a fall.
20. On 12 July 2010 a prosecutor from the Ialoveni prosecutor’s office again dismissed the applicant’s complaint as ill-founded. The applicant appealed to a hierarchically superior prosecutor.
21. On 5 August 2010 a hierarchically superior prosecutor rejected the applicant’s appeal. The applicant appealed to an investigating judge.
22. On 13 October 2010 a judge from the Ialoveni District Court upheld the applicant’s appeal and quashed the decisions of 12 July 2010 and 5 August 2010, ordering a re-examination of the case.
23. On 3 January 2011 a prosecutor from the Ialoveni prosecutor’s office again dismissed the applicant’s complaint.
24. On 7 April 2011 a hierarchically superior prosecutor quashed the above decision and ordered a re-investigation of the circumstances of the case.
25. On 14 April 2011 a criminal investigation was formally initiated for the first time by the Ialoveni prosecutor’s office and the applicant was formally recognised as a victim.
26. Between that date and 23 November 2011 the prosecutor’s office took evidence from the applicant, his wife and two neighbours. One of the neighbours has seen the applicant being ill-treated by two police officers while a third police officer held back his wife. He had seen one of the police officers kicking the applicant in the chest two or three times. Another neighbour, who did not see the whole incident, had seen two police officers carrying the applicant, who appeared to be unconscious, to their car. The applicant’s wife submitted that her husband had been beaten up by two police officers and thrown to the ground while the third one held her back.
27. On 6 April 2012 the Ialoveni prosecutor’s office remitted the case file to the District Court for trial. It appears that to this day the proceedings are still pending before that court.
II. RELEVANT DOMESTIC LAW
28. The Police Act of 18 December 1990 states as follows:
Section 14: Conditions of and limits on the use of force, special techniques and firearms
“Police officers have the right to use force, special techniques and firearms in the cases and in the manner provided for in the present law. The use of force, of special techniques and of firearms shall be preceded by a warning about the intention to use them, and sufficient time shall be allowed for reaction, except in cases in which a delayed use of force... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences.
...
In any case in which the use of force cannot be avoided, police officers are obliged to do their best in order to cause the least harm possible to the health, ... dignity and property of citizens, as well as to ensure medical assistance is provided to victims.
In case of injury or death caused as a result of use of force... the police officer shall report it to his direct superior, in order that the latter may inform a prosecutor.
The abuse of the power to use force... shall be punished in accordance with the law.”
Section 15: The use of physical force
“Police officers are only entitled to use force and special fighting techniques for the purpose of ending criminal activities and for neutralising resistance to lawful demands in cases in which non-violent methods are not sufficient to discharge their obligations.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
29. The applicant submitted that he had been ill-treated by the police during his arrest and detention and that the State authorities had failed to investigate his allegations of ill-treatment effectively. In his view, the treatment had amounted to a violation of Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
30. The Government submitted that the investigation into the circumstances of the present case was still being conducted and that no final decision had yet been given at domestic level. For that reason, they maintained that the applicant’s application was premature and that he had failed to exhaust the domestic remedies available to him.
31. 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).
32. 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).
33. The Court further notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring the application inadmissible have been established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
34. The applicant submitted that he had been ill-treated during his arrest and detention and argued that the Government had not given any credible explanation as to the cause of the injuries to his body. The applicant also argued that the authorities had failed to investigate his complaint properly.
35. The Government did not make any submissions on the merits of the case and submitted that they were prevented from doing so until the domestic courts gave their final decision on the case.
2. The Court’s assessment
(a) General principles
36. 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, cited above, § 95, ECHR 1999‑V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII).
37. 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). 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, cited above, § 87).
38. 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).
39. 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 other authorities, 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, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).
40. 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
41. Turning to the facts of the present case, the Court notes that on 15 July 2008 the applicant was arrested by the police and that upon his release numerous injuries to his body were found (see paragraph 8 above). The nature of the injuries to the applicant’s body is consistent with his account of the events. Moreover, the accused police officers did not deny causing his injuries but stated that it happened as a result of his putting up resistance. However, that version of the facts is inconsistent with the findings of the domestic courts, which cleared the applicant of all charges concerning the alleged resistance to arrest (see paragraph 12 above). In such circumstances, the Court considers that the responsibility of the State is engaged.
42. The Court further notes that the investigation into the applicant’s complaint gives rise to serious concerns. In a case which, in the Court’s opinion, is not of particular complexity, the investigation has been pending before the domestic authorities for almost five years. The prosecutor’s office was very slow in initiating the proceedings and dismissed the applicant’s complaint six times on grounds which appear to have been based on a very superficial investigation. In dismissing the complaint, the prosecutor’s office appears to have relied exclusively on the statements of the accused police officers without questioning other witnesses or paying attention to the forensic medical reports. It was only in April 2011, some three years later, that the prosecutor’s office initiated criminal proceedings and remitted the case to a court for trial. The situation does not appear to have improved in the court proceedings, where the case has been pending since without any progress. In such circumstances, the Court cannot but conclude that the investigation into the applicant’s allegations of ill-treatment has not been adequate or sufficiently effective.
43. 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). Having concluded above that the investigation into the applicant’s allegations was ineffective, 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 been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
44. The applicant complained that the criminal proceedings initiated at his request were excessively long and that therefore there had been a breach of Article 6 of the Convention. The Court reiterates that the Convention does not guarantee the right to pursue criminal proceedings against third parties and that Article 6 does not apply to proceedings aimed at instituting criminal proceedings against third parties. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. 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
46. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the violations found above.
47. The Government disagreed with the applicant and argued that the amount claimed by him was excessive.
48. 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 him the entire amount claimed.
B. Costs and expenses
49. The applicant also claimed EUR 800 for the costs and expenses incurred before the Court. He submitted documents showing that the above amount was paid by him to his representative.
50. The Government submitted that the above amount was excessive and unjustified.
51. The Court awards the amount claimed in full.
C. Default interest
52. 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 complaints under Article 3 admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 3 of the Convention;
4. 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 national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 800 (eight hundred 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.
Done in English, and notified in writing on 23 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy