CASE OF GUTIUM v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF GUTIUM v. THE REPUBLIC OF MOLDOVA

(Application no. 49542/16)

JUDGMENT
 

STRASBOURG

4 December 2025

This judgment is final but it may be subject to editorial revision.

In the case of Gutium v. the Republic of Moldova,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Gilberto Felici, President,
 Diana Sârcu,
 Sébastien Biancheri, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 49542/16) 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”) on 16 August 2016 by a Moldovan national, Mr Tudor Gutium (“the applicant”), who was born in 1957, lives in Chișinău and was represented by Ms D. Crețu, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent at the time, Mr O. Rotari;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

Having deliberated in private on 13 November 2025,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the authorities’ failure to fulfil their positive obligations under Article 3 of the Convention with regard to investigating the applicant’s ill-treatment by private individuals.

2.  The applicant worked for a few days for R.P. as a driver. On 19 June 2014 he arrived at the place where R.P. was parked with his vehicle and asked to be paid for his work. According to the applicant, in response to his insistence, R.P.’s son R.Al. approached him and grabbed him by the neck. During the struggle the applicant accidentally bumped into R.A., R.P.’s wife. R.P. then attacked the applicant; together with R.Al. he dragged the applicant to some nearby trees where all three members of the family beat him up.

3.  According to R.P. and members of his family, the applicant was angry and punched R.A. twice in the face, following which R.P. attacked him to protect his wife, punching and kicking him. R.Al. had left before that encounter.

4.  According to the witness statement made to the police by G., the applicant’s neighbour who was passing by at the time of the events, he saw a woman (R.A.) and a younger man (R.Al.) hitting the applicant. When G. asked why they were attacking him, R.Al. replied that the applicant had hit his mother and he responded aggressively when G. stated that if that had been the case, he should call the police. He then saw R.P. approach and hit the applicant twice in the face, following which he fell on the ground and was dragged by R.P. and R.Al. to some nearby trees, where all three beat him up. The applicant lost consciousness, and when he regained consciousness, he asked G. to report the incident to the police.

5.  The applicant spent a week in the hospital. On 8 July 2014 he lodged a criminal complaint against R.P., R.A. and R.Al. for intentional bodily harm. On 10 July 2014 a criminal investigation into those allegations was started under Article 152 § 2 of the Criminal Code (see paragraph 12 below). The prosecution took statements from both parties to the conflict and three witnesses, including G. Four forensic reports were drawn up, finding that the applicant had suffered fractures to four ribs, concussion and bruising around his left eye. In reply to a question from the prosecutor, the expert stated that he could not determine the number of blows the applicant had sustained, since they had been described too superficially in the hospital medical documents. The prosecution classified the applicant’s injuries as being of medium severity not endangering life, inflicted by two or more persons. The applicant was recognised as an aggrieved party and subsequently lodged a civil claim within the criminal proceedings against the three accused.

6.  On 29 July 2014 the applicant complained to the police that R.P. had threatened him with violence over the phone in relation to the complaint he had made to the police about ill-treatment. On 4 August 2014 G. complained to the police that on 31 July 2014 he had been stopped on the street by R.Al. and offered money in exchange for him changing his witness statement. He asked to be protected from such influence during the investigation.

7.  On 30 September 2014 the prosecutor in charge of the case decided to discontinue the investigation in respect of R.A. and R.Al. In order to reach that conclusion, she referred to the statements made by the applicant, the three accused, G. and the forensic reports obtained. In view of those elements, the prosecutor found insufficient evidence for maintaining the charges against R.A. and R.Al. The applicant submitted that he and his lawyer had not been informed of that decision. On 1 October 2014 R.P. was formally charged with having committed the offence provided for in Article 152 § 1 of the Criminal Code. On the same day he acknowledged his guilt and on 3 October 2014 the case was sent for trial.

8.  On 11 November 2014 the applicant and his lawyer were informed that the case had been sent to the trial court and that they were allowed to study the material in the case file. From that material they allegedly found out about the prosecutor’s decision of 30 September 2014. On 19 November 2014 the applicant’s lawyer appealed against that decision. The appeal was forwarded to the trial court for examination together with the criminal case against R.P.

9.  On 28 April 2015 R.P. was convicted in a simplified procedure whereby he fully acknowledged his guilt. In view of the severity of the damage caused to the applicant and the fact that he had previously been convicted and sentenced to a fine, the court sentenced him to three years and four months’ imprisonment, suspended with a two-year probation period. R.P. was also ordered to compensate the applicant for the pecuniary damage caused (5,843 Moldovan lei (MDL), the equivalent of 290 euros (EUR) at the time) and MDL 3,500 (EUR 174) for costs and expenses. As for the applicant’s claim of MDL 100,000 in respect of non-pecuniary damage, the court awarded him MDL 5,000 (EUR 248).

10.  In response to the applicant’s appeal against the prosecutor’s decision of 30 September 2014, the court found that once an investigation had been lawfully discontinued in respect of a person, it could only be re-opened if there was evidence of new or newly discovered facts, or if there had been a fundamental defect in the previous proceedings, which could affect the outcome of the case. Since no new facts or defects were present, the investigation could not be re-opened in respect of R.A. and R.Al.

11.  That court judgment was mostly upheld by the Chișinău Court of Appeal on 2 October 2015 and by the Supreme Court of Justice on 12 April 2016. R.P.’s sentence was reduced to 160 hours of unpaid community work.

Relevant domestic law

12.  In accordance with Article 152 § 1 of the Criminal Code, as in force at the time of the events, causing bodily harm of medium severity that was not life-threatening and not having caused grave consequences such as the loss of function of certain organs, was punishable by 200-240 hours of unpaid community work or imprisonment for a period of up to 5 years.

Under Article 152 § 2 of the same Code, the same acts committed, inter alia, by two or more persons was punishable by imprisonment for a period of five to seven years.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

13.  The applicant complained under Articles 6 and 13 of the Convention that there had been various shortcomings in the investigation into his ill-treatment. Being the master of the characterisation to be given in law to the facts of the case (see, for instance, S.M. v. Croatia [GC], no. 60561/14, § 243, 25 June 2020), the Court will examine this complaint from the perspective of the authorities’ compliance with 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.”

14.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

15.  The general principles concerning the authorities’ positive obligations under Article 3 of the Convention with respect to investigating allegations of ill-treatment by private individuals have been summarised in X and Others v. Bulgaria ([GC], no. 22457/16, §§ 184-92, 2 February 2021).

16.  The Government argued that the authorities had taken all reasonable steps to fully investigate the case, by taking statements from the parties to the conflict and three witnesses, ordering four forensic reports and organising several confrontations. They submitted a letter sent to the applicant on 30 September 2014, informing him that the investigation against R.A. and R.Al. had been discontinued, as well as the copy of the prosecution service’s record of outgoing correspondence, which noted that a copy of that decision had been sent to the applicant.

17.  The Court notes that although the authorities were informed of the ill-treatment suffered by the applicant immediately after the incident of 19 June 2014 (see paragraph 4 above), they only started an investigation two days after a formal criminal complaint was lodged on 8 July 2014. Moreover, it is apparent that the prosecutor considered it important to establish the number of blows which the applicant had sustained, as she had included a specific question in that regard in the list of questions put to the expert (see paragraph 5 above). However, the expert had to rely on the insufficient description of the applicant’s injuries given by the hospital doctors, in the absence of an urgent examination by a forensic specialist to secure acceptable quality evidence. Moreover, the parties disagreed about whether the applicant or his lawyer had actually received the prosecutor’s letter informing him of the discontinuation of the investigation against R.A. and R.Al. and thus, whether the applicant had been sufficiently involved in the investigation.

18.  However, the Court will focus on another issue in the present case, namely whether the prosecution and courts showed excessive leniency. The Court notes that initially three individuals were accused of the assault on the applicant. However, on 30 September 2014 the investigation was discontinued in respect of two of them. It is to be reiterated that in carrying out an investigation into ill-treatment 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 (see Bouyid v. Belgium [GC], no. 23380/09, § 123, ECHR 2015, and X. v. Bulgaria, cited above, § 185). While the prosecutor relied on a description of the evidence in the case, she did not explain how that evidence supported her decision. On the contrary, G.’s witness statement mentioned in that decision directly incriminated all three of the accused and the prosecutor did not mention any evidence contradicting that witness or questioning his credibility, except the statements of the accused. The decision of 30 September 2014 therefore appears to be ill-founded and unsupported by evidence or solid arguments.

19.  In turn, when asked to examine the lawfulness of that decision, the courts have failed to do so, essentially relying on the principle of non bis in idem (see paragraph 10 above) to reject the applicant’s appeal. However, the Court has already had occasion to find that a prosecutor’s decision to discontinue an investigation could not be considered a “final decision” as long as an ordinary appeal against it could be lodged with the courts (O.R. and L.R. v. the Republic of Moldova, no. 24129/11, §§ 75 and 76, 30 October 2018). The applicant did lodge an ordinary appeal, which was not found to be out of time, thus preventing the prosecutor’s decision from becoming final.

20.  The Court further observes that the discontinuation of the investigation against R.A. and R.Al. had an additional effect on the main proceedings against R.P.: since the assault on the applicant was no longer considered as having been committed by two or more persons, the final charge against R.P. was falling under Article 152 § 1 and not Article 152 § 2 of the Criminal Code. While the first of these provided for a choice between a prison sentence and unpaid community work, the latter provided for imprisonment alone. He was eventually sentenced to unpaid community work. The Court reiterates that while there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and mental integrity to go unpunished, or for serious offences to be punished by excessively lenient sanctions. The important point for the Court to review, therefore, is whether and to what extent the courts, in reaching their conclusion, might be deemed to have submitted the case to careful scrutiny, so that the deterrent effect of the judicial system in place and the significance of the role it was required to play in preventing violations of the prohibition of ill-treatment are not undermined (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 285, 30 March 2016, and Sabalić v. Croatia, no. 50231/13, § 97, 14 January 2021).

21.  The Court considers that the sentence finally applied to R.P. (160 hours of unpaid community work) for actions resulting in such serious bodily harm as that caused to the applicant, coupled with the absence of an effective investigation into the alleged actions by R.A. and R.Al. and the rather small amount of compensation awarded in respect of non-pecuniary damage suffered by the applicant, is incompatible with the obligations mentioned in the preceding paragraph.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account. It notes, however, that under applicable domestic law the applicant has the right to seek the reopening of the domestic proceedings on the basis of the present judgment, notably in respect of his civil action claiming compensation for the damage caused.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 4 December 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Gilberto Felici
 Deputy Registrar President