CASE OF MAIER v. THE REPUBLIC OF MOLDOVA

SECOND SECTION

CASE OF MAIER v. THE REPUBLIC OF MOLDOVA

(Application no. 7816/13)

JUDGMENT
 

STRASBOURG

13 July 2021

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

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

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

Carlo Ranzoni, President,
Valeriu Griţco,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application 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 Denis Maier (“the applicant”), on 26 December 2012;

the decision to give notice to the Moldovan Government (“the Government”) of the complaints under Article 3 and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 June 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s alleged ill-treatment by the police and the ineffective investigation into his complaint of ill-treatment.

THE FACTS

2.  The applicant was born in 1978 and lives in Chișinău. He was represented by Mr A. Habravan, Mr A. Postica and Mr V. Vieru, lawyers practising in Chișinău.

3.  The Government were represented by their Agent at the time, Mr L. Apostol.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 20 July 2012 the applicant, together with M., was driving next to the Codru police station when they were stopped by several police officers. Both of them were taken to the police station. According to the applicant, at the police station he voiced his disagreement regarding the actions of the police, after which he was beaten up by several officers, who hit and kicked him in the head and body for up to ten minutes. During this time they shouted various insults, showing a clear discriminatory attitude towards drug users. M. witnessed the ill-treatment.

6.  According to the reports about the incident made by the four arresting officers on 20 July 2012, the police officers noticed an erratically moving minibus and stopped it. After a brief discussion, they suspected that the minibus occupants (the applicant and M.) were under the influence of narcotic drugs, in view of their behaviour and the absence of any smell of alcohol. The officers took both of them to the local police station. When the applicant was asked to present the contents of his bag, he produced two mobile phones, then drew out a syringe with a brown substance inside and quickly emptied it on the floor. He then took two more syringes with a similar substance inside from the bag, but he did not manage to empty them since the officers restrained him (“immobilised him by the hands”). Subsequently, an additional syringe with a brown substance was found in the minibus mentioned above. Two of the officers mentioned that the applicant had resisted their efforts to stop him from emptying the remaining two syringes. One of them noted that the applicant had thrown himself to the ground in an attempt to empty the remaining syringes, but had been restrained while prone.

7.  A forensic report found that the brown substance in each of the syringes and the residue in the empty syringe was an illegal narcotic drug.

8.  Also on 20 July 2012 the applicant was tested for narcotic substances; the tests came back positive. The doctor, who specialised in drug-addiction treatment, noted fresh signs of injections on the applicant’s hands, as well as a haematoma under his left eye.

9.  On the same day, M.’s father made a written statement, according to which he had received a phone call by the police and had been informed about the events earlier that day. At the same time, he was asked to authorise the search of the minibus involved in the events, since he was its owner. He authorised the search. A syringe with a brown substance was found therein. He did not mention seeing any bruises on the applicant’s body.

10.  At an unknown time late in the evening of 20 July 2012 the applicant was released. He arrived at home after midnight, according to his mother. According to the applicant, he felt ill for the next few days, but since it was a weekend he went to an emergency doctor on the following Monday, 23 July 2012. The doctor identified multiple bruises on the applicant’s head, face, thorax and limbs.

11.  On 24 July 2012 a forensic doctor confirmed the previous medical findings of 23 July 2012, describing in detail the location of each bruise as follows: an excoriation on the left frontal region (5.8 by 4 cm); a blue oval ecchymosis on the left periorbital (4 by 5 cm); several oval ecchymoses (from 2 by 1.5 to 8 by 5 cm) on the right anterior axillary line at the level of ribs VI and VII, on the upper, middle and lower part of the right arm, as well as on the middle third of the right thigh; an oval brown-blue ecchymosis (2 x 1.5 cm) on the mucous membrane of the lower lip, left side and an excoriation (0.7 by 0.5 cm) covered with whitish fibrin. The expert concluded that these bruises had been caused by a hard and blunt object, possibly during the time and in the circumstances described by the applicant.

12.  On 25 July 2012 the applicant submitted a criminal complaint to the Prosecutor General’s Office seeking the investigation into his ill-treatment by the police officers. The complaint was forwarded to the Centru prosecutor’s office, who interviewed the applicant and the arresting officers. According to the applicant, he asked for M. and M.’s father to be questioned as witnesses, noting that M. had witnessed the entire ill-treatment, while M.’s father had seen the applicant after the incident with clear signs of ill-treatment on his face. However, those two witnesses were not interviewed.

13.  According to the Government, those two witnesses were summoned to appear before the prosecutor in charge of the case, but failed to appear. In their testimony about the relevant events made to the prosecuting authority on 2 August 2012, the arresting officers essentially repeated what they had stated in their reports of 20 July 2012 (see paragraph 6 above). They added that, aside from having restrained the applicant so as to prevent him from emptying the syringes, they had not hit him or used any unlawful force.

14.  In a decision of 29 August 2012 the Centru prosecutor’s office refused to institute criminal proceedings. The prosecutor found that the applicant had been detained on suspicion of being under the influence of narcotic drugs, a suspicion subsequently forensically confirmed. Moreover, he had initially declared to the prosecutor that he had not had anything in the syringes, while the forensic report had found illegal drugs therein. Given these circumstances and the lack of a coherent explanation, the prosecutor found that the applicant’s statements were unreliable and were a means of defence in the criminal proceedings initiated against the applicant for possession of illegal drugs. The prosecutor mentioned that the two witnesses that the applicant had requested to be questioned had been summoned but had failed to appear for unknown reasons before the prosecuting authority.

15.  On 18 September 2012 the applicant appealed against the prosecutor’s decision, arguing that the eyewitness M. had not been interviewed and that the investigation had been superficial.

16.  On 28 September 2012 the supervising prosecutor upheld the decision of 29 August 2012. The applicant appealed against that decision to the Centru District Court in Chișinău. In his oral submissions to that court, the applicant noted that the two witnesses whom he had requested to be heard had still not been interviewed and that they had been intimidated into not testifying for him. In particular, M. was afraid of leaving home and being arrested. Moreover, the applicant had not been charged with resisting lawful orders of the police.

17.  On 8 November 2012 the Centru district investigating judge upheld the previous decisions and rejected the applicant’s appeal. The judge found that the applicant and M. had tried to destroy evidence against them and had resisted the arresting officers. Therefore, the use of force by the four arresting officers had been justified by the applicant’s own conduct. The bruises found on his body had been justifiable in the light of the degree of danger caused and the situation created, the officers not having overstepped their lawful powers. It had not been necessary to interview the two witnesses since they had not been involved in the relevant events.

RELEVANT LEGAL FRAMEWORK

18.  In accordance with Article 199 of the Code of Criminal Procedure, a person who fails to appear when summoned by an investigating authority or a court may be forcibly brought to the relevant body.

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19.  The applicant complained that he had been ill-treated by the police and that the investigation into his allegations of ill-treatment had been ineffective. 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.”Admissibility

20.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

 MeritsThe parties’ submissions

(a)   The Government

21.  The Government submitted that the police had been conducting a planned operation aimed at preventing drug abuse when the applicant had come to the officers’ attention owing to his erratic behaviour. At the police station he had tried to destroy the evidence and the officers had restrained him by hands. However, he had thrown himself on to the ground, hitting his face off it, which explained the haematoma under his left eye. Faced with such behaviour on the part of the applicant, in an unpredictable situation, the officers had had to use force to fully restrain him in order to prevent the destruction of evidence. The force used had corresponded to the danger posed by the applicant’s actions. Moreover, on the evening of 20 July 2012 when the applicant had claimed he had been ill-treated he had been seen by a drug-treatment doctor, to whom he had not complained of ill-treatment. That doctor had carried out a thorough examination, as was clear from the fact that not only had the results of the applicant’s psychological evaluation been noted, but also the presence of a haematoma under his left eye had been mentioned (in a field specifically reserved for the person’s appearance, notably the presence of any bruises or injuries). No other bruise had been registered, even though that medical examination had taken place after the alleged ill-treatment at the police station. Since the applicant had been released after that examination and had been free during the following days, additional injuries could have been caused after his release. Therefore, there were reasonable doubts as to the origin of the bruises described in the medical reports of 23 and 24 July 2012, which could not have been caused by the police.

22.  As for the procedural limb of Article 3, the Government argued that the authorities had carried out an effective investigation into the applicant’s allegations. The prosecutor’s decision not to initiate a criminal investigation into the applicant’s allegation of ill-treatment had been taken after all witnesses to the relevant events had been interviewed (except for M. and his father, who had been summoned to appear before the prosecuting authority but failed to come for unknown reasons; moreover, one of them made a written statement which was added to the file) and in the light of the medical reports, namely those of 24 July 2012, concluding that the injuries caused to the applicant had been insignificant. Therefore, the prosecutor had concluded that the applicant had not been ill-treated, but had only been restrained as a result of his own actions.

(b)   The applicant

23.  The applicant submitted that he had been beaten continuously for up to ten minutes and had sustained a number of bruises to various parts of his body. Two years after the events a psychological evaluation carried out by Memoria Rehabilitation Centre had confirmed that he had been suffering from post-traumatic stress disorder.

24.  He referred to the Government’s confirmation, in their observations, that force had been used against the applicant. The officers had shouted insults (such as “junky”) at the applicant while beating him up, showing their discriminatory motivation. According to a 2014 study of Moldovan police officers’ attitude towards drug users, 70% of them considered that drug users were criminals rather than victims of drugs and 63% associated drug users with criminals.

25.  The applicant’s detention had never been registered, nor had any legal action been taken against him for resisting the police. The fact that the doctor who had seen him on 20 July 2012 had only noted one bruise under the applicant’s eye did not mean that he had not had other bruises at the time. He had been escorted to that doctor by and examined in the presence of the same officers who had beaten him up earlier. He had obviously been afraid of complaining in order to avoid further ill-treatment. Moreover, that doctor’s conclusion – attesting to a bruise under the applicant’s eye – should have been sufficient to alert the authorities to possible ill-treatment and they should have reacted on their own motion, even in the absence of a complaint in that regard.

26.  As for the procedural limb of Article 3, the applicant argued that his allegations had not been effectively investigated. In particular, two witnesses who had witnessed either the ill-treatment or its aftermath had not been interviewed. Moreover, none of the doctors who had seen the applicant between 20 and 24 July 2012 had been interviewed before his complaints had been dismissed, no confrontation between the applicant and the four arresting officers had been carried out.The Court’s assessment

(a)   Alleged ill-treatment

27.  In the present case, it is undisputed by the parties that the applicant was detained by the police for several hours on 20 July 2012. In the absence of a medical examination upon arrival at the police station and of any other information about him having had any bruises before his arrest, the presumption must be that he was taken into custody in good health. However, several hours later, while the applicant was still deprived of his liberty, a doctor noted a haematoma under his left eye (see paragraph 8 above). Moreover, a medical report made on the third day after his release described multiple bruises on the applicant’s head, face, thorax and limbs. This was confirmed in a forensic medical report the next day (see paragraph 11 above).

28.  In the light of the number and location of the bruises, which were allegedly caused while the applicant was in the hands of the police and which the medical forensic expert did not exclude having been caused in the circumstances described by the applicant (see paragraph 11 above), the Court considers that Article 3 of the Convention is applicable to the present case.

29.  The Government argued that only one haematoma under the applicant’s eye had been caused while in detention, the other injuries having been observed on the third day after his release. However, the Court notes that he was released on a Friday night and went to a doctor the next Monday. Moreover, no medical examination was conducted before his release so as to establish his state of health at that time. Most importantly, while a haematoma appeared under the applicant’s eye during his detention, a fact formally known after a doctor confirmed it on 20 July 2012, the authorities decided to release him without a medical examination. In the light of the authorities’ failure to record the applicant’s state of health during his admission and release from detention, considering that a haematomata appeared during his detention, and given that the applicant went to a doctor on the first working day after the incident, it has to be presumed that the bruises recorded on 23 and 24 July 2012 were caused while he was in detention on 20 July 2012 (see, in this respect, Buhaniuc v. Moldova, no. 56074/10, § 40, 28 January 2014).

30.  The Government explained that the haematoma had appeared under the applicant’s eye as a result of a struggle with police officers, including a fall to the ground when he had tried to destroy evidence (see paragraph 13 above). The domestic court reached a similar conclusion, finding that the force used against the applicant had been justified by his own resistance to the police (see paragraph 17 above). The Court observes, however, that only two of the four officers mentioned in their reports that the applicant had continued to struggle after his hands had been restrained. Only one of them mentioned that the applicant had thrown himself to the ground when trying to empty the syringes. It is important to note that none of the police reports drawn up on 20 July 2012 mentioned any kind of bruises caused to the applicant or the use of force other than restraining his hands (see paragraph 6 above). Similarly, the two prosecutors who rejected the applicant’s request to open a criminal investigation against the officers did not refer to any use of force beyond restraining his arms (see paragraph 14 and 16 above). In such circumstances, it is unclear how the domestic court reached its conclusion that the applicant’s bruises had appeared as a result of legitimate use of force (see paragraph 17 above), nor can the Government’s argument to that effect be accepted.

31.  In the light of the lack of any plausible explanation for the origin of the many bruises on various parts of the applicant’s body, the Court concludes that he was ill-treated while in detention. There has therefore been a breach of Article 3 in its substantive limb.

(b)   Investigation into the applicant’s allegations of ill-treatment

32.  The Court observes that, in response to the applicant’s complaint, a prosecutor verified the facts before refusing to open a criminal investigation (see paragraph 14 above). There has thus never been a meaningful criminal investigation, which under the domestic law in itself limits the usefulness of any evidence gathered (see, for instance, Guţu v. Moldova, no. 20289/02, § 61, 7 June 2007; Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 25 and 90, 2 November 2010; Gasanov v. the Republic of Moldova, no. 39441/09, § 53, 18 December 2012; and Ciorap v. the Republic of Moldova (no. 5), no. 7232/07, § 62, 15 March 2016).

33.  During this verification, the applicant repeatedly asked for two witnesses to be interviewed, specifically M., who had allegedly witnessed the ill-treatment directly, and M.’s father, who had allegedly seen him after the ill-treatment. M.’s father did make a statement, which was added to the file, even though it appears that he was not asked about whether he had seen the applicant during his detention on 20 July 2012 (see paragraph 9 above). However, M. was not interviewed at all. It is true that he did not appear before the prosecutor when summoned. However, the Government have not submitted any evidence indicating that the authorities attempted to find out the reason for his failure to appear, which is even more striking in the light of the applicant’s allegation that M. was being intimidated not to testify. Moreover, the prosecution had the power to bring M. in against his will (see paragraph 18 above). Given the fact that M. was potentially an eyewitness to police brutality, the Court considers that simply summoning him once and not following through on that summons in any manner was a serious failure to obtain first-hand evidence.

34.  The Court also notes that the prosecution did not interview any of the doctors who had seen the applicant on 20, 23 and 24 July 2012, in particular, the doctor who had seen the applicant on 20 July 2012 and who was the only medical expert to have seen the applicant before his release.

35.  Lastly, the manner in which the domestic court dealt with the case raises additional concerns. In particular, in dealing with the origin of the applicant’s injury, the domestic court relied on reasons, such as the use of force made necessary by the applicant’s own actions, which were not advanced by either the arresting officers or the prosecutor’s office (see paragraphs 6, 13 and 14 above). It thus took an active role favouring the officers accused of ill-treatment and to the detriment of the applicant.

36.  In view of the above, the Court finds that the authorities have not fulfilled their obligations under the procedural limb of Article 3 of the Convention to ensure an effective investigation of the applicant’s allegations of ill-treatment. There has thus been a breach of that provision in the present case.ALLEGED VIOLATION OF ARTICLE 6 § 3 OF THE CONVENTION

37.  The applicant complained about the domestic authorities’ failure to interview eye-witnesses to his ill-treatment, in particular M., in breach of Article 6 § 3 of the Convention.

38.  The Court considers that, even assuming that the applicant was convicted and thus Article 6 applies, this complaint does not raise an issue separate from that examined under the procedural limb of Article 3.APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.”Non-pecuniary damage

40.  The applicant claimed 15,000 euros (EUR) in compensation for the non-pecuniary damage caused to him as a result of ill-treatment which had been motivated by discrimination against drug users. He claimed that as a result of the ill-treatment in the hands of the police officers he had become disabled.

41.  The Government submitted that the sum claimed was excessive and that no evidence had been provided in support of the claim that the applicant had become disabled and that his alleged disability had been caused by the alleged ill-treatment.

42.  Having regard to the violations found above and their seriousness, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500.Costs and expenses

43.  The applicant claimed EUR 3,120 for the costs and expenses for the services of three lawyers (he provided a contract in respect of their services) and of a rehabilitation centre for victims of torture (he submitted a receipt).

44.  The Government argued that the agreement between the applicant and his lawyers provided for a contingency fee, which depended on the success of litigation before the Court. Such agreements were not binding on the Court (they referred to Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI). Since no fees had actually been paid, no compensation for such costs should be awarded.

45.  According to the Court’s case-law, an applicant is entitled to the reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, notably the contract with the applicant’s lawyers which is enforceable under domestic law, the Court considers it reasonable to award the applicant the sum of EUR 1,500 for costs and expenses.Default interest

46.  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,Declares the complaint under Article 3 admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention in its substantive and procedural limbs;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Carlo Ranzoni
Deputy RegistrarPresident

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