SECOND SECTION
CASE OF POVESTCA v. THE REPUBLIC OF MOLDOVA
(Application no. 33968/16)
JUDGMENT
STRASBOURG
1 February 2022
This judgment is final but it may be subject to editorial revision.
In the case of Povestca v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 33968/16) 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”) by a Moldovan national, Mr Ștefan Povestca (“the applicant”), on 7 September 2016;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints under Article 3 of the Convention;
the parties’ observations;
Having deliberated in private on 11 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged failure to carry out an effective investigation into the applicant’s ill-treatment by private individuals, as well as the allegedly insufficient medical assistance given to him while in detention.
THE FACTS
2. The applicant was born in 1968 and lives in Chișinău. The applicant was represented by Ms S. Raiu, a lawyer practising in Chișinău.
3. The Government were represented by their Agent, Mr O. Rotari.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. During the night of 3 August 2015, the applicant entered the house of T.M. with the intention of stealing the latter’s property. He was wearing black clothes, rubber gloves and a balaclava. The owner heard a sound and confronted the applicant, who tried to flee. Having jumped over the fence into the garden of T.M.’s neighbour (L.V.), he was stopped by L.V. and his son L.S. During the struggle in which the applicant tried to free himself and flee, he was hit by both men, while he bit L.V.’s chest. L.V. hit the applicant’s head several times. The applicant was then arrested by the police.
6. On 7 August 2015 a prosecutor asked the Nisporeni District Court to order the applicant’s detention pending trial for 30 days. This request was granted on the same day.
Investigation into the applicant’s allegation of ill-treatment7. On 5 August 2015 the applicant’s lawyer complained to the prosecutor’s office that his client had been hit by several people during the struggle preceding his arrest and that on the way to the police station he had been hit several times in the back by police officers. On the same day an investigator ordered the applicant’s examination by a forensic doctor in order to determine whether he had been injured. On the same day the applicant was also examined by forensic doctor A.B., who found haematomas under both of his eyes, his chin, nose, both lips and his thoracic cage. He also noted the applicant’s complaint about nausea, vertigo and having lost consciousness, and determined that the injuries sustained by the applicant were insignificant. The expert also noted that the applicant needed to be seen by a neurologist.
8. On 26 August 2015 a prosecutor refused to start a criminal investigation into the applicant’s allegations because of the lack of elements of a crime. The actions by L.V. and his son had been directed at stopping a person from fleeing after having committed a crime; they had to use force in response to the applicant’s own violent attempts to free himself. The applicant was informed of that decision on 19 October 2015. On 27 October 2015 he challenged that decision, noting inter alia that he had submitted the results of his examination of 21 September 2015 to the prosecutor (see paragraph 23 below) confirming that he had lost his eyesight in his left eye. The decision was upheld by a hierarchically superior prosecutor on 23 November 2015.
9. On 24 December 2015 the investigating judge of the Nisporeni District Court annulled those decisions, ordering a re-examination by the prosecutor. During the hearing before that judge the applicant stated that on 4 August 2015, he had already lost his eyesight in his left eye. When he mentioned that to the doctors who examined him on 4 August 2015, they told him that there was no eyesight specialist in the Nisporeni hospital. The judge found that the prosecutor had failed to request a new forensic examination in the light of new information available after the forensic report of 5 August 2015 had been made, notably the applicant’s complaint that he had lost his eyesight in his left eye.
10. On 24 March 2016 the applicant was subjected to a new forensic examination. The resulting report of the same date found that he had lost his visual acuity (down to 0.02 dioptres), which amounted to a serious injury. In the absence of documents confirming the applicant’s medical history, it was impossible to determine the exact time when he had lost his eyesight.
11. On 25 April 2016 a prosecutor again decided not to start a criminal investigation into the applicant’s allegations of ill-treatment, essentially for the same reasons as before.
12. On 30 May 2016 the applicant challenged that decision, noting inter alia that he had told the doctors in the Nisporeni hospital where he had been taken on 4 August 2015 that he could not see with his left eye. He was allegedly told that the hospital did not have that kind of specialist. He was then taken back to the police station, where he allegedly did not receive any medical assistance. On 27 June 2016 a hierarchically superior prosecutor annulled the decision of 25 April 2016, finding that the investigation carried out up to that point had been superficial. By the same decision a criminal investigation into the applicant’s allegation of serious bodily harm was started.
13. On 3 January 2017 a new forensic medical report was made, finding that the applicant had lost eyesight in his left eye (0.02 dioptres). In order to determine the date when this had happened the experts needed to see all the applicant’s pre-existent medical documents.
14. On 3 October 2017 another forensic examination, signed by A.B. (see paragraph 7 above), confirmed the earlier results and found that the applicant had suffered a head trauma in 2006, having then partly lost the eyesight (0.9 dioptres) and another trauma on 3 August 2015. It could be concluded that he had lost his eyesight after either of the two traumas.
15. On 17 November 2017 the prosecutor in charge of the investigation decided to discontinue it, essentially for the same reasons as those noted in paragraphs 8 and 11 above.
16. On 27 June 2018 the applicant challenged that decision. On 19 July 2018 the hierarchically superior prosecutor found no evidence in the file that the applicant had been informed of the decision of 17 November 2017 and thus examined it on its merits. He rejected that complaint as unfounded.
17. The applicant challenged that decision in court. On 6 November 2018 the Ungheni District Court rejected the complaint as unfounded.
18. The applicant appealed. On 29 January 2019 the Chișinău Court of Appeal annulled the lower court’s decision and ordered a new examination of the case. The court found that the lower court had examined the case in a formal manner, without objectively analysing the materials submitted by the prosecutor as it was clear from the minutes of the hearing that the court had not examined the criminal case-file. The lower court’s decision had been based on a unilateral, subjective assessment of the facts and of documents which that court had not examined.
19. On 20 June 2019 the Ungheni District Court rejected the applicant’s complaint against the decisions of 17 November 2017 and 19 July 2019 as unfounded. It found that those decisions could only be annulled if newly discovered circumstances warranted that or if those decisions had been tainted by a fundamental defect in the proceedings, which was not the case here.
20. The applicant appealed. On 21 October 2019 the Chișinău Court of Appeal rejected the appeal as unfounded. That decision was final.
Medical assistance given to the applicant21. According to the applicant’s statement made to the prosecution, he felt unwell when brought to the police station on 4 August 2015. Therefore, on the same night he was taken to the hospital, where he received several injections, before being taken back to the Nisporeni police station on the same day.
22. On 12 August 2015 the applicant was transferred to prison no. 13 in Chișinău. Upon his arrival he was examined by a doctor, who found that the applicant had suffered, inter alia, a head trauma and left eye trauma. On 13 August 2015 an ophthalmologist diagnosed him with optic nerve atrophy of a post-traumatic origin. That doctor prescribed that the applicant be seen by a neurosurgeon. The same diagnosis and prescription to be seen by a neurosurgeon was repeatedly made by the prison ophthalmologist on 1 September 2015.
23. Between 3 September and 8 October 2015 the applicant underwent in-patient treatment in prison-hospital no. 16. On 21 September 2015 another medical examination found, inter alia, that the applicant had suffered a head commotion and damage to his left eye and that he had lost vision in his left eye. Thereafter he was detained in prison no. 13 during the periods of 8 – 19 October and 16 – 22 December 2015, as well as 24 December 2015 – 10 August 2016. In the intervals between these detention periods he was treated on an in-patient basis in the medical unit of prison no. 13.
24. According to documents submitted by the Government, during his detention in ordinary cells of prison no. 13, the applicant had between 2.25m2 and 3m2 of personal space. Starting from 24 December 2015 and until his transfer from prison no. 13 on 10 August 2016 he had 3m2 of personal space.
25. The documents provided by the Government, including an informative note by the Penitentiaries Department concerning the medical treatment offered to the applicant, concern the period starting from 12 August 2015.
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION26. The applicant complained about the ineffective investigation into his allegation of ill-treatment, the insufficiency of medical assistance provided to him, and the inhuman conditions of his detention. He also complained about having been hit by police officers. 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.”
Investigation into the allegation of ill-treatmentAdmissibility27. In their initial observations the Government submitted that the applicant had not exhausted available domestic remedies in respect of his allegation of an ineffective investigation of his ill-treatment. In particular, he had not challenged the prosecutor’s decision of 17 November 2017.
28. The applicant submitted that he had not been informed of the existence of that decision until 26 June 2018 when the Government’s agent informed his lawyer about it. On 27 June 2018 his lawyer challenged it and eventually obtained a final decision (see paragraphs 16-20 above).
29. The Court notes that after the initial Government’s observations were made the applicant challenged the relevant decision and that the higher-ranking prosecutor found no evidence that the applicant had been informed of it, thus examining it on its merits (see paragraph 16 above). In such circumstances, it is clear that the applicant did exhaust available domestic remedies. Thus, 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.
30. The applicant also complained that while being brought to the police station he had been hit three times in the back by police officers. He also noted that he had been transported in the trunk of the police car. The Court finds no evidence in support of these submissions in the materials of the case.
31. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Merits32. The applicant argued that the authorities had not carried out an effective investigation into the circumstances in which he had lost his eyesight.
33. The Government submitted that the authorities had carried out an effective investigation into the applicant’s allegation. L.V. and L.S. had contributed to the apprehension of a dangerous person caught in the process of a burglary. Moreover, he had been aggressive and had tried to free himself by actively resisting and by biting L.V.’s chest. Therefore, the injuries caused to him had been the consequence of his own actions.
34. The Court refers to the general principles it has developed under Article 3 of the Convention, notably concerning the obligation to ensure that individuals within Member States’ jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals and the obligation to carry out an effective investigation with promptness and reasonable expedition (see, for instance, X and Others v. Bulgaria [GC], no. 22457/16, §§ 176-192, 2 February 2021).
35. The Court recalls that, in respect of a person who is deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see, mutatis mutandis, Bouyid v. Belgium [GC], no. 23380/09, § 88, ECHR 2015). It was thus for the authorities to verify whether the private individuals who had deprived the applicant of his liberty until the arrival of the police had applied excessive force, regardless of the fact that his clearly unlawful actions had led to that detention.
36. The Court notes that in the present case the criminal investigation started on 27 June 2016, almost eleven months after the applicant’s lawyer’s complaint of 5 August 2015 (see paragraph 7 above). Neither the Government nor the domestic authorities have provided a plausible explanation for this delay. In this context the Court recalls that, 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 Buzilo v. Moldova, no. 52643/07, § 30, 21 February 2012, and Ciorap (5) v. the Republic of Moldova, no. 7232/07, § 59, 15 March 2016). Moreover, the Court has also noted in the past that in accordance with domestic law the failure to launch a criminal investigation limits the latter’s effectiveness in terms of using in court any evidence obtained (see, for instance, O.R. and L.R. v. the Republic of Moldova, no. 24129/11, § 65 with further references, 30 October 2018).
37. It is also apparent that the prosecutor decided two times not to start an investigation and that on both of these occasions his decisions were annulled: first by a court (see paragraph 9 above), then by a higher-ranking prosecutor, who found that the investigation had been superficial (see paragraph 12 above). After having finally started the investigation and then having decided to discontinue it, a court annulled the decision to discontinue it, finding that the investigation had been unilateral, subjective and that the lower court had not even examined the case-file before confirming the prosecutor’s decision (see paragraph 18 above). In this respect the Court recalls its finding that the repeated annulment of decisions to discontinue a criminal investigation raised questions as to its effectiveness (see Dornean, cited above, § 48).
38. It is clear moreover from the applicant’s submissions, corroborated with the prosecutor’s decision of 19 July 2018 (see paragraph 16 above), that the applicant had not been informed of the decision of 17 November 2017 until his lawyer found out about it from the Government’s agent. This was not the first time that the applicant was not informed in a timely manner of the prosecutor’s decision, as the same happened with regard to the first such decision of 26 August 2015, which he was only notified of on 19 October 2015 (see paragraph 8 above). It follows that the applicant was not able to participate effectively in the investigation, contrary to the requirements of Article 3 (see, for instance, X and Others v. Bulgaria, cited above, § 189).
39. The Court observes that although it was clear from at least 13 August 2015 that the applicant could not see with his left eye (see paragraph 22 above), the prosecutors continued to rely on the initial forensic report of 5 August 2015 and to treat the case as one involving insignificant injuries, while a second forensic report to verify the gravity of the injury was only carried out on 24 March 2016, after a court pointed to the prosecutor’s failure to deal with this issue (see paragraphs 9 and 10 above).
40. The Court concludes that in view of the late and incomplete start of the investigation, coupled with the superficial manner of carrying it out such as the unexplained delay in obtaining a new forensic report for more than seven months and with the failure to sufficiently involve the applicant, the investigation into the applicants’ allegations has not been effective.
There has accordingly been a violation of Article 3 of the Convention in respect of the obligation to investigate the applicant’s ill-treatment by private individuals.
Medical assistance provided to the applicantAdmissibility41. 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.
Merits42. The applicant submitted that he had been given no medical assistance during his detention at the police station. After his transfer to prison no. 13 he had not received the treatment required by his state of health. As a result, he lost his eyesight in his left eye.
43. The Government argued that the applicant had been given all the medical assistance required by his condition. He was seen by a number of doctors, including an ophthalmologist, a dentist and a psychiatrist and was visited virtually daily by the on-duty doctor and feldsher. He had also been treated on an in-patient basis in the prison hospital during extensive periods.
44. The Court reiterates that, as regards persons deprived of their liberty, Article 3 of the Convention imposes on the State the positive obligation to ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The suffering which flows from natural illness, whether physical or mental, may fall foul of Article 3 where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible (see Dorneanu, cited above, § 76). The prisoner’s health and well-being must be adequately secured by, among other things, providing him with the requisite medical assistance.
45. The Court notes that the applicant had a number of injuries on many parts of his body, notably under his eyes and on both lips. Such injuries could not have gone unnoticed by the police when they brought him to the police station. Indeed, his injuries were seriousness enough for the police to bring the applicant to a hospital on the night of his arrest (see paragraph 21 above).
46. Despite the above, the applicant was brought back to the police station on the same day. Thereafter, there is no medical record in the file showing that he was seen by a doctor before his transfer to prison no. 13 on 12 August 2015, that is some eight days later. The only exception was the forensic doctor who examined him on 5 August 2015 and who found that the applicant had suffered only light injuries. That doctor noted the applicant’s complaints about having lost consciousness, nausea and vertigo (see paragraph 7 above) and recommended that the applicant be seen by a neurologist. There is no evidence that this happened before his transfer to the prison hospital on 3 September 2015.
47. It is also noted that although an ophthalmologist prescribed on 13 August 2015 that the applicant be seen by a neuro-surgeon (see paragraph 22 above), this was not done for twenty days ,when he was transferred to the prison-hospital on 3 September 2015, despite the urgency of the situation, since the function of an important organ was endangered. No explanation for this delay was given.
48. While it is impossible to know whether the applicant’s loss of eyesight could have been (partly) prevented had he been seen by a surgeon immediately after this was prescribed, it is clear that during those twenty days, and even more if one is to take into account the failure to treat the applicant while in police detention, he was not provided with specialised ophthalmologic medical assistance.
There has thus been a violation of Article 3 of the Convention also in respect of the insufficiency of medical care during detention.
Conditions of detentionAdmissibility49. The Government argued that the complaint concerning the applicant’s conditions of detention, inasmuch as it concerned the periods of detention prior to 7 March 2016, should be declared inadmissible for failure to comply with the six-month time-limit for lodging applications with the Court. They argued that the applicant complained only of the conditions in prison no. 13, where he spent time sporadically, with long interruptions. Therefore, this could not be considered a continuous situation.
50. The applicant did not make any comment in this respect.
51. The Court notes that the applicant arrived in prison no. 13 on 12 August 2015 and stayed there until 10 August 2016. However, it is apparent that before 24 December 2015 his stay there was interrupted for long periods of time and that he spent more time in the medical unit of prison no. 13 than in the ordinary cells.
52. It is also noted that the applicant did not complain about the conditions of detention in the medical unit, but only in the prison cells themselves. In view of the above the Court accepts the Government’s argument that the first few periods of detention, when he spent more time in medical units than in prison cells, should not be treated as being part of a continuous situation (see Shishanov v. the Republic of Moldova, no. 11353/06, §§ 68 and 69, 15 September 2015). However, the present application was lodged on 7 September 2016, more than six months after those intermittent detentions in ordinary cells of prison no. 13 ended on 24 December 2015.
53. Accordingly, inasmuch as the applicant complains about his conditions of detention before 24 December 2015, the Court must reject this complaint pursuant to Article 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time-limit.
Merits54. The applicant complained about overcrowding in the cells in which he had been held in prison no. 13. In particular, he had less than the minimum of 4 sq. m. of personal space.
55. Relying on the documents in the file, the Government argued that starting from 24 December 2015 and until his transfer to another prison, the applicant had 3 sq. m. of personal space. They referred to the Court’s finding in Muršić v. Croatia [GC] (no. 7334/13, 20 October 2016) that the requirement of 3 sq. m of floor surface per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention. Moreover, every detainee in the cell had his own bed and a chair and shared a nightstand with another prisoner. Cells were also furnished with a table, wardrobe, basin for personal hygiene, a separate toilet and were well-lighted and ventilated. Cells were also regularly disinfected.
56. The Court takes note of the description made by the Government and the absence of any further detail about the applicant’s conditions of detention apart from the size of personal space available (3 sq. m.), which in itself was not inconsistent with the authorities’ obligations under Article 3 (see Muršić, cited above, § 110).
57. In the light of the above, the Court concludes that there has been no violation of Article 3 of the Convention in the present case.
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION58. The applicant complained that he had been detained for more than 72 hours before a court issued an arrest warrant, contrary to the provision of domestic law limiting to 72 hours such type of initial detention.
Admissibility59. The Court notes that the allegedly irregular detention ended on 7 August 2015, when a court issued a warrant for the applicant’s arrest (see paragraph 6 above). Accordingly, the six-month time-limit for lodging a complaint in this respect with the Court started on that date. However, the present application was lodged on 7 September 2016, more than six months later.
60. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention as being out of the six-month time-limit.
ALLEGED VIOLATION OF article 6 § 1 THE CONVENTION61. Lastly, the applicant complained of a violation of Article 6 § 1 of the Convention. The Court notes that this complaint, as formulated in his initial application, essentially raised the same issues as those examined under Article 3. The Court will therefore not examine this complaint separately.
APPLICATION OF ARTICLE 41 OF THE CONVENTION62. 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 damage63. The applicant claimed 600,000 euros (EUR) in respect of non-pecuniary damage.
64. The Government submitted that, in the absence of any violation of the Convention, no award should be made. In any event, the amount claimed was unsubstantiated and in clear discrepancy with the awards made in previous similar cases.
65. The Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Costs and expenses66. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court. He relied on a contract with his lawyer.
67. The Government argued that no compensation for the costs was due owing to the absence of any breach of the Convention. The sum claimed was moreover unsubstantiated.
68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads, plus any tax that may be chargeable to the applicant.
Default interest69. 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 complaints under Article 3 (except the part concerning allegedly inhuman conditions of detention) admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention in respect of the obligation to carry out an effective investigation into the applicant’s ill-treatment by private individuals;Holds that there has been a violation of Article 3 of the Convention in respect of the insufficient medical assistance given to the applicant while in detention;Holds that there has been no violation of Article 3 of the Convention in respect of the applicant’s conditions of detention;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, the following amounts, to be converted into Moldovan lei 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;
(ii) EUR 500 (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 1 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President