CASE OF PREPELIŢA v. THE REPUBLIC OF MOLDOVA

SECOND SECTION

CASE OF PREPELIŢA v. THE REPUBLIC OF MOLDOVA

(Application no. 50799/14)

JUDGMENT
 

STRASBOURG

3 December 2019

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

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

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

Egidijus Kūris, President,
Valeriu Griţco,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 12 November 2019,

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

PROCEDURE

1.  The case originated in an application (no. 50799/14) 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 Andrei Prepeliţa (“the applicant”), on 23 June 2014.

2.  The applicant was represented by Mr M. Balaban, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.

3.  The applicant alleged, in particular, that he had been subjected to ill‑treatment by police officers in violation of Article 3 of the Convention.

4.  On 24 January 2018 notice of the application was given to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1982 and lives in Bălți.

6.  According to the applicant, on 27 October 2012 he was walking on the street when he saw several persons approaching him. He recognised one of them as being a police officer and immediately threw away a packet of marijuana which he had in his pocket. Subsequently, three police officers started punching and kicking him. He fell to the ground from the first blow but was still hit while on the ground. One of the police officers twisted his left arm behind his back, at which point he felt a sharp pain. Another police officer held his right arm and hit him in the region of his ribs. He was later taken to a police station where the ill-treatment allegedly continued. In particular, the applicant submitted that one of the police officers had continued hitting him, without specifying how and where, and forcing him to sign a document in which he admitted to have resisted arrest. He signed the document and was released.

7.  The above account of events was contested by the Government who argued that the applicant had resisted arrest and attempted to run away. The police officers had had to use special fighting techniques in order to curb that resistance. All the injuries sustained by the applicant had been as a result of him resisting arrest and of the police officers’ intervention in order to curb his resistance.

8.  The applicant was released on the same day and went immediately to a hospital where he was diagnosed with multiple scratches and bruises on his forehead and face, bruises on his chest and ribs and a fracture of his left arm.

9.  On the same day, 27 October 2012, the applicant was charged with the offence of resisting on-duty police officers. However, these proceedings were discontinued by the Prosecutor’s Office on 26 January 2013 on the grounds of a lack of resistance to the police by the applicant.

10.  On 29 October 2012 the applicant lodged a complaint against three police officers who had allegedly ill-treated him.

11.  On 30 October and 8 November 2012 two forensic investigations were conducted at the request of the Public Prosecutor who examined the applicant’s complaint. The injuries found on the applicant’s body on 27 October 2012 were confirmed. At the same time, in one of the reports it was stated that the fracture of the applicant’s arm could have happened as a result of a fall and that in ninety percent of cases such a fracture occurs after the person has fallen on his or her hand.

12.  On 9 November 2012 the applicant complained to the Prosecutor’s Office that one of the witnesses to his ill-treatment, I.R., had been approached by one of the police officers who had ill-treated him and asked to make a false declaration to the effect that the applicant had not been beaten up. No action appears to have been taken by the prosecutor as a result.

13.  In the process of the examination of the applicant’s complaint, the prosecutor in charge of the case heard evidence from the applicant, a police officer who had participated in his arrest on 27 October 2012 and who stated that the applicant had not been subjected to any ill-treatment, and witness I.R. who confirmed the account of the events as stated by the applicant.

14.  On 29 November 2012 the Prosecutor’s Office refused to initiate criminal proceedings on the ground that the applicant’s complaint was ill‑founded. The statements made by I.R. were not taken into consideration because the prosecutor considered them to be unreliable on account of the fact that I.R. had a criminal record.

15.  The applicant contested the above decision before a hierarchically superior prosecutor. He repeated his complaint concerning the pressure exerted on I.R. by the accused police officers and stated that the prosecutor had failed to question another witness, E.G.

16.  On 6 December 2012 the hierarchically superior prosecutor quashed the decision of 29 November 2012 and ordered the initiation of a criminal investigation into the circumstances of the applicant’s alleged ill-treatment.

17.  On 16 May 2013 the prosecutor in charge of the case dismissed the applicant’s complaint. After questioning the accused police officers, the applicant and witness I.R., the prosecutor came to the conclusion that the applicant’s injuries had been the result of him resisting the police officers. The applicant challenged this decision.

18.  On 7 June 2013 a hierarchically superior prosecutor dismissed the applicant’s challenge, finding that the actions of the police officers had been justified by the applicant’s behaviour and that his fracture could have been a consequence of a fall. The applicant challenged this decision before an investigation judge.

19.  On 1 July 2013 an investigation judge from the Bălţi District Court upheld the applicant’s appeal and quashed the prosecutors’ decisions. He found that the prosecutors had preferred the statements of the accused police officers over those of the applicant and witness I.R. without giving any plausible justification for doing so. Moreover, the investigation judge found that the prosecutors had failed to question other witnesses.

20.  During the re-examination of the applicant’s complaint, evidence was heard from a new witness, A.P. He stated that he had seen the applicant being arrested by several police officers. When the applicant had attempted to escape, he had been apprehended by the police officers and immobilised against a concrete fence. He had had scratches on his face from the fence and his arms had been twisted behind his back. He had not been thrown to the ground and had not been hit by the police officers. When asked how the applicant had resisted arrest, A.P. stated that he had pushed the police officers away and had tried to break free from their grip.

21.  Two other witnesses, O.S. and V.D., gave statements similar to that made by A.P. In particular, they stated that the applicant had not been thrown to the ground nor beaten up but had been immobilised with his face against a concrete fence.

22.  The police officers, who had arrested the applicant, stated that the applicant had resisted arrest and that, therefore, they had had to use special fighting techniques in order to curb his resistance.

23.  On 21 August 2013 the prosecutor in charge of the case dismissed the applicant’s complaint of ill-treatment and found that there was no evidence to conclude that the police officers had ill-treated him. In so far as the applicant’s fracture was concerned, the prosecutor stated that it could not have occurred as a result of his arm being twisted behind his back because in ninety percent of cases with such fractures, the fracture came about as the result of a fall.

24.  The applicant challenged the above decision both before a hierarchically superior prosecutor and before an investigation judge, but was unsuccessful. His appeals were dismissed on 5 November and 23 December 2013 respectively.

25.  On 14 January 2014 the Bălţi Prosecutor’s Office initiated a new criminal investigation into the circumstances leading to the applicant’s left arm being broken on 27 October 2012. Since no perpetrator could be identified, the investigation was discontinued on 11 June 2014.RELEVANT DOMESTIC LAW

26.  The Police Act of 18 December 1990 states:

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, special techniques and firearms shall be preceded by a warning about the intention to use them, and sufficient time shall be allowed for a 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 concerned shall report it to his or her direct superior, in order that the latter may inform a prosecutor.

An 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 legal demands in cases in which non-violent methods are not sufficient to discharge their obligations.”

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

27.  The applicant complained of ill-treatment during arrest and while in police custody and of a lack of an effective investigation in that regard. Article 3 of the Convention reads as follows:

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

28.  The Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

29.  The applicant submitted that he had been ill-treated during his arrest and detention in police custody and argued that the authorities had failed to explain the origin of the injuries on his body as recorded in the medical reports. The applicant also contended that the Prosecutor’s Office had failed to properly investigate his complaint.

30.  The Government submitted that the scratches on the applicant’s face and forehead had appeared as a result of him being immobilised against a concrete fence. This had been confirmed by several witnesses. They denied the applicant’s allegations about his continued ill-treatment at the police station. As to the broken arm, according to the experts, such an injury could not be produced by torsion of the arm. The Government disputed as unfounded the applicant’s allegation that the accused police officers had influenced witnesses.

31.  As to the investigation conducted by the authorities, the Government submitted that all the witnesses had been questioned promptly and forensic medical investigations had been conducted. The origin of all of the applicant’s injuries could not be established, but that could not be imputed to the domestic authorities. A new criminal investigation had been opened on 14 January 2014 in order to determine who was responsible for the fracture of the applicant’s left arm.

32.  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 Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

33.  The Court reiterates that in the process of arrest of 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; Sochichiu v. Moldova, no. 28698/09, § 33, 15 May 2012).

34.  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).

35.  In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

36.  The Court 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, such an 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).

37.  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, § 104 et seq., ECHR 1999-IV; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines their ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

38.  Turning to the circumstances of the present case, the Court notes that the applicant presented with numerous injuries after his encounter with the police. It would appear from the applicant’s statements that he has been ill-treated both during arrest and after being brought to the police station. Since he was at all times under the control of the police, the Court does not consider it necessary to distinguish between the injuries allegedly received during arrest and/or at the police station (see Corsacov v. Moldova, no. 18944/02, § 56, 4 April 2006). The Government provided an explanation only in respect of the scratches on the applicant’s face but not the rest of the injuries, such as the broken arm and the bruises to his chest and ribs. The statements of some of the witnesses which were favourable to the accused police officers appear to have been contradictory to the position of the police officers themselves. Thus, while the officers submitted that they had applied special fighting techniques in order to curb the applicant’s resistance, the witnesses submitted that there had been no violence at all on the part of the police officers and that the applicant had only scratched his face against a concrete fence. The submissions of the police officers concerning curbing the resistance by the applicant are also inconsistent with the finding of the domestic authorities that the applicant did not resist the police officers (see paragraph 9 above). By contrast, the injuries to the applicant’s body appear to be more consistent with his account of the events and with that of witness I.R. rather than with the account of the police officers and the other witnesses.

39.  In the absence of a plausible explanation for those other injuries, the Court considers that the Government have not rebutted the presumption that the applicant had been subjected to ill-treatment while at the hands of the police. Thus, the Court concludes that those injuries were the result of ill‑treatment by the police. Accordingly, there has been a substantive violation of Article 3 of the Convention.

40.  Against this background the Court notes that the investigation into the circumstances of the case presented serious shortcomings. A simple reading of the materials of the domestic investigation gives the impression that the prosecutors’ intention to investigate the case and discover the truth was not genuine. In this respect the Court notes that a criminal investigation was initiated only on 6 December 2012, that is, more than a month after the applicant had lodged his complaint. The Court further notes that the applicant’s complaint to the effect that the accused police officers made attempts to influence a witness have been disregarded. Moreover, the investigators did not try to reconcile the accounts of the witnesses which were favourable to the accused police officers and those of the police officers themselves. Here the Court recalls that while the former stated that there had been no violence at all with relation to the applicant, the latter admitted to having used special fighting techniques on the applicant. After making such statements, the accused police officers were not even asked what those techniques consisted of and whether they had involved any kicks or punches to the applicant’s body. Finally, the Court notes that there was no opportunity for the applicant to confront the accused police officers.

41.  In the light of the above, it is impossible for the Court to conclude that an effective official investigation took place in the present case. Thus, there has been a violation of Article 3 of the Convention under its procedural head as well.APPLICATION OF ARTICLE 41 OF THE CONVENTION

42.  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.”Damage

43.  The applicant claimed 18 euros (EUR) for pecuniary damage, representing the cost of a forensic report for which he had had to pay. He also claimed EUR 12,000 in respect of non-pecuniary damage.

44.  The Government disagreed with the amounts claimed by the applicant. In so far as the amount claimed for pecuniary damage was concerned, the Government argued that it was not justified because the applicant’s rights had not been breached. As to the amount claimed for pecuniary damage, they argued that it was excessively high.

45.  Having regard to the violation found above, the Court considers that awards in respect of both pecuniary and non-pecuniary damage are justified in this case. Making its assessment on an equitable basis, the Court awards the amounts claimed in full (see Dinu v. Romania, no. 64356/14, §§ 90 and 91, 7 February 2017).Costs and expenses

46.  The applicant also claimed EUR 1,021 for the costs and expenses incurred before the Court.

47.  The Government argued that the claim was unsubstantiated and asked the Court to dismiss it.

48.  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 have been actually and necessarily incurred and are reasonable as to quantum. The Court may have regard in that connection to such matters as the number of hours worked and the hourly rate sought (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000-XI).

49.  In the instant case, however, the applicants’ representative has not substantiated his claim in any way. The Court therefore cannot award any sum under this head.Default interest

50.  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 Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention in both 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 18 (eighteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage;

(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 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris
Deputy RegistrarPresident

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