FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18944/02
by Mihai CORSACOV
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 13 September 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 6 August 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mihai Corsacov, is a Moldovan national who was born in 1981 and lives in Cărpineni, Republic of Moldova. He is represented before the Court by Mrs Doina Straisteanu, a lawyer from the Moldovan Helsinki Committee of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 July 1998 the applicant, who was seventeen years old, was arrested on charges of theft. On the way to the police car he made an attempt to throw away a pocket-knife. After being alerted by a passer-by, the police officers, T.A. and D.V., threw the applicant to the ground. According to the applicant, they also punched him in the face, cuffed him and assaulted him all the way to the police station.
According to the applicant, his mother learned about his arrest on the evening of the same day and came immediately to the police station, but she was not allowed to see him. She was allowed to see him only the following morning, when she has noticed that he had bruises all over his face and his clothes were torn and stained with blood. A police officer allegedly told her that her son had fallen downstairs.
According to the Government, the applicant’s mother saw the applicant on the evening of 9 July 1998, and during the criminal investigation conducted against the policemen T.A. and D.V. she stated that her son did not have any sign of injury at that time.
Early in the morning of 10 July 1998, between 1 a.m. and 2 a.m. the applicant was visited at the police station by his uncle also who subsequently stated during the criminal investigation conducted against the policemen T.A. and D.V. that the applicant did not have any sign of injury at that time.
On 10 July 1998 the applicant claims to have been taken by the arresting police officers to a forest for the reconstruction of the crime. In the forest, one of them allegedly put a gun to the applicant’s head and threatened to shoot him if he did not confess. He was released from detention in the evening when he told his parents that he had been beaten with batons on the soles of his feet and on his body and that he had been threatened with death to extract a confession.
On 11 July 1998, the applicant’s state of health worsened and his mother took him to a doctor who established that he had suffered a head trauma and cerebral post concussion syndrome.
On 13 July 1998 a forensic doctor examined the applicant and established that he had grey-yellowish bruises of 3 x 2 cm and of 6 x 5 cm around his right eye, right ear, lips and on the sole of his left foot. The soft tissue on his head and his teeth on the right side were painful when touched. The injuries could have been inflicted by blows with a blunt object, possibly in the conditions described by the applicant, and corresponded to the category of light corporal injuries.
On 13 July 1998 the applicant’s mother lodged a criminal complaint with the Prosecutor’s Office of Hânceşti County, asking it to institute criminal proceedings against the police officers who had allegedly ill-treated her son and threatened him with death.
On 14 July 1998 an ear, nose and throat specialist examined the applicant and concluded that he was suffering from hyperaemia and had a central perforation of the right tympanic membrane.
On 28 July 1998 another specialist concluded that the applicant was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with perceptive deafness.
Between 14 and 25 July, 30 July and 22 August, 2 and 17 September and 14 October and 3 November 1998, the applicant was hospitalised with the diagnosis of head trauma and sudden deafness (surditate de percepţie brusc instalată).
On 3 August 1998 the applicant’s mother was informed by the Hânceşti Prosecutor’s Office that her complaint had been dismissed on grounds of lack of “constitutive elements” of an offence. She appealed against that decision to a hierarchically superior prosecutor.
On 21 August 1998 the applicant’s mother received a letter from a hierarchically superior prosecutor of the Hânceşti Prosecutor’s Office informing her that her appeal had been dismissed. She appealed against that decision to the Hânceşti District Court.
On 16 November 1998 the Hânceşti District Court quashed the Prosecutor’s decision of 28 July 1998 and ordered that additional investigations be carried out. It found inter alia that it was undisputed that the applicant had sustained his injuries on 9 July 1998 either on the way to the police station or on the premises of the police station; however, the circumstances were not clear. The court also found that the Hânceşti Prosecutor’s Office had not paid sufficient attention to the fact that since 9 July 1998 the applicant had been permanently undergoing medical treatment in hospital and had thus been prevented from attending school.
On 15 January 1999 the Hânceşti Prosecutor’s Office issued a new decision by which it again refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the policemen had to throw him to the ground in order to counter his attack with a knife on one of them. The decision relied on a medical report dated 14 January 1999 which stated that the injuries could have been inflicted either by a blunt object or by a fall. The applicant’s mother appealed to the General Prosecutor’s Office.
On 25 February 1999 the General Prosecutor’s Office quashed the decision of 15 January 1999 for being “premature” and the file was remitted to the Prosecutor’s Office of Hânceşti County for “additional review”. The Prosecutor’s Office considered inter alia that the investigation had failed to elucidate the circumstances of the alleged attack with a knife committed by the applicant on one of the policemen.
On 15 March 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it refused to institute criminal proceedings against the policemen on the ground that their actions did not disclose any signs of an offence.
On 25 March 1999 the hierarchically superior prosecutor quashed the decision of 15 March 1999 on the ground that the applicant’s alleged attack with a knife on the policemen had not been properly investigated.
On 9 April 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it again refused to institute criminal proceedings against the policemen, because their actions were justified. At the same time the Prosecutor’s Office found that the applicant did not attack the policemen with the knife, but rather the policemen thought that he could attack them. The applicant’s mother appealed to the hierarchically superior prosecutor.
On 1 May 1999 the hierarchically superior prosecutor quashed the decision of 9 April 1999 and ordered the institution of criminal proceedings against the two police officers.
On an unspecified date, the applicant lodged a complaint with the Ministry of Internal Affairs.
On 14 June 1999 the Ministry of Internal Affairs informed the applicant that disciplinary sanctions would be imposed on the policemen T.A. and D.V. only to the extent that they were found guilty in the criminal proceedings.
On 20 September 1999 the Hânceşti Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had a knife in his hand but that he did not try to attack the policemen with it. The applicant’s mother appealed against the decision.
On 18 November 1999 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office dismissed the appeal. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the applicant had made an attempt to throw away a knife but the policemen had thought that he was going to use it against them and had thrown him to the ground. The applicant’s state of health was “normal” and none of the witnesses saw the police beating him. The applicant’s mother appealed.
On 10 February 2000 the Prosecutor General’s Office upheld the applicant’s appeal and ordered the re-opening of the criminal investigation. It stated inter alia that the investigation had been conducted “in an extremely superficial manner”. It instructed the investigators inter alia to re-hear the witnesses and the parties to the case and to investigate whether the policemen T.A. and D.V. made any gun shots in the woods. It also ordered the conduct of a medical investigation of the applicant and pointed to several contradictory statements of the witnesses and to procedural irregularities.
On 28 February 2000, at the request of investigator V.B. from the Hânceşti Prosecutor’s Office, a medical commission of four experienced forensic doctors performed a thorough medical investigation. On the basis of earlier medical certificates and its own investigation the commission drafted a report which stated inter alia that:
“At the forensic examination it was found that Corsacov had bruises around his right eye, right ear, on his lips and on the sole of his left foot.
From the applicant’s records it appears that at the age of eight months... he suffered purulent otitis in his left ear.
On 11 July 1998 a neurologist found that Corsacov had suffered an acute head trauma with cerebrostenic syndrome.
On 14 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered from tympanic hyperaemia and had a central perforation of the right tympanic membrane as a result of a barotrauma[1] of 9 July 1998.
On 14 July 1998, [the applicant] did not appear to have any injury to his teeth.
On 28 July 1998 an ear, nose and throat specialist found that the applicant suffered post-traumatic acute otitis media on the right side and agnogenic otitis on the left side. He suffered from sudden deafness (surditate de percepţie brusc instalată).
On 9 October 1998 a neurologist found that as a consequence of the head trauma the applicant suffered intracranial hypertension with signs of epilepsy.
On 20 April 2000 Corsacov was examined by an otolaryngologist who found that he was suffering from posttraumatic bilateral hypoacusis[2]. Hospitalisation was recommended.
...
1. On the basis of the above, the commission comes to the conclusion that M. Corsacov suffered injuries in the form of bruises on his face (right eye, right ear and lips) and the sole of his left foot; head trauma and concussion; posttraumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis.
... The applicant’s injuries necessitated medical treatment of at least twenty-one days and could be qualified as moderately serious (mai puţin grave).
...
3. The commission does not have any objective grounds to believe that the injuries could have been sustained by the applicant prior to 9 July 1998.
4. The injuries had been inflicted by blows with blunt objects (aceste leziuni au fost cauzate prin actiunea corpurilor contondente (lovire)), possibly in the circumstances described by the applicant and they could not have been sustained as a result of a fall (n-au putut fi produse prin cădere).
...”
On 10 June 2000 the Lăpuşna Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had a knife in his hand but that he did not try to attack the policemen with it. The applicant’s mother appealed against the decision.
On 12 July 2000 the General Prosecutor’s Office quashed the decision of 10 June 2000 and ordered that additional investigations be carried out. It found inter alia that the quashed decision was illegal and had a tendentious character. It stated inter alia:
“Contrary to the conclusion of the medical commission, which clearly found that Corsacov’s injuries were inflicted by blows with a blunt object, possibly in the circumstances described by the applicant and that they could not have been sustained as a result of a fall, investigator V.B. indicated in his decision that the injuries were caused by the applicant’s fall...”
On 30 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the criminal investigation against the applicant for the alleged attack with a knife on the police officers on 9 July 1998. It found that there were no grounds to believe that the applicant intended to use the knife against the policemen.
On 31 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which the criminal proceedings against the policemen were also dismissed. It stated inter alia that the applicant had had a knife in his hand and that the policemen had interpreted that as a threat and had thrown him to the ground. Accordingly, the applicant had sustained his injuries by hitting the ground with his head while the policemen had been acting in legitimate defence. The applicant appealed against this decision.
On 21 January 2001 the decision of 26 August 2000 was quashed by the Prosecutor General’s Office and the criminal proceedings were re-opened.
On 28 February 2001 the Lăpuşna Prosecutor’s Office again dismissed the criminal investigation against the policemen. The applicant appealed.
On 20 March 2001 the hierarchically superior prosecutor from the Lăpuşna Prosecutor’s Office quashed the decision of 28 February 2001 and ordered the re-opening of the investigation.
On 20 June 2001 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the applicant’s complaint. It stated inter alia that:
“...
According to the medical certificate of 15 January 1998, Corsacov had bruises around his right eye, right ear, and consequences of a barotrauma, head trauma, which could have been also caused by a fall and which fell in the category of light corporal injuries.
According to the conclusion of the Commission [medical report of 28 February 2000], Corsacov’s teeth were not injured and it was discovered that he was suffering from posttraumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis, which could also have been caused by blows.
It is not disputed that the applicant was injured; however, his injuries were inflicted within the limits of the law. As to the agnogenic otitis on the left side, the applicant was suspected of having suffered from it since his childhood... According to doctor A.M. the agnogenic otitis on the left side is not connected with the otitis on the right side and could be caused by a cold or an infection but not by a blow.
Deafness can have a multitude of causes, and in order to know its origin it is important to determine the moment of its appearance. In the present case it is impossible to establish the exact moment of commencement of the applicant’s deafness; more so since, in his first declaration, Corsacov stated that only after receiving the blows did he start to experience ringing in his right ear, but he did not say anything about the pain and the deafness in his left ear.
The policemen [T.A. and D.V.] and the witness C. stated that on 9 July 1998, on the way to the police station, no physical force was used against the applicant except when he was relieved of a knife that he had in his hand. Then, by means of a special technique, the applicant was thrown to the ground, which he hit with his head...
Corsacov admitted having had a knife and explained that he had been trying to throw it away in order to avoid trouble at the police station.
The police officers M.I and D.I. who were present at the police station on 9 July 1998 stated that nobody used physical force against the applicant in their presence, no handcuffs were used and that he was not beaten with a baton...
The applicant’s mother stated that in the evening of 9 July 1998 she saw her son at the police station and he did not have any injuries... The applicant’s uncle B.V. also stated that he had seen the applicant in the police station on 10 July 1998 between 1 a.m. and 2 a.m. and that he did not have any sign of injury... and the applicant did not complain to him about having been assaulted.
...
The injuries sustained by Corsacov were caused by his hitting the ground with his head when a real threat for the life and health of policemen T.A. and D.V. appeared, who acted within the limits of Articles 14 and 15 of the Law on Police Forces while relieving him of his knife.”
The decision did not have any reference to the applicant’s allegation that on 10 July 1998 he was taken to the woods and threatened with death. The applicant appealed.
On 17 September 2001 the Prosecutor General’s Office quashed the decision of 20 June 2001 and ordered the re-opening of the investigation.
On 20 October 2001 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the applicant’s complaints on exactly the same grounds as those from the decision of 20 June 2001. The applicant appealed.
On 25 October 2001 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office quashed the decision of 20 October 2001 and ordered the re-opening of the proceedings.
On 25 November 2001 the Lăpuşna Prosecutor’s Office dismissed the applicant’s complaints on grounds which were identical to those from the decision of 20 June 2001 and 20 October 2001.
On 10 December 2001 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office quashed the decision of 25 November 2001 and ordered the re-opening of the proceedings.
On 10 January 2002 the Lăpuşna Prosecutor’s Office dismissed the investigation on grounds identical to those from the decision of 20 June 2001, 20 October 2001 and 25 November 2001.
B. Relevant domestic law
The Code of Criminal Procedure in force between 24 March 1961 and 12 June 2003 provides:
“Section 193. Written complaints concerning acts of the criminal investigation organs or concerning acts of the criminal investigator shall be addressed to the prosecutor.
Section 194. The prosecutor shall examine the complaint and communicate his decision to the interested person within three days of its receipt. If the complaint is dismissed, the prosecutor shall give reasons for his decision.
Section 195/1. The decisions of the criminal investigation organs and of the prosecutor may be challenged in court by an accused, a lawyer, a victim ....
The persons specified in the first paragraph have the right to challenge in court ...decisions regarding the suspension and dismissal of criminal proceedings ...
A complaint shall be addressed to the competent District Court within ten days of the date on which the interested person learns about the decision.
Section 195/3. A person whose rights have been infringed by a refusal to institute criminal proceedings may challenge in court the decision regarding the dismissal of criminal proceedings within ten days of the date on which he learns about the decision.
Section 195/4. ... The competent court shall examine the reasons for the refusal to institute criminal proceedings and their conformity with procedural law. Following the examination, the court can adopt one of the following decisions:
1) to quash the decision to refuse to initiate criminal proceedings;
2) to modify the reasons given for the refusal while upholding the refusal;
3) to dismiss the complaint.
...”
The old Criminal Code in force between 24 March 1961 and 12 June 2003 states:
“Section 185. ... An abuse of power accompanied by acts of violence, by use of arms or by acts of torture and humiliation is sanctioned with imprisonment of three to ten years and with a prohibition on carrying out certain activities for a period of up to five years. ...”
The old Civil Code in force until 12 June 2003 states:
“Section 475. The damage caused to a person or to his or her goods... shall be entirely repaired by the person who caused it...”
...
No duty of restitution shall arise in respect of damage caused by legitimate actions, except for the cases provided for by law.”
The Law on Police Forces of 18 December 1990 states:
“Section 14. Conditions and limits of the use of force, special techniques and fire-arms
Police officers have the right to use force, special techniques and fire-arms in the cases and in the manner provided for in the present law. The use of force, of special techniques and of fire-arms shall be preceded by warning about the intention to use them, and sufficient time should be allowed for reaction, except in cases in which a delayed use of force... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences.
...
In any case, when 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, honour, dignity and goods of citizens, as well as to ensure medical assistance is provided to victims.
In case of injury or death caused as a result of use of force... the police officer shall report it to his direct superior, in order that the latter may inform a prosecutor.
The abuse of the right to use force... shall be punished in accordance with the law.
Section 15. The use of physical force
Police officers are entitled to use force and special fight techniques for the purpose of ending criminal activities and for neutralising resistance opposed to legal demands, only in cases in which non-violent methods are not sufficient for the discharging of their obligations.”
COMPLAINTS
1. The applicant complains that he was subjected to torture by police officers in violation of Article 3 of the Convention.
2. The applicant also alleges that he had no effective remedies against the ill-treatment committed by agents of the State, in breach of Article 13 of the Convention.
THE LAW
A. Alleged violation of Article 3 of the Convention
The applicant alleged a violation of Article 3 of the Convention, which states as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
According to the applicant, the salaries and career prospects enjoyed by Moldovan policemen depend to a large extent on the number of detected offences. This favoured the practice of ill-treating suspects in order to obtain confessions from them.
In this context the applicant draws the Court’s attention to the fact that the final decision of the Lăpuşna Prosecutor’s Office of 10 January 2002 by which his complaint was dismissed (see above) also dealt with requests from two other persons who were also complaining of having been assaulted by the same policemen, and which were also dismissed.
He submits that he was threatened with death and severely beaten up by the police officers T.A. and D.V. He relies in particular on the medical report of 28 February 2000, issued by an independent commission of doctors appointed by the Prosecutor’s Office (see above), which, according to him, confirmed the gravity of his injuries and the fact of torture. As a result of the beatings he became deaf and incapable of working while still being a minor. The investigation conducted by the Prosecutor’s Office was ineffective.
The Government argues that the applicant’s submissions as to the “technique used to disarm the applicant, beatings of the cuffed applicant on the way to the police station, his illegal detention for twenty four hours and the methods of interrogation employed by T.A. and D.V. on the premises of the police station” were groundless and that in any event the treatment applied to him did not go beyond the threshold set by Article 3 of the Convention. They refer to the findings of the Lăpuşna Prosecutor’s Office in its decision of 20 June 2001. However, when referring to the medical report of 28 February 2000 they claim that its conclusion was that the applicant’s injuries could have been sustained as a result of a fall. The Government made no response to the applicant’s allegations that he had been threatened with death in order to extract a confession.
In the light of the parties’ observations, the Court considers that this part of application raises serious questions of fact and law both in respect of the substantive and procedural rights which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
B. Alleged violation of Article 13 of the Convention
The applicant argues that he did not have an effective remedy before a national authority in respect of the breaches of Articles 3 of the Convention and alleges a violation of Article 13, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”
The Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Article 3 and under Article 13 of the Convention taken together with Article 3.
Michael O’BoyleNicolas Bratza
RegistrarPresident
[1] An injury caused by rapid and extreme changes in pressure.
[2] Slightly diminished auditory sensitivity, with hearing threshold levels above normal.
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