SECOND SECTION
DECISION
Application no. 77029/12
Sergiu DUMINICĂ
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 12 January 2016 as a Committee composed of:
Nebojša Vučinić, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 22 November 2012,
Having regard to the declaration submitted by the respondent Government 2 April 2015 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Sergiu Duminică, is a Moldovan national, who was born in 1984 and lives in Chișinău. He was represented before the Court by Mr V. Enachi and Ms C. Stratan, lawyers practising in Chișinău.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. On 7 April 2009 the applicant peacefully attended the protests against the alleged electoral fraud during the 5 April 2009 general elections. At around 1.30 a.m. on 8 April 2008 the applicant was surrounded by police officers and was ordered to lie on the ground and to put his hands on his head. The applicant complied but was nevertheless assaulted and received numerous kicks and baton blows to different parts of his body. As a result, the applicant’s nose was broken. He was taken to the police station where he was ill-treated by police officers. On 16 April 2009 the applicant was released from detention by a court order. Medical reports drawn up on 14 and 21 April 2009 found that the applicant had suffered cranial trauma, had multiple bruises on his body, a fractured nose with deviated nasal septum, bilateral hearing problems and had experienced psychological problems typical of victims of torture.
4. The applicant lodged with the prosecutor a criminal complaint against the actions of the police; however, on 24 May 2012 the investigation was suspended because the investigating authority could not identify the perpetrators.
5. On 15 November 2010 and on 14 November 2012 the Government awarded the applicant, along with other victims of similar ill-treatment, 8,000 Moldovan lei (MDL) (equivalent to 500 euros (EUR)) in compensation for non-pecuniary damage.
6. The application was communicated to the Government.
THE LAW
7. The applicant complained under Articles 3 and 13 of the Convention about the ill-treatment received at the hands of the police and about the ineffectiveness of the investigation into his complaints in that regard.
8. After the failure of attempts to reach a friendly settlement, by a letter of 2 April 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government acknowledge that there have been violations of the applicant’s rights under Article 3 of the Convention as a result of ill-treatment and an ineffective investigation of the applicant’s complaints in that regard and that the applicant did not have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention.
The Government ... propose ... a global sum of 12,000 euros (twelve thousand euros) that will cover all pecuniary, non-pecuniary damages and costs and expenses.
The payment will constitute the final resolution of the present application and of any other claims that may appear from the circumstances of the present case.
... the above sum, ... will be converted into Moldovan Lei at the date applicable on the date of payment and will be free of any taxes that may be applicable. It will be payable within three months of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”
9. The applicant was invited to submit his comments on this declaration. No reply followed.
10. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
11. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
12. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
13. The Court has established in a number of cases, including those brought against the Republic of Moldova, its practice concerning complaints about the violation of Articles 3 and 13 of the Convention related to ill-treatment by police and the ineffectiveness of the investigation into that ill-treatment (see, for example, Taraburca v. Moldova, no. 18919/10, 6 December 2011; Iurcu v. the Republic of Moldova, no. 33759/10, 9 April 2013; and Buhaniuc v. the Republic of Moldova, no. 56074/10, 28 January 2014).
14. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application, by virtue of Article 37 § 1(c).
15. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (see Article 37 § 1 in fine).
16. The Court further notes that this decision constitutes a final resolution of this application only insofar as the proceedings before the Court are concerned. This decision is without prejudice to the Government’s continuing obligation to conduct an investigation in compliance with the requirements of the Convention (see WAZA Spółka z o.o., cited above, and Žarković and others v. Croatia (dec.), no. 75187/12, § 23, 9 June 2015).
17. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
18. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 3 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 4 February 2016.
Abel CamposNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy