THIRD SECTION
Application no. 24129/11
O.R. and L.R.
against Moldova
lodged on 15 April 2011
STATEMENT OF FACTS
THE FACTS
1. The applicants, O.R. (the first applicant), and L.R. (the second applicant), are Moldovan nationals who were born in 1979 and 1987 respectively and live in Roşu. They are sisters. They were represented before the Court by Mr V. Gribincea, a lawyer practising in Chişinău.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 5 April 2009 general elections took place in Moldova. On 6 and 7 April 2009 a large crowd protested in the streets against alleged electoral fraud. Hundreds of persons were arrested on 7 April 2009 and thereafter.
1. The applicants’ arrest and alleged ill-treatment
4. On 7 April 2009 the applicants were returning from Chişinău to their home village when the minibus in which they were travelling was stopped by masked armed men at 11.10 p.m. The men ordered the bus driver to drive to the General Police Department in Chişinău (“the GPD”), where the applicants, together with other passengers, were ordered to stand with their hands behind their heads.
5. Upon entering the GPD detention centre, the applicants were taken to a room where five police officers registered their arrests. The applicants and other female detainees were ordered to stand with the face against the wall and not to look to the sides. When one of them (N.) looked to the side, officer A.C. hit her head against the wall.
6. The first applicant was asked to identify her bag and claims that A.C. decided to throw away the bag instead of registering all of the items inside. She then proposed to register only the documents, the mobile phone and her wallet’s content. The first applicant noticed that her arrest had been wrongly mentioned as having taken place at 2.20 p.m. and told that to the officer. A.C. allegedly threatened her with death if she did not sign, after which she signed the record of her arrest. In the meantime, several young men were lined up against the wall and were periodically hit if they tried to look around. The applicants heard sounds of beating from the adjacent room, following which A.C. escorted one young man out of there.
7. After signing the record of her arrest, A.C. took the applicants one by one to an adjacent room. Two officers were there (V.D., a male officer and M.T., a female officer). V.D. ordered each of the applicants to undress. After they initially removed only a part of their clothes, V.D. shouted at them to fully undress. Each of the applicants was also ordered to do sit-ups while naked, while both officers smiled. The door remained partly open throughout the procedure. M.T. called the first applicant a prostitute.
8. The applicants were placed, together with five other female detainees, in a cell, where they were held until 9 April 2009. No food was provided to them and they were not allowed to contact anyone outside the detention centre. During 7 and 8 April 2009 the officers would come every three hours to the cell where the applicants were being detained, officially in order to verify their presence. All those inside had to stand up, their hands behind the back. During one of such visits on 8 April 2009 A.C. told everyone in the applicants’ cell to be thankful to President Voronin, who had not ordered to shoot at the crowd during the unrest of 7 April 2009.
9. On the morning of 9 April 2009 a prosecutor visited their cell and asked whether anyone had been ill-treated or had any other complaints. Several police officers from the GPD stood just behind the prosecutor, which prevented the applicants from complaining. The first applicant asked for permission to call home to verify how her child was doing, but the prosecutor replied that he could not help and that she needed to negotiate that with the head of the detention facility.
10. On the same day at 3.30 p.m. the applicants were taken, one by one, to a room in the GPD where a judge asked each of them their names. After finding their files and reading them for several seconds, the judge declared that five days of detention for each of the applicants would suffice. The entire “trial” took not more than five minutes.
11. On the same day at around 11 p.m. the applicants and five other female detainees were ordered to enter the back section of a police minivan measuring 2.5 square meters and were taken to an unknown destination, without any explanation of the reasons for the move. Four hours later they arrived at the Drochia police station. They spent the remainder of their detention at that police station and were released on 13 April 2009. After their release the applicants were so afraid that they did not leave their house for a week.
2. Proceedings against the police officers
(a) the internal investigation against the police officers
12. On 16 April 2009 a Moldovan news agency reported about the allegation that three young women had been ordered to fully undress in front of male police officers. Following that the Internal Security Department within the Ministry of Internal Affairs conducted, in April-May 2009, an internal investigation into the matter in order to verify the allegations. The applicants and N. made statements in that respect and recounted the facts as summarised in the preceding paragraphs. N. noted that she had also been taken to the room adjacent to the one in which her arrest had been registered and had been ordered by A.C. to fully undress on 8 April 2009.
13. On 18 May 2009 a prosecutor interviewed the applicants, who repeated their statements made to the police. These statements were then forwarded to the Prosecutor General’s Office. On 20 May 2009 the results of the internal investigation (see paragraph 12 above) were also submitted to the Prosecutor General’s Office. It would appear that the latter did not take any decision in respect of the materials submitted to it.
14. On 23 July 2009 the applicants made a complaint to the Prosecutor General’s Office, referring to the verbal abuse to which they had been subjected, as well as to the order to undress in front of male officers.
15. On 18 and 20 August 2009 a prosecutor interviewed A.C. and V.D., who declared that they had not been at work on the relevant night.
16. On 10 September 2009 the military prosecutor’s office decided not to launch a criminal investigation into the applicants’ allegations, in the absence of any evidence that an offence had been committed. In particular, M.T. declared that she alone had conducted the applicants’ body searches. The applicants challenged that decision, but their complaint was rejected by the hierarchically superior prosecutor on 9 November 2009.
17. On 20 November 2009 the applicants challenged both decisions before the Rîşcani District Court. On 19 January 2010 the court accepted their request and annulled the decisions of 10 September ad 9 November 2009. The court found that the investigation had been superficial and listed a series of actions which had not been carried out, such as interviewing the applicants’ arresting officers and those responsible for escorting them and registering their arrest; verifying the reasons for their transfer to the Drochia police section and the person who decided such a transfer and the reason why the prosecutor had not established a breach of applicable legislation as a result of that transfer; determining the reason for the prosecutor’s failure to examine the applicants’ complaint within 72 hours.
(b) the criminal proceedings against the police officers
18. On 2 February 2010 the Chişinău Prosecutor Office launched a criminal investigation on suspicion that officers A.C., V.D. and M.T. had ill-treated the applicants by means of psychological intimidation and obligation to undress in front of persons of opposite sex.
(i) proceedings against officers V.D. and M.T.
19. After carrying out several procedural acts, on 15 March 2010 the prosecution officially accused V.D. and M.T. of ill-treating the applicants.
20. On 23 April 2010 the case against V.D. and M.T. was submitted to the Centru District Court for trial.
21. The Centru District Court scheduled hearings in the case approximately once a month. Since the beginning of the trial, that court held four hearings and postponed five others for various reasons such as the absence of the prosecutor, of one of the applicants or of their lawyers, as well as the annual leave taken by the prosecutor and the judge.
22. The proceedings are pending before the Centru District Court.
(ii) proceedings against officer A.C.
23. On 16 April 2010 the criminal investigation against A.C. was discontinued. The prosecutor summarised the applicants’ statements and referred to the results of the identity parades during which each of the applicants identified A.C. as the person who had taken them to the room in which they had been ordered to undress and do sit-ups. The first applicant also repeated her allegation that A.C. had threatened her with death if she resisted his orders. The prosecutor found that A.C. had clearly exceeded his powers as a police officer, but that the applicants had not been caused serious damage so as to qualify as torture. Accordingly, his actions were qualified as excess of powers under the Contravention Code (Codul contravenţional). Since the three-month prescription period for this administrative offence had already expired, the administrative case against A.C. could not be initiated. He continued to work as a police officer throughout the proceedings.
24. On 22 April 2010 the applicants’ lawyer discovered in the file the prosecutor’s decision of 16 April 2010 and asked for its annulment. On 10 June 2010 the lawyer was informed that the hierarchically superior prosecutor had rejected that complaint and that the prosecutor’s decision could be appealed to the investigating judge.
25. On 26 July 2010 the applicants’ lawyer challenged in court the decisions of 22 April and 10 June 2010. He argued, inter alia, that A.C. should not have been relieved of criminal responsibility since he had acted at least as an accomplice of V.D. and M.T., in respect of whom the prosecution had continued to press criminal charges. In particular, A.C. was fully aware of V.D.’s presence in the room to which he escorted the applicants and other female detainees and knew that they were to be subjected to a body search involving full undressing. Moreover, he had acted brutally towards the applicants, humiliating them and hitting N. in their presence. This treatment had had a considerable effect on the applicants, taking into consideration their gender and age (the second applicant was 21 at the relevant time) and the dominant position held by the police officer, who had moreover ill-treated openly other persons in front of the applicants, causing them to fear being subjected to similar treatment. In addition, the applicants’ will to resist police intimidation had been completely broken since they had not been explained the reason for their detention or the rights which they had, in the absence of a guarantee of being able to defend those rights.
26. On 15 October 2010 the investigating judge of the Rîşcani District Court rejected the applicants’ lawyer’s complaint as unfounded. The court found that under Article 287 of the Code of Criminal Procedure a criminal investigation lawfully discontinued by a prosecutor could be reopened only if new circumstances were discovered or where the decision was affected by a fundamental defect in the previous proceedings. Since the prosecution had decided to discontinue the criminal proceedings against A.C. and in the absence of any new circumstances warranting the reopening of the investigation, it was contrary to Article 4 of Protocol No. 7 to the Convention for the court to order the reopening of the criminal proceedings against him. The judge also found that the prosecutor had fully and objectively examined the case, taking into account all the evidence available. That decision was final.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention about their inhuman and degrading treatment by A.C. and about his impunity as a result of the failure to prosecute him under applicable criminal law provisions.
2. They also complain, under the same provision, that the investigation of their forced undressing in front of V.D. was not prompt.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to treatment contrary to Article 3 of the Convention?
2. Did the domestic authorities fully discharge their positive obligations under that provision, with a view to ensuring the identification and punishment of all the persons alleged to have ill-treated the applicants, as required by Article 3 of the Convention? Did the administrative proceedings against officer A.C. have a sufficient deterrent effect to prevent similar crimes in the future (see Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004 and Pădureţ v. Moldova, no. 33134/03, 5 January 2010)?
3. Was there a speedy and effective investigation into the applicants’ alleged ill-treatment or inhuman and degrading treatment, within the meaning of Article 3 of the Convention?
Full & Egal Universal Law Academy