THIRD SECTION
DECISION
Application no. 12437/08
Anatol STEPULEAC
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 16 October 2012 as a Committee composed of:
Alvina Gyulumyan, President,
Ján Šikuta,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 2 February 2008,
Having regard to the declaration submitted by the respondent Government on 16 March 2012 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Anatol Stepuleac, is a Moldovan national, who was born in 1971 and lives in Chișinău. He was represented before the Court by Ms A. Ursachi, a lawyer practising in Chișinău.
2. The Moldovan Government (“the Government”) were represented by their acting Agent, Mr L. Apostol.
3. The application has been communicated to the Government.
The circumstances of the case
1. The applicant’s arrest and alleged ill-treatment
4. On 11 January 2006 the applicant’s brother, Mr Gheorghe Stepuleac, was arrested by the police, allegedly in order to persuade him to transfer ownership of his private security firm to the head of the Ministry of Internal Affairs.
5. On 7 February 2006 several investigators under the leadership of Colonel P. searched the applicant’s brother’s apartment and seized, inter alia, three mobile phones and a video camera. The video camera had been used by the applicant’s brother’s son to record the search. On 17 February 2006 the Centru District Court found that the investigators had not had any reason to seize the phones and the video camera and ordered their return.
6. During the search of 7 February 2006 the applicant’s brother’s wife called the applicant and asked for assistance. The applicant came to the apartment with a lawyer. According to the applicant, he inquired about the reasons for the search and was then pushed into a room by Colonel P., who hit the applicant on the head and injured his hand. The applicant escaped and was later that evening treated at a hospital, refusing in-patient treatment.
7. However, he felt worse on 8 February 2006 and was transported by ambulance to a hospital, where he had to undergo surgery and was treated on an in-patient basis. In the evening of the same day, officers from the General Direction of Fighting Organised Crime of the Ministry of Internal Affairs (“the GDFOC”) came to arrest him, but the doctors prohibited his transfer on account of his weak state of health. On the same day, a neurologist established that the applicant had suffered head trauma.
8. On 9 February 2006 GDFOC investigators arrested the applicant and took him to the GDFOC detention centre. Allegedly, the doctors initially protested against the transfer, but after a call from a high-ranking official of the Ministry of Internal Affairs the transfer was authorised and the applicant’s state of health was described as “satisfactory”.
9. Two hours later the applicant lost consciousness in his cell at the GDFOC. An ambulance was called to offer emergency assistance. The doctors noted that the applicant had suffered a head trauma and had been found unconscious, as well as that “the police refuse[d] hospitalisation”.
10. On 10 February 2006 the head of the GDFOC detention facility reported to the GDFOC leadership that the applicant had complained about his poor state of health since his arrival and that the ambulance had to be called several times, but the doctors had found no serious problem requiring his in-patient treatment.
11. On the same day the applicant was brought before an investigating judge, who ordered his arrest for ten days. The judge also ordered the applicant’s transfer to prison no. 13 in Chişinău, where he could receive medical treatment. However, the applicant was not transferred to that prison and continued to be detained at the GDFOC detention facility. On 14 February 2006 he asked the GDFOC administration to be transferred to prison no. 13. On 22 February 2006 he was informed by the GDFOC administration that a request had been made, on the same day, to the prosecutor dealing with his case, “to give his agreement for [the applicant’s] transfer to prison no. 13”.
2. The applicant’s complaints and the investigation into his allegations
12. On 7 March 2006 an investigating judge examined the applicant’s complaint concerning the manner in which he had been treated by the police. The judge found that the applicant had not challenged any specific act of the police or of the prosecutor and that he could complain about his treatment to the prosecutor.
13. On 8 March 2006 a prosecutor decided not to institute criminal proceedings based on the applicant’s complaints concerning his ill-treatment during the search of his brother’s apartment and thereafter. The prosecutor noted, inter alia, that due to the interference by the applicant with the search procedure, the officers “had undertaken the necessary measures in order to stop his interference with the lawful actions of the police”. The applicant appealed.
14. On 24 October 2006 the investigating judge of the Centru District Court annulled the decision of 8 March 2006, finding that the decision had not been fully reasoned.
15. The applicant and his lawyer continued to complain about his ill-treatment on 7 February 2006 and the lack of medical assistance thereafter.
16. On 21 November 2006, 28 June and 30 October 2007, as well as on 9 January 2008 the prosecutor decided not to institute criminal proceedings based on the applicant’s complaints. Each of these decisions was annulled by the investigating judge, who found them superficial and premature. The prosecutor examining the case and two other officials had been reprimanded for not carrying out their duties properly.
17. On 25 March 2008 a criminal investigation of the applicant’s ill-treatment was initiated. On 31 March 20011 the prosecutor decided to discontinue the investigation due to the absence of a criminal act. The applicant challenged that decision before the investigating judge.
18. On 21 July 2011 the Rîșcani District Court rejected the applicant’s appeal as unfounded. The judge referred to the results of a medical report, according to which it was not excluded that the applicant had cut his hand while struggling to keep his video camera from the police. The judge decided that since the police had the power to prevent him from using any equipment during the search and he had not complied with their request, it had been a lawful use of force against the applicant. Moreover, the applicant’s lawyer who had participated at the search had made no objections in the search record.
19. According to the applicant, his complaint about the forced transfer from the hospital to the GDFOC and the subsequent insufficiency of medical assistance while in detention there was separated from the complaint against Colonel P. Those separate proceedings are still pending.
COMPLAINTS
20. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police during the search of 7 February 2006 and after his arrest and that he had not received medical assistance required by his condition while in detention. He had been intimidated throughout his detention in order to prevent him from legally representing his brother.
21. The applicant also complained under Article 13 of the Convention that he had not had effective remedies in respect of his complaints under Article 3 of the Convention.
22. He finally complained under Article 18 of the Convention that he had been arrested not because of a suspicion of having committed a crime, but for the purpose of dissuading him from defending his brother and in order to put pressure on his family so as to relinquish their ownership of their private security company.
THE LAW
A. Complaints under Articles 3 and 13 of the Convention
23. The applicant complained about his ill-treatment by the police and the failure to provide him with the required medical assistance. He also complained of the absence of effective remedies in respect of his complaints under Article 3 of the Convention. He relied on Articles 3 and 13 of the Convention.
24. After the failure of attempts to reach a friendly settlement, by a letter of 16 March 2012 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 in the present case there has been no effective investigation into the applicant’s allegations of ill-treatment and, accordingly, the Government cannot provide a plausible explanation for the applicant’s injuries or whether there was any substance in his allegations of ill-treatment (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000, Petru Roşca v. Moldova, no. 2638/05, 6 October 2009). Also, the Government, in view of the materials in their possession, are unable to provide with reasonable explanation as to whether or not the applicant was deprived of medical assistance required by his condition. In consequence, there has been a violation of the applicant’s rights guaranteed by Articles 3 and 13 of the Convention taken separately and in conjunction.
In this sense, having regard to the criteria emerging from the Court’s case-law (see among other authorities Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI; and also Haran v. Turkey (striking out), no. 25754/94, 26 March 2002; etc.), the Government consider that the above acknowledgment would serve at least as a partial just satisfaction for the non-pecuniary damages.
The Government ask the Court to consider the present unilateral declaration and their above acknowledgments. ... the Government making their own assessment of the circumstances of the present case within the terms of the previous case-law, [...] propose to pay the applicant a global sum of 14,000 (fourteen thousand) euros, which is to cover pecuniary, non-pecuniary damages, as well as incurred costs and expenses.
The Government declare that the above sum will be converted into Moldovan lei at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of 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. The payment will constitute the final resolution of the case and of any other claims that may appear from the circumstances of the present case.”
25. By a letter of 24 March 2012, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. While he did not dispute the sum proposed by the Government, he considered that the systematic use of ill-treatment by the Moldovan police and the steps taken by the prosecution and courts to shield the torturers from responsibility could only be stopped with the adoption of judgments by the Court condemning such practices and finding violations of the Convention.
26. 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”.
27. 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.
28. 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 (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).
29. 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 one’s right not to be ill-treated and to be offered medical assistance required by his or her condition during detention (see, for example, Sarban v. Moldova, no. 3456/05, §§ 75-91, 4 October 2005; Corsacov v. Moldova, no. 18944/02, §§ 49-76, 4 April 2006; Boicenco v. Moldova, no. 41088/05, §§ 83-127, 11 July 2006; Pruneanu v. Moldova, no. 6888/03, §§ 43-64, 16 January 2007; Oprea v. Moldova, no. 38055/06, §§ 38-42, 21 December 2010; and Taraburca v. Moldova, no. 18919/10, §§ 34-59, 6 December 2011), as well as about the absence of effective remedies in respect of Article 3 complaints (see, for instance, Corsacov, cited above, § 82, Pruneanu, cited above, § 70, Breabin v. Moldova, no. 12544/08, § 59, 7 April 2009; Gurgurov v. Moldova, no. 7045/08, § 73, 16 June 2009; and Parnov v. Moldova, no. 35208/06, § 38, 13 July 2010).
30. 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 (Article 37 § 1(c)).
31. Moreover, in 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 (Article 37 § 1 in fine).
32. 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 (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
B. Complaint under Article 18 of the Convention
33. Relying on Article 18 the applicant also complained that he had been arrested with the real aim of putting pressure on his family so as to transfer ownership of their company to the head of the Ministry of Internal Affairs.
34. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegation, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
35. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
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 this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy