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FOURTH
SECTION
CASE OF
PETRU ROŞCA v. MOLDOVA
(Application
no. 2638/05)
JUDGMENT
STRASBOURG
6 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Petru Roşca v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2638/05) 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 Petru Roşca
(“the applicant”), on 29 November 2004.
- The
applicant was represented by Mr A. Postica from Promo-Lex, a
non-governmental organisation based in Chişinău. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the police had made excessive
use of force during his arrest and detention, and that he had been
convicted of an administrative offence without having had sufficient
time and facilities to prepare his defence or to use the assistance
of a lawyer.
- On
17 January 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1956 and lives in Cahul.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicant's arrest and alleged ill-treatment
- The
applicant is a school teacher with twenty-five years of teaching
experience and is a person with a third-degree disability as a result
of spinal cord and leg injuries.
- According
to the applicant, on 9 May 2004, the 59th anniversary of
the end of World War II as celebrated in Moldova, he was in a bar
with a friend. At approximately 8.30 p.m. he went home but was
stopped by two persons wearing police uniforms. Without identifying
themselves or giving any explanation, the persons took him by the
hands and forced him to follow them. The applicant protested,
identifying himself and asking who they were and where he was being
taken. He was told that he would find out all the reasons on arrival
at the local police station.
- The
applicant alleges that during the arrest and while being taken to the
police station he received blows from the police officers. Two women
intervened in his defence, but he was taken to the police station. At
the police station he received more blows and was then placed in a
detention cell together with four other men, most of them sleeping on
the bare floor. When he made a complaint about the conditions of
detention he was transferred to a solitary cell with even worse
conditions. No information was given to him about the reasons for his
arrest and he was not allowed to call his twelve-year-old son, who
remained alone at home, nor to call a lawyer.
- The
next morning at approximately 8 a.m. he was given the record of his
arrest to sign, but was not allowed to read it. He was also told the
reasons for his arrest, following which he signed the documents but
noted his disagreement with the charges against him. The record was
dated 9 May 2004 and indicated the applicant's full name and
home address. It described his behaviour as contrary to Article 164/1
and 174/6 of the Code of Administrative Offences (“the CAO”).
According to the Government, the applicant signed the reports on 9
May 2004.
- The
two police officers wrote reports to the head of the police station,
stating that on 9 May 2004 at approximately 8.30 p.m. the applicant
had disturbed the public order by insulting certain public figures,
including the deputy mayor of Cahul. Their request to follow them to
the police station went unheeded, following which they had to use
force to take him to the police station, since he was “playing
to the public”. On the way to the police station he tried to
escape but was tripped by one of the officers and fell down, hitting
his face on the pavement. He was arrested again and taken to the
police station.
- Witness
statements by O. N. and N. N. were annexed to the file, in which they
described having seen the applicant being escorted by two police
officers. When he attempted to escape, one of the officers tripped
him and the applicant fell to the ground, hitting it with his face.
- On
10 May 2004 at approximately 10 a.m. the applicant was brought before
a judge, who examined his administrative case. The applicant alleges
that his request for assistance by a lawyer was left unanswered. The
Government submit that no such request was made. The judge found the
applicant guilty of minor hooliganism and refusal to comply with
lawful requests from the police, contrary to Articles 164/1 and 174/6
of the CAO. The court found, in particular, that the applicant had
breached public order by insulting members of the public and the
police. The applicant was fined 36 Moldovan lei (approximately
2.6 euros (EUR)) and released immediately.
- Between 10 and 26 May 2004 the applicant was excused
from work, his doctor noting “head trauma” as his
preliminary diagnosis and later confirming it as the final diagnosis.
- On 17 May 2004 the applicant underwent an examination
by a forensic doctor, at a prosecutor's request of the same date (see
paragraph 18 below). The doctor found a bruise under the applicant's
right eye and diagnosed him with cranial trauma caused by a hard
object on approximately the date mentioned by the applicant (9 May
2004). In reaching his conclusions he also referred to the findings
made by the applicant's doctor on 10 May 2004 and by a neuropathology
doctor on 17 May 2004.
- On 18 May 2004 the applicant appealed against the
decision of 10 May 2004. He complained of ill-treatment by the
police, that he had not been allowed to be represented by a lawyer
and that his arrest had not been recorded on the evening he was
arrested, contrary to legal requirements. He also referred to the
sleepless night he had gone through and that as a result he had been
unable to present his case properly to the judge. He noted that no
secretary or lawyer was present at the hearing, and that the officer
who had ill-treated him threatened him with further ill-treatment if
he complained.
- On
1 June 2004 the Cahul Court of Appeal dismissed his appeal as
unfounded. The court noted the statements made by O. N. and N. N.,
referred to above, as conclusive evidence that the applicant had
insulted the police. Since the applicant himself confirmed that he
was in normal relations with both witnesses, this excluded any bad
faith on their part. Moreover, the applicant confirmed having
consumed 100 ml of vodka and a bottle of beer on 9 May 2004. The
reports written by the arresting officers were evidence that the
applicant was guilty of insulting members of the public.
2. Investigation of the applicant's complaint of
ill-treatment
- On 15 May 2004 the applicant asked a prosecutor to
initiate criminal proceedings against the two officers in order to
investigate his alleged ill-treatment. On 17 May 2004 the prosecutor
requested a forensic doctor to examine the applicant. On 30 June 2004
the prosecutor refused to initiate criminal proceedings. Referring to
the statements made by the police officers and by O. and N. and eight
other witnesses, as well as the applicant's statements and the
materials in the file, the prosecutor considered the applicant's
complaint ill-founded. The content of the statements by the eight
witnesses was not mentioned. The prosecutor added that the
applicant's detention overnight was in accordance with Article 249 of
the CAO.
- At the applicant's request, on 22 July 2004 the Cahul
District Court annulled the prosecutor's decision of 30 June 2004.
The court found that a thorough verification of the applicant's
complaints had not been made; in particular two witnesses who had
allegedly intervened in his defence when he was being taken to the
police station had not been identified or interviewed and there was
no evidence in the file that any attempt had been made to find them.
Moreover, the prosecution had not heard N.O and had failed to
establish how the injuries to the applicant had been caused, whether
as a result of a fall or blows.
- On 29 October 2004 the prosecutor refused to open a
criminal investigation against the two officers. The decision mostly
repeated the reasons of the decision dated 30 June 2004. The new
element included testimony from three witnesses, according to whom
the applicant fell to the ground and then received a punch to the
face and a blow to the leg with a police truncheon. However, “they
were not present at the moment of [the applicant's] arrest itself”.
These new witnesses also confirmed that the applicant had resisted
the police. It appears that the statements made by these three
witnesses were not annexed to the file and were only mentioned in the
prosecutor's decision.
- The
applicant appealed against that decision, stating that it was an
almost identical copy of the decision dated 30 June 2004, except for
the additional statements of three witnesses. He referred to the
court decision of 22 July 2004, which had annulled the previous
identical refusal to open a criminal investigation. He claimed that
he had identified the three new witnesses and not the prosecutor, who
had not made any attempt to find the witnesses. According to him,
these witnesses confirmed that he had been thrown to the ground by
the police officers and hit, and that this had happened near the
square where he had been arrested, and not near a bar as stated by
the officers and witnesses O. N. and N. N. This undermined the
credibility of those two witnesses. Moreover, O. N. had not been
interviewed by the prosecutor. The applicant further pointed to the
prosecutor's failure to order any new medical examinations or other
measures to establish the source of his injuries, despite the court's
order to do so.
- On
19 November 2004 the Cahul District Court dismissed the
applicant's appeal on points of law. The court found that the
applicant had been found guilty of two administrative offences, as
established by a final court decision. This confirmed that he had
committed acts of hooliganism and insulted the police, which in turn
allowed the police to use all necessary means to secure his arrest.
Moreover, witnesses had confirmed that the applicant had resisted the
police and there was nothing in the file to support his allegations
of unlawful acts by the police.
- The
applicant requested the Prosecutor General's Office to lodge an
extraordinary appeal, but this was rejected as unfounded.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Administrative
Offences read as follows:
Article 164. Minor hooliganism
“Minor hooliganism, namely injurious expressions
uttered in public places, insulting behaviour towards citizens or
other similar acts, which disturb public order and the peace of
citizens, shall be punished by a fine of up to five times the
conventional unit. If, due to the circumstances of the case and
taking into consideration the offender's personality, such a sanction
is considered insufficient, [an order can be made for] administrative
arrest for up to fifteen days.”
Article 174/6. Insulting a police officer or a
bailiff.
“Insulting a police officer, namely the
premeditated insulting of his or her honour and dignity, ... in the
form of action, verbally or in writing, shall be punished by a fine
of up to ten conventional units or administrative detention for up to
fifteen days. ...”
THE LAW
- The
applicant complained under Article 3 of the Convention of excessive
use of force during his arrest and about the conditions of his
detention following his arrest. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- He
also complained under Article 5 of the Convention of unlawful
detention, since the law allowed him to be detained for an
undetermined period of time pending an examination of his case by a
court. He also complained under the same Article that he had not been
informed promptly of the reasons for his detention. The relevant part
of Article 5 reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;”
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
applicant further complained, under Article 6 of the Convention, of a
refusal to allow him to be represented by a lawyer, of a failure to
identify and hear two witnesses and of a lack of adequate time and
facilities to prepare his defence. The relevant part of Article 6
reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an ... impartial tribunal established by law.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The
applicant finally complained that his arrest was prompted by his
criticism of the ruling party and was thus contrary to Article 10 of
the Convention. The relevant part of Article 10 reads:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...”
I. ADMISSIBILITY
- The
applicant complained that the conditions of his detention for twelve
hours at the Cahul police station were degrading. The Court considers
that, in view of the lack of any evidence to support the applicant's
claims concerning his conditions of detention and in view of the
short period of his detention, this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected as inadmissible
pursuant to Article 35 § 4 of the Convention.
- The
applicant complained that he had been arrested in the absence of a
reasonable suspicion that he had committed a crime, in violation of
Article 5 § 1 of the Convention.
- The
Court notes, however, that all the witnesses, even those he mentioned
supporting his case, noted his resistance to the police. Some of them
noted that he had used insulting language against the police and
members of the public and the applicant himself acknowledged in court
that he had consumed alcohol on the evening of his arrest. The Court
concludes that the applicant's arrest could be justified by the need
to bring him before a judge on the basis of a reasonable suspicion
that he had engaged in hooliganism and resisted the lawful orders of
the police.
- Accordingly,
the Court concludes that the complaint under Article 5 § 1
of the Convention is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and
must be rejected as inadmissible pursuant to Article 35 § 4 of
the Convention.
- For
the same reasons as noted above, and in the light of the Court's
case-law (see, for instance, Janowski v. Poland [GC], no.
25716/94, ECHR 1999 I), the Court considers that the
complaint under Article 10 of the Convention is also manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected as inadmissible
pursuant to Article 35 § 4 of the Convention.
- The
applicant also complained that he had not been informed promptly of
the reasons for his arrest. However, it appears that on the evening
of 9 May 2004 he signed the record of his arrest, which included
information about the reasons for his arrest. Moreover, given the
circumstances, the reasons for the applicant's arrest must have been
apparent to him (see Murray v. the United Kingdom, 28 October
1994, § 77, Series A no. 300 A). This complaint is
therefore also manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and must be rejected as
inadmissible pursuant to Article 35 § 4 of the Convention.
- The
Court considers that the applicant's complaints under Article 3
(except for his conditions of detention) and Article 6 § 3 of
the Convention raise questions of law which are sufficiently serious
that their determination should depend on an examination of the
merits. No grounds for declaring them inadmissible have been
established. The Court therefore declares these complaints
admissible. In accordance with its decision to apply Article 29
§ 3 of the Convention (see paragraph 4 above), the Court
will immediately consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant submitted that he had been ill-treated during his arrest.
He considered that the police had used excessive use force. Moreover,
the investigation into his complaint of excessive use of force was
not thorough, and the judge who examined him on 10 May 2004 did not
respond to his complaint of ill-treatment.
- The Government conceded that the police had used
force, which had been provoked by the applicant's own actions.
Moreover, the use of force had been limited to the minimum necessary
under the circumstances, given that the law allowed much more serious
measures to be taken by the police to deal with resistance to arrest.
The Government considered that the investigation into the alleged
excessive use of force had been thorough and prompt. Moreover, the
applicant had opportunities to complain of his alleged ill-treatment
when he signed the record of his arrest and during the hearing of 10
May 2004, but had failed to do so. He only went to a forensic doctor
six days after his release, which allowed sufficient time for him to
sustain injuries not related to his arrest and detention. The
forensic doctor had only made a visual inspection of the applicant,
and did not carry out any in-depth analysis necessary for reaching a
conclusion that the applicant was suffering from head trauma. This
made his conclusions insufficient to establish guilt on the part of
the police officers in respect of the applicant's injuries.
1. Concerning the alleged ill-treatment
- 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 Selmouni
v. France [GC], no. 25803/94, § 95, ECHR 1999 V,
and Assenov and Others v. Bulgaria, 28 October 1998, § 93,
Reports of Judgments and Decisions 1998-VIII).
- 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 v. France,
cited above, § 87).
- 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).
- The
Court notes that in the present case the parties disagree as to the
manner in which the applicant received his injuries, notably his
black eye and head trauma. Unlike cases where a person is injured
while in detention, the applicant was injured during his arrest and
the entire incident was witnessed by members of the public (see
Rehbock v. Slovenia, no. 29462/95, § 71, ECHR 2000 XII).
A number of witnesses noted that the applicant had fallen to the
ground after trying to escape from the police and after he had been
tripped by an officer. On the other hand, other witnesses deposed
that the applicant had been hit by the officers after he had been
immobilised on the ground (see paragraph 20 above).
- The
Court for its part finds it impossible to establish on the basis of
the evidence before it whether or not the applicant's injuries were
caused as alleged. The evidence referred to above supports both
the applicant's and the Government's case. However it would observe
at the same time that the difficulty in determining whether there was
a plausible explanation for the applicant's injuries or whether
there was any substance to his allegations of ill-treatment
rests with the failure of the authorities to investigate effectively
his complaints (see Veznedaroğlu v. Turkey, no. 32357/96,
§ 31, 11 April 2000). The Court will now examine this matter
further.
2. Investigation of the alleged excessive use of force
- 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, and Boicenco v. Moldova,
no. 41088/05, § 120, 11 July 2006).
- 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 v. Bulgaria, 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 its ability to establish the cause of
injuries or the identity of the persons responsible will risk falling
foul of this standard.
- In
the present case, the Court notes that following the applicant's
complaint the prosecutor's office carried out an initial assessment
and decided not to initiate a criminal investigation (see paragraph 18
above). On 22 July 2004 the Cahul District Court annulled that
decision, finding that the investigation had not been thorough since
three witnesses mentioned by the applicant had not been identified
and heard. Witness N.O. had not been heard either, and the manner in
which the injuries had been caused to the applicant had not been
established.
- The
Court observes that following that decision the prosecutor again
refused to initiate criminal proceedings on 29 October 2004, and that
the new refusal was formulated in a virtually identical manner to the
previous one. Indeed, the only new information contained in that
decision related to statements made by witnesses confirming the
applicant's claim that he had been hit by the police while already on
the ground. However, the same court which had earlier annulled the
prosecutor's decision due to the lack of a thorough investigation
accepted the decision of 29 October 2004.
- The
Court considers that it was difficult, if at all possible, for the
prosecutor to determine how the applicant had received his injuries,
in the absence of an in-depth medical examination. It notes however
that no additional medical investigation was ordered, and no other
measure aimed at finding out how the injuries were caused is apparent
from the prosecutor's decision, despite an express indication to that
effect by the domestic court in its decision of 22 July 2004.
Moreover, another indication by the court concerning the
identification of the two witnesses mentioned by the applicant was
also not reflected in the prosecutor's decision, nor was there any
mention of interviewing N.O. Since these three elements were the only
ones mentioned by the court in its decision of 22 July 2004 as
amounting to a lack of a thorough investigation, it is unclear how
the same court could reach another conclusion several months later in
the absence of any clarification of the three points. Moreover, the
new evidence which was mentioned by the prosecutor supported the
applicant's version of events. In their observations submitted to the
Court, the Government insisted that the lack of an in-depth analysis
by the forensic doctor prevented any definitive conclusion as to the
officers' guilt. However, an in-depth medical examination was clearly
necessary after the court's decision of 22 July 2004 and was one of
the crucial elements for a thorough investigation of the case. It was
never carried out, just as no real attempt was made to verify the
extent to which a forty-eight-year old person with a third-degree
disability could offer any serious resistance to two younger officers
specially trained to deal with any resistance.
- It
is to be noted, moreover, that when he was brought to the Cahul
police station the applicant was not given a medical examination,
despite the acknowledgment by the arresting officers that he had
fallen and hit his face on the ground. This would not only have
eliminated any doubt as to the nature and extent of the injuries
caused to him during his arrest, but it would also have clarified the
need for any medical assistance while in detention (see Abdülsamet
Yaman v. Turkey, no. 32446/96, § 45, 2 November
2004), regardless of whether the injuries had been caused in response
to the applicant's own actions (see Ribitsch v. Austria, 4
December 1995, § 38, Series A no. 336). This was even more
important in the light of the applicant's disability, of which he
informed the police at the time of his arrest.
- As
for the Government's arguments that the applicant had not initially
complained about his alleged ill-treatment and had gone to the
forensic doctor only six days later, the Court notes that the
applicant was seen by a doctor as early as 10 May 2004 – the
day of his release – and was initially diagnosed with head
trauma, a diagnosis later confirmed by the same doctor (see paragraph
14 above). The forensic doctor partly relied on that initial
examination (see paragraph 15 above). Moreover, the police officers,
the courts and the Government in their observations did not deny that
force had been used against the applicant.
- In
the light of the above-mentioned deficiencies, the Court considers
that the domestic authorities did not make a serious attempt to
investigate the applicant's complaints of excessive use of force.
Accordingly, there has been a violation of Article 3 of the
Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN
CONJUNCTION WITH ARTICLE 6 § 3 (c) and (d) OF THE CONVENTION
- The
applicant complained of his conviction in the absence of a lawyer and
without giving him sufficient time and facilities to prepare his
defence. He pointed out that the Government had not contested the
absence, at the hearing of 10 May 2004, of a secretary (see paragraph
16 above). Accordingly, no one was present to make a record of that
hearing, and there was accordingly no means of verifying his claim
that he had indeed asked for a lawyer and time to prepare his
defence. Moreover, having been locked in a detention cell overnight
and brought to the court hearing the next morning, the applicant did
not have the opportunity to prepare for that hearing. His health had
worsened overnight and he was generally unfit to stand trial.
- The
Government submitted that the applicant had been given the
opportunity to examine the record of his arrest, which described the
case against him in sufficient detail. He had also been given the
opportunity – which he had used – to comment on that
record. Moreover, the proceedings concerning administrative offences
were in a simplified form, with time-limits of twenty-four to
seventy-two hours from the moment of arrest. The applicant did not
ask for a postponement of the hearing. He did not ask to be assisted
by a lawyer and in administrative proceedings the participation of a
lawyer was not mandatory. Finally, even though he was assisted by a
lawyer before the higher court, the applicant failed to mention the
alleged violation of his right to be assisted by a lawyer in his
appeal of 17 May 2004, thus confirming the absence of a violation.
- The
Court recalls that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial set forth in paragraph
1 (see Edwards v. the United Kingdom, 16 December 1992, §
33, Series A no. 247 B). It will therefore examine the
applicant's complaints from the standpoint of both paragraphs read
together.
- The
Court reiterates that in the case of Ziliberberg v. Moldova
(no. 61821/00, § 35, 1 February 2005) it found that Article
6 of the Convention was applicable under its criminal head to
proceedings concerning an administrative offence. It sees no reason
to depart from that conclusion in the present case, given moreover
that the applicant risked up to fifteen days' detention (see
paragraph 24 above). Accordingly, Article 6 was applicable to the
proceedings in the applicant's case, since they involved “the
determination of a criminal charge” against him.
- The
Court notes that the parties dispute whether the applicant had asked
to be assisted by a lawyer or to have time and facilities to prepare
for the hearing. It agrees with the applicant that one reliable
manner of proving that such requests had or had not been made was to
examine the record of the hearing. The Government did not dispute
that no such record had been made and did not submit a copy of it to
the Court. Since the domestic court had not arranged for a record to
be made, and in the absence of any evidence to the contrary submitted
by the Government, the Court can presume that the applicant requested
the assistance of a lawyer and time to prepare his case. This finding
is supported by the fact that he had claimed that witnesses could
confirm his version of events, witnesses who had not been heard by
the court before adopting its decision.
- Moreover,
even in the absence of such a request, the domestic court must have
realised that after a night in detention and having seen only the
record of his arrest, the applicant could not have prepared for the
hearing, for instance by identifying witnesses on his behalf or
undergoing a medical examination. The only circumstance where such
procedural safeguards could be dispensed with was where the applicant
acknowledged his guilt and accepted a summary procedure, which was
not the case here. Therefore, under the circumstances, regardless of
any request to offer the applicant time and facilities to prepare his
case, such an opportunity should have been given to him by the court
ex officio, the more so since he risked fifteen days'
administrative detention as punishment.
- As
for the Government's argument that the applicant had not mentioned
these shortcomings in his appeal of 17 May 2004, the Court notes that
in fact that appeal did mention all these shortcomings (see paragraph
16 above). The higher court did not respond to this complaint.
- In
the light of the above, the Court concludes that there was a
violation of Article 6 § 1 taken in conjunction with Article 6 §
3 (c) and (d) of the Convention in the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed EUR 9,000 for non-pecuniary damage caused to him as
a result of violations of his Convention rights. He submitted that in
the small town of Cahul a lot of people knew him and that his arrest
and punishment had caused serious damage to his reputation and
feelings of frustration.
- The
Government considered that no compensation was due in the absence of
a violation of the applicant's Convention rights, and that in any
event the amount claimed was excessive.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the failure to
properly investigate the allegedly excessive force used against him
and to allow him time and facilities to prepare his defence. However,
the amount claimed is excessive. Ruling on an equitable basis, the
Court awards the applicant EUR 2,500 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 in compensation
for the costs and expenses incurred before the Court. The lawyer had
spent twenty-five hours on the case.
- The
Government considered that the applicant's claims were exaggerated
and unsubstantiated.
- The
Court awards EUR 1,000 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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 UNANIMOUSLY
- Declares admissible the complaints under Article
3 of the Convention (except for the complaint concerning the
conditions of detention) and Article 6 § 1 taken in conjunction
with Article 6 § 3 (c) and (d) of the Convention, and the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 taken in conjunction with Article 6 § 3 (c) and (d)
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two thousand
five hundred euros) in respect of non-pecuniary damage and EUR 1,000
(one thousand euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
