BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF BISIR AND TULUS v. MOLDOVA
(Application
no. 42973/05)
JUDGMENT
STRASBOURG
17 May
2011
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 Bisir and Tulus v.
Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42973/05) 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 four Moldovan nationals, Mr Ivan Bisir,
Mr Ivan Tulus, Ms Svetlana Bisir and Ms Elena Tulus (“the
applicants”), on 28 November 2005. The first and the second
applicants are also Bulgarian nationals.
- The
applicants were represented by Mr V. Oltu and Ms D.I. Straisteanu,
lawyers practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent,
Mr V. Grosu.
- The
applicants alleged, in particular, breaches of Articles 3, 5, 8 and
13 of the Convention.
- On
1 February 2010 the Court decided to give notice of the application
to the Government. On the same date the Bulgarian Government were
informed of their right to intervene in the proceedings in accordance
with Article 36 § 1 of the Convention and Rule 44
§ 1(b), but they did not communicate any wish to
avail themselves of this right. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are two married couples who were born in 1968, 1966, 1970
and 1969 respectively and live in Chişinău.
- On
3 June 2005 all the applicants were attending a wedding party.
At 9.30 p.m. the wedding party was interrupted by masked police
officers who arrested the first and second applicants. The applicants
were informed later that they had been arrested on suspicion of
forging a contract and swindling a large amount of money from a third
company.
- Later in the evening, between approximately 12 midnight
and 3 a.m., masked police officers conducted a search of the
applicants’ houses. On unspecified dates the third and fourth
applicants contested the legality of the search arguing that it had
been carried out in breach of the law. They complained that the
searches had been conducted during the night and that the police
officers had not had a court order indicating what they were
authorised to search for. The complaint was finally dismissed by the
Supreme Court of Justice on 11 October 2005.
- In
the days following the applicants’ arrest the prosecutor’s
office issued a press statement in which it was said that the first
and second applicants were members of a criminal gang.
- On
6 June 2005 a judge from the Râscani District Court issued a
detention warrant for the first and second applicants for a period of
thirty days. The reasons relied upon by the judge were that the
applicants were suspected of having committed a serious offence
punishable with more than two years’ imprisonment and that they
could abscond or obstruct the investigation.
- The applicants’ lawyers appealed arguing, inter
alia, that there was no reasonable suspicion that the first and
second applicants had committed a criminal offence. In any event,
there were no reasons to believe that the applicants, who had
families and children, would abscond or hinder the investigation.
- The appeals were dismissed by the Court of Appeal and
the first two applicants’ detention was extended several times
on similar grounds until 11 November 2005. All the habeas
corpus requests made by the applicants were dismissed up until
that date.
- In
the meantime the first and second applicants were detained in the
detention facility of the Centre for Fighting Economic Crime and
Corruption (“the CFECC)”. On a few occasions the first
applicant was taken to a prison hospital as a result of a hunger
strike and health problems. He was also seen on several occasions by
independent doctors. On 12 October 2005 the first applicant was
seen by a doctor of his choice who concluded that he would need to be
programmed for repeated surgery to his back. The second applicant was
detained for fifty-three days in solitary confinement in a room which
was poorly lit and had only a small window. According to him, his
sight diminished by at least ten per cent as a result.
- At one point in July 2005 both applicants requested to
be transferred temporarily to another detention facility and their
request was granted on 5 August 2005. On 26 September 2005 the
applicants asked for cable television to be installed in their cells.
This request was not granted on the ground that the applicants had
been moved in the meantime to another detention facility. The
applicants requested permission to receive numerous visits from
family and lawyers which appear to have been granted.
- On
6 September 2005 while the first applicant was being detained in a
prison hospital, several police officers conducted a search of his
cell. When the first applicant asked for the reason for conducting
the search, he was allegedly kicked in the abdomen and then in the
back, where he had recently had surgery, and lost consciousness. He
was then dragged out of the cell and left lying in the corridor.
After regaining consciousness and trying to stand up he was kicked
and punched again and lost consciousness two more times. The first
applicant’s account of the events was confirmed by his
cellmate, who wrote an affidavit to the applicant’s lawyer to
that effect. The Government disputed the allegations concerning the
first applicant’s ill-treatment by the police and submitted
that his injuries had either been self-inflicted or sustained as a
result of his falling over.
- On
7 September 2005 the first applicant lodged a complaint of
ill-treatment with the prosecutor’s office.
- Two
medical reports dated 7 and 29 September 2005 indicated that the
first applicant had multiple bruises and scratches on his forehead,
chest, stomach, arms and back. The medical report concluded that the
injuries had been caused by blows from a small, blunt object,
possibly as a result of being beating on 6 September 2005.
- On
14 October 2005 the prosecutor’s office dismissed the
applicant’s complaint of ill-treatment. The applicant appealed
to the Râscani District Court, which, on 23 December 2005,
upheld the appeal and ordered the prosecutor’s office to
re-examine the case. The District Court found, inter alia,
that the prosecutor’s office had failed to question the first
applicant’s cellmate and other persons present at the search of
6 September 2005.
- On 9 February 2006 the prosecutor’s office asked
a forensic medicine institute to determine whether the injuries
present on the first applicant’s body after the incident of 6
September 2005 could have been caused by falling over and whether the
injuries to his hands could have been caused by handcuffs. On the
same date the forensic medicine institute replied that it was
possible that the injuries to the first applicant’s back,
forehead and arms had been caused by his fall. Some of the injuries
to his wrists had been caused by the handcuffs while others and the
bruises on his stomach could have been self-inflicted since the area
had been accessible to the applicant’s hands.
- On
10 February 2006 the prosecutor’s office again dismissed the
first applicant’s complaint of ill-treatment after having
questioned the police officers who had participated in the search of
the first applicant’s cell on 6 September 2005. All the
officers stated that the first applicant had lost consciousness after
the beginning of the search and fallen over. Relying on the forensic
report of 9 February 2006 the prosecutor’s office concluded
that the injuries to the applicant’s back and forehead and the
scratches on one of his arms had been caused by his fall. It further
concluded that the scratches on the applicant’s elbows and the
bruises on his stomach had been self-inflicted, while the scratches
on his wrists had been caused by the handcuffs.
- On
24 October 2006 the prosecutor’s office decided to drop the
criminal charges against the first and second applicants for lack of
evidence of their guilt.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of Law no. 1545 on compensation for damage caused
by illegal acts of criminal investigation bodies, prosecution
authorities and courts, read as follows:
Article 1
(1) Individuals and legal entities are
entitled to compensation for non-pecuniary and pecuniary damage
caused by:
a) unlawful arrest, detention, indictment, or
conviction;
b) unlawful search carried out during an
investigation or trial, confiscation or restriction of property,
dismissal from employment, or other procedural acts that limit
individual rights;
c) unlawful administrative arrest, community
service order or fine;
d) the carrying out of investigative measures
in breach of lawful procedure;
e) unlawful seizure of accounting or other
documents, money or stamps, or freezing of bank accounts.
(2) The damage caused shall be fully
compensated, irrespective of the degree of culpability of the agents
of the criminal investigation bodies, prosecution authorities and
courts.
Article 4
A person shall be entitled to compensation in accordance
with the present law when one of the following conditions is met:
a) the pronouncement of an acquittal
judgment;
b) the dropping of charges or discontinuation
of an investigation on the ground of rehabilitation;
c) the adoption of a decision by which an
administrative arrest is cancelled on the grounds of rehabilitation;
d) the adoption by the European Court of
Human Rights or by the Committee of Ministers of the Council of
Europe of a decision in respect of damages or in respect of a
friendly settlement agreement between the victim and the
representative of the Government of the Republic of Moldova before
the European Court of Human Rights. The friendly settlement agreement
shall be approved by the Government of the Republic of Moldova;...
- Article
128 of the Code of Criminal Procedure provides that it is forbidden
to carry out searches during the night except in cases of flagrante
delicto.
THE LAW
- The
first and the second applicants complained under Article 3 of the
Convention that the conditions of their detention had amounted to
inhuman and degrading treatment and that the authorities had failed
to provide them with appropriate medical care while in detention. The
first applicant also complained of having been ill-treated while in
detention and of the authorities’ failure to properly
investigate his complaint in that regard. Article 3 of the Convention
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
first and second applicants further complained that their detention
on remand had not been based on “relevant and sufficient”
reasons and that the prosecutor’s office had denied them access
to the materials of the case file. The relevant part of Article 5 §
3 reads:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
first and second applicants complained in a letter of 10 April 2006
under Article 6 § 2 of the Convention that their right to be
presumed innocent had been breached. Article 6 § 2 reads as
follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The same applicants further complained under Article 8
of the Convention that police officers had carried out unlawful
searches of their apartments. In the same letter of 10 April 2006
they also complained that they had not had the right to receive
visits from their families during detention. Article 8 reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- Lastly,
the applicants argued that they had had no effective remedies by
which to complain about the alleged violations of Articles 3, 5 and
8, in breach of Article 13 of the Convention which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ....”
I. ADMISSIBILITY OF THE CASE
A. The complaint under Article 3 concerning
inappropriate medical care and poor conditions of detention
- The
first and second applicants complained that they had not received
appropriate medical care while in detention. They also complained of
the poor conditions of detention; however, only the second applicant
substantiated his complaint by submitting that he had been held for
more than fifty days in solitary confinement in a room which was
poorly lit and that, as a result, his eyesight had diminished by at
least ten per cent.
- In reply to this complaint the Government submitted
that the applicants had not exhausted available domestic remedies and
submitted copies of various hand-written requests made by the first
two applicants and their lawyer to the prison administration (see
paragraph 13 above), the authenticity of which was not contested by
the applicants.
- The
Court notes that even assuming that the applicants exhausted domestic
remedies, the complaints are ill-founded. The first applicant was
examined by independent doctors of his choice and received treatment
in a prison hospital. The conclusion of an independent doctor of 12
October 2005 that he was in need of a repeated surgery to his back
was not followed up because the applicant was released soon after. In
any event, it does not appear from the doctor’s conclusion that
the first applicant’s state necessitated urgent surgery. The
first applicant failed to adduce evidence in support of his
allegation that he was in need of any other urgent medical treatment
which was not provided to him (I.D. v. Moldova, no. 47203/06,
§ 37, 30 November 2010). In so far as the second applicant
is concerned, the Court notes that he did not substantiate in any way
the complaint of inappropriate medical care provided to him and it is
not clear from his submissions or from the documents submitted by him
whether he was in need of any medical care.
- As
to the quality of the conditions of detention, the Court notes that
despite being represented before the Court by two lawyers, the first
applicant did not substantiate in any way his complaint of poor
conditions of detention. The second applicant did not adduce any
evidence to show that he or his lawyer had made any requests or
complaints to the prison administration concerning his solitary
detention or the poor lighting of his cell. In view of the fact that
he had made numerous other requests to the prison administration,
including to have cable television in his cell (see paragraphs 13 and
29 above), the Court is not persuaded that he was genuinely
dissatisfied with his conditions of detention at the material time,
namely, with his solitary confinement and the lighting of his cell.
- Accordingly,
the Court concludes that this complaint under Article 3 of the
Convention is manifestly ill-founded and therefore inadmissible
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
B. Complaints under Articles 5 and 8 of the Convention
submitted by the first and second applicants
- The
first and second applicants complained that their detention had not
been based on relevant and sufficient grounds and that the
prosecutor’s office had denied them access to the materials of
the case file pertaining to the proceedings under Article 5. They
also complained under Article 8 of the Convention of the unlawful
search of their homes.
- The
Government objected, stating that the first and second applicants had
failed to inform the Court that the charges against them had been
dropped and maintained that they had failed to exhaust domestic
remedies which had become available to them after the charges had
been dropped. In particular, it had been open to them to initiate
proceedings under Law no. 1545 and claim compensation for
the alleged breaches.
- The
first and second applicants objected and argued that Law no. 1545
was not an effective remedy because the merits of their complaints
under Articles 5 and 8 had already been considered by the domestic
courts at the time of the examination of their habeas corpus
requests. They also submitted that in the cases of Sarban v.
Moldova (no. 3456/05, 4 October 2005) and Ostrovar v.
Moldova (no. 35207/03, 13 September 2005) the Court had found the
remedy under Law no. 1545 to be ineffective.
- The
Court observes that in the case of Topa v. Moldova ((dec.),
no. 25451/08, 14 September 2010), in respect of a complaint
under Article 5 § 3 of the Convention, it held that Law no.
1545 provided an effective framework of redress which the applicant
had failed to exhaust after acquittal and, consequently, declared the
application inadmissible. The effectiveness of the remedy under Law
no. 1545 was confirmed in the case of Mătăsaru and
Saviţchi v. Moldova (no. 38281/08, § 75, 2 November
2010), where the Court dismissed the applicants’ complaints
under Article 5 for failure to initiate civil proceedings under that
law. In so far as the cases of Ostrovar and Sarban are
concerned, they have to be distinguished from the present case
because the applicants in those cases were not acquitted and,
therefore, it was not open to them to initiate proceedings under
Law no. 1545.
- In
the present case, the Court does not find any compelling reasons to
depart from its recent findings in the cases of Topa and
Mătăsaru and Saviţchi. Moreover, it notes that
under Law no. 1545, it was open to the first and second applicants to
also claim compensation for the allegedly unlawful searches of their
homes. Since the first and second applicants failed to do this, their
complaints under Articles 5 § 3 and 8 must be rejected for
non-exhaustion of domestic remedies pursuant to Article 35 §§
1 and 4 of the Convention.
C. The complaints under Article 6 § 2 and under
Article 8 of the Convention concerning the denial of the right to
receive visits from family
- The
first and second applicants complained of a breach of their right to
be presumed innocent by the prosecutor’s office immediately
after their arrest of 3 June 2005. In particular, they submitted that
immediately after their arrest the prosecutor’s office had
issued a press statement in which the applicants were presented as
members of a criminal gang. The applicants also complained that
during the first period of detention, until 21 July 2005, they had
been denied the right to receive visits from their families.
- The
Court observes that the object of the six-month time-limit under
Article 35 is to promote legal certainty, by ensuring that cases
raising issues under the Convention are dealt with within a
reasonable time and that past decisions are not continually open to
challenge. Normally, the six-month period runs from the final
decision in the process of exhaustion of domestic remedies. Where it
is clear from the outset, however, that no effective remedy is
available to the applicant, the period runs from the date of the acts
or measures complained of (see D.P. and J.C. v. the United Kingdom
(dec.), no. 38719/97, 26 June 2001).
- Turning
to the facts of the present case, the Court notes that the applicants
made these complaints for the first time in their letter dated
10 April 2006 (see paragraph 26 above). There is nothing to
suggest that the applicants were in any way hindered by the
authorities from complaining before that date. Consequently the
complaints have been lodged more than six months after the alleged
breach took place and must be declared inadmissible under Article 35
§§ 1 and 4 of the Convention.
D. The complaint under Article 13
- The applicants complained under Article 13 taken in
conjunction with Articles 5 and 8 that there were no effective
remedies in Moldova by which to complain of a lack of reasons for the
first and second applicants’ detention and of the unlawfulness
of the search of the applicants’ homes. The Court notes that it
was open to the applicants under Moldovan law to lodge habeas
corpus requests (see paragraphs 10 and 11 above) and to challenge
the lawfulness of the search in courts (see paragraph 7 above), which
they did. The fact that the applicants were not successful in the
proceedings does not automatically trigger the lack of effectiveness
of the remedies within the meaning of Article 13 of the Convention
(see Straisteanu and Others v. Moldova, no. 4834/06, §
69, 7 April 2009). Accordingly, the Court concludes that this
complaint is also manifestly ill-founded and therefore inadmissible
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
E. The remaining complaints
- The
Government submitted that the applicants failed to exhaust the remedy
provided for by Law no. 1545 and that, therefore, they lacked
victim status. The Court considers this as a non-exhaustion problem
rather than a victim status issue and notes that Law no. 1545 does
not provide any cause of action to victims of ill-treatment or
torture. Nor was it open under its provisions to the third and fourth
applicants to complain of a breach of their right to respect for
their homes. Accordingly, the Government’s objection must be
rejected.
- The
Court considers that the remaining complaints under Article 3 (about
the first applicant’s ill-treatment), Article 8 (about the
search of the third and the fourth applicants’ homes) and
Article 13 taken in conjunction with Article 3 (about the lack of
effective remedies in respect of the first applicant’s
ill-treatment) of the Convention raise questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of the merits, and that no grounds for declaring
them inadmissible have been established. The Court therefore declares
them 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
A. Submissions of the parties
- The
first applicant submitted that he had been ill-treated by police
officers during the search of his cell on 6 September 2005. The
applicant also contended that the prosecutor’s office had
failed to properly investigate his complaint.
- The
Government submitted that the first applicant had not been
ill treated during his detention. This had been proved by the
statements of police officers who had conducted the search and who
had denied any accusation of ill-treatment. According to the
Government, the authorities conducted an effective investigation into
the applicant’s complaint of ill-treatment and established that
a part of the applicant’s injuries had been caused by his fall,
another part had been self-inflicted while the rest had resulted from
the use of handcuffs.
B. The Court’s assessment
1. General principles
- 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,
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 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
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).
- 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, 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,
ECHR 1999-IV, § 104 et seq., 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.
2. Application of the above principles to the present
case
- Turning
to the facts of the present case, the Court notes that the first
applicant sustained numerous injuries on 6 September 2005 while in
detention. According to the medical reports in the Court’s
possession the first applicant had multiple bruises and scratches on
his forehead, chest, stomach, arms and back.
- It
is the Government’s opinion that some of the injuries were
self-inflicted and others were caused by a fall. This position is
based on the forensic report of 9 February 2006 which did not
establish the origin of the first applicant’s injuries but
rather speculated that some of them could theoretically have been
self-inflicted and that others could theoretically have been caused
by a fall (see paragraph 18 above). In addition, the Government’s
position is also based on the account of events given by the accused
police officers.
- The Court notes in the first place that the nature of
the injuries to the first applicant’s body is consistent with
his and his cellmate’s account of the events. In spite of this
the applicant and his cellmate, who was also present during the
search, were not questioned during the investigation. Instead, the
investigators entirely relied on the accounts of the police officers
accused of ill-treatment, accepting them without question.
- Moreover,
the Court is not convinced by the reasons given by the Government and
considers that they have failed to provide a plausible explanation as
to how the first applicant’s injuries were caused. A mere
theoretical possibility that the first applicant’s injuries
were self-inflicted or that he obtained them as a result of a fall is
not sufficient to rebut the strong presumption against the Government
in the absence of evidence to the contrary.
- In
the light of the above and on the basis of all the materials before
it, the Court considers that the Government have not provided a
plausible explanation for the first applicant’s injuries and
concludes that they were the result of inhuman and degrading
treatment while in police custody. Accordingly, there has been a
violation of Article 3 of the Convention.
- Having regard to the deficiencies identified in the
investigation (see paragraph 53 above), the Court also concludes that
the State authorities failed to conduct a proper investigation into
the applicant’s allegations of ill-treatment. Thus, there has
also been a violation of Article 3 of the Convention under its
procedural head.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
third and fourth applicants complained that the search of their homes
on 4 June 2005 constituted an interference with their right to
respect for their home which had not been in accordance with the law,
had not pursued a legitimate aim and had not been necessary in a
democratic society.
- The
Government did not make any submissions in respect of the merits of
this complaint.
- The
Court considers that the entry of police officers onto the premises
of the applicants’ homes constituted an interference with their
right to respect for home. An interference will contravene Article 8
unless it is “in accordance with the law”, pursues one or
more of the legitimate aims referred to in paragraph 2 and
furthermore is “necessary in a democratic society” in
order to achieve the aim (see the following judgments: Silver and
Others v. the United Kingdom, 25 March 1983, § 84, Series A
no. 61; Campbell v. the United Kingdom, 25 March 1992, §
34, Series A no. 233; Calogero Diana v. Italy, 15 November
1996, § 28, Reports 1996-V; and Petra v. Romania,
23 September 1998, § 36, Reports 1998-VII).
- The
expression “in accordance with the law” not only
necessitates compliance with domestic law, but also relates to the
quality of that law (see Halford v. the United Kingdom, §
49, Reports 1997-III). The Court reiterates that domestic law
must indicate with reasonable clarity the scope and manner of
exercise of the relevant discretion conferred on the public
authorities so as to ensure to individuals the minimum degree of
protection to which citizens are entitled under the rule of law in a
democratic society (see Domenichini v. Italy, § 33,
Reports 1996-V).
- The
Court notes that the search of the applicants’ homes was
carried out during the night of 4 June 2005 between 12 midnight and 3
a.m. Article 128 of the Code of Criminal Procedure provides that
it is forbidden to carry out searches during the night with the
exception of cases of flagrante delicto. Since it was not
contended by the Government that the search of the third and fourth
applicants’ homes fell under the exception provided for in
Article 128 of the Code of Criminal Procedure, the Court considers
that the interference complained of was not “in accordance with
the law” within the meaning of Article 8. Accordingly, there is
no need to examine whether the interference pursued a legitimate aim
and was “necessary in a democratic society”.
- The
Court therefore finds that there has been a violation of Article 8
of the Convention in respect of the third and fourth applicants’
right to respect for their home.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
- The
first applicant complained that he had had no effective remedies in
respect of his complaint under Article 3 of the Convention concerning
ill-treatment by the police.
- The
Court considers that this complaint raises essentially the same
issues as those examined in paragraphs 53 and 56 above and that no
separate issue arises under Article 13 taken in conjunction with
Article 3 of the Convention.
V. 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
first and second applicants claimed 30,000 euros (EUR) each for
non-pecuniary damage. The third and fourth applicants claimed
EUR 10,000 each, also for non-pecuniary damage.
- The
Government contested the claim and argued that it was ill founded
and excessive.
- Having
regard to the violations found above and the fact that all the
complaints in respect of the second applicant have been declared
inadmissible, the Court considers that an award of compensation for
non-pecuniary damage is justified in this case only in respect of the
first, third and fourth applicants. Making its assessment on an
equitable basis, the Court awards EUR 15,000 to the first applicant,
EUR 1,200 to the third applicant and EUR 1,200 to the fourth
applicant.
B. Costs and expenses
- The
applicant’s lawyers claimed EUR 34,373 for the costs and
expenses incurred before the domestic courts and before the Court.
They submitted a detailed time-sheet.
- The
Government contested this amount and argued that it was excessive and
unsubstantiated.
- The
Court observes that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
- In
the present case, regard being had to the itemised list submitted by
the applicants, the above criteria, the complexity of the case and
the fact that the majority of the complaints were declared
inadmissible, the Court awards the applicants EUR 1,200 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
- Declares by a majority the complaints under
Article 3 of the Convention taken alone and in conjunction with
Article 13 in respect of the first applicant and under Article 8 of
the Convention in respect of the third and fourth applicants
admissible and the remainder of the application inadmissible;
- Holds unanimously that there has been a
substantive and a procedural violation of Article 3 of the Convention
on account of the first applicant’s ill-treatment by police
officers on 6 September 2005;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention in respect of the third and
fourth applicants;
- Holds unanimously that no separate issue arises
in respect of the complaint under Article 13 of the Convention taken
in conjunction with Article 3 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention:
(i) Mr
I. Bisir EUR 15,000 (fifteen thousand euros) for non-pecuniary
damage;
(ii) Ms
S. Bisir EUR 1,200 (one thousand two hundred euros) for non-pecuniary
damage;
(iii) Ms
E. Tulus EUR 1,200 (one thousand two hundred euros) for non-pecuniary
damage;
(iv) the
applicants’ representatives EUR 1,200 (one thousand two hundred
euros) for costs and expenses;
(b) that
the above amounts shall 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; and
(c) 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 unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 17 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall Deputy
Registrar President
