DOROSEVA v. THE REPUBLIC OF MOLDOVA - 39553/12 - Chamber Judgment [2015] ECHR 437 (28 April 2015)

In the case of Doroseva v. the Republic of Moldova,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Luis López Guerra,
          Ján Šikuta,
          Dragoljub Popović,
          Johannes Silvis,
          Valeriu Griţco,
          Iulia Antoanella Motoc, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 April 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39553/12) 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, Ms Ecaterina Doroseva (“the applicant”), on 12 June 2012.

2. The applicant, who had been granted legal aid, was represented by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged, in particular, that she had been subjected to ill-treatment by police officers.

4. On 22 May 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and lives in Chisinau.

6. On 11 November 2009 at approximately 11.30 p.m. the applicant was arrested on the street by several police officers wearing plain clothes, on suspicion of possession of drugs.

7. According to the applicant, she was ill-treated by the police officers before being taken to the police station. At the police station she was held until the next morning.

8. In a medical report issued on 13 November 2009 a forensic doctor found that the applicant presented numerous bruises to her face, arms and hips. An x-ray examination of the applicant’s head, which according to the medical report was conducted on the same date, showed that the applicant also had a broken nose.

9. On 15 November 2009 the applicant was examined by a neurologist who determined that she had also suffered concussion.

10. On 14 January 2010 the applicant lodged a criminal complaint with the Prosecutor’s Office concerning her ill-treatment by the police on 11 November 2009.

11. On 1 April 2010 the Rascani Prosecutor’s Office refused to initiate criminal proceedings on the ground that the applicant’s complaint was ill-founded. The decision was based on the statements of the accused police officers who had denied having ill-treated the applicant and on the fact that there was a possibility that the applicant’s injuries were the result of her falling over.

12. On 15 October 2010 a superior prosecutor from the same Prosecutor’s Office rejected the applicant’s appeal.

13. On 29 November 2010 an investigating judge from the Rascani District Court upheld the applicant’s appeal on points of law and ordered a re-examination of the applicant’s case. The judge found that the investigation conducted by the Prosecutor’s Office had been superficial and incomplete.

14. After the reopening of the investigation, the Prosecutor’s Office ordered the conduct of a new forensic medical examination. In a report dated 30 December 2010 a forensic doctor found that on 13 November 2009 the applicant had presented numerous bruises on her face and limbs and a broken nose. The applicant’s injuries had been produced by at least six different blows with a hard blunt object and since they were located on different parts of her body, they could not have been a result of a fall from the height of her body.

15. On 20 May 2010 the Rascani Prosecutor’s Office refused again to initiate criminal proceedings. This time the prosecutor argued that according to his verifications in the documents of the hospital where the applicant had undergone an x-ray of her nose, the procedure had been carried out not on 13 but on 10 November 2009. Moreover, the prosecutor found a discrepancy between the records in the forensic medical report of 13 November 2009 where the time of the applicant’s ill-treatment was indicated as 1 a.m. on 12 November and her subsequent statements indicated it as 11.30 p.m. on 11 November 2009. This decision was upheld by a superior prosecutor on 26 September 2011 and by an investigating judge from the Rascani District Court on 1 November 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

16. The relevant parts of the Criminal Code read at the material time as follows:

Article 274. Initiation of criminal proceedings

“After receiving a criminal complaint from which a reasonable suspicion that an offence has been perpetrated transpires, the criminal investigation organ or the prosecutor shall initiate criminal proceedings within 30 days ...”

17. According to Articles 298, 299 and 313 of the Code of Criminal Procedure a complaint about ill-treatment is to be lodged with the Prosecutor’s Office and the decision of that office is to be challenged before the hierarchically superior Prosecutor’s Office. The decision of the latter body can be challenged before an investigating judge. The explanatory judgments of the Plenary Supreme Court No. 7 and No. 8 dated 4 April 2005 and 30 October 2009 respectively, confirm that this is the remedy to be used in cases concerning ill-treatment and torture.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

18. The applicant complained of ill-treatment while in police custody and of a lack of an effective investigation 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.”

A. Admissibility

19. The Government recalled that in Ipati v. the Republic of Moldova (no. 55408/07, 5 February 2013), a case concerning the applicant’s ill-treatment by police, the Court dismissed their objection of non-exhaustion of domestic remedies based on the applicant’s failure to lodge an appeal with the investigating judge. Based on that decision, the Government considered that it was the Court’s ruling that the appeals before the investigating judges in such cases were not to be considered an effective remedy and thus, that they were not to be pursued. Accordingly, the Government submitted that the six-month time limit for lodging the present application should have been calculated from 20 May 2010 and not from 1 November 2011, i.e. the date of the decision issued by the investigating judge. They asked the Court to declare the application inadmissible for failure to observe the six-month time-limit.

20. The applicant disagreed with the Government and argued that she had complied with the six-month time limit as required by Article 35 § 1 of the Convention.

21. The Court recalls that in Ipati, it rejected the Government’s non-exhaustion objection as the investigation had lasted over five years and the applicant had already appealed to the investigation judge three times without any success before applying to the Court. It was a decision which was based on the specific facts of that case and it was not the Court’s intention to declare that the appeals to investigation judges lodged in accordance with Article 313 of the Code of Criminal Procedure were not an effective remedy. This is confirmed by the fact that in a subsequent decision in the case of Cuprianov v. Moldova ((dec.) 34115/09, 26 March 2013), the Court declared inadmissible the applicant’s complaint about ill-treatment under Article 3 of the Convention on account of his failure to lodge an appeal with the investigation judge.

22. The Court therefore concludes that the application cannot be declared inadmissible for failure to observe the six-month time-limit, accordingly, the Government’s objection is dismissed. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

23. The applicant submitted that she had been ill-treated during her arrest and detention and argued that the authorities had failed to explain the origin of the injuries on her body as recorded in the medical reports. The applicant also contended that the Prosecutor’s Office had failed to properly investigate her complaint.

24. The Government did not make any comments but submitted that they agreed with the findings of the domestic authorities.

25. 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, judgment of 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII).

26. 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, § 87).

27. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 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).

28. 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).

29. 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, § 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.

30. Turning to the facts of the present case, the Court notes that the applicant presented numerous injuries after her release from detention. Since the Government have failed to provide an explanation for the applicant’s injuries, the Court concludes that they were the result of ill-treatment while in police custody. Accordingly, there has been a substantive violation of Article 3 of the Convention.

31. In so far as the investigation conducted by the Moldovan authorities into the applicant’s allegations of ill-treatment is concerned, the Court further notes that after receiving the complaint, the Prosecutor’s Office did not undertake any decisive steps in order to investigate the circumstances of the case but was content to accept without reservation the statements of the accused police officers. In dismissing the complaint for the first time, the prosecutors speculated that the applicant’s injuries could have been caused by her falling over. Later, when confronted with the findings in the repeated forensic medical report to the effect that the injuries could not have been caused by a fall and that they had been inflicted by at least six different blows, the prosecutors found a new ground to dismiss the complaint, namely they considered the date of the x-ray being 10 November instead of 13 November 2009. They did not explain how they reached such a conclusion and the materials of the case file do not contain any evidence in support of it. On the contrary, all the medical documents contained in the domestic case file submitted by the Government to the Court refer to 13 November 2009 as the date when the applicant’s head had been x-rayed. The Court further notes that the prosecutors did not ask the applicant to identify the police officers responsible for her ill-treatment, let alone conduct a confrontation between them. It is therefore impossible for the Court to conclude that an effective official investigation took place. Thus, there has been a violation of Article 3 of the Convention under its procedural head as well.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

34. The Government disagreed with the amount claimed by the applicant and argued that it was unjustified and excessive.

35. Having regard to the violation found above and its gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis the Court awards her EUR 12,000.

B. Costs and expenses

36. The applicants also claimed EUR 5,100 for the costs and expenses incurred before the Court.

37. The Government contested the amount claimed by the applicants and argued that it was excessive.

38. In view of the legal aid given to the applicant by the Council of Europe and of the complexity of the case, the Court considers that no further award is necessary in respect of costs and expenses.

C. Default interest

39. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention in both its substantive and procedural limbs;

3. 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 12,000 (twelve thousand euros), plus any tax that may be applicable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Josep Casadevall
Registrar President

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