European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF D. v. THE REPUBLIC OF MOLDOVA

(Application no. 25397/09)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

8 December 2020

 

This judgment is final but it may be subject to editorial revision.

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

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Valeriu Griţco,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 25397/09) 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 D. (“the applicant”), on 15 May 2009;

the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning the applicant’s alleged ill‑treatment and unlawful detention;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 17 November 2020,

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

INTRODUCTION

1.  The case concerns the alleged unlawful arrest and ill‑treatment of the applicant by police officers.

THE FACTS

2.  The applicant was born in 1990 and lives in Visoca. She was represented by Mr V. Jereghi, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

I. General background to the case

4.  On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. The results indicated that the ruling Communist Party of Moldova had narrowly won the elections.

5.  On 6 April 2009 growing discontent with the results of the elections and with alleged electoral fraud was expressed, notably in various online forums. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were already approximately three to four thousand people assembled in the centre. They began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and the Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.

6.  On 7 April 2009 the protest recommenced with the participation of some five to six thousand people. While the demonstration was peaceful at the beginning, several hundreds of the participants gradually became violent. As established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general election held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned interventions by a fire engine and riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met with very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and the Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building.

7.  At approximately 1 a.m. on 8 April 2009 various police and Special Forces units started a massive operation aimed at re-establishing public order. However, as established by the Commission, excessive force was used and all those still present in the main square were arrested regardless of whether they had acted violently or not. The arrests continued for several days. The media reported cases and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothed officers in the city centre on 8 April and the days that followed, long after the protests ended on the evening of 7 April 2009.

II. The applicant’s arrest and alleged ill-treatment

8.  On the evening of 7 April 2009 the applicant went, together with her roommate R., to the Great National Assembly Square (Piaţa Marii Adunări Naţionale, hereinafter “PMAN”) in Chişinău because of rumours about protests going on there. At PMAN they met the applicant’s relative, Mr V. Boboc, with whom they stayed until late at night.

9.  According to the applicant, Mr Boboc, R. and herself were part of a group of around fifty young people who stood peacefully in the street and discussed the events of the day. At around 1 a.m. in the morning of 8 April 2009 their group was surrounded by the police protecting the Government’s building, a special forces battalion in masks and plain-clothed officers armed with automatic rifles and rubber sticks. The youngsters were ordered to lie down on the ground and were kicked and severely beaten with rubber sticks and rifles. She had her head hit against the pavement and then received several blows. Following that they were taken by police cars to various police detention centres. While being taken to the police car, the applicant and R. saw the police kicking Mr Boboc, who was unconscious and no longer reacting to the beatings. Several days later it became known that Mr Boboc had died.

10.  On 13 April 2009 the applicant gave an interview to the television channel PRO-TV Chişinău, stating what she had witnessed the impugned event. Her identity was concealed in the video. Following the airing of that interview, the authorities asked journalists from PRO-TV to reveal the applicant’s identity, which they refused to do. Mr V. Boboc’s father and his lawyer were also asked by the prosecution to reveal the applicant’s identity.

11.  On 14 April 2009 the applicant went to a medical specialist in order to obtain medical confirmation of the nature and extent of her injuries. She was afraid for her life and therefore declared that she had been attacked by an unknown person on the street on 7 April 2009. The doctor found one injury to her right foot (16 by 15 centimetres).

12.  In a complaint to the Prosecutor General, on 4 May 2009, the applicant wrote about the events of the night of 7 to 8 April 2009, including the beatings to which she, R. and Mr Boboc had been subjected at PMAN. Having been brought to the Buiucani police station, all the individuals arrested (approximately twenty young men and three young women, including the applicant and R.) had been ordered to stand against the wall with their hands up against the wall and had been beaten every time they tried to speak or move. One by one the young men had been taken to one of the offices and ordered to take down their trousers. This had been followed by sounds of beating and the victims’ screams. All the young men returning from the office had had clear signs of ill-treatment and one of them had been completely naked when released. All three young women had been taken together to the office and had been insulted and shouted at, but no physical violence had been used. No explanation had been given to them about the reason for their arrest.

At approximately 5 a.m. on 8 April 2009 the young women had been released and had been advised to leave the city. R. had declared that she had feared for her life and had thus decided to leave the city and change her mobile phone number. She had also refused to undergo a medical examination. The applicant asked the Prosecutor General to investigate her complaints thoroughly and to bring to justice those responsible for her ill‑treatment and unlawful detention for over five hours without explaining to her the reasons for her arrest or allowing her to inform her relatives about her detention.

13.  Between 4 and 15 May 2009 the applicant was examined by doctors from the Memoria Rehabilitation Centre for Torture Victims, a non‑governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). She underwent detailed medical tests and examinations by various medical specialists at the aforementioned centre. In a document entitled “Extract from the medical file” (Extras din Fişa Medicală), dated 15 May 2009, issued by the centre, it was stated, inter alia, that the applicant was suffering from headaches, vertigo, and insomnia; she had nightmares with scenes from the traumatic events, heartache, especially during emotional or physical exertion, anxiety and obsessive flashbacks. Using several methods of psychological examination, the experts determined that the applicant had suffered a series of traumatic events and showed clear signs of post-traumatic stress disorder. Provisional medical results showed that the applicant was suffering from, inter alia, the consequences of cranial trauma.

III. Investigation into the applicant’s complaints

14.  On 1 June 2009 the applicant was interviewed - her identity was concealed - by an investigating judge in respect of Mr Boboc’s death. On the same day she was interviewed by a prosecutor about her allegations of 4 May 2009.

15.  On an unknown date the prosecutor rejected the applicant’s lawyer’s request to offer her witness protection, indicating that concealing her identity was sufficient. On 4 June 2009 the applicant’s lawyer informed the media that he had interviewed a person who had witnessed the killing of Mr Boboc by the police.

16.  On 26 June 2009 the respondent Government were notified of the application.

17.  On 22 July 2009 the military prosecutor’s office initiated a criminal investigation into the applicant’s allegations made on 4 May 2009. According to the Government, the applicant had not left her address or contact number and she could only be reached via her lawyer.

18.  On 23 March 2010 the criminal investigation initiated on 22 July 2009 was joined to another one, concerning a number of alleged beatings by the police and special forces during the relevant events.

19.  On 15 January 2013 the criminal investigation mentioned in the preceding paragraph was suspended. According to that decision, some 200 members of the Fulger special forces battalion had been questioned, victims and witnesses had been interviewed and numerous video recordings, public and private, had been examined. Despite all these actions, it was impossible to determine specifically which officer had applied physical force to which victim and whether such use of force had been required under the circumstances.

IV. Other relevant developments

20.  In parallel to the criminal investigations mentioned in paragraphs 17‑19 above, a number of other investigations were initiated against various officers, in which the applicant appeared as a witness. One such officer (G.) was acquitted by the first-instance court on 11 October 2011.

21.  That judgment was overturned by the Chișinău Court of Appeal on 2 November 2015. The court found G. guilty of negligence, having established that he had been on duty at Buiucani police station on 7-8 April 2009. He had not carried out his lawful duties when witnessing a number of young people, including the applicant and R., being brought to the police premises where some were ill-treated. On 18 May 2016 the Supreme Court of Justice upheld that judgment, also referring, inter alia, to witness accounts of the events at the police station, including the statements by the applicant and R.

22.  On 14 November 2012 the Government adopted its decision no. 853 to help individuals who had suffered as a result of the events of April 2009. The individuals mentioned in that decision received compensation in the amounts of between 3,000 and 7,000 Moldovan lei (MDL - the equivalent of approximately 192 and 447 euros (EUR) respectively). The applicant received MDL 7,000.

RELEVANT LEGAL FRAMEWORK AND OTHER MATERIALS

23.  Under Article 287² of the Code of Criminal Procedure the investigating authority has to inform the victim and other interested parties of the decision taken, as well as of their right to challenge it before the investigating judge.

24.  According to the findings of the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”) in its 2010 final report, arrests of suspected participants at the events of 7-8 April 2009 continued until 12 April 2009 (page 88 of the report).

THE LAW

I. GENERAL ADMISSIBILITY ISSUES

A.    Applications by R. and N.

25.  The Court notes that the initial application mentioned two more individuals besides the applicant. One of them (R.) did not submit a power of attorney or maintain any contact with the lawyer. The other one (N.) submitted a power of attorney. However, according to the lawyer representing both him and the applicant, N. left the country shortly after the events of April 2009 and did not leave contact details or maintain any contact with the lawyer. He did not contact the Court directly or through another representative after the summer of 2009.

26.  The Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium [GC], no. 60125/11, § 35, 17 November 2016). Accordingly, in the present case, the Court concludes on the basis of the total absence of contact between R. and N. with their lawyer and with the Court since 2009 that both these applicants have lost interest in the proceedings and no longer intend to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention (see V.M. and Others, cited above, § 36). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto which require the continued examination of the complaints of those applicants.

27.  In view of the above, it is appropriate to strike the part of the application concerning these two applicants out of the list.

B.     The Government’s preliminary objections

28.  The Government argued that the application was incompatible with the Court’s jurisdiction ratione personae since in essence it was a form of actio popularis. Moreover, the real aim of the application was of a political nature and not to ensure protection of the applicant’s rights guaranteed under the Convention.

29.  The Court considers that these objections are closely related to the substance of the complaints made by the applicant. It thus joins them to the merits.

30.  The Government also submitted that the applicant had not exhausted available domestic remedies. In particular, she had lodged the present application without waiting for the reaction of the authorities to her complaint of 4 May 2009. Subsequently, she had not challenged the investigating authority’s decision of 15 January 2013.

31.  The applicant argued that she had never been informed of the adoption of any decisions by the authorities.

32.  The Court notes that the present application was lodged more than ten years ago, sufficient time for the investigation of the applicant’s allegations. Moreover, on 15 January 2013 the investigation was suspended owing to the failure to identify the alleged perpetrators. Accordingly, it cannot be said that the applicant did not exhaust available domestic remedies by not awaiting the outcome of her complaint of 4 May 2009.

33.  As for the failure to appeal against the decision of 15 January 2013, it appears that the applicant was not informed of its adoption, despite clear legal provisions to that effect (see paragraph 23 above). The decision itself does not state anything about it being brought to the attention of the victims or about the right to challenge it. The Court concludes that the applicant was not given a proper opportunity to appeal against that decision. Accordingly, the Court dismisses this objection.

34.  The Government also argued that the applicant had failed to exhaust available domestic remedies in respect of her complaint under Article 5 since she had never raised, even in substance, the argument of her unlawful detention before the authorities.

35.  The Court notes that the applicant expressly complained of her unlawful detention to the prosecutor (see paragraph 12 above). The Government have not contested that this was an effective remedy for the type of complaint made. Accordingly, the Court also dismisses this objection.

36.  The Government lastly submitted that having obtained compensation from the Government (see paragraph 22 above) the applicant had lost her victim status. In any event, she appeared not to wish to pursue her application before the Court.

37.  The Court notes that no court acknowledged, even in substance, the breach of Article 3 of the Convention in respect of the applicant. Moreover, the implied acknowledgment of a breach of her rights guaranteed under Article 5 by convicting an officer of the Buiucani police station (see paragraph 21 above) does not answer her complaint about her unlawful detention at PMAN before she was brought to the police station. The sum of approximately EUR 447 paid ex gratia by the Government is not sufficient to remove the applicant’s victim quality, given the seriousness of the complaints raised (see, for instance, O.R. and L.R. v. the Republic of Moldova, no. 24129/11, § 82, 30 October 2018).

38.  Given the fact that the applicant’s lawyer replied to all the correspondence by the Court and provided relevant factual updates, confirming that he kept regular contact with the applicant, there is no reason to believe that she does not wish to pursue her application.

39.  Accordingly, this objection must also be rejected.

II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION

40.  The applicant complained that her life had been at risk following her witnessing the death of Mr Boboc and the refusal of the authorities to offer her witness protection. She relied on Articles 2 and 13 of the Convention, the relevant part of which reads as follows:

Article 2

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

41.  The Government argued that the applicant’s life had not been at any serious risk and that her identity being concealed when she had given evidence had been sufficient to ensure her protection. Moreover, her lawyer’s decision to make public the existence of a person who had allegedly witnessed the death of Mr Boboc (see paragraph 15 above) was additional evidence that the applicant and her lawyer had not viewed the situation as very serious.

42.  The Court has established that there may be a positive obligation on a State under the first sentence of Article 2 § 1 to protect the life of an individual from third parties or from the risk of life-endangering illness (see Osman v. the United Kingdom, 28 October 1998, §§ 115-22, Reports of Judgments and Decisions 1998‑VIII, and Yaşa v. Turkey, 2 September 1998, §§ 92-108, Reports 1998‑VI). At the same time, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004‑XI, and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 173, 23 February 2016).

43.  In the present case, the Court considers that the applicant has not shown that a sufficiently serious and immediate danger to her life existed so as to involve the State’s positive obligation of protection, such as the witness protection that was eventually refused to her by the domestic authorities. Moreover, in these circumstances, she has no “arguable claim” for the purposes of Article 13 of the Convention.

44.  Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLES 3 and 13 OF THE CONVENTION

45.  The applicant complained that she had been ill-treated by the police during her arrest on 7 April 2009 and that the investigation into her complaints of ill‑treatment had been ineffective. She relied on Articles 3 and 13 of the Convention. Article 3 reads as follows:

 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.    Admissibility

46.  The Court notes that this complaint 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

1.    The parties’ submissions

47.  The applicant argued that she had been beaten during her arrest on the night of 7 and 8 April 2009 by police officers and other State agents. Her complaints had been the subject of an effective investigation, yet ten years later there were still no tangible results. Moreover, she had not been kept informed of the course of the investigation or of the decisions taken. After the initial interviews, her participation had been limited to being called as a witness in various criminal proceedings. Initially she had appeared every time she had been summoned (around thirty times), but after more than a year she had not been able to afford to continue travelling 170 s skm to Chișinău, at her own expense, in order to testify.

48.  The Government submitted that there was no evidence that the applicant had even been detained by the authorities which she accused of having ill-treated her. The evidence she relied on to prove that she had been ill-treated was unreliable: the medical report of 14 April 2009 had been drawn up six days after the alleged events and had contained, according to her own admission, an error as to the exact location of the haematoma. Moreover, her description of the events (her head being hit against the pavement; receiving multiple blows while on the ground; see paragraph 9 above) did not correspond to the findings in that medical report (only one haematoma on her leg). The applicant’s explanation of the origin of the haematoma given to the doctor cast further doubt on the veracity of her allegation of ill-treatment (see paragraph 11 above). The psychological report from the Memoria centre (see paragraph 13 above) had been delivered two months after the events and had resulted in relatively vague conclusions about possible head trauma and psychological stress. None of this had proved with sufficient certainty that force had been used against the applicant or that such force, if it had been used, had been serious enough as to make Article 3 of the Convention applicable.

49.  Moreover, the applicant had not left any contact details besides her phone and her lawyer’s address, and so the prosecution had initially been unable to find her. She never submitted to the investigators the psychological report, which was received only in the file communicated to the Government by the Court.

2.    The Court’s assessment

(a)    General principles

50.  As the Court has stated on many occasions, Article 3 of the Convention 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, among other authorities, Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts); and Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

51.  Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010; and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014 (extracts)). Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996‑VI; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; Gäfgen, cited above, § 88; and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 196, ECHR 2012), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999‑IX, and Svinarenko and Slyadnev, cited above, § 114). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for example, Selmouni, cited above, § 104, and Gäfgen, cited above, § 88).

52.  The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar 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 - if appropriate - punishment of those responsible (see Hovhannisyan v. Armenia, no. 18419/13, § 51, 19 July 2018). 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).

(b)    Application of the above principles to the present case

53.  The Court notes firstly that in their judgments the Chișinău Court of Appeal and the Supreme Court of Justice convicted Officer G. for not reacting in a lawful manner when a number of people, including the applicant, had been brought to Buiucani police station, where that officer had been on duty on 7 and 8 April 2009 (see paragraph 21 above). Since it is primarily for the domestic courts to establish the facts in each case, and in the absence of any sign of arbitrariness in the judgments adopted by the courts in Officer G.’s case, the Court considers it established that the applicant was indeed arrested and taken to the Buiucani Police Station on the night of 7 to 8 April 2009.

54.  The Court observes that the applicant presented to the domestic authorities evidence in the form of medical reports attesting to both physical and psychological effects on her (see paragraph 11 and 13 above). It is true that the delay in obtaining them raises an issue of reliability. However, the delay in the applicant’s actions has to be seen in the broader context of the events in which she found herself. According to the long-standing case-law of the Court, the authorities must take into account the particularly vulnerable situation of victims and the fact that people who have been subjected to serious ill-treatment will often be less ready or willing to make a complaint (see, for instance, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 133, ECHR 2004-IV).

55.  As established by the parliamentary inquiry commission, arrests of individuals suspected of having participated in the events of 7 and 8 April 2009 continued until 12 April 2009 (see paragraph 24 above). It is to be noted that some of these arrests of young people, during a period of several days after the unrest had ended, were shown on television and on social media and were thus known to the public. In such circumstances, after allegedly having been through a traumatic experience following her arrest on 7 April 2009 and in view of the continued arrests, it is understandable that the applicant waited a few days before visiting a medical specialist so as to avoid potentially attracting attention to herself again (see, mutatis mutandis, Taraburca v. Moldova, no. 18919/10, § 52, 6 December 2011). The applicant’s fear was exacerbated by the fact of having witnessed, as she claims, the death of Mr Boboc at the hands of the authorities.

56.  The fact that the doctor found only one haematoma on the applicant’s leg is not, in the Court’s view, of decisive importance. In this respect it reiterates the principle, according to which “where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention” (Bouyid, cited above, § 100). The blow which the applicant received and the resulting psychological trauma confirmed in the Memoria report (see paragraph 13 above) were not the result of the applicant’s actions making the use of force against her unavoidable.

57.  The Court thus finds it established the applicant was indeed subjected to inhuman treatment, within the meaning of Article 3 of the Convention, by State agents.

58.  As for the investigation into the applicant’s alleged ill-treatment, it is to be noted that it has now lasted for more than ten years and has resulted in no person being identified as the perpetrator. Moreover, since 2013 the investigation has been suspended. The Court reiterates that an effective investigation is one which affords a sufficient element of public scrutiny to secure accountability. While the degree of public scrutiny may vary, the complainant must be afforded effective access to the investigatory procedure in all cases (see, for instance, Batı and Others, cited above, § 137, and Krsmanović v. Serbia, no. 19796/14, § 74, 19 December 2017). The applicant stated, without any evidence to the contrary being submitted by the Government, that after her initial interviews she had never been informed of the decision of 15 January 2013 (see paragraph 19 above) or of other procedural acts during the investigation. This is incompatible with the requirements of Article 3 of the Convention.

59.  The Court furthermore notes that the main reason for the authorities’ inability to continue with the investigation was the impossibility of identifying the alleged perpetrators, despite having interviewed 200 members of the special forces battalion and reviewed public and private video recordings (see paragraph 19 above). The use of masks by those 200 officers obviously was an obstacle to identifying their individual roles, in the absence of a system allowing identification, after the fact, of each individual by special signs or otherwise. In this context ,the Court has, in the past, expressed concern about incidents involving armed and masked officers taking part in interventions against individuals, as well as the failure to identify and question such officers (see, for instance, Kučera v. Slovakia, no. 48666/99, §§ 122-24, 17 July 2007; Rachwalski and Ferenc v. Poland, no. 47709/99, 28 July 2009; Hristovi v. Bulgaria, no. 42697/05, §§ 80-93, 11 October 2011; Ataykaya v. Turkey, no. 50275/08, § 53, 22 July 2014; and Ciorap v. the Republic of Moldova (No. 5), no. 7232/07, § 64, 15 March 2016).

60.  It is also important to note that following her first interview on 1 May 2009 with the prosecution in which she revealed what had happened to her (see paragraph 14 above) and after she made an official complaint on 4 May 2009, a criminal investigation into her allegations was not started until almost two months later, on 22 July 2009 (see paragraphs 12 and 17 above). It is true that the applicant did not submit a copy of the psychological report to the authorities and was not immediately reachable after she had made her complaint. However, from her interview of 1 May 2009 with a judge and a prosecutor (see paragraph 14 above), it must have been clear to the authorities that the applicant was alleging that she had been subjected to ill-treatment. The Court reiterates in this context that, even when strictly speaking no complaint has been made, an investigation into allegations of ill-treatment must be started if there are sufficiently clear indications that ill-treatment has been used (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 133, ECHR 2004‑IV (extracts)). Accordingly, already on 1 May 2009 the prosecutor could have initiated an investigation and had the possibility to both gauge the applicant’s credibility and obtain her explanation in respect of any unclear detail. Therefore, the fact that subsequently it was possible to contact the applicant only via her lawyer temporarily should not have affected the prosecutor’s ability to initiate a criminal investigation much earlier than he did.

61.  The Court considers that the defects in the investigation, such as the initial delay in starting it, its overall length, the failure to involve the applicant by informing her of important decisions taken and the failure to identify the roles of the masked special forces officers, allows it to conclude that there has also been a breach of the procedural limb of Article 3 in the present case.

62.  In the light of the findings above, the Government’s objection concerning the allegedly political nature of the application (see paragraph 28 above) is to be dismissed.

63.  There has accordingly been a violation of Article 3 of the Convention in both its substantive and procedural aspects.

64.  In the light of the finding in the preceding paragraph, the Court does not consider it necessary to examine separately the complaint under Article 13 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

65.  The applicant complained of a violation of Article 5 § 1 of the Convention, the relevant part of which 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;

...”

66.  The applicant submitted that she had been unlawfully detained and not allowed to inform her relatives of her detention during the night of 7 to 8 April 2009.

67.  The Government argued that there were reasonable doubts as to whether the applicant had in fact been detained by the authorities. They referred to the absence from the records provided by the police, by other State authorities and by various non-Governmental organisations of any mention of her name as one of the individuals arrested during the events of April 2009. Moreover, it was unclear how the applicant could have complained about her allegedly unrecorded detention if she had not had access to police records at the time of lodging the application.

68.  The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II; Ilaşcu and Others v. Moldova and Russia[GC], no. 48787/99, § 461, ECHR 2004‑VII; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, 5 July 2016).

69.  The Court emphasises, in particular, that the unacknowledged detention of an individual is a complete negation of the guarantees under Article 5 of the Convention and a most grave violation of that provision. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 233, ECHR 2012).

70.  In the present case, the Government admitted that no mention of the applicant’s detention was to be found in any of the official records of arrest. However, as established in paragraph 53 above, the domestic courts eventually confirmed that the applicant had been detained and brought to Buiucani police station during the night of 7 to 8 April 2009.

71.  It is clear that the applicant was detained for several hours by State agents and then released, without the detention having been recorded. She was thus subjected to unacknowledged detention, in clear breach of Article 5 of the Convention (see paragraph 69 above). This finding is sufficient for the Court to conclude that there has been a breach of Article 5 § 1 in the present case.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72.  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.”

Damage

73.  Having been invited to submit the applicant’s claims for just satisfaction, the applicant’s lawyer submitted them outside the time-limit set by the Court. Moreover, despite the clear instruction to submit these claims by mail and, if possible, by fax, he sent these claims by electronic mail only. That being so, pursuant to Rule 38 § 1 of the Rules of Court, the President decided not to include these claims in the file and not to send a copy thereof to the Government.

74.  In the light of the above, the Court makes no award in respect of the claims for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to strike the part of the application concerning the applicants R. and N. out of the list of cases;

2.      Decides to join to the merits the Government’s objection as to the Court’s jurisdiction ratione personae and dismisses it;

3.      Declares the complaints under Article 2 of the Convention and Article 13, in conjunction with Article 2 of the Convention, inadmissible and the remainder of the application admissible;

4.      Holds that there has been a violation of Article 3 of the Convention;

5.      Holds that there is no need to examine separately the complaint under Article 13 of the Convention taken in conjunction with Article 3;

6.      Holds that there has been a violation of Article 5 § 1 of the Convention;

7.      Dismisses the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 8 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Branko Lubarda
Deputy Registrar                                                                       President