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You are here: BAILII >> Databases >> European Court of Human Rights >> PRUNEANU v. MOLDOVA - 6888/03 [2007] ECHR 50 (16 January 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/50.html Cite as: (2009) 48 EHRR 56, [2007] ECHR 50, 48 EHRR 56 |
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FOURTH SECTION
CASE OF PRUNEANU v. MOLDOVA
(Application no. 6888/03)
JUDGMENT
STRASBOURG
16 January 2007
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 Pruneanu v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having deliberated in private on 12 December 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Facts related to the first alleged incident of ill-treatment
“[The applicant] has a yellowish bruise of 6x5 cm around his left eye; swelling of the base of his nose; a scratch of 2x1 cm on the left side of his nose; a scratch of 3x5 cm on his left cheek; a wound of 3x0.4 cm on his skull; a bruise of 20x13 cm on his back; painful chest and ribs; a scratch of 4x3 cm on his shoulder; paralysis of the left side of his face; head trauma and head concussion; perforation of the left tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure]. The injuries were inflicted by blows with blunt objects, possibly on 10 May 2001. They correspond to light corporal injuries and hospitalisation is recommended.”
While in the Local Council building, the police officers had called the Călăraşi police station and asked for a police car to take the applicant there; however, since no car was available they used one of their own cars.
Police officers G.A., A.U. and V.B. stated that the applicant was accompanied by three police officers in the car: A.U., V.B. and G.O., who was driving. V.B. was in the front seat and the applicant and A.U. were in the back.
Police officer C.V., however, stated that the applicant was accompanied by four police officers in the car, namely G.O., C.I., A.U. and V.B.
One of the five police officers interrogated, C.I., declared that he did not know anything about the applicant's transportation to the Călăraşi police station. The other four police officers stated that the applicant had attempted to jump from the car. Two of them, G.A. and C.V., had been told that by their colleagues.
The police officers accused of ill-treating the applicant, A.U. and V.B., made almost identical declarations, according to which the applicant was in the back seat of the car with A.U. At one moment, he managed to untie his hands, which were secured with V.B.'s belt, and to jump out of the car which was travelling at approximately 70-80 km/hour. They had stopped the car and picked him up and noted that he was bleeding from his head. They took him to the Călăraşi police station and left him there.
The applicant's wife declared that nobody had beaten her husband during the arrest at their home. She had protested against the manner in which the policemen entered their house and had been kicked and punched by V.B., notwithstanding that she was pregnant at the time. Later in the night, at about 2 or 3 a.m., her husband had called her outside. He was in a very bad state with injuries to his face. He had told her that he had been beaten up by A.U. and V.B. during his detention at the Local Council building and had run away.
2. Facts related to the second alleged incident of ill-treatment
“[The applicant] has a head trauma with head concussion, an injured lip, bruises and injuries on his face, chest trauma with a fracture of ribs nos. 8, 9 and 10 on the right side, fracture of the tibia of his left foot, contusion of the soft tissues on the back of his neck, contusion of the soft tissues on his knees, fracture of the second finger of his left hand...”
According to the police officer R.G., the applicant had jumped from the third floor and had broken his legs, hand and neck as a result.
According to the police officer V.C., the applicant had jumped from the third floor and injured his legs. No force was applied to him because he had lost consciousness at the moment of arrest.
According to the neighbour U.I., the applicant was hanging from the victim's balcony and did not want to jump because there were people on the ground waiting for him. Then he, U.I., started hitting his hands to make him jump. Finally, the applicant jumped and was caught by the police.
The applicant reiterated his complaints about ill-treatment at the hands of police.
Police officer R.G. stated that the applicant had jumped from the third floor and that he was brought to the Buiucani Police Station. Later an ambulance was called and the applicant was taken to the hospital. He denied having assaulted the applicant in any way.
Officer C.C. declared that he had not been present at the applicant's arrest; however, he had been told by his colleagues that the applicant had jumped from the third floor and had started running away. He was caught by police officer V.C. After arrest, the applicant spent the night at the Buiucani Police Station, where he was interrogated. Nobody had ill-treated him. In the morning he had told the police officers that he had pain in his legs and an ambulance was called.
The victim of the theft, I.T., declared inter alia that the applicant had attempted to pass from his balcony to a neighbouring balcony but that he had fallen down when the window which he was holding had broken. He had seen him lying on the ground encircled by his neighbours who would not let him run away.
The victim's neighbour, C.J., declared that he had seen the applicant falling from the third floor as the window broke. He had tried to run away but was stopped by the neighbours.
A similar declaration was made by another neighbour, C.E.
The paramedic declared that he had seen the applicant at about 12.30 p.m. The applicant had told him that he had fallen from the third floor and that he had headaches and pain in his leg. He did not complain of having been beaten up and he had no visible injuries on his face or body.
“The [applicant's] injuries were inflicted by blows with blunt objects (au fost produse prin acţiunea corpurilor contondente)...
All the injuries ...could have been caused as a result of a fall from the third floor, if the [applicant's] body had hit hard objects.”
II. RELEVANT DOMESTIC LAW
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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 COMPLAINTS
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The submissions of the parties
1. Concerning the first alleged incident of ill-treatment
The Government also argued that the fact that the applicant did not complain about the alleged ill-treatment immediately, but only after having been arrested on 10 July 2002, demonstrated that the complaint was ill-founded. The Government also submitted that the domestic authorities had conducted a serious investigation into the applicant's allegations.
2. Concerning the second alleged incident of ill-treatment
B. The Court's assessment
1. General principles
2. The first alleged incident of ill-treatment
3. The second alleged incident of ill-treatment
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”
A. The submissions of the parties
B. The Court's assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
6. Holds by six votes to one that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the ill-treatment complained of;
(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 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 1,400 (one thousand four hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
a) concurring opinion of Sir Nicolas Bratza;
b) partly dissenting opinion of Mr Bonello, joined by Mr Traja and Mrs Mijović;
c) partly dissenting opinion of Mr Pavlovschi.
N.B.
T.L.E.
CONCURRING OPINION OF SIR NICOLAS BRATZA
The Chamber was unanimous in finding a procedural violation of Article 3 of the Convention in relation to both incidents involving the applicant's arrest and detention and divided only on the question whether it had been sufficiently shown that the injuries sustained on both occasions resulted from his ill-treatment by the police, in violation of the substantive aspect of that Article. In common with the majority of the Chamber, I take the view that, whereas it has been shown that the injuries recorded in the medical report of 14 May 2001 were the result of ill-treatment by the police following the applicant's arrest on 10 May, the same cannot be said of the injuries sustained by the applicant on 10 July 2002 and recorded in the medical report of the following day.
The different conclusion reached by the majority in relation to the two incidents flowed from the principles developed in the case-law of the Court concerning the burden and standard of proof in relation to complaints of violations of Article 3. As noted in paragraph 45 of the judgment, the oft-repeated principle that the burden lies on an applicant to prove “beyond reasonable doubt” that he has been subjected to ill-treatment attaining the threshold set by that Article has been tempered by the equally well-established principle that such proof may follow from the co-existence of sufficiently strong, clear and concordant influences and similar unrebutted presumptions of facts. One such strong presumption arises in respect of injuries sustained by a person during detention, first explained by the Court in the case of Tomasi v. France (judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-111) in which the Court stated that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see to similar effect Ribitsch v. Austria, judgment of 4 December 1995, Series A, No. 336, pp. 25-26, § 34; Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 V).
As regards the first incident, the medical report of 14 May 2001 revealed that the applicant had sustained relatively minor physical injuries inflicted by blows with blunt objects, possibly on 10 May 2001. These injuries were consistent with the applicant's account that on the latter date he had been punched, kicked and beaten with a wooden baton in the office of the village police inspector at the time of his arrest. The medical examination was carried out several days after the applicant had escaped from custody on or shortly after 10 May but the respondent Government have at no stage argued that the injuries were caused after the applicant's escape from custody and have not disputed that they were in fact sustained while he was in police custody. The sole explanation offered by the Government for the
injuries is that they were sustained when the applicant allegedly jumped from a police car, in which he was accompanied by three or four policemen and which was, according to the evidence of two of the policemen, travelling at some 70 to 80 kilometres per hour. However, as noted in the judgment of the majority of the Chamber, the nature and extent of the injuries sustained by the applicant and recorded in the medical report are not consistent with this account and no other plausible explanation has been offered as to how the applicant came by the injuries found. Accordingly the Government have failed to discharge the burden on them to provide a satisfactory and convincing explanation for the injuries found.
Different considerations, however, seem to me to apply in the case of the second incident. It is not disputed by the applicant that, on 10 July 2002, before being arrested by the police, he had fallen or jumped to the ground from the window or balcony of the third floor apartment which he and his accomplice had recently burgled. Moreover, according to his own account, the injury which he sustained to his left leg as a result of the fall prevented him from running away from the scene. The medical report of 11 July 2002 recorded a series of injuries, including concussion, fractures of three ribs, a fracture of the tibia of the left foot and a fracture of the second finger of his left hand. The forensic report prepared on 2 December 2002 confirmed that all the injuries recorded in the medical report could have been caused as a result of a fall from the third floor, “if the applicant's body had hit hard objects”. In the light of this evidence, I find that a plausible explanation has been given for the injuries sustained by the applicant. In this regard, unlike the minority of the Chamber, I do not attach decisive importance to the use of the word “objects” in the forensic report as indicating the expert's view that there must have been various sources of impact; nor do I feel sufficiently qualified to assert that had the applicant landed on a flat surface following his fall he could not plausibly have sustained multiple injuries to the different parts of his body identified in the medical report.
It is, I accept, a disturbing feature of the case not only that the police failed to have the applicant medically examined in the immediate aftermath of the fall, despite the fact that he had clearly suffered injuries, but that the authorities appear to have formed the view that the applicant needed urgent medical care only in the early afternoon of the following day. As to the former point, while the omission to carry out a medical examination of an injured suspect is clearly unacceptable, I am unable to draw the inference from this omission that the applicant's injuries had not in fact been sustained at the time of his initial detention. As to the latter point, had this lack of medical attention been part of the complaint made by the applicant, I would have found a substantive violation of Article 3 on the ground that the failure to provide medical assistance to a detainee who was in urgent need of it could of itself amount to inhuman treatment for the purposes of that Article. However, that is not the complaint which the applicant has at any
time made, his sole allegation being that the injuries he sustained were caused by physical ill-treatment by the police while he was in their custody. Having regard to the undisputed events which preceded the applicant's arrest and detention on this occasion, I am unable to find that this case has been sufficiently made out.
PARTLY DISSENTING OPINION OF JUDGE BONELLO, JOINED BY JUDGES TRAJA AND MIJOVIĆ
charges of ill-treatment when they aim at retracting a confession, claiming it was extracted by torture. In this particular case the applicant never wished to retract a confession at all – in fact he stood by his admission of guilt - so that fabricating a scenario of ill-treatment would have been as pointless as it was inconsequential.
“a head trauma with head concussion, an injured lip, bruises and injuries on his face, chest trauma with a fracture of ribs nos. 8, 9, and 10 on the right side, fracture of the tibia of his left foot, contusions of the soft tissue on the back of his neck, contusion of the soft tissues on his knees, fracture of the second finger of his left hand....”
It is, to say the least, unconvincing, that a person who had suffered those crippling injuries in a drop, would have stood up and ran away, and that only the forcible detention by the neighbours prevented his escape (paragraph 31). This was his condition after the fall/jump. After the interrogation, the applicant could not even move one step and had to be carried by stretcher (paragraph 26).
of the) injuries happened after the fall or that they happened after the interrogation?
PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI
First of all I should say that I find no difficulty in accepting in the present case a procedural violation of Article 3 and I share the majority's view on this point.
Indeed, international standards concerning the effectiveness of investigations into cases of alleged torture are extremely high and, as a matter of principle, I am afraid that it is very difficult if not impossible for States to respect them in their entirety.
In the most complete form these principles find their reflection in the document entitled “Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” recommended in UN General Assembly resolution 55/89 of 4 December 2000.
The standards set forth these read as follows:
(a) Clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families;
(b) Identification of measures needed to prevent recurrence;
(c) Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.
summonses to witnesses, including any officials allegedly involved, and to demand the production of evidence.
(b) Alleged victims of torture or ill-treatment, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation that may arise pursuant to the investigation. Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation.
(b) A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. Upon completion, the report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation and, as appropriate, indicate steps to be taken in response.
(b) The medical expert shall promptly prepare an accurate written report, which shall include at least the following:
(i) Circumstances of the interview: name of the subject and name and affiliation of those present at the examination; exact time and date; location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g., detention centre, clinic or house); circumstances of the subject at the time of the examination (e.g., nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner or threatening statements to the examiner); and any other relevant factors;
(ii) History: detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, times when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms;
(iii) Physical and psychological examination: record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries;
(iv) Opinion: interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and/or further examination shall be given;
(v) Authorship: the report shall clearly identify those carrying out the examination and shall be signed.
(c) The report shall be confidential and communicated to the subject or his or her nominated representative. The views of the subject and his or her representative about the examination process shall be solicited and recorded in the report. It shall also be provided in writing, where appropriate, to the authority responsible for investigating the allegation of torture or ill-treatment. It is the responsibility of the State to ensure that it is delivered securely to these persons. The report shall not be made available to any other person, except with the consent of the subject or on the authorization of a court empowered to enforce such a transfer.” (See, for instance, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2001.62.En?Opendocument)
Of course, I agree that the Moldovan authorities failed to comply with the above requirements, and if so, a violation of the procedural element of Article 3 should be found.
At the same time I am strongly against the finding of a substantive violation of Article 3 because it would run not just counter to the factual circumstances of the case, but also against common sense.
In the present case the applicant complains of being subjected to torture by Moldovan police officers on two occasions:
- on 10 May 2001 and
- on 10 July 2002.
In addition to that he complains under Article 13 of the fact that the prosecution office failed to examine his complaints about alleged torture. (see page 4 of the applicant's complaint).
The Government proposed their own description of the factual circumstances of the case, based on an official verification of the applicant's allegations which considerably differs from the description given by the applicant.
As far as the first episode (10 May 2001) is concerned, the applicant stated that he had been beaten up by the police officers, as a result of which he sustained “...fracture of two ribs and nose as well as damage of his head...” (see page 3 of the applicant's complaint).
The Government claim that the applicant was injured because whilst being transported from a village to the police department he tried to escape from the police, by jumping out of the moving car and sustained injuries from the impact with the road. Despite that he was brought to the police department. On the same day, while in custody in the police department, the applicant had managed to escape from the police.
As to the second episode (10 July 2002), the applicant contended that he again had been beaten up by the police officers and as a result both his legs, a finger and three ribs were broken. (see page 3 and 3 add. of the applicant's complaint).
The Government claim that the applicant was injured not because of torture but because when caught red-handed at the scene of a crime in order to avoid his arrest he jumped down from the third floor.
So, now we are faced with a situation where there are two different versions of events put forward by the applicant and by the Government. And the Court's task is to determine which version is trustworthy. In carrying out this very delicate exercise the judgment's conclusions are based on some fundamentally wrong presumptions, which do not even stand up to the most elementary analysis.
In paragraph 50 it is written that “...there were no independent witnesses who could confirm that the applicant jumped from the car...” I find this “argument” inconsistent with the factual circumstances as no “independent witnesses” were present in the car when the applicant was being transported to the police department”. And if so, it would run counter to common sense to accuse the Moldovan authorities of their failure to rely on “independent witnesses” who simply did not exist.
Taking this way of logic I could also have said that no “independent witnesses” were present when the applicant allegedly was subjected to torture as he claims. Why in the case of police officers is this argument valid, but not in the case of the applicant?
Continuing, the judgment specifies that “...the findings of fact made by the prosecutors were entirely based on the account of the police officers accused of ill-treatment...”
I find this argument to be absolutely inadmissible, because it clearly runs counter to the principle of the presumption of innocence and reveals in a way a total ignoring of Convention standards, which in my view can be considered as a kind of bias. Moreover, no police officer was “accused” in the present case of any ill- treatment. To say that the police officers were “accused of ill-treatment” would contradict the factual circumstances of the case. In my view the European Court's judges should be more cautious in the words and formulas they use in their judgments.
Reaching their finding of a substantive violation of Article 3 the majority did not pay any attention to the fact that the applicant had failed to adduce any reason why the police officers should have applied illegal force, putting at risk their professional reputation and even freedom? Did they have any particular reason to hate this particular person so much as to have him beaten up? Did the applicant give us any reason to believe that the police officers had a personal reason to beat him up? The answer is – of course he did not! And, since the applicant failed to submit any reason for his allegations, it is not surprising that the judgment contains no answer to the above questions either.
From the material we have before us, four police officers were present at the applicant's arrest and only two of them allegedly beat the applicant. What reason could the other two policemen have had to lie? I have the impression that the judgment is simply based on a presumption that all Moldovan policemen apply torture against all Moldovan citizens and in all cases. If I am right, I regret this kind of bias against the Moldovan police. Moldovan police officers are doing their very difficult job just like Albanian, Maltese or Andorran police officers do, trying to protect society against those who violate the law and it is absolutely unfair and unjust to accuse them of applying torture only because of the simple fact that they are policemen. Of course, their professional activity does not attract too much love on the part of those from the opposite side of the law. But is this “lack of love” a sufficient reason for groundless presumptions? To my mind, the answer is self-evident.
If I am wrong, and if the reason for the above presumption was different from simple bias, I would like to see what it was and, more particularly, reasons why Moldovan police officers decided to apply illegal force to the applicant. In the absence of any reason, I am afraid that the presumption that the declarations of police officers do not deserve the Court's trust would send the wrong signals to the outside world.
Concerning the first event, in this case there are police officers and our applicant. No other “independent witness” was present. And we need to make our choice between the version of events submitted by the police and the version of the events submitted by the applicant. There is no other option. If one wishes so much to substitute one's own factual findings for those of the national investigative authorities, one should do it professionally and with serious evidence on the table.
The next so-called argument, used in the judgment is that “the investigations carried out by the domestic authorities appeared to have had ... shortcomings” (see paragraph 52). I agree that the investigations conducted by the authorities in the case before us were far from ideal, that is why I decided to vote for a procedural violation of Article 3. But what does this fact have to do with a “substantive violation”? Investigative shortcomings manifest the fact that the investigation in the present case was not “effective”, which serves as a ground for finding a procedural violation of Article 3. The existence of such shortcomings cannot prove by itself the existence of a “criminal fact”. I am really sorry that I need to have mentioned this self-evident fact, which should have been taken into account by the majority in their considerations.
Moreover, the event - whether torture or jumping from the car - took place on 10 May 2001, but the applicant did not report it before his second arrest, namely on 30 September 2002, that is more than one year – 14 months - later. Of course because of the time factor it was practically impossible to reconstruct what had happened more than one year before.
Had the applicant been tortured, I suggest, he would have announced it not in September 2002, but in May 2001 when the event allegedly took place. He could have lodged an official request for investigation either personally or by post. He could have made use of a lawyer's assistance. But he failed to do so; he failed to lodge any complaint with the Moldovan authorities. In the judgment no attention was paid to this fact. In my view, the lateness of this request for investigation is what made the investigation ineffective. Had the applicant filed his request in May 2001 and not in July 2002, and had the Moldovan authorities then failed to conduct a proper investigation, I would have accepted the argument that “the investigations carried out by the domestic authorities appeared to have had ... shortcomings” as a ground for drawing inferences concerning a lack of willingness to have the accident investigated. But in conditions where the applicant fails to declare to the authorities the alleged torture at the appropriate time, I find it wrong to start different speculations on this issue.
In paragraph 53 of the judgment it is stated that “the domestic authorities do not...appear to have taken into account the nature of the applicant's injuries...” I am very sorry to say that I can not agree. If an objective and impartial reader compares the injuries found on the applicant's body with the applicant's claims, this objective and impartial reader will discover, that the applicant claimed that two of his ribs and his nose had been broken, while in the medical report no mention of any fracture can be found. This fact denotes a lack of sincerity on the applicant's part, to which the majority did not pay any attention.
Characterisation of bodily harm as well as determination of the possible causes of this harm form part of special forensic knowledge. If the majority has doubts concerning the origin of the injuries, there is no other way but to put a direct question to forensic experts asking whether these injuries could or could not have been produced in one or another type of circumstance. Not being forensic experts we are not entitled to make conclusions which exceed our professional knowledge.
As far as the events of 10 July 2002 are concerned, I agree with the finding that there has been no substantive violation of Article 3.
It is worth mentioning that the applicant hid from the Court the fact that he had jumped down from the third floor when the police tried to arrest him red-handed, claiming again that he had been tortured, beaten up and as a result of this action his legs, ribs and a finger were broken. Hopefully, the fact of his jumping down from the window of the third floor was witnessed even by “independent witnesses” – the victim of the robbery committed by the applicant and his neighbours.
Moreover, a doctor from the emergency services, on being questioned, declared that the applicant had told him that he had fallen down from the third floor.
According to the forensic medical report no 3129/D “...all the injuries found on the body of Mr. Pruneanu could have been produced as a result of his falling from the height of a third floor and the impact of the body on some hard objects...”.
I am mentioning the above facts just to show that the reliability of the applicant's statements as far as the second episode is concerned was so low as to justify the finding that “...it has not been established beyond reasonable doubt that the injuries sustained by the applicant were the result of ill-treatment...” (see paragraph 66).
So, one can say that in this episode the Court accepted the version of the events submitted by the Government and not the version of events submitted by the applicant. Acting in this way, in my judgment, the Court indirectly recognised that the applicant had tried to mislead it, because, indeed, otherwise the Court would have accepted the applicant's position.
If this logic is a correct one, in this case it is not clear for me why the majority preferred not to trust the Government's version of events in the first episode?
In my view, the facts that the applicant:
- provided not very accurate information about the character of the injuries sustained in the result of 10 May 2001 events,
- did not lodge a complaint with the Moldovan authorities about the 10 May 2001 events within a reasonable time,
- lodged his complaint about the 10 May 2001 events only in September 2002 that is two months after being arrested, and
- hid the fact of his jumping down from the third floor and attributed all the injuries sustained by him to the police officers clearly denote his bad faith and render his declarations - concerning the 10 May 2001 events - untrustworthy. As a result, his declarations cannot be considered as reliable evidence and if so the conclusion should have been similar to that reached in paragraph 66.
Accordingly, I cannot accept the fact that the application of illegal force to the applicant was established beyond a reasonable doubt and if so, in my view, there was no substantive violation of Article 3 in the first episode either.
One more doubt I have with this double qualification of the same situation.
In point 3 of the operative part it is proposed to find a violation of Article 3 on account of “... the failure to conduct an effective investigation into the applicant's complaints about being ill-treated by the police on 10 May 2001.”
In point 5 it is proposed to find one more violation of Article 3 in respect of “failure to conduct an effective investigation into the applicant's complaints about being ill-treated by the police on 10-11 July 2002” and I agree with these two findings. But then it is proposed to find that there had been a violation of Article 13 on account of the lack of effective remedies for the ill-treatment complained of.
Here I would point out that in his complaint under Article 13 of the Convention, the applicant was relying on the prosecutor's failure to have his criminal complaint properly investigated and not on an alleged lack of the possibility of bringing a civil action against the police officers, which is said in the judgment to constitute as a violation.
My understanding is that we should examine the applicant's complaint as submitted. If so, I find it wrong to give this double qualification. Criminal investigation in principle is an effective remedy for cases of alleged torture. This is a generally recognised fact and that is why before accepting a complaint we request applicants to exhaust this remedy. Otherwise, if a criminal investigation is not an effective remedy, only one conclusion is possible – there is no need to exhaust remedies which are not effective. It would be absolutely wrong to take this path and to say, that in cases of alleged torture an applicant should not lodge a criminal complaint because criminal investigation cannot be considered as an affective remedy.
Lastly, since no violation of Article 3 has been found, the non- pecuniary damage awarded should be not more than EUR 4-500.
One more difficulty I have is in accepting of the lawyer's fees, which are clearly exaggerated.
The application in the present case was lodged by the applicant in 2002, when he submitted to the Court practically all the necessary documents.
The lawyer in the present case started representing the applicant's interests only in 2005. So, the lawyer in the present case was working for about one year only.
My understanding is that the proceedings before the European Court of Human Rights are not like the Olympic Games about which they say that “The most important thing in the Olympic Games is not to win but to participate.” I do not accept that the mere participation of a lawyer can ever be considered sufficient justification for awarding considerable amounts of money. Moreover, in other Article 3 cases against Moldova the Court awarded lawyer's fees in much more reasonable sums, for instance, in the case of Corsacov –EUR 1000, in the case of Holomoiv – EUR 800. It goes without saying that in both these cases the applicants had been represented by their lawyers throughout the proceedings.
Since, in my opinion, the lawyer did practically nothing in the case before us, because a great part of the work had been done by the applicant himself, lawyer's fees should have been not more than EUR 600-700.
These are the major points for my disagreement with the majority in the present case.