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FOURTH
SECTION
CASE OF BOICENCO v. MOLDOVA
(Application
no. 41088/05)
JUDGMENT
(Just
satisfaction)
STRASBOURG
10
June 2008
FINAL
10/09/2008
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 Boicenco v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
Ljiljana
Mijović
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41088/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Nicolae Boicenco (“the
applicant”) on 16 November 2005.
- In
a judgment delivered on 11 July 2006 (“the principal
judgment”), the Court held that the applicant had been
subjected to police brutality and that the authorities had failed to
carry out an adequate investigation into the incident, in breach of
Article 3 of the Convention. The Court also found a violation of
Article 3 of the Convention on account of lack of proper medical care
while in detention, several violations of Article 5 of the Convention
and a violation of Article 34 of the Convention (ECHR Boicenco v.
Moldova, no. 41088/05, 11 July 2006). It awarded the applicant
40,000 euro (EUR) for non-pecuniary damage and EUR 6,823 for costs
and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary damage, the Court
reserved it and invited the Government and the applicant to submit,
within three months, their written observations on that issue and, in
particular, to notify the Court of any agreement they might reach.
- The
applicant and the Government each filed observations.
THE LAW
- 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.”
- The
applicant claimed EUR 123,800 to cover the pecuniary damage caused as
a result of the violation of Article 3 of the Convention. He
presented several medical reports.
- In
a medical report dated 13 September 2006 and signed by the
applicant’s family doctor, it is stated that the applicant
suffered ischemic heart disease, angia pectoris, diffuse sclerosis of
the heart, consequences of deregulation of blood circulation in the
brain, diabetes and obesity. It was recommended that the applicant
undergo a magneto-resonance tomography of the brain in order to
determine a precise diagnosis and to undergo the necessary treatment
if needed. The applicant was also recommended to undergo a
neuro-rehabilitation therapy.
- In
a medical report dated 9 October 2006 the same doctor repeated the
same conclusions.
- Between
October 2006 and February 2007 the applicant underwent different
kinds of therapy in medical institutions in Romania and Ukraine. The
applicant did not provide the Court with details of the therapy and
treatment received in those institutions but only submitted that they
were recommended by doctors.
- On
an unspecified date the applicant underwent magneto-resonance
tomography in a Kiev hospital. In a medical report dated 2 December
2006 it was stated that the applicant’s brain did not present
any signs of abnormality or lesions. It was also stated that the
applicant had an unclosed circle of Willis (at the base of the
brain, the carotid and vertebrobasilar arteries form a circle of
communicating arteries, known as the circle of Willis) and that
he suffered from cervical osteochondrosis.
- In
an undated medical report issued by the same hospital, resuming the
applicant’s medical background, it was stated, inter alia,
that the applicant had a state after stroke in the pool of the right
internal carotid artery, against the background of an unclosed circle
of Willis. He had impaired function (3rd degree) of the nervous
system including the brain due to atherosclerosis, high blood
pressure and a metabolic disorder, together with a syndrome of a
disorder of the balance system and an impairment of the intellectual
and memory functions against the background of the remaining effects
of a trauma of the brain, as in the patient’s history. He also
had a cyst of the pineal gland, high blood pressure (3rd degree) of
unknown origin (hypertensive crises intractable by administration
of peroral preparations). The applicant also suffered from
ischemic heart disease: exertional (due to exercise) angina
pectoris of functional class 1 and diffuse sclerosis of the heart. He
also had a degeneration of the backbone in the neck
(osteochondrosis), diabetes mellitus type 2 of medium severity,
double-sided syndrome of subacromial conflict (a painful condition
in the shoulder) and tendosynovitis of the bicepos head of the
right and left shoulder joints (a certain inflammation in both
shoulder joints).
- The
applicant sent the Court a detailed list of expenses incurred by him
for therapy, medical checkups and treatment in different medical
institutions in Moldova, Romania and Ukraine between October 2006 and
February 2007 and an estimate cost for the future treatment.
- The
Government disputed the applicant’s submissions and argued that
there was no causal link between the ill-treatment to which the
applicant had been subjected and his subsequent condition. They
stressed that before the incident of 20 May 2005 the applicant had
experienced several other head traumas. They also submitted that a
large part of the treatment and therapy to which the applicant had
been subjected in Romania and Ukraine, was also available in Moldova
and was partly covered by the social security.
- The
Court recalls that in the principal judgment it was unable to
establish a direct causal link between the ill-treatment and the
state of stupor subsequently suffered by the applicant (see paragraph
110 of the principal judgment). The Court has now been presented with
new medical evidence from independent sources; however, it is still
unable to conclude that the neurological and psychiatric state of the
applicant in the aftermath of his ill-treatment was generated by the
ill-treatment of 20 May 2005. Indeed, none of the above medical
reports allows the Court to draw such a conclusion. Accordingly, the
Court considers it necessary to dismiss the applicant’s claim
for pecuniary damage.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses
the remainder of the applicant’s claim for just satisfaction
relating to pecuniary damage.
Done in English, and notified in writing on 10 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
