THIRD SECTION
CASE OF
GOREA v. THE REPUBLIC OF MOLDOVA
(Application no.
6343/11)
JUDGMENT
STRASBOURG
23 July 2013
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 Gorea v. the Republic of Moldova,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 2 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
6343/11) 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, Mr Mihail Gorea (“the applicant”),
on 13 January 2011.
The applicant was represented by Mr A. Donica, a
lawyer practising in Chișinău. The Moldovan
Government (“the Government”) were represented by their Agent, Mr L. Apostol.
The applicant alleged, in particular, that he had
been ill-treated by the police and that the investigation into his complaint of
ill-treatment had been ineffective.
On 5 October 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Costeşti.
On 15 July 2008 the applicant was visited by
three police officers who inquired about the whereabouts of his son and who
wanted to conduct a search of the applicant’s house. According to the
applicant, when he asked whether they had a warrant they beat him up, handcuffed
him and took him to the police station. At the police station the ill-treatment
continued. The applicant received a blow to his head as a result of which he
fell over and lost consciousness. He woke up lying in a pool of blood and was made
to clean it up. The applicant was detained and released five days later. The
Government did not contest the above facts.
On 16 July 2008 the applicant lodged a criminal
complaint with a prosecutor’s office, complaining about his ill-treatment the
evening before.
On 17 and 23 July 2008 the applicant was examined
by forensic doctors who reported that he had scratches and bruises on his face,
chest and right foot. The doctors concluded that the injuries could have been caused
by blows with a blunt object with a limited surface area, possibly in the way described
by the applicant.
On 25 July 2008 a prosecutor from the Ialoveni prosecutor’s
office dismissed the applicant’s complaint as ill-founded. The prosecutor’s
office reached this conclusion on the basis of statements made by the accused
police officers, who submitted that they had searched the applicant’s house in
order to find his son. They alleged that the search had been conducted with the
applicant’s permission, but that the applicant had kept insulting them during
the search. Because of the way the applicant had been behaving, the accused
police officers had decided to take him to the police station. His injuries had
been caused as a result of him putting up resistance.
On 29 October 2008 a hierarchically superior
prosecutor quashed the above decision and ordered a re-investigation of the
circumstances of the case.
On 21 November 2008 a prosecutor from the
Ialoveni prosecutor’s office again dismissed the applicant’s complaint as
ill-founded, on similar grounds as the first time. The applicant appealed, but his
appeal was rejected by a hierarchically superior prosecutor on 31 March 2009.
The applicant appealed to an investigating judge.
In the meantime, the Ialoveni prosecutor’s
office initiated administrative proceedings against the applicant on charges of
having insulted the accused police officers and having resisted arrest. On
3 March 2009 the Chișinău Court of Appeal
acquitted the applicant with final effect, after finding the charges against
him ill-founded.
On 24 April 2009 an investigating judge from the
Ialoveni District Court upheld the applicant’s appeal, quashed the decision of
31 March 2009 and ordered a fresh re-examination of the applicant’s complaint.
On 24 July 2009 a prosecutor from the Ialoveni prosecutor’s
office again dismissed the applicant’s complaint.
On 20 August 2009 a hierarchically superior
prosecutor rejected a further appeal by the applicant. The applicant appealed to
an investigating judge.
On 24 December 2009 the Ialoveni District Court
upheld the applicant’s appeal, quashed the decisions of 24 July 2009 and 20 August
2009 and ordered a re-examination of the case.
On 17 February 2010 a prosecutor from the
Ialoveni prosecutor’s office again dismissed the applicant’s complaint. The
applicant appealed to a hierarchically superior prosecutor.
On 10 May 2010 the Ialoveni District Prosecutor upheld
the applicant’s appeal and quashed the decision of 17 February 2010, ordering a
new examination of the case.
In the re-opened investigation a new forensic medical
report was obtained, which confirmed the findings of the initial reports and
excluded the possibility of the injuries to the applicant’s body having been
self-inflicted or caused by a fall.
On 12 July 2010 a prosecutor from the Ialoveni prosecutor’s
office again dismissed the applicant’s complaint as ill-founded. The applicant
appealed to a hierarchically superior prosecutor.
On 5 August 2010 a hierarchically superior
prosecutor rejected the applicant’s appeal. The applicant appealed to an
investigating judge.
On 13 October 2010 a judge from the Ialoveni
District Court upheld the applicant’s appeal and quashed the decisions of 12
July 2010 and 5 August 2010, ordering a re-examination of the case.
On 3 January 2011 a prosecutor from the Ialoveni
prosecutor’s office again dismissed the applicant’s complaint.
On 7 April 2011 a hierarchically superior
prosecutor quashed the above decision and ordered a re-investigation of the
circumstances of the case.
On 14 April 2011 a criminal investigation was
formally initiated for the first time by the Ialoveni prosecutor’s office and
the applicant was formally recognised as a victim.
Between that date and 23 November 2011 the prosecutor’s
office took evidence from the applicant, his wife and two neighbours. One of
the neighbours has seen the applicant being ill-treated by two police officers
while a third police officer held back his wife. He had seen one of the police
officers kicking the applicant in the chest two or three times. Another
neighbour, who did not see the whole incident, had seen two police officers
carrying the applicant, who appeared to be unconscious, to their car. The
applicant’s wife submitted that her husband had been beaten up by two police
officers and thrown to the ground while the third one held her back.
On 6 April 2012 the Ialoveni prosecutor’s office
remitted the case file to the District Court for trial. It appears that to this
day the proceedings are still pending before that court.
II. RELEVANT DOMESTIC LAW
The Police Act of 18 December 1990 states as
follows:
Section 14: Conditions
of and limits on the use of force, special techniques and firearms
“Police officers have the right to use force, special
techniques and firearms in the cases and in the manner provided for in the
present law. The use of force, of special techniques and of firearms shall be
preceded by a warning about the intention to use them, and sufficient time
shall be allowed for reaction, except in cases in which a delayed use of
force... may generate a direct threat to the life and health of citizens or
police officers or may lead to serious consequences.
...
In any case in which the use of force cannot be avoided, police
officers are obliged to do their best in order to cause the least harm possible
to the health, ... dignity and property of citizens, as well as to ensure medical
assistance is provided to victims.
In case of injury or death caused as a result of use of
force... the police officer shall report it to his direct superior, in order
that the latter may inform a prosecutor.
The abuse of the power to use force... shall be punished in
accordance with the law.”
Section 15: The
use of physical force
“Police officers are only entitled to use force and special
fighting techniques for the purpose of ending criminal activities and for
neutralising resistance to lawful demands in cases in which non-violent methods
are not sufficient to discharge their obligations.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant submitted that he had been
ill-treated by the police during his arrest and detention and that the State
authorities had failed to investigate his allegations of ill-treatment effectively.
In his view, the treatment had amounted to a violation of Article 3 of the
Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government submitted that the investigation into the circumstances of the
present case was still being conducted and that no final decision had yet been given
at domestic level. For that reason, they maintained that the applicant’s
application was premature and that he had failed to exhaust the domestic
remedies available to him.
The Court reiterates that the purpose of Article
35 § 1 of the Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them before those
allegations are submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they have had the
opportunity to put matters right through their own legal systems (see, for
example, Remli v. France, 23 April 1996, § 33, Reports of Judgments
and Decisions 1996-II, and Selmouni v. France [GC], no. 25803/94,
§ 74, ECHR 1999-V). At the same time, “an applicant does not need to
exercise remedies which, although theoretically of a nature to constitute
remedies, do not in reality offer any chance of redressing the alleged breach”
(see Yoyler v. Turkey, no. 26973/95, 13 January 1997, and Akdivar
and Others v. Turkey, § 68, 30 August 1996, Reports 1996-IV).
In the instant case, it is true that the
proceedings are still pending before the domestic courts. Nevertheless, the
Court finds that the question of the exhaustion of domestic remedies is
inextricably linked to the merits of the complaint under Article 3 of the
Convention, that is, to the question of the effectiveness of the investigation
into the applicant’s allegations of ill-treatment. Therefore, it considers that
both questions should be joined and examined together (see Mikheyev v.
Russia, no. 77617/01, § 88, 26 January 2006).
The Court further notes that the complaints are
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring the application inadmissible have been
established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that he had been
ill-treated during his arrest and detention and argued that the Government had
not given any credible explanation as to the cause of the injuries to his body.
The applicant also argued that the authorities had failed to investigate his
complaint properly.
The Government did not make any submissions on
the merits of the case and submitted that they were prevented from doing so
until the domestic courts gave their final decision on the case.
2. The Court’s
assessment
(a) General principles
As the Court has stated on many occasions,
Article 3 enshrines one of the most fundamental values of democratic societies.
Even in the most difficult circumstances, such as the fight against terrorism
and organised crime, the Convention prohibits in absolute terms torture and
inhuman or degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no
provision for exceptions and no derogation from it is permissible under
Article 15 § 2, even in the event of a public emergency threatening the
life of the nation (see Selmouni, cited above, § 95, ECHR 1999-V,
and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports
1998-VIII).
The Court reiterates that in the process of
arresting a person, any recourse to physical force which has not been made
strictly necessary by his or her own conduct diminishes human dignity, and is
in principle an infringement of the right set forth in Article 3 of the
Convention (see, mutatis mutandis, Ribitsch v. Austria, 4
December 1995, § 38, Series A no. 336). Where a person is injured
while in detention or otherwise under the control of the police, any such
injury will give rise to a strong presumption that the person was subjected to
ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12
October 2004). It is incumbent on the State to provide a plausible explanation
of how the injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (see Selmouni, cited above, § 87).
The Court further 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, the 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).
For an investigation to be effective, it may
generally be regarded as necessary for the persons responsible for and carrying
out the investigation to be independent from those implicated in the events
(see, among other authorities, Barbu Anghelescu v. Romania, no.
46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or
institutional connection but also practical independence (see, for example, Ergı
v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV, where
the public prosecutor investigating the death of a girl during an alleged clash
showed a lack of independence through his heavy reliance on the information
provided by the gendarmes implicated in the incident).
The investigation into serious allegations of
ill-treatment must be thorough. That means that the authorities must always
make a serious attempt to find out what happened and should not rely on hasty
or ill-founded conclusions to close their investigation or as the basis of
their decisions (see Assenov and Others, cited above, § 103 et seq.).
They must take all reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness testimony and
forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR
1999-IV, § 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14
December 2000). Any deficiency in the investigation which undermines its
ability to establish the cause of injuries or the identity of the persons
responsible will risk falling foul of this standard.
(b) Application of the general principles to the
present case
Turning to the facts of the present case, the
Court notes that on 15 July 2008 the applicant was arrested by the police
and that upon his release numerous injuries to his body were found (see
paragraph 8 above). The nature of the injuries to the applicant’s body is
consistent with his account of the events. Moreover, the accused police
officers did not deny causing his injuries but stated that it happened as a
result of his putting up resistance. However, that version of the facts is
inconsistent with the findings of the domestic courts, which cleared the
applicant of all charges concerning the alleged resistance to arrest (see
paragraph 12 above). In such circumstances, the Court considers that the responsibility
of the State is engaged.
The Court further notes that the investigation
into the applicant’s complaint gives rise to serious concerns. In a case which,
in the Court’s opinion, is not of particular complexity, the investigation has
been pending before the domestic authorities for almost five years. The prosecutor’s
office was very slow in initiating the proceedings and dismissed the applicant’s
complaint six times on grounds which appear to have been based on a very
superficial investigation. In dismissing the complaint, the prosecutor’s office
appears to have relied exclusively on the statements of the accused police
officers without questioning other witnesses or paying attention to the forensic
medical reports. It was only in April 2011, some three years later, that the prosecutor’s
office initiated criminal proceedings and remitted the case to a court for
trial. The situation does not appear to have improved in the court proceedings,
where the case has been pending since without any progress. In such
circumstances, the Court cannot but conclude that the investigation into the
applicant’s allegations of ill-treatment has not been adequate or sufficiently
effective.
The Court reiterates that if the domestic remedy
chosen by an applicant is adequate in theory, but, with the course of time,
proves to be ineffective, the applicant is no longer obliged to exhaust it (see
Tepe v. Turkey, 27244/95, Commission decision of 25 November
1996). Having concluded above that the investigation into the applicant’s
allegations was ineffective, the Court considers that he is no longer required
to wait for the termination of the investigation in order to exhaust domestic
remedies. The Court thus dismisses the Government’s objection of non-exhaustion
of domestic remedies and holds that there has been a violation of Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the criminal
proceedings initiated at his request were excessively long and that therefore
there had been a breach of Article 6 of the Convention. The Court reiterates
that the Convention does not guarantee the right to pursue criminal proceedings
against third parties and that Article 6 does not apply to proceedings aimed at
instituting criminal proceedings against third parties. It follows that this
complaint is incompatible ratione materiae with the
provisions of the Convention, within the meaning of Article 35 § 3 of the
Convention, and must be rejected pursuant to Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of non-pecuniary damage suffered as a result of the violations found
above.
The Government
disagreed with the applicant and argued that the amount claimed by him was
excessive.
Having regard to
the violations found above and their 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 him the entire amount claimed.
B. Costs and expenses
The applicant also claimed EUR 800 for the costs
and expenses incurred before the Court. He submitted documents showing that the
above amount was paid by him to his representative.
The Government submitted that the above amount
was excessive and unjustified.
The Court awards the amount claimed in full.
C. Default interest
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. Joins to the merits the Government’s
preliminary objection concerning the exhaustion of domestic remedies by the
applicant and rejects it;
2. Declares the
complaints under Article 3 admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 800 (eight hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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 23 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
