EU & Human Rights

GASANOV v. THE REPUBLIC OF MOLDOVA - 39441/09 - HEJUD

[2012] ECHR 2090European Court of Human Rights2012

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This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.

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

�� Josep Casadevall, President, �� Alvina Gyulumyan, �� Corneliu B�rsan, �� J�n �ikuta, �� Luis L�pez Guerra, �� Nona Tsotsoria, �� Kristina Pardalos, judges, and Santiago Quesada , Section Registrar,

�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 notwithstanding that the violation has been committed by persons acting in an official capacity.�

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CASE OF GASANOV v. THE REPUBLIC OF MOLDOVA

(Application no. 39441/09)

JUDGMENT

STRASBOURG

18 December 2012

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 Gasanov v. the Republic of Moldova,

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

�� Josep Casadevall, President,
�� Alvina Gyulumyan,
�� Corneliu B�rsan,
�� J�n �ikuta,
�� Luis L�pez Guerra,
�� Nona Tsotsoria,
�� Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 27 November 2012,

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

PROCEDURE

The case originated in an application (no. 39441/09) 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 Georgian national, Mr Zeinal Gasanov on 15 July 2009.

The Moldovan Government (�the Government�) were represented by their acting Agent, Mr L. Apostol.

The applicant alleged, in particular, that he had been ill-treated while in detention and that the authorities had not carried out an effective investigation of that complaint.

On 25 January 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).

Having been given leave to intervene in the proceedings pursuant to Article 36 � 1 of the Convention and Rule 44 � 1 of the Rules of Court, the Georgian Government did not submit any observations concerning the present case.

Following the resignation of Mr Mihai Poalelungi, the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of Court), the President of the Chamber appointed Mr J�n �ikuta to sit as ad hoc judge (Article 26 � 4 of the Convention and Rule 29 � 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1960 and lives in Taraclia (the Republic of Moldova).

A. The applicant�s arrest and alleged ill-treatment

At around 11 p.m. on 6 February 2007 the applicant was arrested by police officers C. and G. and taken to the Glodeni District police station. The applicant was accused of fraud and trespassing on private property.

The applicant was placed in the Glodeni police temporary detention unit (Izolatorul de detenţie provizorie al CPR Glodeni).

At 3 p.m. on 7 February 2007 the on-duty medical officer, M., examined the applicant. In medical examination report no. 52, drawn up on 7 February 2007, M. stated that during the examination she had not noticed any visible traces of injury on the applicant�s body. M. assessed the general state of the applicant�s health as �satisfactory� and noted that the applicant�s only complaint was of chest pain.

According to the applicant, on an unspecified date while detained in the Glodeni temporary detention unit, he was taken to the office of a police officer and ill-treated in order to extract a confession. In particular, he was struck on the head with a black, blunt object, after which he lost consciousness. He was then forced to confess to the offences attributed to him.

On 21 February 2007 the applicant was examined again by a forensic medical expert, S. According to the medical report drawn up by S. on that date, he observed �a curved, whitish scar measuring 3 x 0.3 cm� in the middle of the applicant�s forehead. The expert came to the conclusion that the scar had formed as a result of the healing of a wound. He could not determine when the wound had been sustained. He noted that the applicant had said that he had been beaten up by an individual, O., on 6 February 2007 at 10.30 p.m. In particular, the applicant had been hit in the face with some rope. He also noted that the applicant had not made any complaint.

In subsequent submissions to the domestic courts the applicant stated that he had made the above-mentioned statement concerning the attack by O. only because he had been taken to the medical examination by C., one of the police officers who had ill-treated him. C. had threatened him with further beatings upon his return to the detention facility if he complained.

The applicant remained in the Glodeni temporary detention unit until an unspecified date in April 2007, when he was transferred to the Bălţi temporary detention centre. He made his first complaint of ill-treatment after that transfer.

According to the applicant, on 10 July 2008 he was declared Category 3 disabled as a result of cranial trauma.

B. The criminal investigation of the allegation of ill-treatment

On 17 April 2007 the applicant lodged a complaint with the Prosecutor General�s Office, alleging that while in custody he had been beaten up by police officers C. and G. He made a similar complaint to the President of the Republic of Moldova, whose office received the applicant�s letter on 20 April 2007. He apparently received no reply.

On 16 May 2007 he lodged another complaint with the Glodeni District Prosecutor�s Office about the same events. He submitted that he had been warned against complaining about ill-treatment and threatened with further ill-treatment if he complained. He pointed out that the alleged victim�s family were relatives of a high-ranking police officer in Glodeni. The applicant was first interviewed by a prosecutor on 20 May 2007.

On 9 July 2007 the Glodeni Prosecutor�s Office issued a decision not to start criminal proceedings. On 6 September 2007 a superior prosecutor informed the applicant that he had confirmed that decision.

On 14 April 2008 another superior prosecutor quashed the decision of 9 July 2007, ordering a supplementary investigation. In particular, he ordered a medical examination of the applicant to be carried out with a view to investigating the allegations of ill-treatment.

On 20 June 2008 a medical board examined the applicant�s medical records, at the request of the Glodeni Prosecutor�s Office.

On 16 July 2008 the medical board issued their report. The applicant was diagnosed with �a cranial contusion with pyramidal insufficiency on the right side and signs of light motor aphasia�. However, on account of the lack of any medical documents concerning the applicant�s health in the period between 6 February 2007 and 16 January 2008, the experts could not draw the conclusion that the head wound had been caused on 6-7 February 2007. The medical board considered that it was thus impossible to establish a causal link between the alleged ill-treatment and the contusion.

On 4 September 2008 the Glodeni Prosecutor�s Office again decided not to open a criminal investigation.

On 13 November 2008 the investigating judge of the Glodeni District Court examined the applicant�s appeal against the refusal of the Prosecutor�s Office to start criminal proceedings against the police officers. The judge found that the inquiry into the applicant�s allegations of ill-treatment had been superficial and that there were �serious and unexplained shortcomings�. While the applicant�s representative had requested on 29 May 2008 that two witnesses, I. and B., who were the applicant�s cellmates, be heard by the prosecutor, that request had been left unexamined, thus depriving the applicant of the opportunity to submit evidence in support of his allegations. The judge also noted that the applicant had not been heard and that the prosecution authorities had made use only of his written submissions. He further found that the prosecutors had not carried out an inquiry into the applicant�s alleged ill-treatment by O. on the day of his arrest, mentioned in the medical report of 21 February 2007. The judge quashed the decision of 4 September 2008 and ordered a more thorough investigation.

On unknown dates a prosecutor from the Glodeni prosecutor�s office interviewed I. and B. They stated that they were not sure about the exact date or month at the beginning of 2007 when the applicant had shown them injuries on his head and other parts of his body, and told them that the police had ill-treated him. According to these witnesses, both of them were detained in the same unit as the applicant at the relevant time. Having also questioned O. and his family, the investigator found that no one in that family had beaten the applicant prior to his arrest.

On 15 November 2008 the applicant�s lawyer submitted to the Glodeni Prosecutor�s Office a certified copy of his client�s medical records from prison no. 11 in Bălți concerning the period of April-August 2007. He asked the prosecution to find the original records in that institution and to order a new medical board examination, given that the previous one had noted a lack of data on the applicant�s medical condition during the relevant period after the alleged attack.

On 19 November 2008 the prosecutor ordered a new medical board examination of the applicant�s medical documents. According to the board�s report of 28 November 2008, the medical documents with the applicant�s name on them did not attest to any injury on the applicant�s body. It was impossible to determine the time when the applicant had sustained the injury on his forehead, but due to its characteristics, it must have been caused earlier than 6 February 2007. The board was unable to find a causal link between that injury and the applicant�s cranial trauma.

On 12 December 2008 the Glodeni Prosecutor�s Office again refused to open criminal proceedings against officers C. and G., giving the same reasons as before. On 15 January 2009 the superior prosecutor upheld this decision. The applicant challenged that decision before the investigating judge.

On 18 February 2009 the investigating judge of the Glodeni District Court again examined the lawfulness of the refusal to start criminal proceedings against the police officers and upheld it, finding no appearance of a violation of the applicant�s rights and that the decision had been lawful and based on a correct assessment of the facts.

C. The criminal proceedings against the applicant

On 17 August 2007 the Glodeni District Tribunal convicted the applicant of trespassing and fraud and sentenced him to fourteen years and six months� imprisonment. The applicant appealed against this judgment.

On 14 November 2007 the Bălţi Court of Appeal dismissed the applicant�s appeal as ill-founded.

On 8 April 2008 the Supreme Court of Justice allowed the applicant�s appeal on points of law, quashed the decision of 14 November 2007, and remitted the case for fresh examination to the Bălţi Court of Appeal.

On 17 December 2008 the Bălţi Court of Appeal sentenced the applicant to eight years� imprisonment.

On 2 June 2009 the Supreme Court of Justice dismissed the applicant�s appeal on points of law as ill-founded, but reduced his sentence to six years and four months� imprisonment. This decision was final.

II. RELEVANT INTERNATIONAL MATERIAL

The relevant part of the report of the visit to Moldova carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 1 to 10 June 2011 read as follows (unofficial translation):

�24. During the visit, all those met by the delegation, both at the Ministry of the Interior and at the Prosecutor�s Service for Fighting Torture, have acknowledged that respect for the right of access to a doctor was fundamental for the prevention and fighting police violence. They observed that, under Article 64 � 2(15) of the Code of Criminal Procedure, a suspect has the right to make requests, including requests for independent medical assistance. In its previous reports the CPT has considered that this provision was still far from answering the Committee�s already long-standing recommendation that the right of access to a doctor from the beginning of deprivation of liberty should be explicitly guaranteed. ...

The Committee calls on the Moldovan authorities to implement its long-standing recommendation aiming at amending the legal provisions so as to guarantee to any person deprived of liberty, from the beginning of the de facto deprivation of liberty, the right to be seen by a doctor. This implies that, during the period of deprivation of liberty and before placement in a provisional detention centre (IDP), any request of a detained person to see a doctor must also be immediately satisfied. Moreover, the right of access to a doctor should include the right, if the detainee requests it, to be examined by an independent doctor in addition to any examination by a medical professional working for the police.�

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that he had been ill-treated by police officers in violation of Article 3 of the Convention. He also argued that the State authorities had failed to conduct an effective investigation in respect of his complaint of torture. Article 3 reads as follows:

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

A. Admissibility

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

(a) Concerning the alleged ill-treatment

The applicant submitted that officers C. and G. had tortured him in order to obtain a confession. The medical evidence demonstrated that he had sustained the injury to his head while in detention.

The Government relied on the findings of the domestic authorities, including the medical board�s conclusion of 28 November 2008 (see paragraph 26 above). Since the medical board had found that the applicant had sustained his injury prior to his arrest on 6 February 2007, it was clear that he had not been ill-treated while in detention. Witnesses had also denied his story.

(b) Concerning the alleged inadequacy of the investigation

The applicant considered that the authorities had failed to carry out an effective investigation of his allegations of ill-treatment. The investigator had failed to immediately secure the necessary evidence and the investigation had lasted for two years.

The Government argued that the investigation of the applicant�s allegations had been thorough and swift, all reasonable investigative actions had been taken, all potential witnesses heard and all medical evidence collected. While the investigating judge had found some initial shortcomings in the investigation, he was later satisfied that all those deficiencies had been removed (see paragraph 28 above).

2. The Court�s assessment

(a) Concerning the alleged ill-treatment

The general principles concerning the State�s responsibility for injuries sustained by individuals in detention have been summarised in the Court�s previous case-law (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, � 95, ECHR 1999-V; Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, � 93; Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, � 161; and Salman v. Turkey [GC], no. 21986/93, � 100, ECHR 2000-VII). In particular, 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, and Pruneanu v. Moldova, no. 6888/03, � 43, 16 January 2007).

The Court notes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (�the CPT�) has long recommended that medical examinations be carried out at the beginning of detention, with a view to preventing ill-treatment (see, for instance, paragraph 34 above). In its own case-law the Court has also emphasised the importance of such an initial medical examination. Where no such examination has been carried out or where the examination has not recorded any injuries, the Court has drawn the conclusion that the person entered detention in good health (see, mutatis mutandis, Levinţa v. Moldova, no. 17332/03, �� 69 and 70, 16 December 2008).

In the present case, the Court notes that the day after his arrival in the Glodeni police detention unit the applicant underwent a medical examination, which did not reveal any injuries on the applicant�s body (see paragraph 10 above). The Court therefore concludes that the applicant was in good health on 7 February 2007, when he was examined by the detention unit doctor.

After two weeks of detention another medical examination attested to the presence of a healing wound on the applicant�s forehead (see paragraph 12 above). The doctor who examined the applicant on 21 February 2007 could not determine whether the injury had been sustained prior to the applicant�s arrest. However, nothing in the file contradicts the applicant�s claim that the injury could not have been caused earlier than 7 February 2007, when he was brought into detention and a doctor made no record of that injury. The Court considers that this creates a strong presumption that the applicant sustained his injury during his detention. In such circumstances it is for the Government to submit a sufficient explanation for the origin of the injury, failing which the conclusion will be drawn that the applicant was ill-treated during his detention.

The Government submitted that a subsequent medical board examination, while also unable to determine when exactly the applicant had been injured, determined that the injury had been sustained prior to 6 February 2007 (see paragraph 26 above). This, in their view, could only mean that the applicant had not been ill-treated while in detention. The Court notes that the medical board, having made its examination more than a year after the relevant events, did not observe the applicant�s injury itself, but relied on his medical documents. Moreover, it concluded that the injury had been sustained prior to 6 February 2007 even though the only doctor who had actually seen the wound had been unable to draw such a conclusion. The Court considers that this opinion, formulated by the medical board a year after the relevant events, cannot override the objective evidence that on 7 February 2007 a doctor working in the detention facility did not observe any injury on the applicant�s body.

It is true that during the examination on 21 February 2007 which recorded the head injury, the applicant declared to the doctor that he had been hit with a rope by O. (see paragraph 12 above). However, he subsequently noted in his complaints and explanations to the authorities that he had been taken to the doctor by C., one of the police officers who had ill-treated him, and that C. had also threatened him with further violence if he complained (see paragraph 13 above). As noted by the investigating judge in his decision of 13 November 2008, the prosecution had initially not even attempted to establish whether the applicant had indeed been beaten by O. (see paragraph 23 above). Nor was a beating confirmed by the subsequent investigation, O. and other witnesses stating that they had not beaten the applicant (see paragraph 24 above).

The Court also notes that two witnesses attested to having been shown injuries by the applicant and having been told that he had been beaten by the police (see paragraph 24 above). This only reinforces the conclusion that the applicant was ill-treated during his detention.

On the basis of all the material placed before it, the Court concludes that the Government have not fulfilled the responsibility they have to persuade it that the applicant�s injuries were caused otherwise than by ill-treatment while in custody.

In the light of the above, the Court concludes that there has been a violation of Article 3 of the Convention in its substantive limb.

(b) Concerning the alleged inadequacy of the investigation

The Court recalls that under its established case law the notion of an �effective remedy� entails, in addition to the payment of compensation where appropriate and without prejudice to any other remedy available in domestic law, a thorough and effective investigation. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when strictly speaking no complaint has been made, an investigation must be started if there are sufficiently clear indications that torture or ill-treatment has been used (see, among other authorities, �zbey v. Turkey (dec.), no. 31883/96, 8 March 2001[...]). Moreover, a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no. 31143/96, � 37, 18 October 2001, and �zg�r Kılı� v. Turkey (dec.), no. 42591/98, 24 September 2002), and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, ECHR 2004-IV (extracts)).

In the present case the Court notes that on 21 February 2007 a doctor found an injury on the applicant�s body which the previous medical examination had not recorded. It is also clear from the materials submitted by the parties that the results of both investigations were in the criminal file and were thus known to the investigator. It follows that a doctor and an investigator were aware, or should have been aware on 21 February 2007, that the applicant had sustained an injury, possibly while being detained. This should have prompted the authorities to carry out an investigation of the applicant�s possible ill-treatment, even in the absence of a complaint and despite his statement that O. had beaten him. However, there was no investigation at the time.

It is also apparent from the case file that the investigation has lasted for approximately two years (see paragraph 28 above) and that during this time a decision not to initiate a criminal investigation has been quashed twice (see paragraphs 19 and 23 above). The decision of the investigating judge of 13 November 2008 is particularly revealing since, more than a year and a half after the relevant events, the judge found that the investigation had been affected by �serious and unexplained shortcomings�, such as a failure to hear the applicant and witnesses identified by him (see paragraph 23 above). The Court considers that failing to carry out such basic fact-finding for such a long period of time is incompatible with the requirement of promptness included in the procedural obligations under Article 3 of the Convention (see, for instance, Pădureţ v. Moldova, no. 33134/03, � 68, 5 January 2010).

Moreover, in the present case no criminal proceedings have been initiated, even after the decisions not to initiate such an investigation had been quashed. The Court has already found that �in accordance with Articles 93, 96 and 109 of the [Moldovan] Code of Criminal Procedure, no investigative measures at all could be taken in respect of the offence allegedly committed ... unless criminal proceedings were formally instituted� (see Guţu v. Moldova, no. 20289/02, � 61, 7 June 2007, and Mătăsaru and Saviţchi v. Moldova, no. 38281/08, � 90, 2 November 2010, including the domestic court�s decision cited in that paragraph confirming the above conclusion). The refusal of the investigator to initiate a proper criminal investigation of the alleged ill-treatment had thus limited the opportunities for evidence-gathering and reduced the overall effectiveness of the investigation of the applicant�s allegations.

The Court concludes that the investigation of the applicant�s allegation of ill-treatment has been inefficient and protracted as a result of repeated refusals to institute criminal proceedings, and was also affected by serious shortcomings, as established by a domestic court. These shortcomings are incompatible with the procedural obligations under Article 3 of the Convention. There has therefore been a violation of that provision in its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant also claimed that the prosecution authorities� failure to carry out a proper inquiry into his allegations of ill-treatment had precluded him from obtaining redress in the domestic civil courts. He relied on Article 6 of the Convention. The Court decided to examine this complaint under Article 13 of the Convention, which reads as follows:

The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 � 3 (a) of the Convention. It must therefore be declared admissible. However, in view of its conclusion concerning the complaint under Article 3 of the Convention, the Court holds that no separate issue arises under Article 13 of the Convention, taken in conjunction with Article 3.

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 five million euros (EUR) in compensation for non-pecuniary damage caused to him by ill-treatment and failure to investigate his complaints in that regard.

The Government submitted that the amount claimed was excessive in the light of the Court�s case-law in similar cases.

Having regard to the nature of the violations found above, 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 the applicant EUR 12,000.

B. Costs and expenses

The applicant also claimed EUR 6,085 for costs and expenses incurred before the Court. He submitted an itemised list of hours worked on the case (fifty-nine hours at an hourly rate of EUR 100).

The Government considered that the applicant was entitled to nothing for costs and expenses.

According to the Court�s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads.

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. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

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

5. 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 currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five 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;

6. Dismisses the remainder of the applicant�s claim for just satisfaction.

Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 �� 2 and 3 of the Rules of Court.

Santiago Quesada�� Josep Casadevall
�� Registrar�� President

GASANOV v. THE REPUBLIC OF MOLDOVA - 39441/09 - HEJUD

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