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FOURTH
SECTION
CASE OF BUZILOV v. MOLDOVA
(Application
no. 28653/05)
JUDGMENT
STRASBOURG
23 June 2009
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 Buzilov v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28653/05) 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 a Moldovan national, Mr Petru Buzilov (“the
applicant”), on 6 July 2005.
- The
applicant was represented by Mr Mihai Cebotari and Ms Eugenia
Buzilov. The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been subjected to
severe 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. He also complained under Article 6 § 1 of
the Convention of the excessive length of the criminal proceedings
against him.
- On
7 May 2007 the President of the Fourth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Cahul.
- On
30 May 2002 (31 May 2002, according to the Government) the
applicant was arrested in Chişinău by
the Department of Criminal Investigation of the Ministry of Internal
Affairs on suspicion of racketeering (banditism).
He alleges that he was hooded, pushed into a car and taken to a
police station.
- At
Hânceşti Police Station the applicant was allegedly
severely beaten up by police officers. He alleges that a police
officer in plain clothes ordered five other officers to put a gas
mask over his head; that he was handcuffed and his legs tied together
and attached to his arms behind his back; that he was laid face-down
on his abdomen; and that two electric wires were attached to his
ears. He was allegedly given electric shocks while cold water was
poured over him. Because of the severe pain he bit his tongue. In the
meantime, another police officer had been blocking the air to the gas
mask and moving the wires from his ears to his toes. The applicant
alleges that between 30 May and 3 June 2002 he was
subjected to the same ill-treatment every night. During the day he
was driven to Comrat Police Station.
- On
3 June 2002 the Comrat District Court issued an order remanding
the applicant in custody for a period of thirty days. The applicant
was placed in the remand centre of Comrat Police Station. It is
unclear from the documents in the case file whether he appealed
against the decision of 3 June 2002.
- Following
a request from his lawyer, an investigator from Comrat Police Station
ordered the applicant's examination by a forensic doctor A. medical
report of 4 June 2002 stated, inter alia:
“[According to the applicant] On 30 May 2002
he was taken to Hânceşti Police Station. His arms and legs
were tied together, and he was beaten with a baton and with metal
bars. Electric wires were attached to his toes and he was given
electric shocks. When he was losing consciousness water was poured
over him. The wires were then attached to his ears and he was again
given electric shocks. When he was losing consciousness water was
again poured over him. A gas mask was put over his head and the air
permanently cut off. The applicant complained of headache, nausea and
pain in the injured places.
Above the right eyebrow – a scratch of 2.4 x 1.4
cm, ..., in the right occipital region of the head – a
light-yellowish bruise of 1 x 0.8 cm, on the right upper eyelid - an
oval bruise of 3.5 x 0.8 cm, around the left eye – a
light-yellowish bruise of 4.5 x 2.1 cm, ... irregular-shaped
light-violet bruises of 2.6 x 2 cm and 2.7 x 1.9 cm on both cheeks,
in the right temporal region – an irregular-shaped
light-yellowish bruise of 4 x 2 cm, auricles (right and left) [ears]
– yellow, ... on the front part of the right shoulder – a
yellow bruise of 10 x 7 cm, ... multiple bruises of between 7.3 x 2.4
cm, 1.3 x 1.2 cm and 4 x 0.9 cm on both sides of the chest, on the
abdomen – multiple irregular-shaped light-yellowish bruises of
between 1.8 x 1.2 cm and 6 x 1.7 cm, on the scapulas –
irregular-shaped dark-reddish bruises of 9 x 6 cm, 14 x 2 cm and 3.7
x 1 cm, multiple bruises of between 0.2 x 0.4 cm and 7 x 2.2 cm on
both legs. ... On the tip of the [applicant's] tongue – oval
scar of 1.4 x 0.6 cm, 0.3 cm in depth.
The scratches and bruises ... were inflicted by blows
with a hard blunt object, the scar on the tip of the tongue ... could
have been caused by human teeth, [the injuries] could have been
caused in the circumstances and at the time indicated and are
qualified as light bodily injuries.”
- On 26 June2002 a private newspaper published an
article according to which the police had arrested a gang organised
by the applicant. It gave his name and stated that he could be
sentenced to twenty-five years' imprisonment.
- On 13 June 2003 a State-owned newspaper also
published an article about a group of people suspected of
racketeering. However, it did not disclose the applicant's name, but
only mentioned “Petru B.”.
- On
an unspecified date the applicant complained to the General
Prosecutor's Office about the alleged ill-treatment in Hânceşti
Police Station. On 18 and 31 March 2005 the Hânceşti and
the General Prosecutor's Office, respectively, informed the applicant
that his complaint had been dismissed on grounds of lack of
“constitutive elements” of an offence. It appears that,
in dismissing the applicant's complaint, the Prosecutor's Office
relied on the statements of two police officers who had declared not
having beaten the applicant and not having seen any signs of
ill-treatment on his body on 1 June 2002 when they had escorted him
from Hânceşti Police Station to another police station.
The prosecutor concluded that the injuries found on the applicant's
body had not been caused by police officers from Hânceşti
Police Station.
- Between
January and October 2003 the criminal case against the applicant was
examined by the Chişinău Court of Appeal. On 7 October 2004
the Chişinău Court of Appeal declined jurisdiction in
favour of the Cahul Court of Appeal, which, in turn, declined
jurisdiction on 31 October in favour of the Comrat Court of Appeal.
In view of a competence conflict over jurisdiction, the case was sent
to the Supreme Court of Justice which decided, on 27 January 2003
that the Cahul Court of Appeal was the competent instance.
- By
a judgment of the Cahul Court of Appeal of 18 June 2007 the applicant
was found guilty as charged and sentenced to ten years' imprisonment.
It is not clear from the parties' submissions whether the proceedings
ended on that date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant provisions of the Criminal Code in force
at the material time read as follows:
“Article 185
An abuse of power accompanied by acts of violence, use
of arms or acts of torture and humiliation shall be punishable by
imprisonment of three to ten years and by a prohibition on carrying
on certain activities for a period of up to five years. ...”
THE LAW
- The
applicant complained under Article 3 of the Convention that he had
been ill-treated by the police. He also complained that the domestic
authorities had failed to investigate his complaints of ill-treatment
properly. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant complained that the length of the criminal proceedings had
been incompatible with the “reasonable time” requirement
provided for in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
I. ADMISSIBILITY OF THE CASE
18. The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him were excessively long. The
Government disputed the applicant's submission and argued that in
view of the complexity of the case and the behaviour of the accused
persons, the length of the proceedings had not been excessive.
19. The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of the relevant authorities and what was at stake for the
applicant in the dispute (see, among many other authorities,
Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII). In the present case, the
Court notes that the applicant did not substantiate his complaint and
did not provide the Court with a copy of the domestic case file.
Without that, the Court is not able to determine the reasonableness
of the length of the proceedings. In such circumstances, the
complaint is manifestly ill-founded and must be declared inadmissible
in accordance with Article 35 §§ 3 and 4 of the Convention.
20. The
applicant also complained that the two newspapers that wrote articles
about him (see paragraphs 10 and 11 above) breached his right to be
presumed innocent. The Court notes that the State-owned
newspaper did not disclose the applicant's identity and/or make him
identifiable in any way. Accordingly, the complaint is manifestly
ill-founded. As regards the other newspaper, the Court notes that it
was privately owned and, therefore, the complaint is incompatible
ratione materiae. In any event, it appears that the applicant
has not used any available domestic remedies in order to initiate
proceedings against the newspapers. The Court therefore considers the
applicant's complaint under Article 6 § 2 to be inadmissible
under Article 35 §§ 1, 3 and 4 of the Convention.
21. The
applicant finally complained under Article 38 of the Convention that
his lawyer did not have adequate facilities to meet with him. In the
Court's opinion, this complaint refers in substance to the
applicant's right of petition guaranteed by Article 34
of the Convention. However, since the applicant failed to
substantiate it by providing any evidence, the complaint must be
declared inadmissible as manifestly ill-founded in accordance with
Article 35 §§ 3 and 4 of
the Convention.
- The
Court considers that the applicant's remaining complaint, under
Article 3 of the Convention, raises questions of fact and law which
are sufficiently serious that its determination should depend on an
examination of the merits, and that no other grounds for declaring it
inadmissible have been established. The Court therefore declares this
complaint admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaint.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant submitted that he had been tortured during his detention at
Hânceşti Police Station and argued that the authorities
had failed to explain the origin of over forty injuries on his body
recorded in the medical report of 4 June 2002. The applicant also
contended that the Prosecutor's Office had failed to properly
investigate his complaint.
- The
Government submitted that the applicant had not been ill-treated
during his detention at Hânceşti Police Station. This had
been proved by the statements of police officers from that police
station who denied any accusation of ill-treatment. According to the
Government, the authorities had conducted an effective investigation
into the applicant's complaint of ill-treatment.
- 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
v. France [GC], no. 25803/94, § 95, ECHR 1999 V,
and Assenov and Others v. Bulgaria, 28 October 1998,
§ 93, Reports of Judgments and Decisions 1998-VIII).
- 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).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
- The
Court 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, such
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).
- 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, § 104 et seq., ECHR 1999-IV, 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.
- In
determining whether a particular form of ill-treatment should be
qualified as torture, consideration must be given to the distinction,
embodied in Article 3, between this notion and that of inhuman or
degrading treatment. As noted in previous cases, it appears that it
was the intention that the Convention should, by means of this
distinction, attach a special stigma to deliberate inhuman treatment
causing very serious and cruel suffering (see Ireland, cited
above, § 167). The fact that pain or suffering was deliberately
inflicted for the purpose of obtaining a confession is a further
factor to be taken into account in deciding whether ill-treatment
amounted to torture (see Aksoy v. Turkey, 18 December 1996, §
64, Reports, and Salman, cited above, § 114).
- Turning
to the facts of the present case, the Court notes that the applicant
sustained numerous injuries during his detention at Hânceşti
Police Station. Since the Government have failed to provide an
explanation for the applicant's injuries, the Court concludes that
they were the result of ill-treatment while in police custody.
- The
Court further notes that the findings in the medical report of 4 June
2002 that the applicant's ears were yellow and that he had a deep
scar left by a bite to the tip of his tongue are consistent with the
submission made by the applicant that he had been given electric
shocks through wires attached to his ears and that, as a result of
the severe pain, he had involuntarily bitten the tip of his tongue.
The Court considers that this form of ill-treatment is particularly
reprehensible as it presupposes an intention to obtain information,
inflict punishment or intimidate. In such circumstances, the Court
considers that the violence inflicted upon the applicant was of a
particularly serious nature, capable of provoking severe pain and
cruel suffering and that it falls to be treated as acts of torture.
Accordingly, there has been a violation of Article 3 of the
Convention.
- The
Court finally notes that after receiving the applicant's complaint
about ill-treatment, the Prosecutor's Office did not take statements
from the applicant or from the doctors who had examined him. Nor did
the Prosecutor Office asked the applicant to identify the police
officers responsible. In fact, the Prosecutor's Office did not
undertake any decisive steps in order to investigate the applicant's
complaint but was content to accept without reservation the
statements of the accused police officers. It is therefore impossible
for the Court to conclude that an effective official investigation
took place. Thus, there has been a violation of Article 3 of the
Convention under its procedural head as well.
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 500,000 euros (EUR) as compensation for the breach
of his rights guaranteed by Articles 3 and 6 of the Convention. He
did not specify whether his claim referred to pecuniary or
non-pecuniary damage. According to the applicant, the amount was to
compensate him for the extraction of a confession and for the period
of five years spent in detention during the proceedings. In respect
of the latter, he submitted that during his detention he had been
unable to support his family.
- The
Government treated the applicant's claim as a claim in respect of
non-pecuniary damage. They submitted that the proceedings had not
been excessively long and that the applicant's detention during the
proceedings had been justified. Referring to the claim in respect of
a breach of Article 3 of the Convention, the Government submitted
that the amount claimed was too high in the light of the Court's
previous case-law in Article 3 cases concerning Moldova. They also
submitted that in some cases the Court considered that a finding of a
violation constituted sufficient just satisfaction.
- Having
regard to the violation found above and its 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 EUR 30,000.
B. Costs and expenses
- The
applicant also claimed EUR 1,680 for the costs and expenses incurred
before the Court.
- The
Government objected and argued that the amount was excessive.
- The
Court awards EUR 500 for costs and expenses in respect of costs
incurred by Mr M. Cebotari.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention in respect of the respondent State's substantive
and procedural obligations;
- Holds
(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 30,000 (thirty
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, and EUR 500 (five hundred euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
