CASE OF POPA v. MOLDOVA
Violation of Art. 3;Violation of Art. 13
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
4. The applicant was born in 1976 and lives in Chişinău. The facts of the case are disputed by the parties. Their respective accounts may be summarised as follows. 5. The applicant submitted that at 9 p.m. on 27 July 2004 she and her sister were stopped on the street by a police officer (“AC”) who ordered them to accompany him to a District Police Station. When they refused to comply with AC’s request, he forcibly took them to the police station and, according to the applicant, at one point he pushed her while she was on a flight of stairs at the police station. The applicant submitted that while she was at the police station she was beaten severely by three drunk men in plain clothes. In particular, she claimed that the three men pushed her from her chair, hit her head against a steam radiator, tried to strangle her and punched and kicked her in the head and body. She claimed that all these acts took place in the presence of police officers. The applicant and her sister were later driven to the Rîşcani Police Station and held in custody until she was brought before a judge the following morning. During this period she was not examined by a doctor. 6. The Government contested the applicant’s account of the events surrounding her arrest on 27 July 2004. In doing so they relied on statements provided by AC, the applicant’s brother-in-law, another police officer (“R”), and a civilian who was present at the police station when the applicant arrived. The Government submitted that on the evening of 27 July 2004 the applicant had been celebrating her birthday at her sister’s home. She got into a physical fight with her sister’s husband. It is not clear from the statements whether the applicant’s brother-in-law went to the police station to report the applicant’s behaviour or whether AC was walking past the applicant’s sister’s home when he noticed the fighting. Nevertheless, the statements of AC and the applicant’s brother-in-law both indicated that when AC arrived at the scene, the applicant was assaulting her brother-in-law and would not calm down. In particular, the applicant’s brother-in-law told the prosecutor that the applicant had pushed him to the ground and was hitting him with her fists. 7. AC confirmed in his statement to the prosecutor that when he arrived at the scene the applicant insulted him and her brother-in-law. After he cautioned her, she began to hit and kick her brother-in-law. The applicant’s brother-in-law also stated that: “Tanea [the applicant] picked a fight with AC and was pulling his epaulettes with a view to tearing them off, called him “a rotten cop”, told him that she was living with a former prisoner and that he would eliminate him.” 8. AC therefore asked the applicant, her sister and her brother-in-law to accompany him to the station. In his statement to the prosecutor he conceded that he had to use some force to bring the applicant there. In his evidence given to the District Court he stated that he grabbed the applicant by the hand but did not use any other form of physical force. At the police station the applicant continued to be aggressive towards AC. The applicant’s brother-in law stated that: “At the police station, Chilat Angela and the sister in law Tatiana were continuing to make noise, calling the policemen “rotten cops” and other explicit words.” 9. A civilian who happened to be at the police station when the applicant, her sister and her sister’s husband arrived, stated that: “The people [the police officer] brought with him were inebriated, were shouting, insulting the policeman, pulling him by his clothes and threatening him with being fired from the police.” 10. None of the witnesses indicate that the applicant had any visible injuries when she arrived at the police station. 11. The Government stated that after the police officer had drawn up a report documenting the applicant’s misdemeanour, she was transported to a public drugs clinic so that her blood alcohol level could be tested. The Government submitted a report from the clinic which confirmed that the applicant was intoxicated. 12. On 28 July 2004 the Rîşcani District Court found that the applicant had been drunk and disorderly and was guilty of the administrative offences of insulting a police officer and disobeying the lawful orders of a police officer. The court fined her 18 Moldovan lei (MDL) (1.24 euros (EUR) at the time). 13. On 28 July 2004 the applicant was examined by a forensic doctor. She told the doctor that she had been beaten by three unknown men. On 2 August 2004 she was examined by a neurologist. The final medical report of 28 July 2004, as amended on 2 August 2004, stated, inter alia, that: “[The applicant’s] head concussion, multiple contusions of the soft tissues of the head, multiple bruises of 1x1 cm up to 7x5 cm on her arms, legs, right hemiabdomen, a scratch of 2x1 cm on her back, have been inflicted by blows with a blunt object, possibly at the indicated time and lead to a short-term health disorder /over 6, but not more than 21 days/ and are qualified as light bodily injuries.” 14. On 5 August 2004 the applicant appealed against the judgment of 28 July 2004. She pleaded her innocence and denied that she had been drunk. The applicant described the circumstances of her ill-treatment and attached a copy of the medical report of 28 July 2004. 15. On 11 August 2004 the Chişinău Court of Appeal upheld her appeal, quashed the judgment of the Rîşcani District Court on the ground of procedural mistakes and ordered a re-trial by the first-instance court. 16. On 8 December 2004 the Rîşcani District Court found the applicant guilty of insulting a police officer and fined her MDL 18. She appealed. 17. By a final judgment of 29 December 2004 the Chişinău Court of Appeal dismissed her appeal. 18. In the meantime, on 3 August 2004 the applicant had lodged a complaint with the Prosecutor’s Office. In the complaint she stated that on 27 July 2004 she had been beaten by three unknown men in the presence of police officers. She attached the medical report of 28 July 2004 and described in detail the circumstances of her case, providing the names of the two police officers who had been present during her ill-treatment. 19. Following the applicant’s complaint, the prosecutor of the Rîşcani Prosecutor’s Office interviewed her brother-in-law, AC, R and the civilian who had been present at the police station when the applicant arrived. On 30 September 2004 the prosecutor informed the applicant that AC had acted in accordance with the law and that her complaint had been dismissed on 28 September 2004 on the ground that there was a lack of “constitutive elements” of an offence. 20. On 7 October 2004 the applicant appealed to the Rîşcani District Court against the decision of the Prosecutor’s Office of 28 September 2004. She stated, inter alia, that the prosecutor had omitted to examine the witnesses’ statements which had been enclosed with the case file and the medical report of 28 July 2004. The applicant also submitted that she had been beaten by AC, R and another police officer (“C”) and that her ill-treatment had been witnessed by her nephew (“N”) and two other women (“OC” and “RC”). 21. The Rîşcani District Court considered the applicant’s submissions at an oral hearing. In the course of the hearing the applicant, her sister, and AC gave oral evidence. In her evidence to the court, the applicant’s sister stated that both she and the applicant had been beaten by three unknown men in plain clothes and that the events had been witnessed by police officers and by her son, N. In a final judgment of 14 February 2005 the Rîşcani District Court dismissed the applicant’s appeal. It found that the decision of 28 September 2004 had been lawful and that there were no legal grounds for its annulment. 22. The relevant provisions of the Criminal Code read as follows: Section 328 “An abuse of power, committed by an official, which exceeds the rights and duties provided by law and causes considerable damage to the rights of physical persons ... accompanied by acts of violence or by acts of torture and humiliation of the victim shall be punishable by imprisonment of three to ten years and by a prohibition on carrying out certain activities for a period of up to five years.” 23. The relevant provisions of the Code of Criminal Procedure read as follows: Section 313 “(1) If a party does not agree with the result of the examination of his or her complaint by the prosecutor, he or she shall complain to the investigation judge ... . (2) The parties have the right to lodge an appeal with the investigation judge ... against a refusal to institute criminal proceedings ... . (3) The complaint shall be addressed to the investigation judge ... within ten days. (4) The complaint shall be examined within ten days ... . (5) Provided that the complaint is substantiated, the investigation judge shall issue a decision ordering the prosecutor to remedy the violations of human rights and freedoms and, if appropriate, shall annul the [prosecutor’s decision]. (6) The decision of the investigation judge is irrevocable.” 24. The relevant provisions of the Civil Code read as follows: Section 1398 “Anyone who acts illegally and culpably in respect of another person, shall repair the pecuniary and ... the non-pecuniary damage caused by his or her actions or omissions....”