CASE OF IPATE v. MOLDOVA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
5. The applicant was born in 1971 and lives in Chişinău. 6. According to the applicant, he was in pre-trial detention in Prison no. 13 in Chişinău (previously known as Prison no. 3) when he was approached on 2 May 2006 by a prison officer and requested to move to cell 121. The applicant refused to do so until he was given an explanation for the reason for his transfer. 7. On 3 May 2006 three officers approached him and requested him to follow them. As they reached cell 121 he was ordered to go into that cell, which was empty. He refused, asking for an explanation from the prison administration, but was then allegedly assaulted by the officers, helped by two other staff members, who punched and kicked him and hit him with rubber truncheons, then banged his head against the wall, causing him severe pain. They swore at him and told him that they were fed up with his complaints about various alleged violations of his rights. When he could no longer resist, he was pushed into cell 121, where he ran to the window and broke it, took a piece of glass and slit his wrist in the hope that that would stop the ill-treatment and would ensure a visit from a doctor. However, the assailants continued to beat him up in the cell, and then took him to a psychiatrist. 8. According to the Government, the applicant refused all medical assistance on 3 May 2006. According to the applicant, he refused assistance from the doctors of Prison no. 13, who were his attackers’ colleagues and could not be trusted to be independent and impartial in their findings. 9. On 4 May 2006 the applicant complained to the governor of Prison no. 13 that he had been ill-treated by prison staff and asked to be seen by medical experts and by representatives of Amnesty International. He declared himself to be on hunger strike until those visits took place. On the same day, the prison administration informed the Ministry of Justice that the applicant was on hunger strike and of the reasons for that form of protest, namely a request to be visited by Amnesty International and a medical expert. 10. On 5 May 2006 the applicant’s complaint of ill-treatment was registered with the Prosecutor General’s Office. 11. On 12 May 2006 the applicant stopped his hunger strike, informing the prison administration that the reason was his poor state of health. He referred to the failure to allow him to be seen by a medical expert or Amnesty International. On the same day, the prison administration informed the Ministry of Justice that the applicant had stopped his hunger strike. 12. Also on 12 May 2006 the applicant complained to the Ministry of Justice that he had been ill-treated. In reply, the head of the Prison Department of the Ministry of Justice informed the applicant that his complaint had been examined and found to be untrue. In fact, owing to his refusal to comply with the lawful order to move to cell 121, he had been taken there after being handcuffed. 13. On 15 May 2006 the applicant was transferred to Criuleni police station so that he could attend a hearing of his criminal case on 18 May 2006 in that town. Excerpts from his medical file from his stay in that prison included the following statements: On 16 May 2006: multiple cuts on his left hand; the applicant complains of pain in the thoracic region and the back; need for an examination by a traumatology doctor and a neurologist and for an X-ray of the thoracic region. On 21 May 2006: the patient declares that three weeks ago he was ill-treated by the staff of Prison no. 3 in Chişinău, when he was kicked in the ribs and liver. At present he complains of pain in the region of ribs nos. V-IX on the right side, with greater pain when breathing in or during physical effort. Recommendation: X-ray of the thoracic region in order to exclude broken bones. On 26 May 2006: the applicant complains of pain in the left leg, where there is a brownish-grey haematoma measuring 14 x 7cm. On the left hand there is a haematoma measuring 3 x 2 cm and a moderately severe graze measuring 3.2 x 0.2 cm covered with a brown-red crust under the skin. 14. During the court hearing on 18 May 2006 the applicant complained of ill-treatment on 3 May 2006 and asked to be seen by a medical expert to have his injuries confirmed. The court decided to request the doctor from the Criuleni police station to examine the applicant. It also instructed the applicant to ask for a medical examination at Prison no. 13 on his return there. 15. On 30 May 2006 the applicant made another complaint of ill-treatment to the Prosecutor General’s Office. He mentioned, inter alia, his request to be seen by a medical expert, which had been refused. He also stated that he had at least seven witnesses who could confirm his statements. 16. According to excerpts from the applicant’s medical file in Prison no. 13, on 3 May 2006 a medical report was produced which stated “the applicant categorically refused to undergo a medical examination”. On 30 June 2006 another medical report was produced, which stated that the applicant had six cuts on his hand. 17. According to documents submitted by the Government, the applicant is considered a violent person prone to conflicts with the prison administration and other detainees, due to which conduct he has been disciplined on many occasions. One such disciplinary measure was applied in February 2006, after the applicant had attacked another detainee. All other disciplinary measures concern the events of 3 May 2006 and thereafter. In their subsequent observations, the Government acknowledged that a number of the decisions to discipline the applicant had been overturned, on procedural grounds, by the courts. 18. On 15 August 2006 the prosecutor’s office informed the applicant that on 14 August 2006 it had decided not to initiate criminal proceedings concerning his complaint of ill-treatment, since no crime had been committed. 19. On 4 December 2006 Criuleni District Court overturned the prosecutor’s decision of 14 August 2006 and ordered a re-examination of the case by the prosecutor. The court found, inter alia, that the prosecutor had not heard detainees identified by the applicant as having witnessed the ill-treatment. Moreover, no request had been made to Criuleni police station for the medical documents concerning the injuries noted on the applicant’s body when he was transferred to that prison on 15 May 2006. 20. On 2 February 2007 the prosecutor adopted another decision, refusing to initiate a criminal investigation into the applicant’s alleged ill-treatment. He noted that the applicant’s complaint had been received on 28 July 2006. He relied on the medical documents produced in Prison no. 13, which did not confirm the applicant’s allegation of ill-treatment on 3 May 2006. He also referred to the fact that the applicant was considered hostile to the prison administration, for which attitude he had been punished many times. Moreover, his resistance to the lawful orders of the prison staff on 3 May 2006, during which he had threatened the lives of prison staff, was the subject of an ongoing criminal investigation. 21. On 3 May 2007 the applicant asked the governor of Prison no. 13 for the video recording of the events of 3 May 2006. He submitted that he had made similar requests on 18 September, 30 October and 13 November 2006, but had received no response. 22. On 8 June 2007 Rîşcani District Court quashed the decision of 2 February 2007, finding that the prosecutor had disregarded the court decision of 4 December 2006 by failing to ask for the medical documents and not hearing the witnesses identified by the applicant. Moreover, the applicant had submitted transcripts of court hearings during which those witnesses had confirmed the applicant’s statements concerning ill-treatment. The court ordered a re-examination of the case by the prosecutor. 23. On 13 July 2007 the prosecutor adopted another decision, refusing to initiate a criminal investigation into the applicant’s alleged ill-treatment. The prosecutor relied on the same arguments as those in his decision of 2 February 2007. In addition, he referred to two witnesses (A.F. and I.C.) who had declared that they and others had been asked by the applicant to sign a petition declaring that they had witnessed his ill-treatment. They had not seen any ill-treatment, but had signed “to do him a favour”. Since the applicant was being examined by a psychiatric panel, it had been impossible to obtain further details from him. 24. On 15 November 2007 Rîşcani District Court rejected the applicant’of the staff of Prison no. 13 and examining the applicant’s medical reports from that prison. Also, two witnesses (referred to in the previous paragraph) stated that they and everybody else in the cell had signed the petition supporting the applicant to do him a favour, but they had not seen any ill-treatment. One of them added that he had been in a cell near cell 121 and had heard screams, which had made him think that the applicant had been ill-treated, but he had not witnessed any ill-treatment. As for the alleged ill-treatment at Criuleni police station, that had already been investigated in a previous case and did not need to be investigated again. 25. Moreover, the applicant was considered hostile to the prison administration, an attitude for which he had been punished many times. In addition, his resistance to the lawful orders of the prison staff on 3 May 2006, during which he had threatened the lives of prison staff, was the subject of an ongoing criminal investigation. 26. On 2 May 2007 the applicant complained to the governor of Prison no. 13, asking for access to the video recordings made on 3 May 2006. In reply he was informed that such video materials were routinely destroyed thirty to forty-five days after the day of filming. 27. On an unknown date after the events on 3 May 2006 mentioned above, a prosecutor initiated criminal proceedings against the applicant for threatening officers of Prison no. 13 with violence. That case was joined with another case against the applicant, in which he was accused of murder. 28. During court hearings on 1 December 2006 and 16 and 18 January 2007 six witnesses were heard, who had been detainees in Prison no. 13 at the time of the events. Witness M.I. stated that he had been detained in cell 123b near cell 121, and had seen the applicant being kicked while on the ground by several prison staff members. He did not hear the applicant swear or throw anything; he had only been shouting at them to stop beating him and asking to be seen by the prison governor. Some ten detainees in his cell signed a petition in which they confirmed the applicant’s ill-treatment. Thereafter the prison staff started intimidating them. M.I. was personally threatened to induce him to declare that he had not seen anything. 29. Witness V.Gh. was detained in Criuleni police station when the applicant was detained there in a neighbouring cell. He could see the applicant when the latter was taken to the toilet, half naked, and saw that the applicant had several “apple-size” haematomas on his body. 30. Witness P.I. stated that on 3 May 2006 he was returning together with other detainees from outside the prison under escort and saw a detainee on the floor of cell 121, covered in blood, and being kicked by five or six prison officers. In the evening he was able to approach cell 121 and ask the person inside whether he needed anything. The person replied that he needed to be seen by a doctor. However, when P.I. told the doctor about that, the latter replied that he had been ordered not to go to cell 121. Another staff member then told him that the applicant was in cell 121. 31. Witness Z.Gh. stated that he had seen the applicant being taken somewhere by two prison staff members, with his hands behind his back, his face almost on the ground, and being beaten on the way. 32. Witness G.I. stated that he had been transferred to Criuleni police station on the same day as the applicant, and that they were placed together in the same cell. The applicant then told him about the ill-treatment and showed the signs of ill-treatment on his body. He was in a bad shape and could not sleep. 33. Witness S.N. had not seen the applicant in the relevant period and had only heard from another detainee that the latter had witnessed the applicant’s ill-treatment. 34. On 29 March 2007 the applicant was convicted of the murder of one person and the attempted murder of another. He was also convicted of threatening with violence five officers of Prison no. 13 who had been escorting him to another cell. In this latter respect, the court summarised the witness statements made by various prison officers and detainees (see paragraphs 28-33 above). The court considered that the detainees who had confirmed the applicant’s statements concerning his ill-treatment by the prison officers who accused him of threatening them, had made the statements to protect the applicant from criminal liability. 35. On 6 December 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the events of 3 May 2006 the court referred to the applicant’s punishment for breaching prison regulations on 3 May 2006 and the results of the medical examination of some of the staff attacked by the applicant on that day. It considered, like the lower court, that the statements by other detainees had been made with the aim of helping the applicant avoid criminal responsibility. The court added that the applicant’s complaints of ill-treatment had been the subject of a separate investigation, and that similar complaints were being examined. 36. On 16 April 2008 the Supreme Court of Justice upheld the lower courts’ judgments. That judgment was final. 37. On 20 October 2007 the applicant lodged a civil court action against Prison no. 13, the Prisons Department, the Prosecutor General’s Office and the Ministry of Finance, asking them to determine that he had been ill-treated on 3 May 2006 in Prison no. 13, and claiming damages. 38. On 22 May 2008 Botanica District Court rejected the applicant’s action as unfounded, finding that he could not claim any compensation without a criminal conviction of the prison officers he had accused of ill-treatment. During the hearing on that day the applicant noted that the prosecutor had been well aware of the existence of video materials, as well as that they had been destroyed very soon afterwards, but had done nothing to obtain the materials in order to substantiate his complaint of ill-treatment. In reply, a prosecutor representing the Prosecutor General’s Office informed the court that the prosecution had been aware of the fact that Prison no. 13 was under video surveillance, but had decided at that time that video recording was not necessary in view of the other materials in the file, which were sufficient to adopt a lawful decision. Moreover, the materials had been destroyed by the time the verification had taken place. 39. On 15 December 2008 the Chişinău Court of Appeal upheld the first-instance court judgment.