CASE OF CIORAP v. THE REPUBLIC OF MOLDOVA (No. 5)
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Ján Šikuta;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
6. The applicant was born in 1965 and lives in Chișinău. 7. The applicant was serving a sentence of eleven years’ imprisonment in Prison no. 13 in Chișinău. On 28 October 2006 he and five other detainees were in cell no. 20, reserved for the medical treatment of detainees with mental problems. Three of them, including the applicant, had a Category 2 disability. The applicant’s diagnosis was, inter alia, personality disorder. 8. At around 3 p.m. several men entered the cell to search for prohibited items. Some of the men wore dark masks and they were armed with rubber truncheons and metal shields. They ordered everyone out. According to the applicant, the masked men shouted at the detainees and insulted them, while hitting and pushing them. The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell. While in the corridor the detainees were ordered to stand with their faces to the wall. The search lasted for approximately half an hour. One prison officer recorded the events on video. 9. The detainees were then ordered back into the cell. According to the applicant, when he saw their possessions, including food brought to them by their relatives, medication and documents, scattered on the floor and in total disorder, he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused. He was then hit and thrown to the floor, kicked in the stomach, and the cell door was slammed with force while his foot was between the door and the doorpost, causing him great pain. His reading glasses fell to the ground and were smashed by one of the masked men. The Government submitted that no force had been used and that the cell had been left in good order. 10. After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in Chișinău at around 7 p.m. The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone. His foot was then put in plaster. 11. On 31 October 2006 the applicant complained about ill-treatment to the Prosecutor General’s Office, the military prosecutor’s office and other State authorities. Four other detainees who had been held in the same cell made similar complaints. 12. On 28 November 2006 the applicant was examined by another doctor, who confirmed the diagnosis of a broken bone and found a haematoma on his right foot, corresponding to signs of violence and leading to long-lasting health problems (over twenty-one days). Further forensic examinations were carried out on 1 and 28 December 2006 and 3 May 2007. According to the applicant, these certificates confirmed that he had suffered an injury to his right foot. According to the Government, a further forensic examination carried out on 31 October 2007 contradicted the results of the previous ones, finding no conclusive evidence that the applicant had had a broken bone. The parties did not submit full copies of the last three reports mentioned above. 13. On 6 December 2006 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the complaints made by the applicant and other detainees. 14. On 8 December 2006 a prosecutor from the Chișinău Prosecutor’s Office started a criminal investigation into the applicant’s allegations. 15. Between 28 November and 5 December 2007 several individuals, members of the “Pantera” special forces battalion who had taken part in the action of 28 October 2006, were charged with exceeding their powers by using excessive force against the applicant. 16. On 15 February 2008 a prosecutor from the Chișinău Prosecutor’s Office discontinued the criminal investigation. He found that on 28 October 2006 the applicant had disobeyed lawful orders of the prison staff during the search of his cell, acted provocatively, and refused to return to his cell. He had had to be taken there by force. Moreover, it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill-treatment. The prosecutor noted that the applicant and four other detainees in cell no. 20 had confirmed, in their complaints and statements made to the investigator during the criminal investigation, that the masked men who had entered the cell on 28 October 2006 had caused great disorder, had insulted the detainees, and had hit them with rubber truncheons. 17. According to the statement of detainee S.B., on 28 October 2006 the detainees were taken out of cell no. 20 and ordered to stand facing the wall for approximately half an hour while their cell was being searched. They were then moved back to their cell, again by force. S.B. witnessed one of the masked officers slamming the cell door and crushing the applicant’s foot, threatening to break his hands if he continued to write complaints. Having watched the videotape of the search, S.B. submitted that the filming was selective, not showing the acts of violence in order to shield those who had carried them out from responsibility. At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident. 18. Detainees A.G., V.Z. and B.I. made similar statements, each declaring that he had been personally hit and insulted and that the applicant’s foot had been shut in the cell door. The applicant’s statement was similar to those of the other detainees. He added that the video footage shown to him was only about six minutes long, while the entire event had lasted for approximately thirty minutes. Moreover, the various parts of the film were clearly not in chronological order. 19. One detainee, (V.S.), who had been taking his daily exercise during the search, confirmed seeing upon his return great disorder in the cell, with all the food and personal items broken up and thrown to the ground, and the detainees cleaning up the mess and complaining about being hit during the search. 20. Another witness, a member of the prison staff (I.V.), stated that he did not see any violence towards the detainees or any disorder being created in cell no. 20 during the search of 28 October 2006. Another member of the prison staff (P.P.), who was the head of the medical unit of Prison no. 13, stated that after the search on 28 October 2006 he saw disorder in cell no. 20, but did not see any food on the ground. The search lasted for approximately thirty minutes. He did not see the detainees re-enter their cell, but heard the conflict between the applicant and the masked men. He did not see any violence being used, but could admit that force had been used. Later on the applicant complained of pain in his foot and was taken to the emergency hospital, from which he returned with his foot in plaster. 21. According to witness A.P., who worked as a nurse in Prison no. 13, on 28 October 2006 she came to work at 4 p.m. and was called to cell no. 20, where the applicant was complaining of sharp pain in his foot. He was then taken to hospital by ambulance and returned with his foot in plaster. The cell was in disorder; the patients were agitated and were asking for urgent medical assistance for the applicant. During the initial examination A.P. found that the applicant’s foot was seriously swollen. He then told her that he had been hit by the officers during the search. 22. Witness E.B., a medical assistant in Prison no. 13, stated that she had not seen any of the events and had only heard the noise. She was later told by A.P. that after the search the applicant had asked for medical assistance to treat his foot. 23. According to witness P.C., a supervisor in Prison no. 13, on 28 October 2006 he was informed that someone was asking for medical assistance in cell no. 20, and sent A.P. there. When he himself entered the cell P.C. saw personal belongings and food scattered on the ground. The applicant then told him that the masked men had caused the disorder and had beaten them up, and that his foot hurt as a result of that beating. He also declared that during that day the applicant had not made any complaints about his state of health, but immediately after the search had complained of sharp pain in the foot. He was limping when he was taken to the ambulance. 24. According to witness M.M., a feldsher (paramedic) in Prison no. 13, on 28 October 2006 at 5 p.m he saw the applicant, who complained that he had been beaten up earlier, during the search. M.M. did not see any visible injury on the applicant’s body; the applicant could move his feet freely, but his right foot was swollen in the ankle area. The applicant limped when taken to the ambulance. 25. Three witnesses (A.V., O.H., and V.D.), all members of the prison staff, declared that they did not witness any violence against the detainees, or any disorder in cell no. 20. 26. (V.N.) stated that he had filmed “certain parts of the search” on a video recorder, using an 8 mm video cassette. He had not witnessed any disorder or violence towards the detainees. 27. Witnesses V.B. and I.I., who coordinated the actions of the various groups of prison staff and the Pantera special forces regiment (the masked men), declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with. Only the applicant had been uncooperative, but he was eventually persuaded to return to the cell without using force. 28. The prosecutor’s decision further analysed several reports in the file, including a report confirming the destruction of the applicant’s reading glasses. A video filmed by V.N. during the event, lasting for six minutes and thirty-six seconds and registered on a compact disk, showed the detainees leaving their cell voluntarily; the presence in the cell of masked men; the applicant’s request to be allowed to take his belongings with him and the refusal of that request; it showed various objects in the cell and the presence in it of detainee V.Z. The cell was in good order. The next scene showed the applicant refusing to comply with I.V.’s order to return to the cell. The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called, affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event. The last scene showed the cell door being closed. Someone could be heard hitting the door from the inside and the applicant’s voice shouting “I’m going to kill myself, I’m going to cut myself” and “where is the map with documents, they took my map with documents”. 29. The prosecutor found that the video recording did not prove that violence had been used, and that the sound of the cell door being struck, heard at the end of the recording, allowed the supposition that the injury to the applicant’s foot could have been self-inflicted. 30. On 10 March 2008 the deputy Prosecutor General quashed the decision of 15 February 2008 and ordered a more thorough investigation. 31. On 17 April 2008 a prosecutor discontinued the criminal investigation, essentially for the same reasons as those mentioned in the decision of 15 February 2008. 32. By a final decision of 12 August 2008 an investigating judge of the Buiucani District Court upheld the decision of 17 April 2008. The judge found that while the law allowed complaints about violations of fundamental rights and freedoms, the applicant’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings. However, the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial. 33. The applicant lodged an extraordinary appeal (recurs în anulare) to the Supreme Court of Justice, and asked for the decision of 12 August 2008 to be quashed. 34. On 1 October 2009 the Supreme Court of Justice rejected his request, finding that the Buiucani District Court had adopted a lawful decision after analysing the evidence in the file.