CASE OF LIPENCOV v. MOLDOVA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Non-pecuniary damage - award
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano
5. The first applicant was born in 1987, and is the son of the second applicant, who was born in 1966. They live in Chişinău. The first applicant was 17 years old at the time of the events giving rise to the present application. According to the second applicant, he has an intellectual impairment and has been medically supervised by a psychiatrist since childhood. In view of his condition, he received his schooling at home. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. According to police records, the first applicant was arrested by police officers at 10 a.m. on 24 October 2004 after they were called to a private apartment building where the applicant had already been apprehended by some of the residents. 8. According to the applicants, he had been taken to the building forcibly by two persons of his acquaintance who had accosted him in the street some hours earlier and assaulted him. Their intention had been to push him from the roof of the building, but their presence had been detected by three of the residents. Believing that there was a robbery in progress, these men seized the first applicant and beat him. He had already sustained some injuries when the police arrived. The applicants maintained that he received a further beating from the police. 9. According to the Government, at the time of his arrest the first applicant was already under police suspicion of having committed a number of thefts. An ordinance had been issued against him charging him under Article 186(2) of the Criminal Code. As he had failed to present himself to the police to be informed of the charge, an ordinance to search for him was issued by a prosecutor on 22 October 2004. On the morning of 24 October the first applicant was caught in the act of theft inside an apartment building. As for his injuries, the Government speculated that these could have been caused by the persons who apprehended him, or may have been self-inflicted when the applicant had tried to conceal himself in a ventilation duct. 10. The applicants alleged that following his arrival at Ciocana police station, the first applicant was punched by police officers and beaten with rubber truncheons in an attempt to make him confess to a number of thefts. He was repeatedly sworn at and refused food, drink and access to the toilet. No medical treatment was provided for his injuries. 11. The second applicant stated that she came to the police station that same day to visit him and to give him food and clothes, but was not permitted to see him. The applicants maintained that the following day, 25 October, the first applicant was taken by the police to a marketplace for certain procedural acts. No lawyer was present. The applicant's other son witnessed this, and noted his brother's visible injuries. That afternoon, between 3 p.m. and 5.30 p.m., the first applicant was questioned by police officers in the presence of a lawyer as well as of the second applicant. During the interrogation, the first applicant complained of pain in his head and of strong nausea. It appeared to the second applicant that he had been badly beaten, and he was hungry. Despite his complaints, he was required to answer the questions put to him and was refused access to the toilet. After the interrogation he was returned to his cell, having received no medical assistance. 12. On the morning of 27 October 2004, the second applicant returned to the police station, expecting that her son would be released by 10 a.m., which marked the end of the 72-hour period during which he could be detained without a court order. She was denied access to the building. The first applicant was again taken to the marketplace for undisclosed purposes. He was brought back at 3.20 p.m. The second applicant, assisted by three lawyers from the Helsinki Committee for Human Rights in Moldova, requested the first applicant's release, which was initially refused. According to police records, he was eventually released at 4.30 p.m. that day. 13. The day after his release, the first applicant underwent a medical examination. This recorded a bruise covered with a red-brown crust measuring 2x1 centimetres on the right side of his head, and an adjacent one measuring 3x2 centimetres. A similar bruise measuring 2x0.7 centimetres was found in his right parietal region. Multiple oval bruises were found on his right, central and left lumbar region, covered by a brown crust and each measuring 7x0.8 centimetres. The doctor noted the first applicant's explanation of what happened to him (see paragraphs 8 and 10 above) and concluded that this was consistent with the injuries recorded. The applicant attended a hospital for treatment for eight days. 14. The second applicant made several written complaints to the authorities regarding the events set out above. On 26 October 2004 she complained to the Prosecutor General's Office and to the investigating judge of the ill-treatment of her son by the police. She referred to his intellectual disability and to the fact that he was a minor. On 5 November 2004 she lodged a complaint with the investigating judge and described the events of 27 October 2004. She referred, inter alia, to Articles 165 (1) and 166 (4) of the Code of Criminal Procedure (see below) and asked that those responsible for abusing her son be punished. On 9 November 2004 the second applicant complained to the Prosecutor General's Office that her apartment had been searched the previous day by the police, who had refused to identify themselves or show a search warrant. She requested that those responsible be identified and punished. 15. All of these complaints were investigated by prosecutor S. of the Ciocana prosecutor's office. He interviewed the applicants, other family members, the lawyer who attended the interrogation on 25 October, the applicants' neighbours, and the police officers involved. By a letter of 13 December 2004 the prosecutor informed the second applicant that he had decided not to initiate a criminal investigation since there was no evidence that the police had committed a crime. He added that “in view of the irregularities that have been allowed, a note was sent to the Ciocana police station”. 16. On 28 December 2004 the second applicant challenged the prosecutor's decision before the investigating judge. In her complaint, she ; that she had been refused access to him; that he had been detained for more than 72 hours contrary to the law; and that an unlawful search had taken place at the applicants' apartment on 8 November 2004. She criticised the prosecutor's answer as very general. Although he mentioned that the police had committed “certain irregularities”, he had not explained what these were and had not provided a copy of the note sent to the Ciocana police station. Moreover, the prosecutor had not sent a reasoned decision, as required by law. The complaint referred to both the substantive and procedural obligations of the authorities under the Convention in respect of the first applicant's ill-treatment and the obligation to respect the inviolability of their home. 17. On 6 January 2005 the investigating judge of the Ciocana District Court rejected the complaint as unfounded. He found that the first applicant had been accused of a number of thefts and that all the investigative acts had been carried out within the framework of lawfully conducted criminal proceedings. Since the first applicant had failed to appear before the investigator after several summonses had been sent to him, it had been necessary to be compel his attendance at the police station. All procedural acts that had required authorisation had been properly authorised. Moreover, the prosecutor had fully and objectively verified the complaints concerning ill-treatment and had found no confirmation of the allegations. 18. That decision was final. It was sent to the second applicant on 21 January 2005 and reached her on 27 January 2005. 19. The relevant domestic law has been set out in Mancevschi v. Moldova (no. 33066/04, § 26, 7 October 2008). 20. In addition, the relevant provisions of the Code of Criminal Procedure read as follows at the material time: “1. Short-time arrest is the deprivation of liberty for a short period, but not exceeding 72 hours, in accordance with the law. ...” ... 4. Detention of a person in accordance with the present Article cannot exceed 72 hours from the moment when the deprivation of liberty started.” 21. The European Committee for the Prevention of Torture has visited Moldova several times, and has inspected Ciocana police station. The following extract, taken from the report of the visit of 27-31 July 2009, is relevant to the present case: “29. The right of persons in police custody to have access to a doctor (including to one of their own choice), is still not expressly guaranteed by law. In the report on the 2007 visit, the CPT considered that the form of words in Section 64, paragraph 2, sub-paragraph 15 of the CCP (i.e. the right “to submit requests, including for independent medical assistance”) fell short of meeting the Committee's long-standing recommendation in this respect. Many persons who were in police custody in the context of the April 2009 events complained that, despite repeated requests for independent medical assistance, they had been refused such assistance. In some cases, police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned. Further, it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it. Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill-treatment, but it may also have serious repercussions on the health of persons in police custody. Clearly, access to an independent doctor should not be left to the discretion of police officers.”