CASE OF DORNEAN v. THE REPUBLIC OF MOLDOVA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1951 and lives in Trinca. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. Having divorced his wife, the applicant has continued to live in an annex to the same house as her and their children, some of whom are adults. He has a hostile relationship with them and all of his former in-laws. 8. On 30 May 2005 he wrote to the Prosecutor General’s Office, listing the many complaints that he had previously lodged with various authorities (including the police) of having been ill-treated by his ex-wife and children, the destruction of his property by them, and the failure of the local police to react in any manner. In reply, on 21 June 2005, he was informed that the local prosecutor’s decision not to initiate a criminal investigation had been annulled; the case was then sent for re-examination by the local prosecutor’s office. 9. On 31 March 2006 the applicant was examined by a medical expert, who found an excoriation on his right hand. He explained that he had been struck by his son. 10. On 15 May 2006 the applicant was examined by a medical expert, who determined that three of his teeth were loose and found a contusion of one of the fingers on his right hand. He explained that he had been again struck by his son. On 26 June 2006 the Edineț prosecutor’s office informed the applicant that it had decided not to initiate an investigation into the alleged attack by his son (D.V.). 11. The applicant lodged another complaint with the Edineț prosecutor’s office on 31 August 2006, stating that he had been again attacked by his children and ex-wife; during that attack they had also threatened to kill him and destroy or throw away his property if he did not leave the house. He lodged a further complaint on 19 September 2006, but was subsequently informed that it had been decided not to initiate a criminal investigation. 12. In a letter dated 12 December 2006 the head of Edineț police station informed the applicant’s brother that, on a date not indicated in the letter, “a cautionary discussion” had been conducted with the applicant’s ex-wife and that she had been “officially warned to change her conduct” towards the applicant and his brother. 13. On 27 December 2006 the applicant’s ex-wife and children allegedly assaulted him at their home. His left elbow was allegedly broken. According to the applicant, he called the police immediately after the incident and was told that they did not deal with such matters. The next day he went to the local doctor, B., who referred him to Edineț Polyclinic for examination (including an X-ray examination, which was carried out on 28 December 2006). With the results of that examination he went to a medical expert on 29 December 2006. 14. According to a medical report dated 29 December 2006 the applicant sustained a fracture of the upper third of the radial bone in his left elbow, as confirmed also by the X-ray images. The injury was considered to be of medium severity and requiring more than twenty-one days of treatment. According to the report, the injury had been caused by a blunt object, possibly in circumstances such as those described by the applicant. According to medical documents submitted by the applicant, he saw a doctor, T., on 28 and 29 December 2006, and on 4 and 17 January, 7 and 22 February and 6 March 2007 and was given prescriptions for medicine to treat his left elbow. 15. On 5 January 2007 the applicant lodged a complaint with the police about ill-treatment by his ex-wife and three of his children, including D.V. On 12 January 2007 he was informed that it had been decided not to initiate a criminal investigation. On 29 January 2007 the investigating judge of the Edineț District Court dismissed the applicant’s complaint, finding that the facts complained of were being investigated by the Edineț police. On 2 February 2007 a prosecutor initiated a criminal investigation into the applicant’s alleged ill-treatment by his ex-wife and children (including D.V.). On 1 March 2007 he was officially recognised as the victim of the alleged crime. 16. On 6 March 2007 the prosecutor requested that a new expert medical report be drawn up in order to assess the severity and origin of the applicant’s injury. He noted that the applicant had alleged that he had been struck by his ex-wife and children (including D.V.). On the same day a new medical report was drawn up which confirmed the previous report’s findings. 17. On 23 March 2007 the prosecutor interviewed a witness who stated that he had worked with the applicant on 12 January 2007, cutting wood at the local priest’s house. He had not seen any injury or sign of pain on his hand. A similar statement was given on 3 March 2007 by another participant in the wood-cutting. Another witness stated that he had seen the applicant cutting wood on 12 January 2007 at the local priest’s house, while three other persons were taking a rest. On 10 April 2007 T., the doctor who had seen the applicant on 28 December 2006 (see paragraph 14 above), was questioned as a witness and declared that he had seen a contusion on his body and another contusion on the left elbow, but had not identified any broken bones. He stated that the description contained in the medical report dated 29 December 2006 of the X-ray images taken on 28 December 2006 (see paragraph 14 above) was incomplete, as it did not indicate the exact location of the broken bone. T. himself did not see in the X-ray any sign of such trauma. 18. On 2 May 2007 the prosecutor ordered another medical report to be prepared by a medical commission, because the applicant’s wife disagreed with the results of the first two reports and argued that he had been fit after the alleged assault. On 7 May 2007 the head of the Forensics Department at the Centre of Forensic Medicine (“the Centre”) asked the prosecutor to submit the X-rays of the applicant’s elbow in order to allow the report to be prepared. In the absence of a reply, the doctor repeated his request on 14 September 2007, adding that the report could not be prepared without the X-ray results. 19. On 20 September 2007 the applicant was questioned by the investigator, who proposed that he submit the X-ray images taken on 28 December 2006 for examination by the medical commission. The applicant refused, stating that he did not trust the police. 20. On 4 December 2007 the Centre returned all relevant documents to the prosecutor, informing him that, in the absence of the applicant’s X-ray results, it had been impossible to carry out the examination. 21. On 19 March 2008 the prosecutor discontinued the investigation, finding that the applicant had often provoked quarrels with his ex-wife and children, and that they denied having caused him any injuries (they were examined as witnesses on 19 January and 8 February 2007, and on 15 March 2008.) The prosecutor also referred to the statement given by doctor T. (see paragraph 17 above), whom the applicant had asked for help and who had found bruising on the applicant’s body and on his left elbow, but no bone fractures. The prosecutor furthermore noted that the applicant had only gone to the medical expert on 29 December 2006 and not immediately after the incident. Lastly, the applicant had refused to submit his X-ray results, thus preventing the medical commission from drawing up its report. 22. On 10 April 2008 a higher-ranking prosecutor annulled the decision of 19 March 2008 as premature and taken without the origin of the applicant’s injury having been established. 23. On 17 May 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 23 June 2008 the investigating judge of the Edineț District Court annulled that decision. The judge found that the investigator had ignored the prosecutor’s conclusion in the decision of 10 April 2008 and had limited his investigation to interviewing the applicant’s children and members of his ex-wife’s family, who all had a hostile relationship with him and who, moreover, had given somewhat different versions of the incident of 27 December 2006. Furthermore, one of the doctors (T.) had been interviewed only superficially, another doctor who had seen the applicant after the incident had not been interviewed at all, and a third doctor who had taken the X-ray of the applicant’s elbow had also not been interviewed. Another expert medical report had been ordered on 2 May 2007 without first observing the victim’s rights, such as being able to contribute to the questions asked of the experts. Lastly, the applicant had not been informed that he could submit the X-ray results directly to the Centre. 24. On 21 November 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 3 December 2008 a higher-ranking prosecutor annulled that decision for reasons similar to those relied on by the investigating judge (see paragraph 23 above). He also found that the investigative actions had been “extremely superficial” and had had a “tendentious, unilateral character”. 25. On 20 March 2009 the applicant agreed to submit the X-rays taken on 28 December 2006 to the investigator. On 7 April 2009 the prosecutor ordered that a new expert medical report be drawn up by the Centre, to be based on those X-rays. 26. On 21 October 2009 the Centre informed the prosecutor that the applicant’s X-rays were of poor quality and that the applicant would have to have a new X-ray taken. On 2 December 2009 the applicant was asked to undergo a fresh X-ray examination. The medical commission drew up its report on 9 December 2009 and found signs of a fracture in the upper third of the applicant’s radial bone in his left elbow. The commission also concluded that this type of injury could have been caused in the manner described by the applicant, but could also have been self-inflicted. 27. On 30 June 2010 the prosecutor discontinued the investigation, essentially for the same reasons as those for which he had discontinued it previously, adding that the medical reports did not exclude the possibility that the injury had been self-inflicted. That decision was confirmed by a higher-ranking prosecutor on 17 December 2010. 28. On 25 July 2011 the investigating judge of the Bălți District Court upheld the decisions of 30 June and 17 December 2010. The judge found that the investigator had undertaken all possible measures to investigate the case, and that the witnesses had not confirmed the applicant’s version of the events and had even contradicted it by stating that on 12 January 2007 they had been out cutting wood with the applicant and had not observed any injury to his elbow. 29. In a medical report dated 15 August 2007 a doctor recorded an oval light-violet ecchymosis measuring 6 cm by 4 cm on the applicant’s forehead and an excoriation measuring 2 cm by 1 cm and covered with a red crust, as well as pain in the cervical column and the right side of the thoracic region. The applicant explained that he had been beaten by his ex-wife and daughter. 30. In another medical report dated 21 August 2007 a doctor recorded an excoriation on the applicant’s head measuring 2 cm by 1.5 cm and covered with a red crust. He explained that he had been hit on the head by his ex-wife the day before. 31. The applicant submitted similar medical reports, dated 13 September and 12 November 2007, which recorded various excoriations and bruises. Each time he explained that he had been beaten by his ex-wife and children.