CASE OF PADURET v. MOLDOVA
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 3;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1979 and lives in Bozieni. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. At the time of the events, the applicant was a student at the State University in Tiraspol located in Chişinău. 8. On 3 February 2000 P. complained to the Centru Police Station in Chişinău that he had been robbed on 27 December 1999 by three unidentified persons. He suspected that one of those persons was the applicant. 9. A criminal investigation was initiated. On 31 March 2000 a student of the police academy, A.P., knocked at the applicant’s door at approximately 7.30 in the morning. Having opened the door, the applicant was forced to follow A.P. out to the street, where he was forced into a car belonging to P. Another student from the police academy, A.R., was waiting in the car. 10. According to the applicant, he received blows from A.P. and A.R. all the way to the Centru Police Station. Upon his arrival at the station, the applicant was taken up to office no. 508. The applicant alleges that he was ill-treated in that office by A.P. and A.R. and by another plain-clothed person, whose identity he did not know at the time. He made this complaint to the prosecution. 11. The applicant was invited to confess to having robbed P. When he refused, A.P. and A.R. tied his hands and feet together behind his back and he was suspended on a metal bar placed on two adjacent tables (a position called “swallow” akin to “Palestinian hanging”). He then received truncheon blows to the soles of his feet and was kicked and punched in various parts of his body. A gas mask was put on his face and cigarette smoke was blown into the air access tube, causing him to suffocate. That tube was later attached to his penis. His captors also inserted a glass bottle into his anus three times. At one time he lost consciousness. 12. Later on that day the applicant was taken to a prosecutor’s office. In view of clear signs of ill-treatment on the applicant’s body, the prosecutor ordered a medical examination to establish whether he had been ill-treated. 13. According to the applicant, the investigator responsible for the criminal investigation into P.’s complaint was officer O. This officer had never delegated any power of investigation or arrest to any other officer, including officers C., A.P. and A.R.. 14. On 3 April 2000 the applicant was examined by a group of forensic doctors, who found that he had been injured. In particular, he had a black eye and a bruise on his chest of 10 x 7 cm, and had suffered head trauma and anal damage. The doctors excluded the possibility that the injuries could have been sustained as a result of a fall. Later that day he was admitted to hospital with a diagnosis of head trauma. 15. On the same date the criminal investigation against the applicant was discontinued, but he was allegedly not informed about it until much later, on an unspecified date. 16. In a statement made on 12 April 2000 A.P. mentioned, inter alia, that while the applicant was being questioned a person who was not part of the police force, R.B., was also present. No violence had been used against the applicant, who had been arrested on the orders of investigator C. 17. On 15 June 2000 a criminal investigation was initiated against A.P. and A.R. 18. The applicant underwent two more medical examinations, on 28 June and 24 July 2000, which confirmed the injuries caused to him. The last examination concluded that it could not be excluded that the applicant had caused the injuries himself. 19. On 21 September 2000 an investigator decided to discontinue the criminal case against A.P. and A.R. for lack of evidence. On 29 November 2000 the applicant complained to a prosecutor about the discontinuation, noting that he had not been informed of it until he insisted on receiving an update on 21 November 2000. On 1 December 2000 the prosecutor annulled the investigator’s decision. 20. According to an order issued by the Minister of Internal Affairs on 26 August 1999, police academy students A.P. and A.R. had been temporarily authorised to act as police inspectors until 1 March 2000. On 25 December 2000 inspector C. was reprimanded for ordering A.P. and A.R. to arrest the applicant on 31 March 2000, despite being aware that they were no longer authorised to act as police inspectors, actions which led to bodily harm being caused to the applicant. 21. On 30 December 2000 a prosecutor decided to discontinue the criminal proceedings against A.P. and A.R. under Article 185 (2) of the Penal Code (abuse of authority, see paragraph 41 below) for lack of evidence and opened an investigation under article 116 (2) of the Penal Code for unlawful deprivation of the applicant’s liberty (see paragraph 41 below). 22. On 20 February 2001 a prosecutor decided to discontinue the investigation against A.P. and A.R. under Article 116 (2) of the Penal Code and to initiate an administrative investigation against them for causing minor injuries to the applicant. On 23 March 2001 the Centru District Court annulled that decision and sent the case file to the prosecution for re-qualification of the acts committed by A.P. and A.R. under the provisions of the Penal Code. 23. On 11 April 2001 the prosecutor annulled his decision of 30 December 2000 and sent the case file to the investigator for further investigation. 24. On 28 April 2001 the prosecutor decided that the actions of A.P. and A.R. came within the ambit of Articles 101 and 207 of the Penal Code (beating an usurpation of powers respectively, see paragraph 41 below). On 8 May 2001 the applicant asked the Prosecutor General’s Office for a re-qualification of the acts from beating to torture, as provided by Article 101/1 of the Penal Code (see paragraph 41 below). The applicant emphasised that he had been caused suffering with the aim of forcing him to confess to a crime which he had not committed. This could only be characterised as torture. On 14 May 2001 he made a similar complaint to the prosecutor in charge of the case. 25. A.P., A.R. and their lawyers failed to appear at the court hearing on 28 May 2001. At the next hearing on 4 June 2001, the applicant’s lawyer asked the court to re-qualify the acts committed by A.P. and A.R. from beating to torture. This request was rejected since the prosecution was responsible for such a re-qualification. 26. Further court hearings were held on 13 and 20 June, 9, 17 and 20 July, 17 and 26 September 2001. After the hearing of 26 September 2001 the applicant was arrested by the police on the orders of officer Adajii, who was a witness for the defence in the case against A.P. and A.R. The applicant lodged a separate complaint in respect of this arrest with the Court. The applicant also submitted that he had been openly insulted and intimidated in court by A.P. and A.R., who often came armed to court hearings, and by other police officers. 27. On 8 October 2001 the applicant lodged a civil action against A.P. and A.R. within the criminal proceedings. 28. On 27 November 2001 R.B. was called to court as a witness for the defence. The applicant identified R.B. as the plain-clothed person who had ill-treated him in office no. 508 alongside A.P. and A.R. He asked the prosecution and court to charge R.B. with the crime of torture, together with A.P. and A.R. On 29 November 2001 the applicant’s lawyer made a similar request. The lawyer complained that the investigators had not made sufficient efforts to verify the involvement of the third person in the applicant’s ill-treatment, referring to the consistent submissions the applicant had made since his first complaint about the participation of a third person in the events. They received no reply and no investigation was initiated in respect of R.B. 29. On 22 April 2002 the Centru District Court found A.P. and A.R. guilty as charged and sentenced them to two years’ imprisonment, suspended for one year. The applicant was awarded 1,235 Moldovan lei (MDL, equivalent to 102 euros (EUR)), to be paid by A.P. and A.R. 30. In response to a request by the Helsinki Committee of Human Rights in Moldova, on 14 May 2002 the Ministry of Internal Affairs confirmed that A.P. and A.R. had not been suspended from their positions during the investigation against them, based on the principle of presumption of innocence. 31. The applicant and the accused appealed. On 29 October 2002 the Chişinău Regional Court allowed the applicant’s appeal and awarded him MDL 11,058 (EUR 826) in respect of pecuniary and non-pecuniary damage. The applicant and the accused appealed. 32. On 26 December 2002 and 16 and 30 January 2003 the defence lawyer did not appear in court. The hearings were postponed each time. 33. On 6 February 2003 the Court of Appeal annulled the lower courts’ judgments and sent the case file for re-examination by the first-instance court, finding that the accused could not be tried for usurpation of powers. 34. Further hearings were scheduled for 20 March, 14 and 29 April, 13 May, 1 and 23 June, 5, 20 and 27 July and 2 August 2003. All except one of these hearings were postponed due to the absence of the prosecutor or the defence attorney. 35. On 26 March 2003 the Centru District Court sent the case file to the prosecution for re-qualification of the acts committed by the accused. According to the applicant, he was not informed about the course of the proceedings after that date. 36. On 7 April 2003 the applicant’s lawyer asked the prosecution to qualify the acts of the accused as torture. Having received no reply, she repeated the request on 25 August 2003 and subsequently complained to the Centru District Court that there had been no response from the prosecution. On 18 September 2003 a similar request was made to the same court. On 8 October 2003 the Centru District Court found that the prosecution had failed to respond to the applicant’s lawyer’s requests, for no reason. It ordered the prosecution to give an answer. 37. In August 2004 A.R. died. The applicant made numerous unsuccessful attempts to access the criminal file. He was not informed about the course of the proceedings. 38. On 10 June 2005 the Centru District Court acquitted A.P. of the charge of usurping police powers. He was sanctioned administratively and fined MDL 1,000 (EUR 65). The applicant was awarded MDL 2,263 (EUR 147) in damages. 39. On 8 December 2005 the Chişinău Court of Appeal partly quashed that judgment. The court found A.P. guilty under Article 101 of the Penal Code (see paragraph 41 below), but relieved him from criminal responsibility due to the expiry of the five-year limitation period applicable in his case. The court awarded the applicant MDL 15,000 (EUR 997). 40. That judgment was upheld by the Supreme Court of Justice on 30 May 2006. The judgment was final. 41. The relevant provisions of the Penal Code, applicable at the relevant time, read as follows: A person cannot incur criminal responsibility if the following periods of time have expired from the date of committing the crime: ... (3) five years from the date when the crime was committed for crimes which, under the present Code, are punishable with deprivation of liberty of up to five years; (4) ten years from the date when the crime was committed for crimes which, under the present Code, are punishable with more than five years of deprivation of liberty.” Causing physical or mental and emotional suffering through beating and other violent acts, if they did not result in damage mentioned under Articles 95 and 96 of the present Code, - shall be punished with deprivation of liberty for a period of up to three years. ...” Actions which intentionally cause pain or severe physical or mental and emotional suffering to a person, especially with the aim of obtaining from that person or from a third party information or confessions, punishing an act which that person or a third party has committed or is suspected of having committed, or intimidating or putting pressure on such a person or on a third party, or for any other reason based on a form of discrimination, regardless of the ground, when such pain or suffering is caused by an agent of a public authority or by any other person acting in an official capacity or is, expressly or implicitly provoked or condoned by such an agent, with the exception of pain or suffering which results exclusively from lawful sanctions and is inherent in such sanctions or is caused thereby, - shall be punished with deprivation of liberty for a period of between three and seven years” Unlawful deprivation of liberty, - shall be punished with deprivation of liberty for a period of up to a year. The same action, if it has endangered the victim’s life or health, or if it has caused physical suffering, - shall be punished with deprivation of liberty for a period of one to five years.” Abuse of authority or ultra vires acts, that is, acts by a public official which manifestly exceed the limits of the rights and powers given by law, shall, if they cause substantial damage to a public interest or to the rights and lawful interests of natural and legal persons, - be punished with either deprivation of liberty for a period of up to three years, or a fine of between 30 and 100 times the minimum salary, or with removal from office, in all cases accompanied by disqualification from occupying certain functions or engaging in certain activities for a period of up to five years. Abuse of authority or ultra vires acts, accompanied by acts of violence or the use of a weapon or by acts of torture and which harm the victim’s personal dignity, - shall be punished with deprivation of liberty for a period of three to ten years, and disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.” Usurpation of the powers or title of a public official, and the carrying out of socially dangerous acts on that basis, - shall be punished with deprivation of liberty for a period of up to two years or with a fine of up to thirty times the minimum salary.” 42. The Code of Ethics and Deontology for the Police was adopted on 10 May 2006 (Law no. 481, in force since 18 May 2006). According to that Code, it is prohibited to ill-treat and to tolerate or encourage ill-treatment and inhuman or degrading treatment or punishment “regardless of the circumstances”. 43. At its thirtieth session (8-9 May 2003) devoted to the consideration of reports submitted by States Parties to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Committee Against Torture examined the initial report submitted by the Republic of Moldova (document CAT/C/32/Add.4 30 August 2002). In paragraph 72 of that report the Moldovan Government stated: “Another example of illegal actions is the case of the citizen Paduret - a student at the State University in Tiraspol, evacuated to Chisinau - who was arrested by police and brought to the police station of the Centre district charged with committing an offence. He was beaten, tortured and later released. A case was brought by the General Magistracy, but it was filed and disposed of without informing the suspect. The Helsinki Committee made a complaint to the General Magistracy and the file was reopened, but the expedition of the file to the court is delayed.” 44. The relevant parts of the CPT report concerning its visit to Moldova from 10 to 22 June 2001 read as follows: “25. As indicated in paragraph 13 above, in response to the deterioration in the situation, the delegation invoked Article 8, paragraph 5 of the Convention to request the Moldovan authorities to carry out, without further delay, a thorough and independent inquiry into the methods used by operational police units throughout the country during the questioning of detained persons. In their letter dated 5 November 2001, the Moldovan authorities simply indicate that ‘the Ministry of Interior declares that it is not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police’ and recalls the procedures in force in case of complaints of ill-treatment. Such a position is, in the view of the Committee, clearly untenable, considering all the information gathered during the 2001 visit. With reference to Article 3 of the Convention, the CPT urges the Moldovan authorities to carry out without delay the aforementioned investigation and to inform the Committee, within three months of transmission of the report on the 2001 visit, of the results thereof.” 45. The relevant parts of the response submitted on 26 June 2002 by the Moldovan Government to the 2001 CPT report read as follows: “28. The CPT would like comments from the Moldovan authorities concerning the development of modern methods of investigation. In this respect, regretfully, no progress has been achieved. 29. The CPT would like to obtain information on the progress achieved in drafting a Code of Deontology for the police. To our great regret, no progress was achieved in this respect.”