CASE OF COLIBABA v. MOLDOVA
Violation of Art. 3 (ill treatment while in detention and failure to conduct an effective investigation);Not necessary to examine Art. 13;Reminder inadmissible;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses - partial award (Convention proceedings)
Nicolas Bratza
5. The applicant, Mr Vitalie Colibaba, is a Moldovan national who was born in 1978 and lives in Chişinău. 6. On 21 April 2006 the applicant was arrested on charges of assaulting a police officer. 7. On 25 and 27 April 2006 the applicant was allegedly tortured by police officer I.M. and two other police officers in order to extract a confession from him. According to the applicant, his hands and feet were tied together behind his back and a metal bar from a coat hanger was passed under his arms. The metal bar was placed on two chairs and his body was suspended for more than forty minutes. His hands had been covered with cloth so that no traces of rope would remain on them. Loud music was played so that his cries would not be heard. While being suspended in this manner, his head was covered with a coat and he was beaten with a chair on the back of his head. These acts of brutality were accompanied by verbal and psychological aggression. The Government contested the allegations of ill-treatment. 8. The same day, after being taken to his cell, the applicant attempted to commit suicide by cutting his veins. However, his attempt was not successful and he was taken to hospital. 9. On 27 April 2006 the applicant was allowed for the first time to have contact with his lawyer, but only in the presence of police officers. The applicant complained to the lawyer that he had been tortured. 10. According to the applicant, as a retaliatory measure for his complaint to the lawyer, the same evening he was again tortured. He was hit on the head with a two-litre plastic bottle full of water and also punched and kicked. The Government disputed these allegations. 11. On 28 April 2006 the applicant's lawyer lodged with the Buiucani prosecutor's office a criminal complaint concerning the alleged ill-treatment of the applicant. 12. On 29 April 2006 the applicant was taken by the police officers who had allegedly ill-treated him to the Centre of Forensic Medicine, where he underwent a medical check-up in their presence. His lawyer was not present and, according to the applicant, the medical examination only lasted several minutes and was superficial. 13. The medical report issued by the Centre of Forensic Medicine was dated 28 April 2006 and concluded that besides the injury caused by his attempted suicide, the applicant did not have any other signs of violence on his body. 14. On 30 April 2006 the Buiucani prosecutor's office ordered that police officer I.M. be removed from the applicant's case on account of the latter's complaint alleging ill-treatment. The police officer was prohibited even from accompanying the applicant to and from the detention centre. The removal was justified by the need to ensure the objectivity of the investigation into the applicant's complaints. 15. On 2 May 2006 the applicant's lawyer requested the prosecutor of the Buiucani District to authorise the applicant to undergo, inter alia, neurological, ophthalmological, psychiatric and other medical examinations. He requested that the medical examinations be carried out by independent doctors in the presence of the applicant's relatives. This request was refused. 16. On 3 May 2006, following complaints by the applicant's lawyer, Amnesty International organised action in support of the applicant by publishing on their Russian internet site a description of the applicant's case and an appeal to people from all over the world to write to the Prosecutor General of Moldova, the Moldovan Ministry of Internal Affairs and the Moldovan Embassy in their country asking them to take action, such as conducting a medical examination of the applicant and carrying out an effective investigation into his complaints of torture, and allowing the applicant to meet his lawyer in conditions of confidentiality. 17. Following Amnesty International's action, the Moldovan authorities received twenty-seven letters from different countries and the applicant's case was widely reported in the mass media. 18. On 16 May 2006 the applicant was released from detention. On the same day he sought medical assistance at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have been subjected there to detailed medical tests and examinations by various medical specialists. In a document entitled “Extract from the medical file” (“Extras din Fişa Medicală”), dated 16 June 2006, issued by the Centre, it was stated, inter alia, that the applicant had suffered the consequences of cranial trauma, post-traumatic otitis and mixed deafness on the right side and hypoacusis (slightly diminished auditory sensitivity, with hearing threshold levels above normal) on the left side. 19. On 18 May 2006 the applicant underwent a medical check-up at the Institute of Neurology and Neurosurgery of the Ministry of Health. It appears that he was directed there by doctors from the “Memoria” Rehabilitation Centre for Torture Victims who had diagnosed cranial trauma. He was seen by a neurosurgeon, who confirmed that the applicant had suffered cranial trauma and concussion with permanent vegetative disorder and intracranial hypertension. Moreover, the doctor found that the applicant was experiencing loss of consciousness, post-traumatic otitis and sleep disorder. The medical report of the Institute of Neurology and Neurosurgery was not issued to the applicant until 12 June 2006. 20. On 24 May 2006 the prosecutor G.B. from the Buiucani prosecutor's office dismissed the applicant's torture complaint. In his decision he stated, inter alia, that the three policemen allegedly involved in acts of torture had been questioned and had denied all the accusations; that according to the medical report dated 28 April 2006, the applicant did not have any signs of torture on his body; and that in the office where he had allegedly been tortured no coat hanger had been found. As to his attempted suicide, the prosecutor considered that it had been simulated so as to avoid criminal responsibility. 21. On 30 May 2006 the applicant appealed to the Buiucani District Court against the decision of 24 May 2006. He argued, inter alia, that the prosecutor had refused to allow him to undergo a complete medical examination, as requested by him on 2 May 2006, and that this was contrary to the authorities' positive obligations under Article 3 of the Convention. He also informed the court that immediately after his release from detention he had undergone a medical examination which established that he had been tortured during his detention. 22. On 15 June 2006 the Buiucani District Court held a hearing in the case concerning the applicant's complaint of torture. The applicant's lawyer requested that the medical report of the Institute of Neurology and Neurosurgery dated 18 May 2006 be included in the case file. Judge M.D. admitted the report in evidence. However, in a decision of the same date he dismissed the appeal as unfounded without giving an assessment of any of the above evidence. He simply repeated the reasons given by the prosecutor G.B. in his decision of 24 May 2006 dismissing the complaint of torture. 23. On 24 June 2006, after the medical report from the “Memoria” Rehabilitation Centre for Torture Victims had become available to him, the applicant wrote to the Buiucani prosecutor's office asking it to re-examine his ill-treatment complaint in the light of the medical report. However, on 5 July 2006 he was informed that there were no grounds for reopening the investigation. 24. In the meantime, on 22 June 2006, the applicant had lodged an application with the Court in which he complained under Article 3 of the Convention that he had been tortured and that there had been no effective investigation into his allegations of torture. 25. On 26 June 2006 the Prosecutor General of the Republic of Moldova, Valeriu Balaban, wrote a letter to the Moldovan Bar Association, in which he stated, inter alia, the following: “Lately, the Prosecutor General's Office has been confronted with the phenomenon whereby some Moldovan lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases. These organisations are used as an instrument for serving personal interests and for avoiding the criminal responsibility of suspected persons. Examples of such incidents are the case of G., triggered by the lawyer A.U., and the case of Vitalie Colibaba, triggered by the lawyer R. Zadoinov. The international mediatisation of these cases prompted active action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers' clients. After having examined sufficiently thoroughly the complaints alleging torture and abuse on the part of the police ... the Prosecutor's Office dismissed the complaints on the ground of lack of proof that offences had been committed. ... ... In such circumstances the irresponsible attitude and behaviour of the lawyers A.U. and R. Zadoinov give rise to concern. They knew that no acts of torture had been committed against their clients. However, they complained to international organisations without first attempting to use the national mechanism for solving such problems. They presented the facts erroneously in order to win their cases... Such practices by lawyers will be investigated by the Prosecutor General's Office in order to determine whether they have committed the offence provided for in Article 335 § 2 of the Criminal Code, by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country. Accordingly, the Bar Association is called upon to take account of the facts described above, to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of the Republic of Moldova.” 26. The above letter generated a heated debate in the media. On 30 June 2006 the Moldovan Bar Association issued an official statement in which it qualified the Prosecutor General's letter as an attempt to intimidate lawyers. In an interview to the newspaper Ziarul de Garda the President of the Bar Association declared, inter alia, that this was an attempt to intimidate lawyers so that they would not complain to the Court any more. At the same time Amnesty International organised action in support of the lawyers mentioned in the Prosecutor General's letter and issued a statement in which it declared, inter alia, the following: “[Amnesty International] is concerned that the letter to the Bar Association of Moldova is a deliberate attempt to intimidate A.U. and Roman Zadoinov, and to prevent lawyers in Moldova from making public information about human rights violations. It is a violation of the right to freedom of expression, and if the lawyers were to be imprisoned for this offence Amnesty International would consider them prisoners of conscience.” 27. The relevant provisions of the Criminal Code read as follows: “Article 335. Abuse of official duties 1. Intentional use by a person... of his or her official duties for personal gain or for other personal interests... shall be punishable by a fine of ... or by imprisonment for up to three years. 2. The same offence committed by a notary, auditor or lawyer shall be punishable by a fine of MDL 10,000 to 16,000, or by imprisonment for 2 to 5 years...”