CASE OF MATASARU AND SAVITCHI v. MOLDOVA
Violation of Art. 3 (procedural aspect)
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicants were both born in 1970 and live in Chişinău. They are married to each other. 6. The first applicant is the owner of an Internet café. On 22 October 2006 at around 6.10 p.m. he ejected a boy from the café because he had prevented another boy from using the Internet. The first applicant then went to another address and brought a plumber (C.) back in order to do some repair work at the café. 7. While he was away, two persons (C.A. and D.A.; C.A. was the Commander of the Special Forces police regiment “Scut”) came to the café and asked L.C., the café manager who was on duty on that day, about the first applicant's whereabouts. 8. L.C. told them that the first applicant would return shortly and they went outside. L.C. then called the second applicant, the first applicant's wife, and told her that two men had been looking for the first applicant. She asked L.C. to ask one of the men to come to the telephone. When L.C. went outside to do so, he saw the first applicant on the ground, unconscious. One of the men who had been looking for him earlier was giving him emergency assistance. He informed the second applicant of what he had just seen and then called an ambulance and the police. 9. On 25 October 2006 the first applicant lodged a complaint with the police, stating that when he had approached the Internet café he had seen two men and a boy near the entrance. The boy was the one whom he had ejected earlier from the café. One of the men asked the boy: “Is that him?”. Having received an affirmative response, the man punched the first applicant in the face. When the first applicant tried to resist, the second man hit him on the back of his head with a hard object, following which he lost consciousness. When he regained consciousness, he was on the ground and one of the attackers was giving him emergency medical assistance. That man told the persons who had gathered around that the first applicant had had an epileptic fit. 10. The first applicant was taken to hospital and was prescribed in-patient treatment. On 25 October 2006 he was examined by a doctor, who noted that he had a hematoma around his right eye and on his nose (5x3 and 2.5x3 cm), and one on the back of his head measuring 0.3x0.2 cm. The specialist also noted a neurologist's diagnosis dated 23 October 2006, according to which the first applicant had suffered a head trauma. The specialist finally established that, given the location of the various injuries suffered by the first applicant, it was “unlikely that they could have been caused by a fall”. 11. On 23 November 2006 the prosecutor's office decided not to initiate criminal proceedings against C.A. and D.A., “because the act was not prohibited by criminal law”. The prosecutor found that C.A. had offered the first applicant medical help and had not attacked him. 12C.A. and D.A. were contradicted by the statement by L.C., according to which they had been looking for the first applicant before the alleged attack. Moreover, other witnesses identified by the first applicant, including C.I., had not been heard. 13. On 25 January 2007 the prosecutor inquired with the local medical authorities about the first applicant's alleged medical condition. On 29 January 2007 the local territorial medical association replied that it did not have the first applicant's medical file and that it could not confirm whether the first applicant suffered from epilepsy. 14. On 30 January 2007 L.C. was questioned again and repeated his earlier statement, reiterating that C.A. and D.A. had been looking for the first applicant before the attack. 15. On 15 February 2007 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to that of 23 November 2006, although it contained a summary of the statement made by L.C. 16. On 6 June 2007 the hierarchically superior prosecutor annulled that decision, finding it premature. The prosecutor in charge of the case was ordered to hear the second applicant and the ambulance doctor who had given the first applicant medical treatment. 17. On an unknown date the second applicant made a statement to the prosecutor and confirmed having received a call from L.C., informing her that two men had been looking for the first applicant. 18. On 10 September 2007 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to the two previous decisions, although it mentioned that the ambulance doctor had been interviewed and had confirmed that he had diagnosed the first applicant's condition on 22 October 2006. However, he had not filled in the first applicant's medical file and did not know who had done so. 19. The first applicant complained about that decision to the hierarchically superior prosecutor. The latter rejected the complaint on 18 February 2008, finding it ill-founded. 20. The first applicant challenged that decision before the Centru District Court. On 15 April 2008 the investigating judge of the Centru District Court accepted the request and annulled the decisions of 10 September 2007 and 18 February 2008. The court found that the facts of the case had not been properly verified, as was obvious from the decisions themselves, which had failed to analyse the first applicant's statements and the medical report of 25 October 2006. Moreover, the prosecutor had not inquired as to whether the first applicant had had a history of epileptic attacks or had been seeing a psychiatrist, and whether the injuries suffered by the first applicant could have been the result of a fall. 21. On 30 May 2008 the prosecutor obtained a copy of the first applicant's medical file, which contained only data registered on or after 22 October 2006. 22. On 11 June 2008 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to the three previous decisions, adding that the specialist who had filed the report of 25 October 2006 had stated that the injuries suffered by the first applicant could have been caused by a fall. In addition, the first applicant had refused to submit a medical certificate which attested that he had lost consciousness after a blow to the occipital area of his cranium. 23. On 9 July 2008 the first applicant challenged that decision in court. He referred to the fact that he had never suffered from epilepsy and that there was no statement by the medical expert in the file indicating that the injuries could have been caused by a fall. He also noted that C.A. was known for his violent behaviour, mentioning that on 10 May 2008 he had attacked the journalist Ghenadie Brega (see Brega v. Moldova, no. 52100/08, 20 April 2010). 24. The complaint was forwarded to the hierarchically superior prosecutor, who rejected it on 17 July 2008. The prosecutor found that the first applicant's allegations had not been confirmed by facts and that the statements of witnesses showed that he had not been hit by C.A. and D.A. but had been helped by them. 25. The first applicant challenged that decision in court. On 20 October 2008 the Centru District Court accepted the request and annulled the decisions of 11 June 2008 and The case was sent back for examination by the prosecutor. 26. On 25 November 2008 the Centru district prosecutor's office initiated criminal proceedings on the basis of the first applicant's complaint of 25 October 2006. However, he did not receive a copy of that decision, and saw it for the first time among the documents attached to the Government's observations. 27. On 2 February 2009 the first applicant asked the Prosecutor General to assign the case to another prosecutor in view of the perceived bias of the prosecutor dealing with the case. On 3 February 2009 the Deputy Prosecutor General assigned the case to the Chişinău Prosecutor's Office. The reason for this re-assignment was that “several tendentious circumstances appeared within the framework of the relevant criminal proceedings which could cause the investigation to be excessively lengthy”. 28. In late February 2009 both applicants were questioned, but were not shown the minutes of the interviews on the ground of protecting the confidentiality of the investigation. 29. On 29 June 2009, after communication of the present case to the respondent Government, the prosecutor formally named C.A. and D.A. as suspects in the case. The applicants found out about that decision from the Government's observations. 30. On 21 September 2009 the first applicant asked the prosecutor to inform him about the progress of the investigation. He was shown a recent medical report concerning the injuries caused to him in 2006, but he was refused permission to make a copy of that report for confidentiality reasons. The first applicant had not been informed before the second report had been ordered and he had therefore not been able to exercise any of his rights under Article 145 of the Code of Criminal Procedure (“the CCP”, see paragraph 61 below). 31. On 28 September 2009 the charges against C.A. and D.A. were dropped. According to the applicants, they received a copy of the decision when they received the Government's observations of 30 December 2009. 32. On 23 October 2009 the Chişinău Prosecutor's Office transferred the case back to the Centru district prosecutor's office, which had territorial competence to investigate it. 33. On 6 November 2009 the Centru district prosecutor's office suspended the investigation because the identity of the perpetrator(s) had not been established. On 15 December 2009 the first applicant complained to the Prosecutor General's Office about the suspension of the investigation. He also noted that he had not been informed about the suspension and had only found out about it on 8 December 2009 when he had called the prosecutor and then visited his office on 15 December 2009. The first applicant added that the charges against C.A. and D.A. had apparently been dropped but that he had not seen any decision in that respect. Moreover, on an unknown date and for unknown reasons the case had been re-assigned back to the Centru district prosecutor's office, again without his having been informed. In addition, no cross examination with the applicants' participation and that of C.A. and D.A. had ever been organised. No attempt had been made to find the boy who had been ejected from the internet café, despite L.C.'s witness statement confirming that the two persons whom he had seen with the first applicant had been accompanied by a boy. L.C. was never asked to identify C.A. and D.A. at an identity parade, even though he had given a complete description of the two persons who had been looking for the first applicant immediately before he was attacked. 34. On 15 January 2010 the first applicant was informed that the decision of 6 November 2009 had been quashed and the investigation had been reopened. 35. On 22 January 2010 the first applicant repeated his request, noting that he had received no response to his complaint concerning the dropping of charges against C.A. and D.A. or to that concerning the transfer of the case back to the Centru district prosecutor's office. On 2 March 2010 the Prosecutor General's Office informed him that no unlawful act had been apparent in the dropping of the charges or in transferring the case to the Centru district prosecutor's office. 36. The investigation is pending before the Centru district prosecutor's office. 37. On 29 January 2008 the applicants organised a protest march in the centre of Chişinău, which had been authorised by the Chişinău municipality. The aim of the protest was to draw public attention to the first applicant's ill-treatment and the prosecution's inertia in investigating the case. Only the applicants participated in the protest, holding banners with inscriptions such as: “Prosecutors, you should respect the law and human rights!”, “The Moldovan prosecutor's office protects police criminals!”, “NO to corruption in the Moldovan prosecutor's office!”, “NO to bandits in the law-enforcement agencies!” and “The prosecutor's office covers up the crimes of police officer [C.A.]!”. 38. The applicants protested in front of the Centru police station, then in front of the Prosecutor General's Office. The applicants were approached by plain-clothed officers, who were shown the authorisation for the march and who accompanied the applicants until they reached the Ministry of Internal Affairs. The applicants stood across the road from the Ministry and protested by displaying banners and blowing a whistle. At 10.15 a.m. the plain-clothed officers asked the applicants to follow them to the police station because the applicants had insulted them. 39. The protest and the arrest were filmed by reporters. The video footage shows the applicants next to a building with no officer in the vicinity until the time of the arrest. The plain-clothed officers who arrested the applicants were asked by the applicants and the reporters about the reasons for the arrest. They answered that the applicants' identities needed to be verified and that they had “insulted the law-enforcement authority” through the messages on the banners. They did not specify which banner was considered insulting, other than to ask: “Bandits, is that not insulting?” It appears from the video materials that the applicants were not asked to provide identification documents. 40. According to the applicants, they were released immediately after a short period in detention in front of the police station on the morning of 29 January 2008. It appears from the video materials submitted by the parties that one plain-clothed officer explained that “[the applicants] were not arrested but only brought in for identification. The protest has been authorised, so they are free to continue it”. They were subsequently rearrested in front of the Prosecutor General's Office at 10.15 a.m. and detained until 5 p.m. 41. On the same day the applicants were charged with having committed several administrative offences, provided for under Article 174 § 1 of the Code of Administrative Offences (“the CCA”) (refusal to abide by the lawful orders of a police officer), Article 174/1 §§ 2-4 of the CCA (violation of the order on holding assemblies), Article 174/5 § 1 of the CCA (resisting a police officer), and Article 174/6 § 1 of the CCA (insulting a police officer). On the same day, a judge of the Centru District Court decided to postpone the hearing, ordering the applicants' release at 5 p.m. 42. On 21 April 2008 the Centru District Court dismissed all the charges against the applicants, except for the charge of insulting a police officer on account of the inscription “The prosecutor's office covers up the crimes of police officer [C.A.]!”. The applicants were found guilty of having committed the administrative offence provided for under Article 174/6 § 1 of the CCA (see below). 43. The applicants appealed, arguing that the statement on the banner concerning the prosecution's failure to properly investigate their alleged ill-treatment by C.A. had been based on facts. The aim of the message had not been to disseminate insults but rather to provoke an effective investigation by the prosecutor's office. Moreover, the applicants had not seen C.A. on 29 January 2008. Therefore, even if the banner could be seen as insulting to C.A., it could not be said that they had intentionally insulted him while he was carrying out his duty to maintain public order. 44. On 7 August 2008 the Chişinău Court of Appeal quashed the decision of 21 April 2008, finding that the lower court had not analysed the applicants'The case was sent for a retrial. 45. On 13 November 2008 the Centru District Court found the applicants guilty of the administrative offences provided for under Articles 174 § 1, 174/1 §§ 2-4, 174/5 § 1, and 174/6 § 1 of the CCA. 46. On 10 February 2009 the Chişinău Court of Appeal quashed the decision of 13 November 2008 and discontinued the proceedings against the applicants. The court found that the lower court had not indicated the evidence on which it had based its decision and that the arresting police officers who had witnessed the events were unsure whether the applicants had resisted or insulted them. 47. On 18 December 2008, national police day, the first applicant intended to protest in the centre of Chişinău against the prosecution's failure to properly investigate his ill-treatment by C.A. He had previously obtained the Chişinău mayor's permission to bring domestic animals to the protest. 48. On 18 December 2008 at 9.15 a.m. the first applicant parked his minibus in front of his garage. Inside were a mule, dressed in uniform and bearing the inscription “miliţioner” (officer of Soviet-time militia), and a pig, dressed in black and bearing the inscription “porcuror” (a play on the words “pig” and “prosecutor”, roughly translated as “pigsecutor”). 49. At 9.30 a.m. a car belonging to the Special Forces police regiment “Scut” with four men inside arrived at the garage. Ten minutes later a traffic police car arrived. Minutes later an operative group of the Ministry of Internal Affairs arrived, followed by the Centru sector deputy head of the police station, some plain-clothed police officers, a criminal investigator and a specialist. The media arrived at the garage shortly afterwards. 50. The Special Forces officers who had arrived first prevented the applicant from leaving the garage area with his minibus by blocking the exit with their own car and later took his car keys and papers, while the criminal investigator sealed off the area with yellow tape. The first applicant took his animals out of the minibus in order to go on foot to the protest area. At 10.30 a.m. his minibus was driven away by the traffic police, without answering the protests of the second applicant and questions put by the media. 51. At 11.30 a.m. the deputy head of the Centru police station ordered the applicant's arrest because he had urinated in a public place. The first applicant declared that he had not done so. 52. It is apparent from the video footage aired on several TV channels in Chişinău that the first applicant asked repeatedly for witnesses of the alleged act to be identified, and the second applicant asked to be shown the place where the alleged wrongdoing had taken place. They received no reply. One journalist commented “After several hours during which more than 20 police officers present had been looking for a reason to make the protester show respect, they finally found a pretext for his arrest: that he had urinated in a public place”. 53. On 18 December 2008 the first applicant was charged with having committed the administrative offences provided for under Article 164 § 1 of the CCA (hooliganism), Article 174 § 1 of the CCA (refusal to abide by the lawful orders of a police officer), Article 174/5 § 1 of the CCA (resisting a police officer), and Article 174/6 § 1 of the CCA (insulting a police officer). The report concerning the events of the day noted that on 18 December 2008 at approximately 11.10 a.m. the operative group of the Centru police station was on route in response to a call for assistance when it discovered the first applicant's minibus and two animals next to it, dressed in uniform and bearing the names “miliţian” and “porcuror”. The operative group stopped to find out what was going on, but the first applicant “reacted negatively” to their presence and made direct comparisons between the animals and the police officers, thus insulting them. He then went behind the police car and openly urinated. Having been asked to stop, he refused and resisted the officers when they forced him into the police car and brought him to the police station. 54. On 22 December 2008 the Centru District Court found the first applicant guilty of having committed the administrative offences provided for under Articles 164 § 1, 174 § 1 and 174/5 § 1 of the CCA. 55. The first applicant appealed, noting the absence of any evidence that he had committed any wrongdoing. Moreover, the reports filed by the police officers mentioned that the first applicant had already been asked to follow them to the police station, before the alleged offence had taken place. It was therefore unclear what the reason for the limitation of his liberty before the alleged wrongdoing had been. Since he had not committed any act that warranted his being brought to the police station, the police officers' request to follow them had been unlawful. Therefore, his refusal to abide by that request, and his resistance to unlawful orders, could not be considered a violation of the law. The first applicant added that the hearing had never been officially opened and had taken place in the absence of witnesses and his lawyer. He had not been had been interrupted and the judge had declared that he was guilty of having committed three administrative offences and was fined 200 Moldovan lei (approximately 14 euros (EUR) at the time). 56's lawyer, failing to note that absence in the minutes of the hearing. 57. On 11 May 2009 the Centru District Court discontinued the administrative proceedings against the first applicant, finding that there was not sufficient evidence in the file to prove that he had committed any offence and that the police officers who had reported on the offence allegedly committed by the first applicant had refused to appear in court. The court added that the reports, which were the only evidence in the file, were insufficient to establish that an offence had been committed. The court found that “the actions of the police officers were not well-founded and lawful, [as] they did not have a ground on which to bring [the first applicant] by force to the police station.” 58. On 24 July 2009 the Chişinău Court of Appeal dismissed the appeal lodged by the Centru Police Commissariat as out of time. That judgment was final. 59. Law no. 26 of 22 February 2008, in force since 22 April 2008, provides that no authorisation is needed for holding a peaceful demonstration with less than fifty participants. 60. The relevant provisions of Law no. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. 61. The relevant part of Article 145 of the Code of Criminal Procedure reads as follows: “Article 145. Actions preceding an expert report (1) The investigating authority or the court, when ordering an expert report, shall summon the parties and the expert, if the latter has been assigned by the investigating authority or the court. (2) On the date set in the summons, the parties and the expert shall be informed of the object of examination and of the questions which the expert will have to answer, and it shall be explained [to the parties] that they have the right to make remarks concerning those questions or to ask for them to be amended or added to. At the same time, the parties shall be informed of their right to select an expert of their choice to participate in the expert report.” 62. The applicants referred to reports by the Moldovan Centre for Human Rights (the Ombudsman's office) for 2007 and 2008, which had found that various provisions of administrative law had been frequently abused by the police by unlawfully detaining individuals. They also noted that members of the Hyde Park non-governmental organisation had been arrested at least 11 times during 2006-2009, while the first applicant had been arrested six times during the same period. 63. The applicants submitted copies of five judgments adopted by the Supreme Court of Justice concerning unlawful administrative detention or prosecution. These judgments allegedly constituted that court's entire case-law on that issue during 2009. The awards made in those cases varied between the equivalent of EUR 62 and EUR 206. 64. The applicants referred to a number of court actions lodged under Law no. 1545, cited above, the examination of which had lasted for approximately two years or was still pending before the domestic courts. In many of these cases the courts postponed numerous hearings due to the failure of the defending State authorities' representatives to appear before the courts. Moreover, enforcement of final judgments against the State was a long-standing problem in Moldova, as established in numerous cases decided by the Court.