CASE OF CORSACOV v. MOLDOVA
Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicant was born in 1981 and lives in Cărpineni, Moldova. 9. On 9 July 1998 the applicant, who was seventeen years old, was arrested on charges of theft. On the way to the police car he made an attempt to throw away a pocket-knife. After being alerted by a passer-by, the police officers A. Tulbu and V. Dubceac threw the applicant to the ground. According to the applicant, they also punched him in the face and handcuffed him. They also allegedly assaulted him all the way to the police station. 10. At the police station the police officers allegedly continued beating the applicant during questioning. They kicked him, punched him and beat him with batons all over his body and on the soles of his feet in order to obtain a confession. During the beatings he was handcuffed. He was also allegedly suspended on a metal bar for a long period of time. The Government deny these allegations. 11. On 10 July 1998 the applicant claims to have been taken by the arresting police officers to a forest for the reconstruction of the crime. He was allegedly beaten up on the way to the forest. In the forest, one of the officers allegedly put a gun to the applicant’s head and threatened to shoot him if he did not confess. He was released from detention in the evening. It appears from the documents submitted by the parties that the applicant confessed to having committed the theft. However, later the criminal proceedings against him were discontinued on grounds of lack of “constitutive elements” of an offence. 12. According to the Government, the applicant could not have been threatened with a gun by the police officers because they did not accompany him to the woods. He was taken to the woods for investigation purposes, but not for a reconstruction of the crime. 13. On 11 July 1998, the applicant’s state of health worsened and his mother took him to a doctor who established that he had suffered a head trauma and cerebral post-concussion syndrome. 14. On 13 July 1998 a forensic doctor examined the applicant and established that he had grey-yellowish bruises of 3 x 2 cm and of 6 x 5 cm around his right eye, right ear, lips and on the sole of his left foot. The soft tissue on his head and his teeth on the right side were painful when touched. The doctor concluded that the injuries could have been inflicted by blows with a blunt object, possibly in the conditions described by the applicant, and corresponded to the category of light corporal injuries. 15. On 13 July 1998 the applicant’s mother lodged a criminal complaint with the Prosecutor’s Office of Hânceşti County, asking it to institute criminal proceedings against the police officers who had allegedly ill-treated her son and threatened him with death. 16. On 14 July 1998 an ear, nose and throat specialist examined the applicant and concluded that he was suffering from hyperaemia and had a central perforation of the right tympanic membrane. 17. On 28 July 1998 another specialist concluded that the applicant was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with perceptive deafness. 18. Between 14 and 25 July, 30 July and 22 August, 2 and 17 September and 14 October and 3 November 1998, the applicant was hospitalised with the diagnosis of head trauma and sudden deafness (surditate de percepţie brusc instalată). 19. On 3 August 1998 the applicant’s mother was informed by the Hânceşti Prosecutor’s Office that her complaint had been dismissed on grounds of lack of “constitutive elements” of an offence. She appealed against that decision to a hierarchically superior prosecutor. 20. On 21 August 1998 the applicant’s mother received a letter from a hierarchically superior prosecutor of the Hânceşti Prosecutor’s Office informing her that her appeal had been dismissed. She appealed against that decision to the Hânceşti District Court. 21. On 16 November 1998 the Hânceşti District Court quashed the prosecutor’s decision to dismiss the applicant’s complaint about ill-treatment and ordered that an additional investigation be carried out. It found inter alia that it was undisputed that the applicant had sustained his injuries on 9 July 1998 either at the police station or on the way there; however, the circumstances were not clear. The court also found that the Hânceşti Prosecutor’s Office had not paid sufficient attention to the fact that since 9 July 1998 the applicant had been permanently undergoing medical treatment in hospital and had thus been prevented from attending school. 22. On 15 January 1999 the Hânceşti Prosecutor’s Office issued a new decision by which it again refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the police officers had to throw him to the ground in order to counter his attack with a knife on one of them. The decision relied on a medical report dated 14 January 1999 which stated that the injuries could have been inflicted either by a blunt object or by a fall. The applicant’s mother appealed to the Prosecutor General’s Office. 23. On 25 February 1999 the Prosecutor General’s Office quashed the decision of 15 January 1999 for being “premature” and the file was remitted to the Prosecutor’s Office of Hânceşti County for “additional review”. The Prosecutor’s Office considered inter alia that the investigation had failed to elucidate the circumstances of the alleged attack with a knife committed by the applicant on one of the police officers. 24. On 15 March 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it refused to institute criminal proceedings against the police officers on the ground that their actions did not disclose any signs of an offence. 25. On 25 March 1999 the hierarchically superior prosecutor quashed the decision of 15 March 1999 on the ground that the applicant’s alleged attack with a knife on the police officers had not been properly investigated. 26. On 9 April 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it again refused to institute criminal proceedings against the police officers, because their actions were justified. At the same time the Prosecutor’s Office found that the applicant did not attack the police officers with a knife, but rather the police officers thought that there was a risk of his attacking them. The applicant’s mother appealed to the hierarchically superior prosecutor. 27. On 1 May 1999 the hierarchically superior prosecutor quashed the decision of 9 April 1999 and ordered the institution of criminal proceedings against the two police officers. 28. On an unspecified date, the applicant lodged a complaint with the Ministry of Internal Affairs. 29. On 14 June 1999 the Ministry of Internal Affairs informed the applicant that disciplinary sanctions would be imposed on police officers A. Tulbu and V. Dubceac only to the extent that they were found guilty in the criminal proceedings. 30. On 20 September 1999 the Hânceşti Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision. 31. On 18 November 1999 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office dismissed the appeal. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the applicant had made an attempt to throw away a knife but the police officers had thought that he was going to use it against them and had thrown him to the ground. The applicant’s state of health was “normal” and none of the witnesses had seen the police beating him. The applicant’s mother appealed. 32. On 10 February 2000 the Prosecutor General’s Office upheld the applicant’s appeal and ordered the re-opening of the criminal investigation. It stated inter alia that the investigation had been conducted “in an extremely superficial manner”. It instructed the investigators inter alia to re-hear the witnesses and the parties to the case and to investigate whether the police officers A. Tulbu and V. Dubceac had fired a gun in the woods. It also ordered the conduct of a medical investigation of the applicant and pointed to several contradictory statements of the witnesses and to procedural irregularities. 33. On 28 February 2000, at the request of investigator V.B. from the Hânceşti Prosecutor’s Office, an independent medical commission of four experienced forensic doctors performed a thorough medical investigation. On the basis of earlier medical certificates and of its own investigation the commission drafted a report which stated inter alia that: “At the forensic examination it was found that [the applicant] had bruises around his right eye, right ear, on his lips and on the sole of his left foot. From [the applicant]’s records it appears that at the age of eight months... he suffered purulent otitis in his left ear. On 11 July 1998 a neurologist found that [the applicant] had suffered an acute head trauma with cerebrostenic syndrome. On 14 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered from tympanic hyperaemia and had a central perforation of the right tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure] of 9 July 1998. On 14 July 1998, [the applicant] did not appear to have any injury to his teeth. On 28 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered post-traumatic acute otitis media on the right side and agnogenic otitis on the left side. He suffered from sudden deafness (surditate de percepţie brusc instalată). On 9 October 1998 a neurologist found that as a consequence of the head trauma [the applicant] was suffering intracranial hypertension with signs of epilepsy. On 20 April 2000 [the applicant] was examined by an otolaryngologist who found that he was suffering from post-traumatic bilateral hypoacusis [slightly diminished auditory sensitivity, with hearing threshold levels above normal]. Hospitalisation was recommended. ... 1. On the basis of the above, the commission comes to the conclusion that M. Corsacov suffered injuries in the form of bruises on his face (right eye, right ear and lips) and the sole of his left foot; head trauma and concussion; post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis. ... The applicant’s injuries necessitated medical treatment of a long duration and could be qualified as moderately serious (mai puţin grave). ... 3. The commission does not have any objective grounds to believe that the injuries could have been sustained by the applicant prior to 9 July 1998. 4. The injuries were inflicted by blows with blunt objects (aceste leziuni au fost cauzate prin acţiunea corpurilor contondente (lovire)), possibly in the circumstances described by the applicant and they could not have been sustained as a result of a fall (n-au putut fi produse prin cădere). 5. ...Currently Mr Corsacov’s state of health is relatively satisfactory and he suffers of posttraumatic bilateral hypoacusis...” 34. On 10 June 2000 the Lăpuşna Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision. 35. On 12 July 2000 the Prosecutor General’s Office quashed the decision of 10 June 2000 and ordered that an additional investigation be carried out. It found inter alia that the quashed decision was illegal and had a tendentious character. It stated inter alia: “Contrary to the conclusion of the medical commission, which clearly found that Corsacov’s injuries were inflicted by blows with a blunt object, possibly in the circumstances described by the applicant and that they could not have been sustained as a result of a fall, investigator V.B. indicated in his decision that the injuries were caused by the applicant’s fall...” 36. On 30 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the criminal investigation against the applicant for the alleged attack with a knife on the police officers on 9 July 1998. It found that there were no grounds to believe that the applicant intended to use the knife against the police officers. 37. On 31 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which the criminal proceedings against the police officers were also dismissed. It stated inter alia that the applicant had had a knife in his hand and that the police officers had interpreted that as a threat and had thrown him to the ground. Accordingly, the applicant had sustained his injuries by hitting the ground with his head while the police officers had been acting in legitimate defence. The applicant appealed against this decision. 38. On 21 January 2001 the decision of 26 August 2000 was quashed by the Prosecutor General’s Office and the criminal proceedings were re-opened. 39. On 28 February 2001 the Lăpuşna Prosecutor’s Office again dismissed the criminal investigation against the police officers. The applicant appealed. 40. On 20 March 2001 the hierarchically superior prosecutor from the Lăpuşna Prosecutor’s Office quashed the decision of 28 February 2001 and ordered the re-opening of the investigation. 41. On 20 June 2001 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the applicant’s complaint. It stated inter alia that: “... According to the medical certificate of 15 January 1998, Corsacov had bruises around his right eye, right ear, and consequences of a barotrauma, head trauma, which could have been caused by a fall and which fell in the category of light corporal injuries. According to the conclusion of the Commission [the medical report of 28 February 2000], Corsacov’s teeth were not injured and it was discovered that he was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis, which could also have been caused by blows. It is not disputed that the applicant was injured; however, his injuries were inflicted within the limits of the law. As to the agnogenic otitis on the left side, the applicant was suspected of having suffered from it since his childhood... According to doctor A.M., the agnogenic otitis on the left side is not connected with the otitis on the right side and could have been caused by a cold or an infection but not by a blow. Deafness can have a multitude of causes, and in order to know its origin it is important to determine the moment of its appearance. In the present case it is impossible to establish the exact moment of commencement of the applicant’s deafness; more so since, in his first declaration, Corsacov stated that only after receiving the blows did he start to experience ringing in his right ear, but he did not say anything about the pain and the deafness in his left ear. The police officers [A. Tulbu and V. Dubceac] and the witness C. stated that on 9 July 1998, on the way to the police station, no physical force was used against the applicant except when he was relieved of a knife that he had in his hand. Then, by means of a special technique, the applicant was thrown to the ground, which he hit with his head... Corsacov admitted having had a knife and explained that he had been trying to throw it away in order to avoid trouble at the police station. The police officers M.I and D.I. who were present at the police station on 9 July 1998 stated that nobody used physical force against the applicant in their presence, no handcuffs were used and that he was not beaten with a baton... The applicant’s mother stated that in the evening of 9 July 1998 she saw her son at the police station and he did not have any injuries... The applicant’s uncle B.V. also stated that he had seen the applicant in the police station on 10 July 1998 between 1 a.m. and 2 a.m. and that he did not have any sign of injury... and the applicant did not complain to him about having been assaulted. ... The injuries sustained by Corsacov were caused by his hitting the ground with his head when police officers A. Tulbu and V. Dubceac faced a real threat of injury. The officers acted within the limits of Articles 14 and 15 of the Law on Police while relieving him of his knife.” 42. The decision did not include any reference to the applicant’s allegation that on 10 July 1998 he was taken to the woods and threatened with death. The applicant appealed. 43. After 20 June 2001 the investigation was re-opened and closed on several occasions. The final decision closing the investigation was that of 10 January 2002 of the Lăpuşna Prosecutor’s Office. 44. After the case was declared admissible by the Court, on 7 November 2005, the Prosecutor General’s Office ordered the re-opening of the investigation. The re-opened investigation is still pending. According to the Government the re-opening was prompted by the Prosecutor General’s concern that the injuries sustained by the applicant in July 1998 had deteriorated into invalidity of the second degree which under Moldovan law is equivalent to a loss of working capacity of 50-75%, and that the applicant needed permanent medical treatment. 45. The Code of Criminal Procedure in force between 24 March 1961 and 12 June 2003 provides: “Section 193. Written complaints concerning acts of the criminal investigation organs or concerning acts of the criminal investigator shall be addressed to the prosecutor. Section 194. The prosecutor shall examine the complaint and communicate his decision to the interested person within three days of its receipt. If the complaint is dismissed, the prosecutor shall give reasons for his decision. Section 195/1. The decisions of the criminal investigation organs and of the prosecutor may be challenged in court by an accused, a lawyer, a victim .... The persons specified in the first paragraph have the right to challenge in court ...decisions regarding the suspension and dismissal of criminal proceedings ... A complaint shall be addressed to the competent District Court within ten days of the date on which the interested person learns about the decision. Section 195/3. A person whose rights have been infringed by a refusal to institute criminal proceedings may challenge in court the decision regarding the dismissal of criminal proceedings within ten days of the date on which he learns about the decision. Section 195/4. ... The competent court shall examine the reasons for the refusal to institute criminal proceedings and their conformity with procedural law. Following the examination, the court can adopt one of the following decisions: 1) to quash the decision to refuse to initiate criminal proceedings; 2) to modify the reasons given for the refusal while upholding the refusal; 3) to dismiss the complaint....” 46. The old Criminal Code in force between 24 March 1961 and 12 June 2003 states: “Section 185. ... An abuse of power accompanied by acts of violence, by use of arms or by acts of torture and humiliation is sanctioned with imprisonment of three to ten years and with a prohibition on carrying out certain activities for a period of up to five years. ...” 47. The old Civil Code in force until 12 June 2003 states: “Section 475. Any damage caused to a person or to his or her goods... shall be entirely redressed by the person who caused it... No duty of restitution shall arise in respect of damage caused by legitimate actions, except in the cases provided for by law.” 48. The Law on Police of 18 December 1990 states: “Section 14. Conditions and limits of the use of force, special techniques and fire-arms Police officers have the right to use force, special techniques and fire-arms in the cases and in the manner provided for in the present law. The use of force, of special techniques and of fire-arms shall be preceded by a warning about the intention to use them, and sufficient time shall be allowed for reaction, except in cases in which a delayed use of force... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences. ... In any case, when the use of force cannot be avoided, police officers are obliged to do their best in order to cause the least harm possible to the health, honour, dignity and goods of citizens, as well as to ensure medical assistance is provided to victims. In case of injury or death caused as a result of use of force... the police officer shall report it to his direct superior, in order that the latter may inform a prosecutor. The abuse of the power to use force... shall be punished in accordance with the law. Section 15. The use of physical force Police officers are entitled to use force and special fight techniques for the purpose of ending criminal activities and for neutralising resistance to legal demands, only in cases in which non-violent methods are not sufficient for the discharging of their obligations.”