SECOND SECTION
\nCASE OF O.R. ANDL.R.v. THE REPUBLIC OF MOLDOVA
\n(Application no. 24129\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n30 October 2018<\/p>\n
FINAL
\n30\/01\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of O.R. and L.R. v. the Republic of Moldova,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 2 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 24129\/11) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Moldovan nationals, Ms O.R.(the first applicant) and MsL.R. (the second applicant), on 15 April 2011.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Mr V. Gribincea, a lawyer practising in Chi\u015fin\u0103u. The Moldovan Government (\u201cthe Government\u201d) were represented by their Agent, Mr L. Apostol.<\/p>\n 3.\u00a0\u00a0The applicants alleged, in particular,about the ineffectiveness of the investigation into their allegation of ill-treatment and about the impunity of the police officers who had ill-treated them.<\/p>\n 4.\u00a0\u00a0On 20 February 2012 the applicationwas communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants were born in 1979 and 1987 respectively.<\/p>\n 6.\u00a0\u00a0On 5 April 2009 general elections took place in Moldova. On 6 and 7\u00a0April 2009 a large crowd protested in the streets against alleged electoral fraud. Hundreds of young persons were arrested on 7 April 2009 and later dates; many of them were ill-treated during arrest (for more details, see Taraburca v. Moldova, no. 18919\/10, \u00a7\u00a7 7-10 and 33-37, 6 December 2011, Buhaniuc v. the Republic of Moldova, no. 56074\/10, \u00a7 7, 28 January 2014 and Iurcu v. the Republic of Moldova, no. 33759\/10, \u00a7\u00a7 7-9, 9 April 2013).<\/p>\n 1.\u00a0\u00a0The applicants\u2019 arrest and alleged ill-treatment<\/em><\/p>\n 7.\u00a0\u00a0On 7 April 2009 the applicants were returning from Chi\u015fin\u0103u to their home village when the minibus in which they were travelling was stopped by masked armed men at 11.10 p.m. The men ordered the bus driver to drive to the police headquarters in Chi\u015fin\u0103u (\u201cthe police headquarters\u201d), where the applicants, together with other passengers, were ordered to stand with their hands behind their heads.<\/p>\n 8.\u00a0\u00a0Upon entering the detention centre inthe police headquarters, the applicants were taken to a room where five police officers registered their arrest. The applicants and other female detainees were ordered to stand with their facesto the wall and not to look to the sides. When one of them (N.) looked to the side, Officer A.C. hit her head against the wall.<\/p>\n 9.\u00a0\u00a0The first applicant was asked to identify her bag.According to her, A.C. threatened to throw away the bag instead of registering all of the items inside. She then proposed to register only the documents, the mobile phone and the contents of her wallet. The first applicant noticed that her arrest had been wrongly mentioned as having taken place at 2.20 p.m. and told that to the officer. A.C. allegedly threatened her with death if she did not sign, after which she signed the arrest record. In the meantime, several young men were lined up against the wall and were periodically hit if they tried to look around. The applicants heard sounds of people being beaten from the adjacent room, following which A.C. escorted one young man out of there.<\/p>\n 10.\u00a0\u00a0After signing the arrest record, A.C. took the applicants one by one to another adjacent room. Two officers were there (V.D., a male officer, and M.T., a female officer). V.D. ordered each of the applicants to undress. After they initially removed only a part of their clothes, V.D. shouted at them to fully undress. Each of the applicants was also ordered to do sit-ups while naked, while both officers smiled. The door remained partly open throughout the procedure. M.T. allegedly called the first applicant a prostitute.<\/p>\n 11.\u00a0\u00a0The applicants were placed, together with five other female detainees, in a cell, where they were held until 9 April 2009. No food was provided for them and they were not allowed to contact anyone outside the detention centre. During 7 and 8 April 2009 the officers would come every three hours to the cell where the applicants were being detained, officially in order to verify their presence. All those inside had to stand up, their hands behind the back. During one of such visits on 8 April 2009, A.C. told everyone in the applicants\u2019 cell to be thankful to President Voronin, who had not ordered shots to befired into the crowd during the unrest of 7\u00a0April 2009.<\/p>\n 12.\u00a0\u00a0On the morning of 9 April 2009 a prosecutor visited their cell and asked whether anyone had been ill-treated or had any other complaints. Several police officers from the police headquarterswere standing just behind the prosecutor, which, according to the applicants, prevented them from complaining. The first applicant asked for permission to call home to see how her child was doing, but the prosecutor replied that he could not help and that she needed to negotiate that with the head of the detention facility.<\/p>\n 13.\u00a0\u00a0On the same day at 3.30 p.m. the applicants were taken, one by one, to a room in the police headquarters where a judge asked each of them their names. After finding their files and reading them for several seconds, the judge declared that five days of detention for each of the applicants would suffice. The entire \u201ctrial\u201d took not more than five minutes.<\/p>\n 14.\u00a0\u00a0On the same day at around 11 p.m. the applicants and five other female detainees were ordered to enter the back section of a police minivan measuring 2.5 square metres and were taken to an unknown destination, without any explanation of the reasons for the move. Four hours later they arrived at Drochia police station. They spent the remainder of their detention at that police station and were released on 13 April 2009. After their release the applicants were so afraid that they did not leave their houses for a week.<\/p>\n 2.\u00a0\u00a0Proceedings against the police officers<\/em><\/p>\n (a)\u00a0\u00a0Internal investigation against the police officers<\/p>\n 15.\u00a0\u00a0On 16 April 2009 a Moldovan news agency reported the allegation that three young women had been ordered to fully undress in front of male police officers. Following that the Internal Security Department of the Ministry of Internal Affairs conducted, in April-May 2009, an internal investigation into the matter in order to verify the allegations. The applicants and N., another person detained together with the applicants, made statements to the investigator on 23\u00a0and 22 April 2009 respectively and recounted the facts as summarised in the preceding paragraphs. N. noted that she had been taken by Officer A.C. to the room in which she had been verbally abused and forced to fully undress by V.D., in the presence of a uniformed woman.<\/p>\n 16.\u00a0\u00a0On 18 May 2009 a prosecutor interviewed the applicants, who repeated their statements made to the police. These statements were then forwarded to the Prosecutor General\u2019s Office. On 20 May 2009 the results of the internal investigation (see paragraph 15 above) were also submitted to the Prosecutor General\u2019s Office. It would appear that the latter did not take any decision in respect of the material submitted to it.<\/p>\n 17.\u00a0\u00a0On 23 July 2009 the applicants made a complaint to the Prosecutor General\u2019s Office, referring to the verbal abuse to which they had been subjected, as well as to the order to undress in front of male officers.<\/p>\n 18.\u00a0\u00a0On 18 and 20 August 2009 a prosecutor interviewed A.C. and V.D., who declared that they had not been at work on the relevant night.<\/p>\n 19.\u00a0\u00a0On 10 September 2009 the military prosecutor\u2019s office, which had been tasked with examining all complaints of ill-treatment duringthe events of April 2009, decided not to launch a criminal investigation in response to the applicants\u2019complaint of 23 July 2009 to the Prosecutor General\u2019s Office, in the absence of any evidence that an offence had been committed. He noted that M.T. had declared that she alone had conducted body searches of theapplicants and that A.C. and V.D. had not been at work that day. The applicants found out about that decision on 14 October 2009.On 15\u00a0October 2009 their lawyer challenged the decision, noting that the investigation had not been prompt or thorough; that they had not undergone any expert psychological examination to verify whether it could be concluded that they had suffered psychological trauma; that the decision had been based solely on the declaration by the officers involved that they had not been at work on the relevant day, without verifying whether they had been urgently called in to work to deal with the emergency situation on 7\u00a0April 2009; and that no criminal investigation had been launched by that date. This complaint was rejected by a more senior prosecutor on 9\u00a0November 2009.<\/p>\n 20.\u00a0\u00a0On 16 November 2009 the applicants\u2019 lawyer received a letter from the prosecution informing her of the decision of 9 November 2009. On 20\u00a0November 2009 the applicants challenged the decisions of 10 September and 9 November 2009 before the R\u00ee\u015fcani District Court. On 19 January 2010 the court allowed their application and annulled both those decisions. The court found that the investigation had been superficial and listed a series of actions which had not been carried out, such as interviewing the arresting officers and those responsible for escorting them and registering their arrest; verifying the reasons for their transfer to Drochia police section, the person who hadordered the transfer and the reason why the prosecutor had not established a breach of applicable legislation as a result of that transfer; determining the reason for the prosecutor\u2019s failure to examine the applicants\u2019 complaint within the statutory seventy-two hours.<\/p>\n (b)\u00a0\u00a0Criminal proceedings against the police officers<\/p>\n 21.\u00a0\u00a0On 2 February 2010 the Chi\u015fin\u0103uprosecutor\u2019soffice launched a criminal investigation on suspicion that Officers A.C., V.D. and M.T. had ill-treated the applicants by means of psychological intimidation and forcing them to undress in front of persons of the opposite sex.<\/p>\n (i)\u00a0\u00a0Proceedings against Officers V.D. and M.T.<\/p>\n 22.\u00a0\u00a0On 15 March 2010 the prosecution charged V.D. and M.T. with ill-treating the applicants.<\/p>\n 23.\u00a0\u00a0On 23 April 2010 the case against V.D. and M.T. was submitted to the Centru District Court for trial.<\/p>\n 24.\u00a0\u00a0The Centru District Court scheduled hearings in the case approximately once a month. From the beginning of the trial, that court had held four hearings and postponed five others for various reasons such as the absence of the prosecutor, of one of the applicants or of their lawyers, as well as annual leave taken by the prosecutor and the judge.<\/p>\n 25.\u00a0\u00a0On 15 July 2011 the Centru District Court of Chi\u0219in\u0103u found the two police officers guilty of ill-treating the applicants. It sentenced V.D. to six years\u2019 imprisonment and M.T. to five years\u2019 imprisonment, conditionally suspending the execution of both sentences for a probation period of five years. The officers were also prohibited from holding positions in the police for five years. Although the operative part of the judgment was read out on 15\u00a0July 2011, the applicants were sent the fully reasoned decision by post on 7\u00a0December 2011.<\/p>\n 26.\u00a0\u00a0On 3 May 2012 the Chi\u0219in\u0103u Court of Appeal upheld that judgment, reducing V.D.\u2019s imprisonment term to five years and maintaining all the other sanctions. The court found that the law did not allow suspension of a sentence for which the punishment exceeded five years\u2019 imprisonment and that the lower court had made an error. It corrected the error by reducing V.D.\u2019s sentence to five years\u2019 imprisonment.<\/p>\n 27.\u00a0\u00a0On 23 October 2012 the Supreme Court of Justice quashed the judgment of 3 May 2012 and ordered a rehearing by the Chi\u0219in\u0103u Court of Appeal.<\/p>\n 28.\u00a0\u00a0On 13 March 2013 the Chi\u0219in\u0103u Court of Appeal adopted a judgment, convicting V.D. and M.T. and sentencing both to five years\u2019 imprisonment, conditionally suspending the execution of both sentences for a probation period of five years. The officers were also prohibited from holding positions in the police for five years and were sentenced to 240\u00a0hours\u2019 community service. In reply to the applicants\u2019 arguments in respect of the leniency of the lower court\u2019s judgment and about impunity, with reference to the Court\u2019s judgments in ValeriuandNicolaeRo\u015fca v.\u00a0Moldova (no. 41704\/02, 20 October 2009)andP\u0103dure\u0163 v. Moldova (no.\u00a033134\/03, 5 January 2010), the court found that those cases were not applicable to the present case since in both of them serious physical ill-treatment had been caused, while the applicants in the present case had only been psychologically ill-treated. Moreover, one witness who had been subjected to the same treatment as the applicants during the relevant events had refused to completely undress and had not been ill-treated as a result. The court also noted that the accused had committed the offence \u201cowing to the situation obtaining on 7-8 April 2009 in Chi\u0219in\u0103u, [when] peaceful protests [had] escaped the control of law-enforcement authorities… result[ing] in mass disorder, with the destruction of sites of national importance\u201d.<\/p>\n 29.\u00a0\u00a0In their appeal the applicants argued, inter alia, that suspending the sentence imposed on V.D. and M.T. wasunlawful since itwascontrary to Article 3 of the Convention, which waseffectively part of domestic law. They relied on the judgments in Ro\u015fcaand P\u0103dure\u0163 (cited above) and referred to G\u00e4fgen v. Germany([GC] no. 22978\/05, ECHR 2010) as evidence that even threats of torture were sufficient to constitute ill-treatment. They added that following the Moldovan judgments mentioned above the Criminal Code had been amended so as to exclude the possibility of suspending the serving of sentences imposed for torture. Sentencing the officers to the minimum allowed by law, with the effect of shielding them from serving any prison time and in view of their persistent denial of having committed the crime,had not ensured the required preventive effect.<\/p>\n 30.\u00a0\u00a0On 13 September 2013 the Supreme Court of Justice found \u201cno grounds for doubting the [victims\u2019] statements\u201d. However, it upheld the judgment adopted since the applicants had not indicated any specific errors in the application of the law by the lower court, which had taken a lawfuland reasoned decision and had properly individualised the sentences in view of the nature and seriousness of the offence.<\/p>\n 31.\u00a0\u00a0During the criminal investigation and the trial V.D. and M.T. were not suspended from their duties.<\/p>\n (ii)\u00a0\u00a0Proceedings against Officer A.C.<\/p>\n 32.\u00a0\u00a0On 16 April 2010 the criminal investigationthat had started on 2\u00a0February 2010 against the three police officers(see paragraph 21 above) was discontinued in respect of A.C. The prosecutor summarised the applicants\u2019 statements and referred to the results of the identity parades during which each of the applicants had identified A.C. as the person who had taken them to the room in which they had been ordered to undress and do sit-ups. The first applicant stated that A.C. had ordered everyone to face the wall and not to look back. When one young woman (N.) had looked away, he had hit the back of her head, as a result of which herforehead had struck the wall. The first applicant added that when another officer hadbeen describing the personal items in her purse, A.C. had threatened to throw it away. Subsequently she hadbeen ordered to sign a document. When she hadpointed out that the time of arrest had been noted incorrectly, A.C. had told her \u201cI\u2019ll give you one [that is to say\u2018hit you\u2019] so that you\u2019ll join your grandmother in the grave\u201d. The second applicant had given a similar description, noting that when she had entered the detention facility she had seen many persons against the wall, many of whom had been beaten by the police, while not offering any resistance. The prosecutor found that A.C. had clearly exceeded his powers as a police officer, but that the applicants had not sustained such serious damage as to qualify as torture. Accordingly, his actions were qualified as excess of powers under the Contravention Code (Codul contraven\u0163ional). Since the three-month prescription period for this administrative offence had already expired, the case against A.C. could not be pursued. He continued to work as a police officer throughout the proceedings.<\/p>\n 33.\u00a0\u00a0On 22 April 2010 the applicants\u2019application to have the decision of 16\u00a0April 2016 annulled was rejected by the prosecutor who had adopted it. On 4 June 2010 the lawyer asked a moresenior prosecutor to annul the decisions taken on 16 and 22 April 2010. She argued, inter alia, that A.C. should not have been relieved of criminal responsibility since he had acted at least as an accomplice of V.D. and M.T., in respect of whom the prosecution had continued to press criminal charges. In particular, A.C. had been fully aware of V.D.\u2019s presence in the room to which he had escorted the applicants and three other female detainees and had known that they would be subjected to a strip search. Moreover, he had acted brutally towards the applicants, humiliating them and hitting one of the female detainees (N.) and other persons in their presence. This treatment had had a considerable effect on the applicants, taking into consideration their gender and age (the second applicant was 21 at the relevant time) and the dominant position held by the police officer. Moreover, having witnessed A.C.\u2019s openly hitting N. in front of the applicants had caused them to fear being subjected to similar treatment. In addition, the applicants\u2019 will to resist police intimidation had been completely broken since the reason for their detention had not been explained to them,nor had they been informed of the rights which they had had, in the absence of a guarantee of being able to defend those rights. They had thus been forced to sign documents which had subsequently led to their detention. It hadbeen also unclear why the prosecutor had not charged A.C. with the criminal offence of excess of powers (Article 328 of the Criminal Code, see paragraph 37 below), but had preferred to examine the case under the Contravention Code, with the effect of letting A.C. go unpunished.<\/p>\n 34.\u00a0\u00a0On 10\u00a0June 2010 her lawyer was informed that her complaint had been rejected and that the decision could be appealed against to the investigating judge.<\/p>\n 35.\u00a0\u00a0On 26 July 2010 the applicants challenged in court the decisions of 16\u00a0and 22 April 2010, as well as that of 10 June 2010. The lawyer formulated essentially the same arguments which she had made in her complaint to the prosecutor (see paragraph 33 above).<\/p>\n 36.\u00a0\u00a0On 15 October 2010 the investigating judge of the R\u00ee\u015fcani District Court rejected the applicants\u2019 complaint as unfounded. The court found that under Article 287 of the Code of Criminal Procedure a criminal investigation lawfully discontinued by a prosecutor could be reopened only if new circumstances had been discovered or where the decision had been affected by a fundamental defect in the proceedings. Since the prosecution had decided to discontinue the criminal proceedings against A.C. and in the absence of any new circumstances warranting the reopening of the investigation, it was contrary to Article 4 of Protocol No. 7 to the Convention for the court to order the reopening of the criminal proceedings against him. The judge also found that the prosecutor had fully and objectively examined the case, taking into account all the evidence available. That decision was final.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 37.\u00a0\u00a0The relevant provisions of the Penal Code, applicable at the relevant time, read as follows:<\/p>\n Article 3091 Torture<\/p>\n \u201c1)\u00a0\u00a0Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or testimonies … shall be punishable by imprisonment of two to five years. …<\/p>\n 3)\u00a0\u00a0The actions referred to in paragraph 1 …, carried out:<\/p>\n …<\/p>\n c)\u00a0\u00a0by two or more persons;<\/p>\n …<\/p>\n e)\u00a0\u00a0with the use of special instruments of torture or other objects adapted for that purpose;<\/p>\n f)\u00a0\u00a0by an official,<\/p>\n shall be punishable by imprisonment of five to ten years …\u201d<\/p>\n Article 328. Excess of power or excess of duties<\/p>\n \u201c(1)\u00a0\u00a0The commission by a person in power of actions which manifestly exceed the limits of powers and duties provided by law, if they caused considerable damage to the public interest or to the lawful rights and interests of natural or legal persons<\/p>\n shall be punishable by a fine … or by imprisonment of up to three years…<\/p>\n (2)\u00a0\u00a0The same actions accompanied<\/p>\n a)\u00a0\u00a0by the use of violence<\/p>\n …<\/p>\n c)\u00a0\u00a0by torture or actions which debase the victim\u2019s dignity<\/p>\n shall be punishable by imprisonment of two to six years…\u201d<\/p>\n 38.\u00a0\u00a0The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, read as follows:<\/p>\n Article 287<\/p>\n \u201c(1)\u00a0\u00a0The re-opening of an investigation after its discontinuation, the closing of the investigation (clasareacauzeipenale) or the dropping of charges is ordered by a senior prosecutor by means of a decision, if it is thereafter discovered that there was no reason for taking the measure or that the circumstance which had led to the discontinuation of the investigation, its dismissal or the dropping of the charges has disappeared.<\/p>\n …<\/p>\n (4)\u00a0\u00a0Where a decision to discontinue the investigation, to close it or to drop the charges was adopted lawfully, the investigation can only be re-opened if new or recently discovered circumstances have been revealed or if the decision was affected by a fundamental flaw in the previous investigation. Where a fundamental flaw in the investigation is discovered, the criminal prosecution can be re-opened not later than one year following the taking effect of the order discontinuing the criminal investigation, dismissing the criminal case or dropping the criminal charges.\u201d<\/p>\n 39.\u00a0\u00a0On 15 October 2010 Government adopted its Decision no. 956 to help persons who had suffered as a result of the events of April 2009. All the persons mentioned in that decision, including the applicants, received a fixed amount of 5,000 Moldovan lei (MDL \u2013 the equivalent of approximately 307 euros (EUR) at the time).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0The applicants complained under Article 3 of the Convention about the impunity of officer A.C. as a result of the failure to prosecute him under applicable criminal-law provisions. They also complained, under the same Article, that the investigation of their forced undressing in front of V.D. had not been prompt and about the impunity of V.D. and M.T. Article 3 reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 41.\u00a0\u00a0The Government argued that the applicants could no longer claim to be victims of a violation of Article 3 of the Convention in view of the conviction of the two officers and of the compensation awarded by the domestic courts (see paragraphs 30and 39above).<\/p>\n 42.\u00a0\u00a0The Court considers that the issue is inextricably linked to the merits of the complaints under Article 3 of the Convention, that is to say to the question of the effectiveness of the investigation into the applicants\u2019 allegations of ill-treatment and alleged impunity. Therefore, it considers that both questions should be joined to the merits of the complaints under Article\u00a03.<\/p>\n 43.\u00a0\u00a0The Court notes that the applicationis not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The applicants\u2019 submissions<\/em><\/p>\n 44.\u00a0\u00a0The applicantssubmitted that Article 3 was applicable since they had been subjected to torture at the hands of State agents. That ill-treatment had been caused not only by V.D. and M.T., but also by A.C., who had hit another person (N.) in the applicants\u2019 presence and had threatened one of the applicants with death; he had been the officer who had brought them to the room where they had been forced to undress and had said to V.D. that he had brought in another person. They had been scared of A.C.\u2019s threats since they had witnessed N. being hit and had heard screams by many persons being ill-treated in neighbouring rooms. They hadbeen two young women in a position of inferiority to the officers depriving them of their liberty without explaining the reasons for their detention; they hadbeen refused access to a lawyer or permission to contact a relative (especially the first applicant, who had not known the fate of her minor child whom she hadbeen raising alone) and had been held in inhuman conditions of detention.All of this had intensified their suffering.These facts had never been put in doubt and had served as the basis for charging A.C.<\/p>\n 45.\u00a0\u00a0The applicants complained of the effective impunity of the three officers involved in their ill-treatment. In particular, A.C. had been ultimately charged with an administrative offence (excess of power) while the seriousness of his actions hadmeant he should have been charged with a criminal offence (Article 328 of the Criminal Code, see paragraph 37 above). That criminal law had clearly been applicable, notably owing to the violence used (the hitting of N. in front of the applicants), the threats of using similar violence against the applicants and the debasement of human dignity, which the legislaturehad expressly qualified as an aggravating circumstance in Article 328 \u00a7 1(c) of the Criminal Code. Neither the prosecutor nor the court made any analysis of why the criminal provisionhad not been applicable and why administrative proceedings had been preferred. The applicants relied on G\u00e4fgen (cited above) to argue that even in the absence of any actual physical harm damage could be caused by threats of ill-treatment.Moreover, the authorities had not mentioned any reason for not charging A.C. as an accomplice in the commission of the offence by V.D. and M.T., since it had been established that he had been the officer who had brought the applicants to the room where they had been forced to undress. In addition, A.C. had never been suspended from his functions during the investigation.<\/p>\n 46.\u00a0\u00a0While V.D. and M.T. had been charged with a criminal offence, they too had not been suspended from their functions during the investigation and trial. The proceedings hadbeen protracted, with frequent delays allowed by the courts. When the officers hadeventually been convicted, they hadbeen sentenced to the minimum punishment allowed by law and their sentences hadbeen suspended, despite their denial of any guilt and attempts to mislead the courts about their role in the events. These mild punishments had not corresponded to the obligation to ensure the preventive effect of anti-torture legislation.Moreover, the domestic courts\u2019 reliance on the exceptional circumstances during the public disturbances in April 2009 hadbeen at odds with the principle that no derogation from the requirements of Article 3 was allowed even in exceptional circumstances.<\/p>\n 47.\u00a0\u00a0The applicants submitted statistical data, according to which during 2011 and 2012 some fifty-six judgments had been adopted in cases concerning torture and excess of power related to ill-treatment. Of these, 35.7% had been acquittals, a rate fifteen times higher than the average rate of acquittals in Moldova. Of the twenty-nine cases in which the accused had been convicted, in only one had the courtordered the effective serving of the sentence imposed and that too had been quashed by the higher courts. As a result, following those twenty-nine convictions no one had spent any time in prison since the sentences had all been suspended. Many more complaints in respect of ill-treatment had not even reached the courts, the prosecutors often refusing to launch criminal investigations or launching and then discontinuing them.<\/p>\n 48.\u00a0\u00a0The applicants argued that the investigation of their complaints of ill-treatment had not been prompt. While the authorities had been aware of these complaints since April 2009, a criminal investigation hadbeen initiated only on 2\u00a0February 2010. Thereafter it had taken the courts more than three years \u2013 until 13\u00a0September 2013 \u2013 to adopt a final decision in this case. During that time significant delays hadbeen allowed, such as the fact that the fully reasoned judgment of 15 July 2011 hadbeen sent to the parties only in December 2011, despite a statutory time-limit for doing so often days.<\/p>\n 49.\u00a0\u00a0They lastly submitted that the payment of MDL 5,000 by the Government to all the victims of the events of April 2009 had not deprived them of \u201cvictim status\u201d in respect of their complaints. This sum had not been intended to compensate for the protracted criminal proceedings or for the impunity of the police officers, but rather to offer \u201chelp to the persons who [had] suffered from the events of 7 April 2009\u201d, as had beenemphasised in the title of the relevant Government decision.<\/p>\n 2.\u00a0\u00a0The Government\u2019s submissions<\/em><\/p>\n 50.\u00a0\u00a0The Government submitted that following the conviction of V.D. and M.T. and the payment of compensation (see paragraph 39above), the applicants could no longer claim to be victims of a breach of their rights protected by the Convention.<\/p>\n 51.\u00a0\u00a0They also argued that the domestic prosecutors and courtshad properly determined that A.C.\u2019s actions had not caused particularly serious suffering to the applicants and that Article 3091 \u00a7 3(c) of the Criminal Code (torture) hadbeen inapplicable. He had thus been prosecuted for his actions under the Contraventions Code.<\/p>\n 52.\u00a0\u00a0The applicants had not made any requests for medical assistance while in detention; nor had they made any complaints to the prosecutor, whohad visited them every day, as confirmed by the relevant records.<\/p>\n 53.\u00a0\u00a0In seeking to have the Court find that A.C. hadbeen responsible for their ill-treatment, the applicantswere effectively asking the Court to carry out a criminal prosecution which the domestic authorities had refused. Unlike in previous cases in which a breach of Article 3 had been found owing to a failure to investigate complaints of ill-treatment during the April 2009 events (such as Taraburca, citedabove), in the present case a criminal investigation had taken place, which had even resulted in convictions. The sentences imposed on the officers had corresponded to the seriousness of their actions, as determined by the domestic courts. Moreover, the offences had been committed as a result of the mass disorders that had led to the destruction of sites of national importance.<\/p>\n 54.\u00a0\u00a0Moreover, previous cases against Moldova in which the Court had found a breach of Article 3 owing to the impunity of the torturers (such as P\u0103dure\u0163, cited above) were not applicable to the present case since those cases had involved serious bodily harm aimed at obtaining confessions. In the present case the torture had involved psychological violence which had provoked severepsychological suffering, aimed at intimidating the applicants.<\/p>\n 3.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 55.\u00a0\u00a0As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 \u00a7 2 even in the event of a public emergency threatening the life of the nation (see, among other authorities, Georgia v.\u00a0Russia (I) [GC], no. 13255\/07, \u00a7 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541\/08 and 43441\/08, \u00a7 113, ECHR 2014 (extracts); andBouyid v. Belgium [GC], no. 23380\/09, \u00a7 81, ECHR 2015).<\/p>\n 56.\u00a0\u00a0Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, G\u00e4fgen, cited above, \u00a7\u00a088, and Svinarenko and Slyadnevv. Russia [GC], nos. 32541\/08 and 43441\/08, \u00a7\u00a0114, ECHR 2014 (extracts)). Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, \u00a7\u00a064, Reports 1996\u2011VI; Krastanov v. Bulgaria, no. 50222\/99, \u00a7\u00a053, 30\u00a0September 2004; G\u00e4fgen, cited above, \u00a7 88; and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630\/09, \u00a7 196, ECHR 2012), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888\/94, \u00a7 71, ECHR 1999\u2011IX, and Svinarenko and Slyadnev, cited above, \u00a7 114). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for example, Selmouni, cited above, \u00a7 104, and G\u00e4fgen, cited above, \u00a7 88).<\/p>\n 57.\u00a0\u00a0Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual\u2019s psychological and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see, among other authorities, G\u00e4fgen, cited above, \u00a7\u00a089;Svinarenko and Slyadnev, cited above, \u00a7 114; Georgia v. Russia (I) [GC], no. 13255\/07, \u00a7 192, ECHR 2014 (extracts), and Van der Ven v. the Netherlands,no. 50901\/99, \u00a7\u00a7 60-63, ECHR 2003\u2011II). It should also be pointed out that it may well suffice that the victim has been humiliated in his or her own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, \u00a7 32, Series A no.\u00a026; M.S.S. v. Belgium and Greece [GC], no. 30696\/09, \u00a7 220, ECHR 2011; and Bouyid v. Belgium [GC], no. 23380\/09, \u00a7\u00a7 87, 28 September 2015).<\/p>\n 58.\u00a0\u00a0The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State\u2019s general duty under Article 1 of the Convention to \u201csecure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention\u201d, requires by implication that there should be an effective official investigation. As with an investigation under Article\u00a02, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772\/95, \u00a7 131, ECHR 2000\u2011IV).<\/p>\n 59.\u00a0\u00a0Furthermore, the outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as disciplinary measures taken, has been considered decisive. It is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined (see G\u00e4fgen, cited above, \u00a7 121 and Jeronovi\u010ds, cited above, \u00a7 106).<\/p>\n (b)\u00a0\u00a0Application of the above principles to the present case<\/p>\n 60.\u00a0\u00a0The Court must first determinewhether the treatment complained of falls within the scope of Article 3 of the Convention. It takes into account the fact that the domestic courts have already found that the applicants had been subjected to psychological ill-treatment. In examining the manner in which the applicants were treated, namely being forced under threats of violence to undress in front of an officer of the opposite sex and perform sit-ups and being threatened with violence or even death (see paragraph\u00a09 above), the Court sees no reason to disagree with the findings of the domestic courts (see, for instance,G\u00e4fgen, cited above, \u00a7 108;Dejnek v.\u00a0Poland, no.\u00a09635\/13, \u00a7 60, 1 June 2017, and Vala\u0161inas v. Lithuania, no.\u00a044558\/98, \u00a7\u00a0117, ECHR 2001\u2011VIII).<\/p>\n (i)\u00a0\u00a0Effectiveness of the investigation<\/p>\n 61.\u00a0\u00a0The applicants complained under Article 3 that the investigation into their allegations against officers V.D. and M.T. had been inefficient and protracted. The Government considered that the investigation had been effective and had resulted in the conviction of the relevant officers.<\/p>\n 62.\u00a0\u00a0The Court reiterates that it is beyond doubt that a requirement of promptness and reasonable expedition is implicit in the context of investigating alleged ill-treatment by the authorities. A prompt response in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no.\u00a031143\/96, \u00a7\u00a037, 18 October 2001;\u00d6zg\u00fcrK\u0131l\u0131\u00e7 v. Turkey (dec.), no.\u00a042591\/98, 24\u00a0September 2002; and Bat\u0131 and Others v. Turkey, nos.\u00a033097\/96 and 57834\/00, \u00a7 136, ECHR 2004\u2011IV (extracts)).<\/p>\n 63.\u00a0\u00a0In the present case, the Court notes that on 16 April 2009 the authorities were alerted that a crime had possibly been committed. On 23\u00a0April 2009 the applicants were interviewed and made very specific allegations against police officers, whom they identified (see paragraph\u00a015 above). They repeated their allegations in an interview with a prosecutor on 18\u00a0May 2009 and the resulting material was forwarded to the Prosecutor General\u2019s Office (see paragraph 16 above). Despite all this specific information indicating that the applicants had been subjected to psychological violence, it is clear from the decisions taken by the prosecutors that they were reacting only to the formal complaint made by the applicants on 23 July 2009 (see paragraph 19 above). However, the Court reiterates that when a State authority realises that treatment contrary to Article 3 may be occurring, it must react on its own motion (see, mutatis mutandis, Aksoy v.\u00a0Turkey, 18 December 1996, \u00a7 56, Reports 1996-VI; Ostrovar v. Moldova (dec.) no. 35207\/03, 22 March 2005; and Levin\u0163a v. Moldova, no. 17332\/03, \u00a7\u00a079, 16 December 2008).By failing to react during the crucial first three months after the information about the alleged offence became known (23\u00a0April-23 July 2009), the authorities jeopardised the effectiveness of the investigation.<\/p>\n 64.\u00a0\u00a0Moreover, on 19 January 2010 a court found that the investigation had been superficial and identified a number of shortcomings (see paragraph 20 above).<\/p>\n 65.\u00a0\u00a0The Court also notes that in accordance with domestic law the failure to launch a criminal investigation limits the latter\u2019s effectiveness in terms of admissibility in court of any evidence obtained (see, for instance, Gu\u0163u v. Moldova, no. 20289\/02, \u00a7 61, 7 June 2007;Ipate v. Moldova, no.\u00a023750\/07, \u00a7\u00a063, 21 June 2011; and Taraburca, citedabove, \u00a7 57).<\/p>\n 66.\u00a0\u00a0The Court concludes that in view of the late and superficial internal investigation, coupled with the failure to launch a proper criminal investigation until more than nine months after the information about the alleged offence had become known to the authorities, the investigation into the applicants\u2019 allegations has not been effective (see, for instance, Taraburca, cited above, \u00a7 59 and Buhaniuc v. the Republic of Moldova, no.\u00a056074\/10, \u00a7\u00a7 43-45, 28 January 2014).<\/p>\n (ii)\u00a0\u00a0Alleged impunity of the police officers<\/p>\n 67.\u00a0\u00a0The applicants also complained of the effective impunity of all three officers whom they had accused. The Government considered that the domestic authorities had properly applied the law and individualised the sentences.<\/p>\n 68.\u00a0\u00a0The Court will first examine the proceedings against A.C. and then those against the other two officers.<\/p>\n 69.\u00a0\u00a0In respect of the proceedings against A.C., the Court notes that while finding that he had clearly exceeded his powers and thus committed an administrative offence, the prosecutors and the domestic courts never identified which of his specific actions had constituted such a breach of the Contravention Code. The only factual description in all the decisions taken in his regard reproduced the applicants\u2019accounts, including the fact that they had identified him during identity parades (see paragraph 32 above). The Government did not submit any further details, nor did they challenge the veracity of the applicants\u2019 account of events concerning A.C.\u2019s role.<\/p>\n 70.\u00a0\u00a0In the light of the apparent acceptance by the domestic authorities of the applicants\u2019 description of A.C.\u2019s conduct and in the absence of any evidence contradicting that description, the Court considers it established that A.C. acted in the manner described by the applicants (see paragraph 33 above).<\/p>\n 71.\u00a0\u00a0The Court also notes that it has already established in previous cases concerning the events of April 2009 that there were (see Taraburca v.\u00a0Moldova, no. 18919\/10, \u00a7 48, 6 December 2011;see also Buhaniuc, cited abive, \u00a7 37):<\/p>\n \u201c… a large number of similar allegations of ill-treatment committed during a relatively short period of time. The situation was considered so serious by the European Committee for the Prevention of Torture as to conclude, after having reviewed \u2018a remarkably large number of credible and consistent allegations of police ill-treatment in the context of the post-election events in April 2009\u2019 that \u2018rather than isolated incidents, there were patterns of alleged ill-treatment\u2019… Similar conclusions were reached by the Commissioner for Human Rights of the Council of Europe (\u2018large-scale violations of the fundamental right to be free of ill-treatment\u2019) … and the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (\u2018most people were detained by the police arbitrarily…; the police committed ill-treatment and acts of torture against individuals held in detention\u2019).\u201d<\/p>\n 72.\u00a0\u00a0The findings above support the applicants\u2019 allegation that they found themselves in a frightening situation, witnessing other persons being ill-treated by the police. Having witnessed such open and large-scale ill-treatment, it is understandable that the applicants took A.C.\u2019s words (see paragraph 33 above) as a real and immediate threat (see G\u00e4fgen, cited above, \u00a7\u00a091, and El-Masri, cited above, \u00a7 202). They thus complied with his orders to face the wall, to sign documents with evident errors, to follow him to a room and to comply in that room with any order given, even if it meant a serious affront to their dignity, by fully undressing.<\/p>\n 73.\u00a0\u00a0In the Court\u2019s view, A.C.\u2019s actions, while not reaching the seriousness of torture, were clearly aimed at intimidating the applicants and gravely affected their dignity. They must thus be viewed as inhuman and degrading treatment within the meaning of Article 3 of the Convention (see El-Masri, cited above, \u00a7 204). While the prosecutor found that A.C.\u2019s actions had not caused serious enough damage to the applicants to be characterised as torture, he and subsequently the domestic court devoted no partof the reasoning to explaining why that officer could not be charged with criminal excess of powers or as an accomplice to the offence committed by V.D. and M.T. Moreover, the applicants expressly argued that domestic law provided grounds for such prosecution (see paragraphs 33-36 above).<\/p>\n 74.\u00a0\u00a0The prosecutor could not have been unaware of the fact that choosing to apply administrative law would preclude imposing any sanction on A.C. in view of the expiry of the three-month prescription period for prosecuting administrative offences. Indeed, he decided not to launch administrative proceedings against A.C. as time-barred in the same decision in which he decided to discontinue the criminal investigation in favour of the administrative one (see paragraph 32 above). The Court reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance for the purposes of an \u201ceffective remedy\u201d that criminal proceedings and sentencing are not time-barred (see, for instance, Abd\u00fclsametYaman v. Turkey, no. 32446\/96, \u00a7 55, 2 November 2004). The fact of knowingly choosing such a course of investigation which leads to it being time-barred, when there are alternative lawful grounds for prosecuting a person accused of ill-treatment as in the present case, is incompatible with the State\u2019s obligation to prevent impunity. The fact that A.C. was never suspended from his functions throughout the proceedings only adds to the doubts which the public may have concerning the authorities\u2019 resolve to eradicate the practice of police ill-treatment.<\/p>\n 75.\u00a0\u00a0The Court lastly notes that the domestic courts did not examine the substance of the arguments raised by the applicants in challenging the decisions adopted by the prosecutor. In doing so it found that domestic law and Article 4 of Protocol No. 7 to the Convention prohibited the reopening of a criminal investigation after it had been discontinued by a prosecutor, unless new circumstances had been discovered or where the decision had been affected by a fundamental defect in the previous proceedings (see paragraph 36 above). The Court finds it important to reiterate that one of the key elements in determining whether Article 4 of Protocol No. 7 applies to a specific case is to determine whether, in previous proceedings, a final decision in respect of that person has been adopted. It found, in this connection (see Nikitin v. Russia, no. 50178\/99, \u00a7\u00a037, ECHR 2004\u2011VIII), that:<\/p>\n \u201cAccording to the explanatory report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a \u201cdecision is final \u2018if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them\u2019.\u201d<\/p>\n
\nJulia Laffranque,
\nLedi Bianku,
\nPaul Lemmens,
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nIvana Jeli\u0107, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n