THIRD SECTION

DECISION

Application no . 34115/09 Eugeniu CUPRIANOV against the Republic of Moldova

The European Court of Human Rights (Third Section), sitting on 26 March 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Valeriu Griţco , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 10 June 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Eugeniu Cuprianov , is a Moldovan national who was born in 1971 and lives in Chişinău . He was represented before the Court by Mr V. Zama, a lawyer practising in Chişinău . The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol .

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. At the time of the events the applicant was employed by the Moldovan national railway company as a train attendant. On 3 April 2007 one of his colleagues, S.H., was arrested at work on suspicion of involvement in the smuggling of drugs by train to the Russian Federation . He had in his possession a bag containing a considerable quantity of marijuana. Later the same day the applicant was arrested. According to the police ’ s version of the events, confirmed by S.H., the applicant ’ s role was to hide the bag in a train in order to have it smuggled into the Russian Federation .

4. On the day of the applicant ’ s arrest he was taken to the police station, where he was allegedly subjected to ill-treatment. He did not confess to the offences he was accused of but only said that some time earlier S.H. had enquired whether he would be willing to transport drugs to an unspecified direction and that he had replied no. He also stated that S.H. had asked where it would be possible to hide drugs in the train. During the questioning he was assisted by a lawyer. A search was carried out at his home and a small quantity of marijuana was found. The police also found equipment for producing dried marijuana and a picture of him next to a large marijuana plant.

5. On 5 April 2007, after engaging a lawyer, the applicant complained to the prosecutor ’ s office that he had been ill-treated at the police station. Later the same month the applicant underwent a medical examination by a forensic doctor, who found bruises on his face and scratches on his head and shoulder.

6. On 27 April 2007 the prosecutor ’ s office dismissed the applicant ’ s complaint of ill-treatment and found that his injuries had been caused by his resistance to his arrest. The applicant appealed to the hierarchically superior prosecutor ’ s office, which dismissed his appeal on 26 March 2008. He did not challenge this decision before the investigating judge.

7. During the criminal proceedings against him, the applicant submitted that he had been ill-treated to make him confess and that the small quantity of marijuana at his home had been planted by the police. The co-accused S.H. submitted that he had agreed to incriminate the applicant during the investigation phase of the proceedings in exchange for a promise by the police not to prosecute him. He did not complain about any form of pressure or ill-treatment. The prosecution also obtained a medical report which stated that the applicant was not a user of marijuana.

8. On 24 March 2008 the Centru District Court found the applicant guilty and sentenced him to seven years ’ imprisonment on charges of fabricating narcotic substances for the purpose of sale. At the same time the court acquitted the applicant of the charges of attempted smuggling of narcotic substances. The court based its decision, inter alia , on the statements made by S.H. immediately after his arrest and on the findings of the search of the applicant ’ s home. The court dismissed the applicant ’ s complaint that he had been ill-treated, relying on the prosecutor ’ s decision. S.H. was also found guilty and received the same sentence. Both the applicant and S.H. appealed.

9. On 11 June 2008 the Chişinău Court of Appeal upheld the applicant ’ s appeal and acquitted him. The court found contradictions between S.H. ’ s statements in respect of the applicant made at the investigating stage of the proceedings and his testimony during the trial. Moreover, the court found the prosecution ’ s version of the facts unreliable, because the applicant ’ s passport had no longer been valid at the relevant time and he would not have been able to travel abroad on the day in question as stated in the indictment. S.H. ’ s conviction was upheld by the Court of Appeal. The prosecution and S.H. appealed to the Supreme Court of Justice.

10. On 27 January 2009 the Supreme Court of Justice upheld the prosecutor ’ s appeal, quashed the judgment of the Chişinău Court of Appeal and upheld the judgment of the first-instance court. It dismissed the applicant ’ s submission to the effect that he had been ill-treated during the investigation phase of the proceedings and observed that his ill-treatment complaint had been dismissed by the prosecutor ’ s office. The Supreme Court also found that the prosecution had presented sufficient evidence to prove the involvement of the applicant in the fabrication of narcotics with the purpose of further sale.

B. Relevant domestic law

11. According to Articles 298, 299 and 313 of the Code of Criminal Procedure a complaint about ill-treatment is to be lodged with the Prosecutor ’ s Office and the decision of that office is to be challenged before the hierarchically superior Prosecutor ’ s Office. The decision of the latter body can be challenged before an investigating judge. The explanatory judgments of the Plenary Supreme Court No. 7 and No. 8 dated 4 April 2005 and 30 October 2009 respectively, confirm that this is the remedy to be used in cases concerning ill-treatment and torture.

COMPLAINTS

12. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and under Article 6 of the Convention that the criminal proceedings against him had been unfair.

THE LAW

A. The complaint under Article 3 of the Convention

13. The applicant complained about ill-treatment after his arrest on 3 April 2007. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

14. The Government submitted, inter alia , that the applicant failed to exhaust domestic remedies by failing to challenge the decision of 26 March 2008 before the investigating judge.

15. The applicant relied on medical documents which recorded injuries on his body shortly after his alleged ill-treatment. He submitted that the final decision in respect of his complaint under Article 3 should be considered the decision of the Supreme Court of Justice of 27 January 2009 and not that of the prosecutor ’ s office of 26 March 2008.

16. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova , 44746/08, dec ., 24 January 2012).

17. The Court notes that the applicant lodged a criminal complaint concerning his alleged ill-treatment and that it was dismissed by the prosecutor ’ s office on 26 March 2008. Although he could challenge the prosecutor ’ s decision before an investigating judge (see paragraph 11 above), he had not done so.

18. It is true that the applicant also raised the issue of his alleged ill-treatment in his defence during the criminal proceedings against him; however, as it was shown in paragraph 11 above, the Supreme Court of Justice is not competent under domestic law to examine such complaints.

19. Consequently, this application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. The complaint under Article 6 § 1 of the Convention

20. The applicant complained under Article 6 § 1 of the Convention that the proceedings had not been fair. The relevant parts of Article 6 of the Convention read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

21. The applicant submitted that he had been convicted on the basis of evidence secured as a result of a breach of Article 3 of the Convention. In particular, he submitted that after his arrest he had been questioned in the absence of a lawyer of his choosing and that the confession made by him at that time was one of the main pieces of evidence relied upon by the courts to convict him. He further argued that he had not had an effective opportunity to challenge the admissibility of that piece of evidence, that is, to prove that his confession had been extracted by force.

22. The Government disagreed, arguing, in the first place, that the applicant had been questioned in the presence of a lawyer on 3 April 2007. In any event, he had had the opportunity to challenge the manner of his questioning before an investigating judge, had he considered it unlawful, but he had not done so. However, even assuming that he had not been questioned in the presence of a lawyer, his statements did not constitute a confession since they contained no admission that he had committed the offence imputed to him.

23. The Court reiterates that, as a general rule, paragraph 1 of Article 6 requires that the defendant be given an adequate and proper opportunity to challenge evidence against him (see Lüdi v. Switzerland , 15 June 1992, § 49, Series A no. 238, and Van Mechelen and Others v. the Netherlands , 23 April 1997, § 51, Reports of Judgments and Decisions 1997 ‑ III ).

24. The Court notes that the applicant was acquitted of the charges of attempted drug smuggling and was convicted solely for the offence of fabrication of narcotics for the purpose of sale. In the latter regard, the courts found the applicant guilty, following adversarial proceedings in which the applicant was represented by a lawyer, on the strength of such evidence as that found during the search of his home (namely, apparatus for the production of dried marijuana, a small quantity of marijuana and a picture of the applicant near a large marijuana plant). In the Court ’ s view that evidence was sufficient to convict the applicant for the offence of which he was accused. In such circumstances, the applicant ’ s statements of 3 April 2007 do not appear to be the main piece of evidence on the basis of which the applicant was convicted, as claimed by him.

25. T he complaint under Article 6 § 1 of the Convention is therefore manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President