Communicated on 1 September 2015

THIRD SECTION

Application no. 23524/14 Ana MÃŽÅ¢U against the Republic of Moldova lodged on 10 March 2014

STATEMENT OF FACTS

The applicant, Ms Ana Mîțu , is a Moldovan national, who was born in 1983 and lives in Chişinău .

A. The circumstances of the case

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

On 30 May 2013, at around 8 a.m., the applicant and her husband were at their home when unidentified persons surrounded the house, knocked at the door and demanded to open it. One of those persons allegedly wore a T-shirt with a text reading “Killing time”. The applicant and her husband asked those persons to identify themselves. In the absence of an answer they thought that they were attacked by criminals and called the police. The police arrived and along with the unidentified persons requested that the applicant to open the door. She refused and explained that she was frightened. She asked the unidentified persons to leave. The police told her that there was a search warrant for her flat and showed her through the window a paper, which she could not see to read. Shortly, ten masked individuals with machine guns and bulletproof vests arrived. This was when the applicant and her husband understood that the operation was indeed run by the police, even though they had refused identifying themselves.

According to the applicant, her husband went to open the door while she squatted down on the floor. The police stormed in, told the applicant to kneel down, and twisted her hands behind her back. She raised her head and saw her husband ’ s face in blood. A police officer hit her with a boot in the back to secure her to the floor and handcuffed her. They screamed at her contradictory instructions, she was shaking with fright. They dragged her to the kitchen, where she was given a glass of water. Force was no longer used in her respect.

The police searched the flat, found allegedly stolen goods and arrested the applicant ’ s husband on charges of theft.

The same day the applicant lodged a complaint with the police about the excessive force used by police officers. A medical report drawn up on 31 May 2013 found two violet-blue oval ecchymoses , of 5 x 3 cm and 6 x 1,5 cm, on her back; a violet-blue oval ecchymosis, of 2 x 0,8 cm on her left forearm; a violet oval ecchymosis of 1,2 x 0,8 cm on her left knee. The report concluded that the injuries had probably been caused in the circumstances described by the applicant and assessed them as of minor severity. The applicant ’ s T-shirt with a boot print on the back was retained as evidence.

On 5 June 2013 the applicant was acknowledged as a victim. However on 20 June 2013 the Botanica prosecutor ’ s office refused to initiate a criminal investigation, finding that the acts complained of did not constitute a criminal offence and that the police had used force to immobilise the applicant and her husband who had not cooperated but resisted the police.

According to the statements of the interviewed police officers, on 5 April 2013 an investigation was initiated in respect of the applicant ’ s husband on charges of theft. On 28 May 2013 the Botanica investigating judge authorised the police to search for stolen goods in the applicant ’ s flat. Certain police officers claimed that the applicant ’ s son had told them that there were firearms in the flat; other officers stated that the applicant ’ s relatives informed them about the arms. As the applicant refused to open the door, they planned to force an entry. Because there was a lot of sunlight outside and it was dark inside (the electricity had been disconnected in the meantime and the apartment was on the first floor and poorly lit by daylight), it was decided to immobilize completely whoever was inside in order to prevent the use of arms. Once they entered the apartment building, an officer informed them that the door of the flat was opened but that there was no indication of willingness to surrender. The operation continued with slight changes. A police officer, O.R., stated that there were only two persons in the flat, the applicant and her husband. The applicant was hysterical (very frightened), her hands were uncontrollably shaking, she hardly could hold a glass of water in her hands without spilling it, her mouth trembled and she was unresponsive to addressed questions. Another police officer, V.F., stated that the applicant had acted hysterically and had been trying to free herself by twisting her arms in “unnatural ways”; in order to prevent fractures or dislocation they were obliged to fix her to the floor. Seven other police officers stated that the applicant and her husband had acted aggressively, had tried to free themselves and to resist the police. The prosecutor concluded that the police had lawfully used force to neutralize the resistance of the applicant and of her husband and therefore could not be held responsible for the inflicted pecuniary, non-pecuniary and physical damage.

The applicant appealed. She argued that she had complied with all instructions given by the police after they had entered the flat. She complained that the force used in her respect had been contrary to Article 3 of the Convention and that the investigation into her complaint had been inefficient because it relied exclusively on the statements of the police officers.

On 8 October 2013 the Botanica investigating judge finally dismissed the applicant ’ s appeal. The judge reiterated the reasons provided by the prosecutor and concluded:

“As has been established in the course of the criminal proceedings, the search at the [applicant ’ s] home had been authorised ... and in the circumstances in which the residents of the flat to be searched had refused to open the door and according to operative investigation data, they had stolen goods and weapons, the police officers were entitled to use the force and special means in accordance with Article 7 (a) of the Law on the use of physical force, of special means and of fire arms.”

B. Relevant domestic law

The Law no. 218 of 19 October 2012, in force on 14 December 2012, on the use of physical force, of special means and of firearms, reads as follows:

„ Article 7 . Use of special means

In the exercise of their duties, the legal subjects shall use special means in the following cases:

a. in order to reject attacks against persons, against themselves and against other persons involved in securing public order and safety and in fighting crime ; ...

Article 8 . Restrictions on the use of special means

(1) It shall be prohibited:

a. to use special means against ... women, ...unless they attack the legal subject or another person, either in group or by using firearms, when they resist in a way which is dangerous to other people ’ s life and health, if such actions cannot be curtailed in other ways and by other means.

Article 20 . Responsibility in case of use of physical force, of special means and of firearms

(1) Legal subjects shall not be responsible for the non-pecuniary, pecuniary and physical damage inflicted to the delinquent in connection with the use of physical force, of special means and of firearms if they have acted in strict compliance with the provisions of the present law.

(2) If the legal subjects overstep their powers in respect of using physical force, special means and firearms, they shall be subject to disciplinary, civil, administrative or criminal liability.”

COMPLAINT S

The applicant complains under Article 3 of the Convention about the unjustified excessive force used by the police in her respect and the absence of an effective investigation into the use of excessive force .

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment , in breach of Article 3 of the Convention , as a result of the police operation at her home on 30 May 2013?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?