THIRD SECTION

Application no. 77029/12 Sergiu DUMINICA against the Republic of Moldova lodged on 22 November 2012

STATEMENT OF FACTS

1. The applicant, Mr Sergiu Duminica, is a Moldovan national, who was born in 1984 and lives in Cricova . He is represented before the Court by Mr V. Enachi and Mr s C. Stratan, lawyers practising in Chişinău.

A. The circumstances of the case

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

3 . On 5 April 2009 general elections took place and the Communist Party, which had a majority of votes in the outgoing Parliament, won 60 seats out of a total of 101.

On 6 and 7 April 2009 a protest against alleged electoral fraud took place in the centre of Chişinău . The protest was peaceful in the beginning; however, in the afternoon of 7 April 2009 some of the protesters became violent. Clashes with the police took place and the Parliament building and the Presidential Palace were damaged by stone throwing. A large number of police officers and protesters were injured. At a certain moment the police forces, largely outnumbered by the protesters, abandoned the two buildings, allowing several hundred persons to enter. Those persons destroyed and pillaged the buildings, setting parts of the Parliament alight. On the same night some 200 persons were arrested on charges of large-scale disorder. The opposition was accused of an attempted coup d ’ état.

4 . According to the applicant, on the evening of 7 April 2009, after work, he went to the centre of Chişinău to see the protests.

5 . Having spent some time peacefully attending the protests, at around 1.30 a.m. on 8 April 2008, he was surrounded by a group of policemen and was ordered to lie on the ground and to put his hands on his head. The applicant complied and received numerous kicks and baton blows to different parts of his body. Two persons wearing black clothes and balaclavas picked him up and dragged him on the sidewalk in front of the Government building; they threw him on the ground and along with other policemen again started kicking and hitting the applicant with their batons and legs to different parts of the body, jumping with their feet on his head for about two-three minutes. As a result, the applicant ’ s nose was broken.

He was then forced into a mini bus together with other 15 persons and taken to the Centru police station.

6 . At the police station he and many other persons were placed in a room and forced to keep their hands on their heads facing a wall for approximately one hour and a half. He was approached several times by a police officer, who punched him in his back and ordered him to straighten up.

7 . On the same day the applicant was taken to an office for questioning. There were two persons, one was prosecutor C.M. and the other was a plain clothed person, who demanded that the applicant sign a report according to which he was apprehended “in flagrante delicto in front of the Parliament”. The applicant refused to sign the report because it stated incorrectly the circumstances in which he had been apprehended. The plain-clothed person threatened him and then kicked him several times with his fists in the stomach and behind the head. The beating occurred in the presence of the prosecutor C. M.

8 . He was then returned to the cell in the Temporary Detention facility of the Centru Police Station. On his way to the cell, he was kicked in his head, stomach and other parts of the body, cursed and debased by 7 ‑ 8 policemen.

9 . He was detained together with other 25 persons in a cell of 8 sq.m ., without any ventilation, no access to water or toilet. During his detention, he did not receive any food or medical assistance.

10 . On the same day he was taken to an office for questioning by officer A.R.. The applicant requested pen and paper to write a complaint about being ill-treated and requested to be examined by a doctor. His requests were refused.

11 . On 9 April 2009 the applicant was taken to an office in the Centru Police Station. There a judge examined during ten minutes the cases of five-six persons. The judge issued an arrest warrant for twenty days in respect of the applicant.

12 . On the night from 9 to 10 April 2009 the applicant was transferred to the detention facility of the General Police Directorate, where he was also ill-treated.

13 . On 11 April 2009 the applican t was transferred to Prison no. 13. Before reaching the car, a policeman kicked the applicant. Upon his arrival the applicant was examined by a doctor.

14 . From 8 to 16 April 2009 the applicant requested several times to submit complaints about being subject to torture and ill-treatment but to no avail.

15 . On 14 April 2009 the Centre for Forensic Medicine examined the applicant and drew up a medical examination report, reading as follows:

“On the nose is visible an oval brown-yellow ecchymosis of 3.3 x 3 cm. On the entire surface of his back, on both of his buttocks, on his right ankle are multiple oval brown-yellow ecchymoses , with elongated form, in different directions, sized from 4 x 2.5 cm to 16 x 6.9 cm. Multiple and massive ecchymoses on the face, back and legs are resulted from the action of a blunt and hard object, with a limited interaction surface, possibly in the time and the circumstances described. ”

16 . On 15 April 2009 at 8.00 a.m. the applicant was escorted to the Centru Police Station without any explanation. At 5.00 p.m. he was taken to an office, where prosecutor C.M. questioned him in the presence of a pro bono lawyer.

17 . On 16 April 2009 the Chişinău Court of Appeal quashed the investigating judge ’ s decision of 9 April 2009 and ordered the applicant ’ s release.

18 . On 21 April 2009 the applicant sought medical assistance at the “ Memoria ” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have undergone detailed medical tests and examinations by various medical specialists. The Centre issued an Extract of the medical file ( Extras din Fişa Medicală ) which stated, inter alia , that the applicant had suffered cranial trauma, had a fractured nose with deviated nasal septum, bilateral hearing problems and had experienced psychological problems typical of victims of torture.

19 . On 28 April 2009 the applicant submitted an official complaint about being ill-treated while in police custody and about the unlawful conduct of officer A.R.

20 . On 30 July 2009 the applicant submitted a complaint to the investigating judge seeking the initiation of a criminal investigation into his complaints of ill-treatment. On 12 August 2009 the investigating judge dismissed the applicant ’ s request concluding that he had no legal prerogative to order the initiation of a criminal investigation.

21 . A criminal investigation into the applicant ’ s allegations of ill ‑ treatment was initiated on 23 September 2009.

22 . On 24 February 2010 the applicant submitted a formal denunciation that the ill-treatment in the Centru police station had been committed in the presence and with the acquiescence of prosecutor C.M. On 31 March 2010 the prosecutor informed the applicant that his complaint against prosecutor C.M. was dismissed because the allegations of ill-treatment had not been confirmed. A copy of this decision was served to the applicant ’ s representative on 15 February 2011.

23 . On 21 May 2010 the Chișinău municipal prosecutor closed the investigation into the applicant ’ s allegations of torture at the Centru police station, concluding that the violent actions had not been confirmed. The decision stated that the applicant ’ s allegations of torture in front of the Government building had been separated and were investigated in another criminal case, on which the investigation was still pending. A copy of this decision was served to the applicant ’ s representative on 15 February 2011.

24 . On 20 March 2011 the applicant appealed against the prosecutor ’ s decision of 21 May 2010 to clo se the criminal investigation. On 11 July 2011 the Riscani District investigating judge quashed the prosecutor ’ s decision and ordered the reopening of the criminal investigation.

25 . The applicant submitted numerous complaints and requests to be informed about the course of the criminal investigation.

26 . On 24 May 2012 the applicant was informed that on 30 December 2011 the criminal investigation had been suspended because the criminal investigating authority could not identify the perpetrators.

The applicant did not appeal this decision considering that a complaint to the investigating judge was not an effective remedy because it was unable to cure the deficiencies of the investigation.

B. Relevant non-Convention material

27 . The relevant non-Convention material was summarised in Taraburca v. Moldova (no. 18919/10 , §§ 33-37, 6 December 2011).

COMPLAINTS

28 . The applicant complains that he was subjected to ill-treatment by police officers in violation of Article 3 of the Convention. He also argues that the State authorities failed to conduct an effective investigation in respect of his complaint about ill-treatment.

29 . He also alleges that he had no effective remedies against the breach described above, in breach of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention (see, for example, Tomasi v. France , judgment of 27 August 1992, Series A no. 241 ‑ A)?

2. Having regard to the procedural protection f rom ill-treatment under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation conducted by the domestic authorities in the present case effective for the purposes of that Article?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?

The Government are asked to submit a copy of the full version of the case file (including the video of the applicant ’ s arrest), concerning the criminal investigation instituted by the Prosecutor ’ s Office in respect of the applicant ’ s criminal complaint.