THIRD SECTION

Application no. 70077/11 Serghei TIMUS and Victoria TARUS against Moldova lodged on 25 October 2011

STATEMENT OF FACTS

The applicants, Mr Serghei Timus and Victoria Tarus , are Moldovan nationals who were born in 1990 and 1989 respectively and live in Chişinău . They are represented before the Court by Mr I. Oancea , a lawyer practising in Chişinău .

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

The applicants ’ sibling Alexei Vlasi was killed on 14 March 2009 during a police operation. The present case is about the circumstances of his alleged ill-treatment and death and the ensuing investigation.

On 14 March 2009 at approximately 10.20 p.m. three plain clothed police officers entered an apartment block for the purpose of arresting a suspect. In the stairwell they met a group of five persons composed of two men and three women who were descending the stairs. None of the persons from that group was the suspect wanted by the police.

One of the police officers immediately apprehended one of the men called G. Alexei Vlasi and another female member of the group were several storeys behind and saw the incident as they reached the rest of the group. Two police officers rushed after Alexei Vlasi and apprehended him. Immediately after that, one of the police officers shot Alexei Vlasi in the back of his head from a very close range. Alexei Vlasi died on the spot.

An investigation followed during which all the witnesses and the police officers were heard.

The version of the group of persons who accompanied Alexei Vlasi was that the police officers were armed with guns and very violent. Upon meeting the group one of them started ill-treating G. while the other two ran up the stairs to apprehend Alexei. After apprehending him they started to beat him up. It appeared that one of those police officers and Alexei knew each other as they called each other by their names. Alexei asked one of the police officers several times to stop beating him because he would see a forensic doctor and file a complaint. While holding Alexei with his back turned to the police officers, one of the police officers put his gun at the back of Alexei ’ s head. Alexei repeated again that he would complain and immediately after that he was shot in the head. Alexei collapsed. After that the police officer who had shot his gun started shouting that he did not want for that to happen. One of the women, M., who was the closest to the scene started to scream and to shout “Why did you do that?” Then the third police officer pushed everybody down the stairs into the apartment of one of the members of the group. The last to enter the apartment was G. who saw before entering how one of the police officers stabbed another one with a knife in his thigh. When the group of persons saw Alexei ’ s body the next time, its position was changed. According to them, Alexei did not have any weapons on him and he did not have anything in his hand when collapsing after being shot.

According to the police officers, when Alexei ran up the stairs, they thought that he was the suspect who they had come after. One of the police officers apprehended him but Alexei punched him in the face and started running down the stairs where he was apprehended by another police officer who held him by his jacket. At that moment Alexei took out a knife and stabbed that police officer in the thigh. Then he attempted to stab him in the face but the police officer shot him. In his initial declaration, the police officer who had shot Alexei stated that it was an involuntary shot, but later he changed his declaration and stated that the shot was made in self-defence.

During the investigation the Chişinău Prosecutor ’ s Office also obtained several forensic reports which found, inter alia , that the entry wound was on Alexei Vlasi ’ s left upper part of the neck and the exit wound was on the right side of his forehead. The report also found signs of violence on Alexei ’ s face. Another forensic report found that the police officer who had shot him had an injury to his thigh produced by a knife and the other police officer who had allegedly been punched in his face by Alexei had a bruise on his face. Another expert report did not find any fingerprints on the knife with which Alexei had allegedly stabbed one of the police officers.

On 21 September 2009 the Chişinău Prosecutor ’ s Office decided to discontinue the criminal investigation on account of the fact that the police officer who shot Alexei Vlasi had acted in self-defence. The applicants challenged the above decision before the Prosecutor General ’ s Office and before an investigating judge.

On 9 October 2009 the Deputy Prosecutor General quashed the above decision on the ground that it was based exclusively on the account of the facts as submitted by the police officers and that no consideration was given to the witnesses ’ statements. The investigator had failed to determine the exact place of the shooting and the victims position vis-à-vis the shooter. Moreover, no ballistic examination had been conducted.

On 22 October 2009 the Râşcani District Court struck out the applicants ’ appeal on the ground that the matter had already been resolved by the Prosecutor General ’ s Office.

In the meantime the applicants also lodged a criminal complaint against the two police officers in respect of the alleged ill-treatment of Alexei Vlasi before his killing. However, on 30 June 2010, the Chişinău Prosecutor ’ s Office dismissed that complaint as ill-founded. The applicants appeal ed and on 20 October 2010 the R â ş cani District Court quashed the Prosecutor ’ s decision of 30 June 2010 on the ground that the investigation had been incomplete.

On an unspecified date the applicants requested the Prosecutor General ’ s Office to remove the case concerning their brother ’ s killing from the Chişinău Prosecutor ’ s Office on grounds of its bias. However that request was rejected on 8 November 2010.

On an unspecified date a ballistic report was prepared. It found that the bullet hole in the wall opposite where Alexei Vlasi was shot was lower than the place where his head would have been had he been standing upright and, taking into consideration the positions of the entry and exit wounds on his head, it was concluded that, at the moment of the shooting, the victim was bent over and not standing upright.

On 15 September 2011 the Chişinău Prosecutor ’ s Office discontinued the criminal investigation in respect of the accused police officers on the ground that the police officer who had shot Alexei Vlasi had acted in self-defence. In so far as the statement of G. to the effect that he had seen one of the police officers stabbing another one with a knife was concerned, the prosecutor dismissed it after a test with a polygraph conducted by employees of the Ministry of Internal Affairs. It does not appear that the prosecutor attempted to reconcile the findings of the ballistic expertise with the statement of the accused police officer according to which the shot had been made in the moment when Alexei Vlasi had attempted to stab him in the face. On the other hand, the decision stated that Alexei Vlasi had been a suspect in a criminal case together with the person whom the police officers had intended to arrest on the night of 14 March 2009 and that after his death the criminal proceedings in respect of him had been discontinued.

It appears that the applicants challenged this decision, however, the outcome of the appeal proceedings is not known to the Court.

COMPLAINTS

The applicants complain under Article 2 and 3 of the Convention about the ill-treatment and the killing of their brother by the police. They also complain about the authorities ’ failure to comply with their procedural obligations under Articles 2 and 3 of the Convention, namely to effectively investigate their allegations. They finally complain that they did not have an effective remedy as required by Article 13 of the Convention in respect of the breaches complained of above.

QUESTIONS

1. Has the applicants ’ brother ’ s right to life, guaranteed by Article 2 of the Convention, been violated in the present case?

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

3. Was the applicant ’ s brother subjected to ill-treatment or other forms of treatment contrary to Article 3 of the Convention before his death (see, for example, Tomasi v. France , judgment of 27 August 1992, Series A no. 241 ‑ A)?

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

5. Did the applicants have at their disposal an effective domestic civil remedy for their complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention?

The Government are asked to submit a copy of the full version of the case file, concerning the criminal investigation instituted by the Prosecutor ’ s Office in respect of the Alexei Vlasi ’ s alleged ill-treatment and killing.