PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

First of all I should say that I find no difficulty in accepting in the present case a procedural violation of Article 3 and I share the majority ' s view on this point.

Indeed, international standards concerning the effectiveness of investigations into cases of alleged torture are extremely high and, as a matter of principle, I am afraid that it is very difficult if not impossible for States to respect them in their entirety.

In the most complete form these principles find their reflection in the document entitled “Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” recommended in UN General Assembly resolution 55/89 of 4 December 2000.

The standards set forth these read as follows:

“ 1. The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter "torture or other ill-treatment") include the following:

(a) Clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families;

(b) Identification of measures needed to prevent recurrence;

(c) Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.

2. States shall ensure that complaints and reports of torture or ill-treatment are promptly and effectively investigated. Even in the absence of an express complaint, an investigation shall be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission investigations by, impartial medical or other experts. The methods used to carry out such investigations shall meet the highest professional standards and the findings shall be made public.

3. (a) The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. The persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation. They shall also have the authority to oblige all those acting in an official capacity allegedly involved in torture or ill-treatment to appear and testify. The same shall apply to any witness. To this end, the investigative authority shall be entitled to issue

summonses to witnesses, including any officials allegedly involved, and to demand the production of evidence.

(b) Alleged victims of torture or ill-treatment, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation that may arise pursuant to the investigation. Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation.

4. Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing, as well as to all information relevant to the investigation, and shall be entitled to present other evidence.

5. (a) In cases in which the established investigative procedures are inadequate because of insufficient expertise or suspected bias, or because of the apparent existence of a pattern of abuse or for other substantial reasons, States shall ensure that investigations are undertaken through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any suspected perpetrators and the institutions or agencies they may serve. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles.

(b) A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. Upon completion, the report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation and, as appropriate, indicate steps to be taken in response.

6. (a) Medical experts involved in the investigation of torture or ill-treatment shall behave at all times in conformity with the highest ethical standards and, in particular, shall obtain informed consent before any examination is undertaken. The examination must conform to established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials.

(b) The medical expert shall promptly prepare an accurate written report, which shall include at least the following:

( i ) Circumstances of the interview: name of the subject and name and affiliation of those present at the examination; exact time and date; location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g., detention centre, clinic or house); circumstances of the subject at the time of the examination (e.g., nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner or threatening statements to the examiner); and any other relevant factors;

(ii) History: detailed record of the subject ' s story as given during the interview, including alleged methods of torture or ill-treatment, times when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms;

(iii) Physical and psychological examination: record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries;

(iv) Opinion: interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and/or further examination shall be given;

(v) Authorship: the report shall clearly identify those carrying out the examination and shall be signed.

(c) The report shall be confidential and communicated to the subject or his or her nominated representative. The views of the subject and his or her representative about the examination process shall be solicited and recorded in the report. It shall also be provided in writing, where appropriate, to the authority responsible for investigating the allegation of torture or ill-treatment. It is the responsibility of the State to ensure that it is delivered securely to these persons. The report shall not be made available to any other person, except with the consent of the subject or on the authorization of a court empowered to enforce such a transfer.” (See, for instance, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2001.62.En?Opendocument )

Of course, I agree that the Moldovan authorities failed to comply with the above requirements, and if so, a violation of the procedural element of Article 3 should be found.

At the same time I am strongly against the finding of a substantive violation of Article 3 because it would run not just counter to the factual circumstances of the case, but also against common sense.

In the present case the applicant complains of being subjected to torture by Moldovan police officers on two occasions:

- on 10 May 2001 and

- on 10 July 2002.

In addition to that he complains under Article 13 of the fact that the prosecution office failed to examine his complaints about alleged torture. (see page 4 of the applicant ' s complaint).

The Government proposed their own description of the factual circumstances of the case, based on an official verification of the applicant ' s allegations which considerably differs from the description given by the applicant.

As far as the first episode (10 May 2001) is concerned, the applicant stated that he had been beaten up by the police officers, as a result of which he sustained “...fracture of two ribs and nose as well as damage of his head...” (see page 3 of the applicant ' s complaint).

The Government claim that the applicant was injured because whilst being transported from a village to the police department he tried to escape from the police, by jumping out of the moving car and sustained injuries from the impact with the road. Despite that he was brought to the police department. On the same day, while in custody in the police department, the applicant had managed to escape from the police.

As to the second episode (10 July 2002), the applicant contended that he again had been beaten up by the police officers and as a result both his legs, a finger and three ribs were broken. (see page 3 and 3 add. of the applicant ' s complaint).

The Government claim that the applicant was injured not because of torture but because when caught red-handed at the scene of a crime in order to avoid his arrest he jumped down from the third floor.

So, now we are faced with a situation where there are two different versions of events put forward by the applicant and by the Government. And the Court ' s task is to determine which version is trustworthy. In carrying out this very delicate exercise the judgment ' s conclusions are based on some fundamentally wrong presumptions, which do not even stand up to the most elementary analysis.

In paragraph 50 it is written that “...there were no independent witnesses who could confirm that the applicant jumped from the car...” I find this “argument” inconsistent with the factual circumstances as no “independent witnesses” were present in the car when the applicant was being transported to the police department”. And if so, it would run counter to common sense to accuse the Moldovan authorities of their failure to rely on “independent witnesses” who simply did not exist.

Taking this way of logic I could also have said that no “independent witnesses” were present when the applicant allegedly was subjected to torture as he claims. Why in the case of police officers is this argument valid, but not in the case of the applicant?

Continuing, the judgment specifies that “...the findings of fact made by the prosecutors were entirely based on the account of the police officers accused of ill-treatment...”

I find this argument to be absolutely inadmissible, because it clearly runs counter to the principle of the presumption of innocence and reveals in a way a total ignoring of Convention standards, which in my view can be considered as a kind of bias. Moreover, no police officer was “accused” in the present case of any ill- treatment. To say that the police officers were “accused of ill-treatment” would contradict the factual circumstances of the case. In my view the European Court ' s judges should be more cautious in the words and formulas they use in their judgments.

Reaching their finding of a substantive violation of Article 3 the majority did not pay any attention to the fact that the applicant had failed to adduce any reason why the police officers should have applied illegal force, putting at risk their professional reputation and even freedom? Did they have any particular reason to hate this particular person so much as to have him beaten up? Did the applicant give us any reason to believe that the police officers had a personal reason to beat him up? The answer is – of course he did not! And, since the applicant failed to submit any reason for his allegations, it is not surprising that the judgment contains no answer to the above questions either.

From the material we have before us, four police officers were present at the applicant ' s arrest and only two of them allegedly beat the applicant. What reason could the other two policemen have had to lie? I have the impression that the judgment is simply based on a presumption that all Moldovan policemen apply torture against all Moldovan citizens and in all cases. If I am right, I regret this kind of bias against the Moldovan police. Moldovan police officers are doing their very difficult job just like Albanian, Maltese or Andorran police officers do, trying to protect society against those who violate the law and it is absolutely unfair and unjust to accuse them of applying torture only because of the simple fact that they are policemen. Of course, their professional activity does not attract too much love on the part of those from the opposite side of the law. But is this “lack of love” a sufficient reason for groundless presumptions? To my mind, the answer is self-evident.

If I am wrong, and if the reason for the above presumption was different from simple bias, I would like to see what it was and, more particularly, reasons why Moldovan police officers decided to apply illegal force to the applicant. In the absence of any reason, I am afraid that the presumption that the declarations of police officers do not deserve the Court ' s trust would send the wrong signals to the outside world.

Concerning the first event, in this case there are police officers and our applicant. No other “independent witness” was present. And we need to make our choice between the version of events submitted by the police and the version of the events submitted by the applicant. There is no other option. If one wishes so much to substitute one ' s own factual findings for those of the national investigative authorities, one should do it professionally and with serious evidence on the table.

The next so-called argument, used in the judgment is that “the investigations carried out by the domestic authorities appeared to have had ... shortcomings” (see paragraph 52). I agree that the investigations conducted by the authorities in the case before us were far from ideal, that is why I decided to vote for a procedural violation of Article 3. But what does this fact have to do with a “substantive violation”? Investigative shortcomings manifest the fact that the investigation in the present case was not “effective”, which serves as a ground for finding a procedural violation of Article 3. The existence of such shortcomings cannot prove by itself the existence of a “criminal fact”. I am really sorry that I need to have mentioned this self-evident fact, which should have been taken into account by the majority in their considerations.

Moreover, the event - whether torture or jumping from the car - took place on 10 May 2001, but the applicant did not report it before his second arrest, namely on 30 September 2002, that is more than one year – 14 months - later. Of course because of the time factor it was practically impossible to reconstruct what had happened more than one year before.

Had the applicant been tortured, I suggest, he would have announced it not in September 2002, but in May 2001 when the event allegedly took place. He could have lodged an official request for investigation either personally or by post. He could have made use of a lawyer ' s assistance. But he failed to do so; he failed to lodge any complaint with the Moldovan authorities. In the judgment no attention was paid to this fact. In my view, the lateness of this request for investigation is what made the investigation ineffective. Had the applicant filed his request in May 2001 and not in July 2002, and had the Moldovan authorities then failed to conduct a proper investigation, I would have accepted the argument that “the investigations carried out by the domestic authorities appeared to have had ... shortcomings” as a ground for drawing inferences concerning a lack of willingness to have the accident investigated. But in conditions where the applicant fails to declare to the authorities the alleged torture at the appropriate time, I find it wrong to start different speculations on this issue.

In paragraph 53 of the judgment it is stated that “the domestic authorities do not...appear to have taken into account the nature of the applicant ' s injuries...” I am very sorry to say that I can not agree. If an objective and impartial reader compares the injuries found on the applicant ' s body with the applicant ' s claims, this objective and impartial reader will discover, that the applicant claimed that two of his ribs and his nose had been broken, while in the medical report no mention of any fracture can be found. This fact denotes a lack of sincerity on the applicant ' s part, to which the majority did not pay any attention.

Characterisation of bodily harm as well as determination of the possible causes of this harm form part of special forensic knowledge. If the majority has doubts concerning the origin of the injuries, there is no other way but to put a direct question to forensic experts asking whether these injuries could or could not have been produced in one or another type of circumstance. Not being forensic experts we are not entitled to make conclusions which exceed our professional knowledge.

As far as the events of 10 July 2002 are concerned, I agree with the finding that there has been no substantive violation of Article 3.

It is worth mentioning that the applicant hid from the Court the fact that he had jumped down from the third floor when the police tried to arrest him red-handed, claiming again that he had been tortured, beaten up and as a result of this action his legs, ribs and a finger were broken. Hopefully, the fact of his jumping down from the window of the third floor was witnessed even by “independent witnesses” – the victim of the robbery committed by the applicant and his neighbours.

Moreover, a doctor from the emergency services, on being questioned, declared that the applicant had told him that he had fallen down from the third floor.

According to the forensic medical report no 3129/D “...all the injuries found on the body of Mr. Pruneanu could have been produced as a result of his falling from the height of a third floor and the impact of the body on some hard objects...”.

I am mentioning the above facts just to show that the reliability of the applicant ' s statements as far as the second episode is concerned was so low as to justify the finding that “...it has not been established beyond reasonable doubt that the injuries sustained by the applicant were the result of ill-treatment...” (see paragraph 66).

So, one can say that in this episode the Court accepted the version of the events submitted by the Government and not the version of events submitted by the applicant. Acting in this way, in my judgment, the Court indirectly recognised that the applicant had tried to mislead it, because, indeed, otherwise the Court would have accepted the applicant ' s position.

If this logic is a correct one, in this case it is not clear for me why the majority preferred not to trust the Government ' s version of events in the first episode?

In my view, the facts that the applicant:

- provided not very accurate information about the character of the injuries sustained in the result of 10 May 2001 events,

- did not lodge a complaint with the Moldovan authorities about the 10 May 2001 events within a reasonable time,

- lodged his complaint about the 10 May 2001 events only in September 2002 that is two months after being arrested, and

- hid the fact of his jumping down from the third floor and attributed all the injuries sustained by him to the police officers clearly denote his bad faith and render his declarations - concerning the 10 May 2001 events - untrustworthy. As a result, his declarations cannot be considered as reliable evidence and if so the conclusion should have been similar to that reached in paragraph 66.

Accordingly, I cannot accept the fact that the application of illegal force to the applicant was established beyond a reasonable doubt and if so, in my view, there was no substantive violation of Article 3 in the first episode either.

One more doubt I have with this double qualification of the same situation.

In point 3 of the operative part it is proposed to find a violation of Article 3 on account of “... the failure to conduct an effective investigation into the applicant ' s complaints about being ill-treated by the police on 10 May 2001.”

In point 5 it is proposed to find one more violation of Article 3 in respect of “failure to conduct an effective investigation into the applicant ' s complaints about being ill-treated by the police on 10-11 July 2002” and I agree with these two findings. But then it is proposed to find that there had been a violation of Article 13 on account of the lack of effective remedies for the ill-treatment complained of.

Here I would point out that in his complaint under Article 13 of the Convention, the applicant was relying on the prosecutor ' s failure to have his criminal complaint properly investigated and not on an alleged lack of the possibility of bringing a civil action against the police officers, which is said in the judgment to constitute as a violation.

My understanding is that we should examine the applicant ' s complaint as submitted. If so, I find it wrong to give this double qualification. Criminal investigation in principle is an effective remedy for cases of alleged torture. This is a generally recognised fact and that is why before accepting a complaint we request applicants to exhaust this remedy. Otherwise, if a criminal investigation is not an effective remedy, only one conclusion is possible – there is no need to exhaust remedies which are not effective. It would be absolutely wrong to take this path and to say, that in cases of alleged torture an applicant should not lodge a criminal complaint because criminal investigation cannot be considered as an affective remedy.

Lastly, since no violation of Article 3 has been found, the non- pecuniary damage awarded should be not more than EUR 4-500 .

One more difficulty I have is in accepting of the lawyer ' s fees, which are clearly exaggerated.

The application in the present case was lodged by the applicant in 2002, when he submitted to the Court practically all the necessary documents.

The lawyer in the present case started representing the applicant ' s interests only in 2005. So, the lawyer in the present case was working for about one year only.

My understanding is that the proceedings before the European Court of Human Rights are not like the Olympic Games about which they say that “The most important thing in the Olympic Games is not to win but to participate.” I do not accept that the mere participation of a lawyer can ever be considered sufficient justification for awarding considerable amounts of money. Moreover, in other Article 3 cases against Moldova the Court awarded lawyer ' s fees in much more reasonable sums, for instance, in the case of Corsacov –EUR 1000, in the case of Holomoiv – EUR 800. It goes without saying that in both these cases the applicants had been represented by their lawyers throughout the proceedings.

Since, in my opinion, the lawyer did practically nothing in the case before us, because a great part of the work had been don e by the applicant himself, lawyer ' s fees should have been not more than EUR 600-700.

These are the major points for my disagreement with the majority in the present case.