Fraudeverdachte houdt blijvend hersenletsel over aan arrestatie - Mensenrechtenhof veroordeelt Moldavië (en)

Press release issued by the Registrar

CHAMBER JUDGMENT

BOICENCO v. MOLDOVA

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of Boicenco v. Moldova (application no. 41088/05)

The Court held unanimously that there had been,

· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights concerning the applicant’s ill-treatment while in police custody;

· a violation of Article 3 concerning the lack of adequate medical treatment;

· a violation of Article 3 concerning the lack of an effective investigation;

· a violation of Article 5 § 1 (right to liberty and security);

· two violations of Article 5 § 3; and,

· a failure by the State to comply with its obligations under Article 34 (right of individual petition).

The Court also held, unanimously, that Moldova had to give the lawyers and doctors of the applicant immediate and unrestricted access to him and his medical file. The continuing denial of access amounted to an aggravated breach of Article 3.

The Court held that the question of the application of Article 41 (just satisfaction) in respect of pecuniary damage was not ready for decision and awarded the applicant 40,000 euros (EUR) for non-pecuniary damage and EUR 6,823 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Nicolae Boicenco, is a Moldovan national who was born in 1961 and lives in Chisinau (Moldova).

On 20 May 2005 he was arrested on suspicion of fraud by the Centre for Fighting Economic Crime and Corruption (CFECC).

According to the applicant’s representatives, he was arrested at 4.30 p.m. and, after being brought to the CFECC premises, he was beaten up by the police officers, as a result of which he lost consciousness.

According to police reports, he was arrested at approximately 6.45 p.m., he resisted arrest but no force was used against him. The Government denied that he was beaten up.

A CFECC doctor noted that the applicant was unconscious in a medical report drawn up at 8.34 p.m. that day.

At the request of the applicant’s lawyer, at 1.30 a.m. on 21 May 2005 the applicant was taken to hospital, where he later regained consciousness.

On 23 May a warrant was issued at the request of the prosecutor Nicolae Catan? for the applicant’s detention for ten days and, on 24 May 2005, the applicant was transferred to a prison hospital. The applicant appealed unsuccessfully and also requested unsuccessfully that he be released after the expiration of the ten-day period.

On 27 May 2005, after temporarily re-gaining consciousness, the applicant requested that criminal proceedings be brought against the police officers who had allegedly beaten him up.

On 2 June 2005 the applicant was examined by a commission of senior doctors, who found that he had acute head injuries and concussion and recommended psychiatric tests. On 7 June 2005 a doctor noted that the applicant urgently needed medication, but that none was available. The applicant was kept in the prison hospital until 1 September 2005, when he was moved to a prison for 15 days pending his transfer to a psychiatric hospital. According to the medical records, during his stay in the prison hospital he never got out of bed, could not feed himself or go to the toilet on his own and generally did not react to questions and kept his eyes closed.

The applicant’s lawyers and his wife made several unsuccessful requests that an independent doctor be given access to the applicant. During the applicant’s stay in the Prison Hospital, his wife was able to visit him only once for ten minutes and his mother was not allowed to see him.

Psychiatric reports of 20 September and 15 November 2005 found that the applicant was “not suffering from any chronic mental disease, but …the consequences of a head trauma, arterial hypertension...”.

On 15 September 2005 the applicant was hospitalised in the Central Psychiatric Hospital, Department of Judicial Investigations, where he is held to date. It appears that, by that date, most of the time the applicant was in a state of stupor. The Court has no information as to whether the applicant has ever recovered.

On 23 December 2005, after repeated requests made during court hearings in the criminal proceedings against the applicant, the applicant’s lawyer was handed a decision dated 8 June 2005 dismissing the complaint concerning the alleged ill-treatment by police officers. The decision was signed by the same prosecutor who had lodged the charges against the applicant and applied to court for his remand in custody. The prosecutor concluded that, as the applicant was presumed to have been intending to use a gun during his arrest, the police officers were entitled to use force.

A private doctor had access to the applicant on only one occasion, in early January 2006. On 20 and 28 March 2006 the applicant’s lawyers lodged two unsuccessful requests for the doctor to have access to the applicant and his medical file. They submitted in their requests that such access was needed in order to pursue the application before the European Court.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 16 November 2005 and declared admissible on 20 June 2006.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Giovanni Bonello (Maltese),

Matti Pellonpää (Finnish),

Kristaq Traja (Albanian),

Stanislav Pavlovschi (Moldovan),

Ján Šikuta (Slovakian), judges,

and also Lawrence Early, Section Registrar.

• 3. 

  Summary of the judgment²

Complaints

The applicant alleged that he had sustained severe head injuries after being beaten up by police officers and that no effective investigation had been carried out into the his ill-treatment. He also complained about his detention, the lack of proper medical assistance while in detention and about being hindered by the domestic authorities in bringing his case before the Court. He relied on Article 3, Article 5 §§ 1 and 3, and Article 34 of the Convention.

Decision of the Court

Article 3

Ill-treatment

The Court noted that between his arrest and his subsequent admission to a hospital, the applicant was in custody at the CFECC. It was undisputed that before his arrest the applicant’s physical state was apparently normal, but that, after leaving the police station, he was unconscious for more than fours hours.

The Court noted with concern the applicant’s condition after his encounter with the police; however, given the limited evidence in its possession, it was unable to establish a direct causal link between the ill-treatment and the applicant being in a state of stupor.

On the basis of all the material placed before it, the Court concluded that the Moldovan Government had not fulfilled their obligation to persuade the Court that the applicant’s injuries were caused other than by ill-treatment while in police custody. Accordingly, the applicant had been subjected to inhuman and degrading treatment in violation of Article 3.

Lack of proper medical assistance

The Court noted that the evidence submitted by both parties confirmed that the applicant appeared to be in a state of stupor, a very serious medical condition which required constant medical care and rigorous supervision. It appeared that he had been in that state following his encounter with the police on 20 May 2005 until 2 October 2005 and then again from 24 October. The Court noted that, between 1 and 15 September 2005, the applicant was kept in a regular prison and there was no evidence that he had received any medical care there. The Court therefore found that the applicant was not provided with proper medical care until 20 September 2005. It was unable to determine on the basis of the material before it whether the treatment following the diagnosis on 20 September 2005 was appropriate and adequate. The Court concluded that between 20 May 2005 and 20 September 2005 the lack of any adequate medical treatment amounted to a violation of Article 3.

Inadequate investigation

The Court noted that the independence of the prosecutor who conducted the investigation was open to doubt; he was the same prosecutor who officially filed criminal charges against the applicant and who applied for the applicant’s remand and for prolongations of his remand. Among other things, he did not undertake any investigative measures after receiving the complaint from the applicant’s lawyer. Neither was there any indication that he had examined the applicant’s medical file. The Court found particularly striking his conclusion that the applicant’s ill-treatment would in any event be justified since he was presumed to have wanted to use a gun during his arrest.

The Court concluded that the State authorities failed to conduct a proper investigation into the applicant’s allegations of ill-treatment and that there had accordingly been a further violation of Article 3.

Article 5 § 3

The Court found that there had been a violation Article 5 § 3 in that under section 191 of the Code of Criminal Procedure it was not possible for the applicant to obtain release pending trial.

The Court further considered that the reasons relied on by the courts in their decisions concerning the applicant’s detention on remand and its prolongation were not “relevant and sufficient”.  There had accordingly been a further violation of Article 5 § 3.

Article 5 § 1

Finding that the applicant’s detention after the expiry of his detention warrant was not based on a legal provision, the Court found that there had been a violation of Article 5 § 1.

Article 34

The Court noted that the applicant’s lawyers clearly informed the State authorities that it would be necessary for them and a doctor to see the applicant and his medical file for the purpose of defending his rights before the Court. The request was reasonable in the Court’s view and it did not appear that there was any public interest in rejecting it. Moreover, the Court noted that the applicant’s lawyers were unable to present their observations in respect of pecuniary damage due to the lack of access to the applicant and to his medical file. The Court concluded that that constituted an interference with the applicant’s right of individual petition, which amounted to a failure on the part of the Moldovan Government to comply with their obligation under Article 34. Accordingly, there had been a breach of Article 34.

The Court had already expressed grave concern in the context of Article 3 about the inability of the applicant’s lawyers and doctors to have access to him. It considered that the continuing denial of access amounted to an aggravated breach of Article 3 and stressed the urgent need for the Moldovan Government to secure to the applicant’s lawyers and doctors immediate and unrestricted access to the applicant and his medical file.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press Contacts 

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.