The European Court has spoken out against suspended sentence for tortures


18 November 2009

Exclusive translationof the ECtHR case-law judgment on our web-page.

   At the end of October 2009 the European Court of Human Rights delivered a case-law judgment under the application filed against Moldova by two Moldavians – Valeriu and Nicolae Rosca.

The facts of the case are as follows.

In 2001 both applicants were arrested by police officers in Chisinau. At the police station they were each beaten, then handcuffed on the floor, where they received truncheon blows to the soles of their feet and electric shocks. As a result of the ill-treatment, one of the applicants wrote a self-incriminatory statement. It should be mentioned that the doctor found multiple injuries to various parts of their bodies.

The investigation into the allegations of torture lasted four years. Finally, in January 2005 the Chisinau Court convicted three police officers of manifest abuse of authority. Each officer was sentenced to three years’ imprisonment and disqualification from working in a law-enforcement agency for two years. The court also decided to suspend the enforcement of the judgment, with one year’s probation, finding that the officers were relatively young, had families, had not been previously convicted and were viewed positively in society.

The Court notes that it is not in dispute between the parties that the applicants were ill-treated by police officers. The Court recalls that beating a person’s soles is a practice which is always intentional and can only be regarded as torture.

In the light of the fact that the officers responsible for the ill-treatment were eventually convicted and sentenced, it was necessary for the Court to determine whether the applicants can still claim to be victims of the violation of Article 3.

The Court noted that despite all those numerous and inconsistent reports that the applicants had been ill-treated, they had been taken to a doctor only on the fourth day after the authorities had become aware of the problem. That delay allowed their wounds to partly heal and resulted in the doctor’s finding of only “slight injuries” on their bodies. Furthermore, even after the medical report had confirmed that the applicants had been ill-treated, and following a request by the Ministry of Internal Affairs to initiate a criminal investigation, the investigation did not start until a month later. The Court considered that the delay in bringing the applicants to a doctor in order to confirm their ill-treatment, as well as the delay in initiating a criminal investigation did not correspond to the requirement of promptness of an investigation, within the meaning of Article 3 of the Convention.

Besides, the Court noted that in the present case the three officers convicted of ill-treating the applicants had been sentenced to three years’ imprisonment and disqualification from working in a law-enforcement agency for two years. That term of imprisonment was the minimum penalty allowed by law. Under the domestic law the courts had to take into account both mitigating and aggravating circumstances. However, the courts were silent about a number of apparently applicable aggravating circumstances.  In particular, none of the officers showed any signs of remorse, having denied throughout the proceedings any ill-treatment on their part.

The Court also noted that even the minimum sentence imposed on the officers had been suspended with one year’s probation, so that the officers had not spent any time in prison. Moreover, they were not suspended from their positions during the investigation contrary to the recommendations of the Istanbul Protocol.

The Court recalled that beating a person’s soles was a practice which was always intentional and could only be regarded as torture. In such circumstances, the failure to initiate criminal proceedings under the charge of torture, without any explanation as to the choice of another type of offence (abuse of power), was insufficient to ensure the preventive effect of the legislation passed specifically to address the problem of ill-treatment.

Thus, the European Court found that the Convention had been breached in respect of both applicants and awarded them 15 000 euro each.

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