SECOND SECTION
CASE OF D. v. THE REPUBLIC OF MOLDOVA
(Application no. 25397/09)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
 
STRASBOURG
8 December 2020
 
This judgment is final but it may be subject to editorial revision. In the case of D. v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Branko Lubarda, President,
 Valeriu Griţco,
 Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 25397/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms D. (“the applicant”), on 15 May 2009;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning the applicant’s alleged ill‑treatment and unlawful detention;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 17 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged unlawful arrest and ill‑treatment of the applicant by police officers. THE FACTS
2. The applicant was born in 1990 and lives in Visoca. She was represented by Mr V. Jereghi, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The facts of the case, as submitted by the parties, may be summarised as follows. General background to the case
4. On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. The results indicated that the ruling Communist Party of Moldova had narrowly won the elections. 5. On 6 April 2009 growing discontent with the results of the elections and with alleged electoral fraud was expressed, notably in various online forums. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were already approximately three to four thousand people assembled in the centre. They began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and the Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day. 6. On 7 April 2009 the protest recommenced with the participation of some five to six thousand people. While the demonstration was peaceful at the beginning, several hundreds of the participants gradually became violent. As established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general election held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned interventions by a fire engine and riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met with very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and the Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building. 7. At approximately 1 a.m. on 8 April 2009 various police and Special Forces units started a massive operation aimed at re-establishing public order. However, as established by the Commission, excessive force was used and all those still present in the main square were arrested regardless of whether they had acted violently or not. The arrests continued for several days. The media reported cases and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothed officers in the city centre on 8 April and the days that followed, long after the protests ended on the evening of 7 April 2009. The applicant’s arrest and alleged ill-treatment
8. On the evening of 7 April 2009 the applicant went, together with her roommate R., to the Great National Assembly Square (Piaţa Marii Adunări Naţionale, hereinafter “PMAN”) in Chişinău because of rumours about protests going on there. At PMAN they met the applicant’s relative, Mr V. Boboc, with whom they stayed until late at night. 9. According to the applicant, Mr Boboc, R. and herself were part of a group of around fifty young people who stood peacefully in the street and discussed the events of the day. At around 1 a.m. in the morning of 8 April 2009 their group was surrounded by the police protecting the Government’s building, a special forces battalion in masks and plain-clothed officers armed with automatic rifles and rubber sticks. The youngsters were ordered to lie down on the ground and were kicked and severely beaten with rubber sticks and rifles. She had her head hit against the pavement and then received several blows. Following that they were taken by police cars to various police detention centres. While being taken to the police car, the applicant and R. saw the police kicking Mr Boboc, who was unconscious and no longer reacting to the beatings. Several days later it became known that Mr Boboc had died. 10. On 13 April 2009 the applicant gave an interview to the television channel PRO-TV Chişinău, stating what she had witnessed the impugned event. Her identity was concealed in the video. Following the airing of that interview, the authorities asked journalists from PRO-TV to reveal the applicant’s identity, which they refused to do. Mr V. Boboc’s father and his lawyer were also asked by the prosecution to reveal the applicant’s identity. 11. On 14 April 2009 the applicant went to a medical specialist in order to obtain medical confirmation of the nature and extent of her injuries. She was afraid for her life and therefore declared that she had been attacked by an unknown person on the street on 7 April 2009. The doctor found one injury to her right foot (16 by 15 centimetres). 12. In a complaint to the Prosecutor General, on 4 May 2009, the applicant wrote about the events of the night of 7 to 8 April 2009, including the beatings to which she, R. and Mr Boboc had been subjected at PMAN. Having been brought to the Buiucani police station, all the individuals arrested (approximately twenty young men and three young women, including the applicant and R.) had been ordered to stand against the wall with their hands up against the wall and had been beaten every time they tried to speak or move. One by one the young men had been taken to one of the offices and ordered to take down their trousers. This had been followed by sounds of beating and the victims’ screams. All the young men returning from the office had had clear signs of ill-treatment and one of them had been completely naked when released. All three young women had been taken together to the office and had been insulted and shouted at, but no physical violence had been used. No explanation had been given to them about the reason for their arrest. At approximately 5 a.m. on 8 April 2009 the young women had been released and had been advised to leave the city. R. had declared that she had feared for her life and had thus decided to leave the city and change her mobile phone number. She had also refused to undergo a medical examination. The applicant asked the Prosecutor General to investigate her complaints thoroughly and to bring to justice those responsible for her ill‑treatment and unlawful detention for over five hours without explaining to her the reasons for her arrest or allowing her to inform her relatives about her detention. 13. Between 4 and 15 May 2009 the applicant was examined by doctors from 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). She underwent detailed medical tests and examinations by various medical specialists at the aforementioned centre. In a document entitled “Extract from the medical file” (Extras din Fişa Medicală), dated 15 May 2009, issued by the centre, it was stated, inter alia, that the applicant was suffering from headaches, vertigo, and insomnia; she had nightmares with scenes from the traumatic events, heartache, especially during emotional or physical exertion, anxiety and obsessive flashbacks. Using several methods of psychological examination, the experts determined that the applicant had suffered a series of traumatic events and showed clear signs of post-traumatic stress disorder. Provisional medical results showed that the applicant was suffering from, inter alia, the consequences of cranial trauma. Investigation into the applicant’s complaints
14. On 1 June 2009 the applicant was interviewed – her identity was concealed – by an investigating judge in respect of Mr Boboc’s death. On the same day she was interviewed by a prosecutor about her allegations of 4 May 2009. 15. On an unknown date the prosecutor rejected the applicant’s lawyer’s request to offer her witness protection, indicating that concealing her identity was sufficient. On 4 June 2009 the applicant’s lawyer informed the media that he had interviewed a person who had witnessed the killing of Mr Boboc by the police. 16. On 26 June 2009 the respondent Government were notified of the application. 17. On 22 July 2009 the military prosecutor’s office initiated a criminal investigation into the applicant’s allegations made on 4 May 2009. According to the Government, the applicant had not left her address or contact number and she could only be reached via her lawyer. 18. On 23 March 2010 the criminal investigation initiated on 22 July 2009 was joined to another one, concerning a number of alleged beatings by the police and special forces during the relevant events. 19. On 15 January 2013 the criminal investigation mentioned in the preceding paragraph was suspended. According to that decision, some 200 members of the Fulger special forces battalion had been questioned, victims and witnesses had been interviewed and numerous video recordings, public and private, had been examined. Despite all these actions, it was impossible to determine specifically which officer had applied physical force to which victim and whether such use of force had been required under the circumstances. Other relevant developments
20. In parallel to the criminal investigations mentioned in paragraphs 17‑19 above, a number of other investigations were initiated against various officers, in which the applicant appeared as a witness. One such officer (G.) was acquitted by the first-instance court on 11 October 2011. 21. That judgment was overturned by the Chișinău Court of Appeal on 2 November 2015. The court found G. guilty of negligence, having established that he had been on duty at Buiucani police station on 7-8 April 2009. He had not carried out his lawful duties when witnessing a number of young people, including the applicant and R., being brought to the police premises where some were ill-treated. On 18 May 2016 the Supreme Court of Justice upheld that judgment, also referring, inter alia, to witness accounts of the events at the police station, including the statements by the applicant and R. 22. On 14 November 2012 the Government adopted its decision no. 853 to help individuals who had suffered as a result of the events of April 2009. The individuals mentioned in that decision received compensation in the amounts of between 3,000 and 7,000 Moldovan lei (MDL – the equivalent of approximately 192 and 447 euros (EUR) respectively). The applicant received MDL 7,000. RELEVANT LEGAL FRAMEWORK AND OTHER MATERIALS
23. Under Article 2872 of the Code of Criminal Procedure the investigating authority has to inform the victim and other interested parties of the decision taken, as well as of their right to challenge it before the investigating judge. 24. According to the findings of the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”) in its 2010 final report, arrests of suspected participants at the events of 7-8 April 2009 continued until 12 April 2009 (page 88 of the report). THE LAW
GENERAL ADMISSIBILITY ISSUESApplications by R. and N. 25. The Court notes that the initial application mentioned two more individuals besides the applicant. One of them (R.) did not submit a power of attorney or maintain any contact with the lawyer. The other one (N.) submitted a power of attorney. However, according to the lawyer representing both him and the applicant, N. left the country shortly after the events of April 2009 and did not leave contact details or maintain any contact with the lawyer. He did not contact the Court directly or through another representative after the summer of 2009. 26. The Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm the applicant’s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium [GC], no. 60125/11, § 35, 17 November 2016). Accordingly, in the present case, the Court concludes on the basis of the total absence of contact between R. and N. with their lawyer and with the Court since 2009 that both these applicants have lost interest in the proceedings and no longer intend to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention (see V.M. and Others, cited above, § 36). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto which require the continued examination of the complaints of those applicants. 27. In view of the above, it is appropriate to strike the part of the application concerning these two applicants out of the list. The Government’s preliminary objections
28. The Government argued that the application was incompatible with the Court’s jurisdiction ratione personae since in essence it was a form of actio popularis. Moreover, the real aim of the application was of a political nature and not to ensure protection of the applicant’s rights guaranteed under the Convention. 29. The Court considers that these objections are closely related to the substance of the complaints made by the applicant. It thus joins them to the merits. 30. The Government also submitted that the applicant had not exhausted available domestic remedies. In particular, she had lodged the present application without waiting for the reaction of the authorities to her complaint of 4 May 2009. Subsequently, she had not challenged the investigating authority’s decision of 15 January 2013. 31. The applicant argued that she had never been informed of the adoption of any decisions by the authorities. 32. The Court notes that the present application was lodged more than ten years ago, sufficient time for the investigation of the applicant’s allegations. Moreover, on 15 January 2013 the investigation was suspended owing to the failure to identify the alleged perpetrators. Accordingly, it cannot be said that the applicant did not exhaust available domestic remedies by not awaiting the outcome of her complaint of 4 May 2009. 33. As for the failure to appeal against the decision of 15 January 2013, it appears that the applicant was not informed of its adoption, despite clear legal provisions to that effect (see paragraph 23 above). The decision itself does not state anything about it being brought to the attention of the victims or about the right to challenge it. The Court concludes that the applicant was not given a proper opportunity to appeal against that decision. Accordingly, the Court dismisses this objection. 34. The Government also argued that the applicant had failed to exhaust available domestic remedies in respect of her complaint under Article 5 since she had never raised, even in substance, the argument of her unlawful detention before the authorities. 35. The Court notes that the applicant expressly complained of her unlawful detention to the prosecutor (see paragraph 12 above). The Government have not contested that this was an effective remedy for the type of complaint made. Accordingly, the Court also dismisses this objection. 36. The Government lastly submitted that having obtained compensation from the Government (see paragraph 22 above) the applicant had lost her victim status. In any event, she appeared not to wish to pursue her application before the Court. 37. The Court notes that no court acknowledged, even in substance, the breach of Article 3 of the Convention in respect of the applicant. Moreover, the implied acknowledgment of a breach of her rights guaranteed under Article 5 by convicting an officer of the Buiucani police station (see paragraph 21 above) does not answer her complaint about her unlawful detention at PMAN before she was brought to the police station. The sum of approximately EUR 447 paid ex gratia by the Government is not sufficient to remove the applicant’s victim quality, given the seriousness of the complaints raised (see, for instance, O.R. and L.R. v. the Republic of Moldova, no. 24129/11, § 82, 30 October 2018). 38. Given the fact that the applicant’s lawyer replied to all the correspondence by the Court and provided relevant factual updates, confirming that he kept regular contact with the applicant, there is no reason to believe that she does not wish to pursue her application. 39. Accordingly, this objection must also be rejected. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION
40. The applicant complained that her life had been at risk following her witnessing the death of Mr Boboc and the refusal of the authorities to offer her witness protection. She relied on Articles 2 and 13 of the Convention, the relevant part of which reads as follows:
Article 2
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
41. The Government argued that the applicant’s life had not been at any serious risk and that her identity being concealed when she had given evidence had been sufficient to ensure her protection. Moreover, her lawyer’s decision to make public the existence of a person who had allegedly witnessed the death of Mr Boboc (see paragraph 15 above) was additional evidence that the applicant and her lawyer had not viewed the situation as very serious. 42. The Court has established that there may be a positive obligation on a State under the first sentence of Article 2 § 1 to protect the life of an individual from third parties or from the risk of life-endangering illness (see Osman v. the United Kingdom, 28 October 1998, §§ 115-22, Reports of Judgments and Decisions 1998‑VIII, and Yaşa v. Turkey, 2 September 1998, §§ 92-108, Reports 1998‑VI). Greece [GC], no. 50385/99, § 51, ECHR 2004‑XI, and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 173, 23 February 2016). 43. In the present case, the Court considers that the applicant has not shown that a sufficiently serious and immediate danger to her life existed so as to involve the State’s positive obligation of protection, such as the witness protection that was eventually refused to her by the domestic authorities. Moreover, in these circumstances, she has no “arguable claim” for the purposes of Article 13 of the Convention. 44. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. ALLEGED VIOLATION OF ARTICLES 3 and 13 OF THE CONVENTION
45. The applicant complained that she had been ill-treated by the police during her arrest on 7 April 2009 and that the investigation into her complaints of ill‑treatment had been ineffective. She relied on Articles 3 and 13 of the Convention. Article 3 reads as follows:
 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

47. The applicant argued that she had been beaten during her arrest on the night of 7 and 8 April 2009 by police officers and other State agents. Her complaints had been the subject of an effective investigation, yet ten years later there were still no tangible results. Moreover, she had not been kept informed of the course of the investigation or of the decisions taken. After the initial interviews, her participation had been limited to being called as a witness in various criminal proceedings. Initially she had appeared every time she had been summoned (around thirty times), but after more than a year she had not been able to afford to continue travelling 170 s skm to Chișinău, at her own expense, in order to testify. 48. The Government submitted that there was no evidence that the applicant had even been detained by the authorities which she accused of having ill-treated her. The evidence she relied on to prove that she had been ill-treated was unreliable: the medical report of 14 April 2009 had been drawn up six days after the alleged events and had contained, according to her own admission, an error as to the exact location of the haematoma. Moreover, her description of the events (her head being hit against the pavement; receiving multiple blows while on the ground; see paragraph 9 above) did not correspond to the findings in that medical report (only one haematoma on her leg). The applicant’s explanation of the origin of the haematoma given to the doctor cast further doubt on the veracity of her allegation of ill-treatment (see paragraph 11 above). The psychological report from the Memoria centre (see paragraph 13 above) had been delivered two months after the events and had resulted in relatively vague conclusions about possible head trauma and psychological stress. None of this had proved with sufficient certainty that force had been used against the applicant or that such force, if it had been used, had been serious enough as to make Article 3 of the Convention applicable. 49. Moreover, the applicant had not left any contact details besides her phone and her lawyer’s address, and so the prosecution had initially been unable to find her. She never submitted to the investigators the psychological report, which was received only in the file communicated to the Government by the Court.

Article of the Convention at issue: Article 3
Outcome: violation