SECOND SECTION
CASE OF MÎŢU v. THE REPUBLIC OF MOLDOVA
(Application no. 23524/14)
 
 
JUDGMENT
 
Art 3 (substantive) • Degrading treatment • Use of force at applicant’s home • Refusal to open door despite search warrant, then opening without signs of surrender • Information about presence of firearms in the flat • Perceived danger in the heat of the moment • Ignorance about applicant’s movements’ stemming from state of hysteria • Minor bruising caused during first few minutes whilst securing applicant • Despite being secured by special force officers, applicant pushed to the ground with a boot against her back • Form of reprisal and treatment that diminishes human dignity • Insufficient planning of the operation • Special forces called up without sufficient information given to prepare, allowing too much scope for improvisation and thus for possible use of excessive force
Art 3 (procedural) • Effective investigation • Failure to assess whether the use of force had been excessive • No analysis of the planning of the operation to determine whether all reasonable steps had been taken to minimise or prevent injuries • No identification of the police officer involved in injuries • No verification of the compliance with the conditions laid down by law regarding the use of special means against a woman

 
STRASBOURG
30 June 2020
FINAL
 
30/09/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mîţu v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Marko Bošnjak,
 Valeriu Griţco,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Darian Pavli,
 Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 23524/14) 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 Ana Mîţu (“the applicant”), on 10 March 2014;
the decision to give notice of the application to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 2 June 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The present case concerns the alleged excessive use of force against the applicant during the authorities’ forcing into her apartment, following her husband’s refusal to submit to a search as well as the deficiencies in the investigation into her complaint of ill-treatment. THE FACTS
THE CIRCUMSTANCES OF THE CASE
1. The applicant was born in 1983 and lives in Chișinău. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 5 April 2013 a criminal investigator opened a criminal investigation into the theft of certain items from L.D. (electric switches, detergents and alcoholic beverages, the overall value of which was estimated at 27,605 Moldovan lei (the equivalent of approximately 1,700 euros (EUR)). 4. According to an investigator from the Botanica police, he had received “operational information” that the offence, as well as other similar ones, had been committed by the applicant’s husband (S.M.) and that he could be hiding stolen items in his flat and car. 5. On 28 May 2013 an investigating judge of the Botanica District Court authorised a search of the flat where the applicant and her husband lived, his car and a bar belonging to him. The parties’ versions of the events of 30 May 2013
6. According to the applicant, at around 8 a.m. on 30 May 2013, she and her husband were at home when unidentified persons surrounded the block of flats in which their flat was situated, knocked at the door and demanded that they open it. One of those persons was allegedly wearing a T-shirt printed with the words “Killing time”. The applicant and her husband thought that they were being attacked by criminals and called the police. The police arrived and, along with the unidentified persons, ordered the applicant to open the door. She refused and explained that she was frightened. She asked the unidentified persons to leave. The police told her that there was a search warrant for her flat, and showed her through the window a paper which she could not see to read. Shortly thereafter ten men arrived, visibly from the special forces as they were masked, armed and wearing bulletproof vests. 7. At that moment, the applicant’s husband opened the door while she squatted on the floor in another room. The special forces unit (hereinafter “the unit”) stormed in, and three of them dealt with the applicant. She was ordered to kneel and they twisted her hands behind her back. She raised her head and saw her husband’s face covered in blood. One of the masked men kicked her in the back with a boot to secure her to the floor and handcuffed her. They yelled contradictory instructions at her, and she was shaking with fright. They dragged her to the kitchen, where she was given a glass of water. At that point they stopped using force on her. The police searched the flat, found allegedly stolen goods and arrested the applicant’s husband on charges of theft. 8. According to the Government, at around 7 a.m. on 30 May 2013 the police went to the applicant’s flat and asked the occupants to open the door in order that they could carry out a search. The applicant initially did not answer, but then refused to open the door, allegedly for fear of the men outside. She did not change her mind after having been shown the search warrant at the window. She called the police and uniformed police officers arrived at the scene soon thereafter. They too urged the applicant to open the door, but she refused. The police decided to call the special forces, since they knew that the suspect (the applicant’s husband) possessed firearms. At around 1.45 p.m. the unit arrived and made a detailed assessment of the situation. They noted that the block of flats was surrounded by abundant vegetation and that the blinds on the windows of the target flat were closed. They were also informed by a police officer that the electricity in the flat had been cut off and that the suspect possessed firearms. Moreover, the applicant had threatened to block the entrance door with her body, exposing herself to the risk of injury if the door were broken down. 9. In view of the above situation, the unit commander decided to force the entrance door to the flat. As it would be dark inside, it would take a certain time for his men’s eyesight to adjust. The commander therefore decided to secure everyone inside in order to prevent any gunfire. When they approached the flat, someone warned them that the door had been opened from the inside, but that there was no apparent intention to surrender. Therefore, the unit proceeded with the original plan, adjusted to the fact that there was no need to force the entrance door. When they saw the applicant, she was hysterical, was twisting her hands “in unnatural ways” and could hardly control her movements, such as holding a glass of water without spilling it. The applicant’s complaint and investigation thereof
10. On 30 May 2013 the applicant lodged a complaint with the police about the excessive force used by the police. A medical report drawn up on 31 May 2013 recorded two violet-blue oval bruises on her back measuring 5 by 3 cm and 6 by 1.5 cm; a violet-blue oval bruise measuring 2 by 0.8 cm on her left forearm; and a violet oval bruise measuring 1.2 by 0.8 cm on her left knee. The report concluded that the injuries had probably been caused in circumstances as described by the applicant and assessed them as being of minor severity. The applicant’s T-shirt with a boot print on the back was retained as evidence. 11. On 5 June 2013 the applicant was acknowledged as a victim. However, on 20 June 2013 the Botanica prosecutor’s office refused to initiate a criminal investigation, finding that the actions of the officers of the unit had been taken while stopping the applicant and her husband from deliberately opposing the lawful orders of the police in the form of a search and preventing them from destroying stolen items. 12. According to a statement given by Officer I.S., he was in possession of “operational information” according to which the applicant’s husband had committed the crime under investigation. On 29 May 2013 an investigating judge had authorised a search of the applicant’s flat. I.S. further stated that “at the same time, according to information obtained, [the applicant’s husband] was aggressive and was in possession of two pistols and a hunting gun”. The applicant refused to open the door, even when a uniformed police unit arrived following the applicant’s phone call to the local police. However, given that they had information that the suspect possessed firearms, the officers decided not to force the door in order not to risk their lives and safety. Therefore, they called the special forces. When the latter arrived, the unit commander asked for brief information about the situation inside the flat. After being informed of the presence of persons with firearms inside, he made a plan for breaking into the flat. Before the special forces moved towards the flat, electricity therein was disconnected by the utilities provider. 13. According to the statement of Major O.R., the commander of the unit involved in the events, at around 1.45 p.m. on 30 May 2013 he was alerted to an incident involving the arrest of persons resisting the police and in possession of firearms. Within several minutes his team was ready and equipped. When they arrived at the scene, he noted that the flat was on the ground floor, surrounded by abundant vegetation, with the blinds down. He was informed by a police officer that the electricity had been cut off inside the flat, that the persons inside might be in possession of firearms and that the suspect’s wife was actively resisting the police. Because there was a lot of sunlight outside and it was dark inside (the electricity had been disconnected in the flat, which was on the first floor and poorly lit by daylight), it was decided to immobilise completely whoever was inside in order to prevent the use of arms. Once they had entered the block of flats, an officer informed them that the door of the flat had been opened but that there was no indication of the occupants’ willingness to surrender. He decided to continue the operation as planned, adjusting to the fact that there was no need to force the door. O.R. was the second person who entered the flat and saw, at a hand’s distance to his right, a man of athletic build. He immediately warned him to stay put and applied a martial arts move to bring him to the floor and immobilise him. After the man had been handcuffed, O.R. advanced into the flat and saw the applicant, who had been detained by his unit. The applicant was “hysterical (very frightened)”, her hands were uncontrollably shaking, she could hardly hold a glass of water without spilling it, her mouth was trembling and she was unresponsive to questions addressed to her. 14. Officer V.S. from the same unit made a similar statement, adding that when he entered the flat he saw to his right an immobilised person and another person at the end of the corridor, “in whose hand an object was sparkling”. He moved together with another officer and immobilised the applicant, who was hysterical, tried to free herself and “twisted her hands in an unnatural manner (creating a real danger of causing injury to herself)”, so they had to pin her to the ground. She was then handcuffed in order to prevent any injury. 15. Seven other officers from the same unit stated that the applicant and her husband had acted aggressively, had tried to free themselves and to resist them. They had had to be handcuffed to prevent such actions. 16. In his decision of 20 June 2013 the prosecutor concluded that the police had lawfully used force to neutralise the resistance of the applicant and of her husband, and therefore could not be held responsible for the pecuniary, non-pecuniary and physical damage inflicted. 17. The applicant appealed. She argued that she had complied with all instructions given by the police after they had entered the flat. She complained that the force used in respect of her had been contrary to Article 3 of the Convention and that the investigation into her complaint had been unilateral and inefficient, relying exclusively on the statements of the police officers. She pointed out that there had been no danger of destroying objects allegedly stolen by her husband, since it was impossible in a flat to destroy without trace objects such as forty electric switches or thirty-two mains outlets. Moreover, no analysis had been made of her T-shirt, which had been taken as evidence and bore the marks of a boot, confirming that she had been kicked in the back. 18. On 16 August 2013 a superior prosecutor rejected the applicant’s appeal. The applicant challenged the decisions of 20 June and 16 August 2013 before the investigating judge. She repeated her arguments, stressing that she and her husband had complied with all the contradictory orders given to them by the officers and had not offered any resistance. 19. On 8 October 2013 the investigating judge of the Botanica District Court finally dismissed the applicant’s appeal. The judge reiterated the reasons provided by the prosecutor and concluded:
“As has been established in the course of the criminal proceedings, the search at the [applicant’s] home had been authorised ... In circumstances in which the residents of the flat to be searched had refused to open the door and according to operational investigation data, they had stolen goods and weapons, the police officers were entitled to use force and special means in accordance with section 7 (a) of the Law on the use of physical force, special means and firearms.
... the investigating authority has taken all lawful measures in order to fully and objectively investigate the case and establish the truth, without breaching [the applicant]’s rights”. RELEVANT DOMESTIC LAW
20. Law no. 218 of 19 October 2012, which entered into force on 14 December 2012, on the use of physical force, special means and firearms, reads as follows:
“Section 7. Use of special means
In the exercise of their duties, the subjects of the present law shall use special means in the following cases:
a.  in order to suppress attacks against persons, themselves and other persons involved in securing public order and safety and in fighting crime; ... Section 8. Restrictions on the use of special means
(1)  It shall be prohibited:
a. to use special means against ... women, ...unless they attack the legal subject or another person, either in a group or by using firearms, if they resist in a way which is dangerous to other people’s life and health, [and] if such actions cannot be curtailed in other ways and by other means. Section 20. Responsibility in the use of physical force, special means and firearms
(1)  The subjects of the present law shall not be responsible for non-pecuniary, pecuniary and physical damage inflicted on an offender in connection with the use of physical force, special means and firearms if they have acted in strict compliance with the provisions of the present law. (2)  If the subjects of the present law overstep their powers in respect of using physical force, special means and firearms, they shall be liable to disciplinary, civil, administrative or criminal penalties.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21. The applicant complained under Article 3 of the Convention that the police had used unjustified excessive force against her and that there had been no effective investigation into the use of excessive force. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
22. The Court notes that the application 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

(a)   The applicant
23. The applicant submitted that the authorities had invented the existence of firearms in the flat, since neither she nor her husband were registered as firearm holders and no weapons had been found in their flat. The offence allegedly committed by her husband had not involved the use of weapons. 24. The applicant had suffered a profound emotional shock, as acknowledged also by the Government. From the moment her husband had opened the front door, she had not resisted in any manner any of the officers around her. There had therefore been no need to use any force against her, notably – after having been secured by the unit – by twisting her arms and pushing her to the ground with a boot when all she had done was to raise her head to see how her husband was being ill-treated. She argued that after meeting no resistance from her and her husband, the officers had acted violently towards them out of vengeance for not having opened the door earlier and having called the police and the media. Their actions had been aimed at humiliating and scaring her, and at breaking her moral resistance. 25. The investigation into her complaints had been ineffective, and had made no mention of the injuries caused to her. Moreover, there had been no expert analysis of her T-shirt with the boot print on the back. The investigating judge had faithfully reproduced the prosecutor’s decision and rejected her complaint in a formalistic manner. (b)   The Government
26. The Government submitted that the applicant and her husband had resisted the lawful requests of the police to allow a search of their flat for more than six hours. Both parties agreed that at the moment when the unit had entered the flat, the applicant had been in shock, hysterical and had refused to obey the orders of the police. Therefore, clearly the marks on her body had been the result of her resistance to the officers apprehending her, notably to the unnatural twisting of her arms and pushing with her legs against the door in order not to be moved to another room. The applicant acknowledged that she had disobeyed the officers’ orders by raising her head to see what was happening to her husband. At that moment an officer had ordered her not to move and had secured her to the floor with his foot. In the Government’s opinion, that treatment, as unpleasant as it may have been, cannot be qualified as torture or inhuman. 27. It was clear that the police officers and those from the unit had evaluated all the risks. They were properly equipped with special means and arms, and carried out a quick operation, achieving their aims. 28. Moreover, a criminal investigation had been initiated in response to the applicant’s complaint; most of the participants – including the applicant – had been heard, and a video made by a television crew and a medical report had been examined. Despite allegations that the applicant’s husband had been ill-treated, he had made no complaints about that. Therefore, the investigation had been effective and it had determined that the use of force against the applicant had not been disproportionate.

Outcome for Article 3: violation