CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 janvier 2007

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margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC6C5800 { width:6.9pt; text-indent:0pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }     FOURTH SECTION     CASE OF PRUNEANU v. MOLDOVA     (Application no. 6888/03)     JUDGMENT       STRASBOURG   16 January 2007       FINAL     23/05/2007     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Pruneanu v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mr T.L. Early , Section Registrar , Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 6888/03) 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 Ion Pruneanu (“the applicant”) on 24   December   2002. 2.     The applicant was represented by Mr Vitalie Iordachi, a lawyer practising in Chişinău and member of the non-governmental organisation “Lawyers for Human Rights”. The Moldovan Government (“the Government”) were represented by their Agent, Mr   Vitalie Pârlog. 3.     The applicant alleged that he had been subjected to severe police brutality and that the authorities had failed to carry out an adequate investigation into the incident, in breach of Article 3. He also complained under Article 13 of the Convention. 4.     The application was allocated to the Fourth Section. On 21   October   2005 the President of that Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. 5.     The applicant and the Government each filed observations on the admissibility and merits of the application (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1972 and lives in the village of Şipoteni. According to him, he was ill-treated by police on two occasions, in May   2001 and in July 2002. 1.   Facts related to the first alleged incident of ill-treatment 7.     The applicant was suspected of theft of farm animals in his village. On 10 May 2001 he was arrested by six police officers (G.A., C.I., C.V., G.O., A.U. and V.B.) at his home. It does not appear from the submissions of the parties that the applicant had any injury on his body before his arrest or that he was injured in any way during the arrest. 8.     According to the applicant, he was taken to the office of the village police inspector, in the Şipoteni Local Council building, and severely beaten by police officers A.U. and V.B. He was punched, kicked and beaten with a wooden baton on his body and on his head until he lost consciousness. Later he was taken by car to Călăraşi police station where he was handcuffed to a radiator. After regaining consciousness he managed to open the handcuffs and escape. 9.     The Government contested the applicant's account of events and submitted that after his arrest, he had been taken by car to the Călăraşi police station. However, he jumped out of the car as it was moving and sustained injuries from the impact with the road. He later escaped from the Călăraşi police station. 10 .     Several days later the applicant went to a hospital where he was admitted for treatment. A medical report of 14   May   2001 stated inter alia that: “[The applicant] has a yellowish bruise of 6x5 cm around his left eye; swelling of the base of his nose; a scratch of 2x1 cm on the left side of his nose; a scratch of 3x5 cm on his left cheek; a wound of 3x0.4 cm on his skull; a bruise of 20x13 cm on his back; painful chest and ribs; a scratch of 4x3 cm on his shoulder; paralysis of the left side of his face; head trauma and head concussion; perforation of the left tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure]. The injuries were inflicted by blows with blunt objects, possibly on 10   May   2001. They correspond to light corporal injuries and hospitalisation is recommended.” 11.     The applicant was in hiding from the police until 10 July 2002, when he was arrested (see paragraph 23 below). 12.     On 30 September 2002 the applicant complained to the Ombudsman's Office about the alleged ill-treatment and annexed to his complaint a copy of the medical certificate of 14 May 2001. His complaint was forwarded to the Ungheni County Prosecutor's Office (Procuratura Judeţului Ungheni) . 13.     On 6 November 2002 the Ungheni County Prosecutor's Office dismissed the complaint without having conducted any investigation. The applicant challenged the dismissal before the Prosecutor General's Office. 14.     On 22 November 2002 the Prosecutor General's Office ordered a re-examination of the applicant's complaints. 15.     On 28 November 2002 the Ungheni County Prosecutor's Office heard police officers V.B. and C.I., who had been involved in the arrest of the applicant on 10 May 2001. 16.     According to V.B., who was one of the officers accused by the applicant of having ill-treated him, the applicant resisted arrest and jumped out of the car on the way to the Călăraşi police station. Since nobody had beaten him up, his injuries must have been caused during his arrest or when he jumped out of the car. 17.     According to C.I., the applicant resisted arrest and later ran away from the Călăraşi police station. He had not seen anybody beat him up. 18.     On 8 December 2002 the Ungheni County Prosecutor's Office dismissed the applicant's complaint about ill-treatment, finding that he had resisted arrest and had attempted to run away by jumping from the car. Nobody had ill-treated him and there was no evidence to the contrary. The applicant challenged this decision before the Prosecutor General's Office. 19 .     On 24 January 2003 the Prosecutor General's Office quashed the decision of 8 December 2002, finding it to be unfounded and the investigation superficial and incomplete. It ordered a second investigation during which all the police officers who had participated in the applicant's arrest were to be heard. The applicant's lawyer, relatives and co-detainees were also to be heard in relation to the complaints about ill-treatment, and also, if necessary, the applicant himself. 20.     Between 11 and 24 February 2003 a prosecutor interrogated inter alia five of the police officers who had participated in the applicant's arrest on 10 May 2001 and the applicant's wife. The sixth police officer, G.O., and the applicant were not interrogated. 21 .     The police officers stated that after the arrest the applicant was taken first to the office of the village police inspector, in the Şipoteni Local Council building. They all declared that he had not been subjected to any form of violence, except at the time of the arrest when his hands had been tied behind his back because he had allegedly resisted arrest. Police officer C.I. stated that during his detention in the Local Council building, the applicant confessed to having committed a theft. While in the Local Council building, the police officers had called the Călăraşi police station and asked for a police car to take the applicant there; however, since no car was available they used one of their own cars. Police officers G.A., A.U. and V.B. stated that the applicant was accompanied by three police officers in the car: A.U., V.B. and G.O., who was driving. V.B. was in the front seat and the applicant and A.U. were in the back. Police officer C.V., however, stated that the applicant was accompanied by four police officers in the car, namely G.O., C.I., A.U. and V.B. One of the five police officers interrogated, C.I., declared that he did not know anything about the applicant's transportation to the Călăraşi police station. The other four police officers stated that the applicant had attempted to jump from the car. Two of them, G.A. and C.V., had been told that by their colleagues. The police officers accused of ill-treating the applicant, A.U. and V.B., made almost identical declarations, according to which the applicant was in the back seat of the car with A.U. At one moment, he managed to untie his hands, which were secured with V.B.'s belt, and to jump out of the car which was travelling at approximately 70-80 km/hour. They had stopped the car and picked him up and noted that he was bleeding from his head. They took him to the Călăraşi police station and left him there. The applicant's wife declared that nobody had beaten her husband during the arrest at their home. She had protested against the manner in which the policemen entered their house and had been kicked and punched by V.B., notwithstanding that she was pregnant at the time. Later in the night, at about 2 or 3 a.m., her husband had called her outside. He was in a very bad state with injuries to his face. He had told her that he had been beaten up by A.U. and V.B. during his detention at the Local Council building and had run away. 22.     On 25 February 2003 a prosecutor dismissed the applicant's complaint about ill-treatment on the ground that he had sustained his injuries when jumping out of the car and that there was no evidence that he had been ill-treated. 2.   Facts related to the second alleged incident of ill-treatment 23 .     On 10 July 2002 between 10 and 11 p.m. the applicant together with an accomplice entered an apartment situated on the third floor (that is second from ground level) of an apartment building and, using force, stole money from its occupant. After the victim started shouting for help, the applicant and his accomplice attempted to run away by jumping off the balcony. The accomplice was able to escape, but the applicant was caught by the police and taken to the Buiucani Police Station. 24.     According to the applicant, after falling from the third floor he felt pain in his left leg and he could not therefore run away. At the police station, he had been subjected to torture. While he had confessed about the theft that led to his arrest, the police officers insisted that he also confessed to another 20-30 thefts which he had not committed. He had been suspended on a metal bar and beaten with a baton on his legs, body and neck. 25.     The Government contested the applicant's account of the events and submitted that all his injuries had been sustained by his jumping from the third floor. 26 .     On 11 July 2002 at 12.21 p.m. an ambulance was called to the Buiucani Police Station and at 2.20 p.m. the applicant was hospitalised at the Emergency Hospital. He could not walk and he was transported on a stretcher. A medical report dated 12   July   2002 stated inter alia that: “[The applicant] has a head trauma with head concussion, an injured lip, bruises and injuries on his face, chest trauma with a fracture of ribs nos. 8, 9 and 10 on the right side, fracture of the tibia of his left foot, contusion of the soft tissues on the back of his neck, contusion of the soft tissues on his knees, fracture of the second finger of his left hand...” 27.     On 6 August 2002 the applicant complained to the Prosecutor General's Office about his alleged ill-treatment on 10-11 July 2002. 28 .     The applicant's complaint was re-directed to the Buiucani Prosecutor's Office. The latter heard police officers R.G. and V.C., who had been involved in the arrest of the applicant on 10 July 2002 and a neighbour of the victim of the theft committed by the applicant. According to the police officer R.G., the applicant had jumped from the third floor and had broken his legs, hand and neck as a result. According to the police officer V.C., the applicant had jumped from the third floor and injured his legs. No force was applied to him because he had lost consciousness at the moment of arrest. According to the neighbour U.I., the applicant was hanging from the victim's balcony and did not want to jump because there were people on the ground waiting for him. Then he, U.I., started hitting his hands to make him jump. Finally, the applicant jumped and was caught by the police. 29.     On 6 September 2002 the Buiucani Prosecutor's Office dismissed the applicant's complaint about ill-treatment while finding that his injuries had been caused by his jumping from the third floor. The applicant challenged this decision before the Prosecutor General's Office. 30 .     On 12 November 2002 the Prosecutor General's Office quashed the decision of 6 September 2002 and ordered a second investigation during which witnesses present at the time of the applicant's arrest were to be heard. In particular, it ordered that the witnesses be asked about the circumstances of the arrest and about the applicant's state at that very moment. The Prosecutor General's Office also pointed to an inconsistency in the decision of 6 September 2002. It noted that while it was found that the applicant had sustained his injuries on the night of 10 July 2002, when he had jumped from the third floor, an ambulance was called for him only on 11 July 2002 at 12.21 p.m. 31 .     Between 20 and 27 November 2002 a prosecutor from the Buiucani Prosecutor's Office interrogated the applicant, two police officers present at his arrest, the victim of the theft committed by the applicant, three of the victim's neighbours and a paramedic from the ambulance which took the applicant to the hospital on 11 July 2002. The applicant reiterated his complaints about ill-treatment at the hands of police. Police officer R.G. stated that the applicant had jumped from the third floor and that he was brought to the Buiucani Police Station. Later an ambulance was called and the applicant was taken to the hospital. He denied having assaulted the applicant in any way. Officer C.C. declared that he had not been present at the applicant's arrest; however, he had been told by his colleagues that the applicant had jumped from the third floor and had started running away. He was caught by police officer V.C. After arrest, the applicant spent the night at the Buiucani Police Station, where he was interrogated. Nobody had ill-treated him. In the morning he had told the police officers that he had pain in his legs and an ambulance was called. The victim of the theft, I.T., declared inter alia that the applicant had attempted to pass from his balcony to a neighbouring balcony but that he had fallen down when the window which he was holding had broken. He had seen him lying on the ground encircled by his neighbours who would not let him run away. The victim's neighbour, C.J., declared that he had seen the applicant falling from the third floor as the window broke. He had tried to run away but was stopped by the neighbours. A similar declaration was made by another neighbour, C.E. The paramedic declared that he had seen the applicant at about 12.30   p.m. The applicant had told him that he had fallen from the third floor and that he had headaches and pain in his leg. He did not complain of having been beaten up and he had no visible injuries on his face or body. 32.     The prosecutor also requested information from the Buiucani Police Station about the exact time when the applicant was brought there. According to the custody records, the applicant was brought there only on 11 July 2002 at 8.10 a.m. and was taken away by ambulance at 12.40 p.m. on the same day. 33 .     The prosecutor finally ordered a forensic investigation of the applicant's state and particularly of the manner in which his injuries had been caused. On 2 December 2002 a forensic report was completed by a specialised institution of the Ministry of Health. It stated inter alia that: “The [applicant's] injuries were inflicted by blows with blunt objects (au fost produse prin acţiunea corpurilor contondente) ... All the injuries ...could have been caused as a result of a fall from the third floor, if the [applicant's] body had hit hard objects.” 34.     On 1 December 2002 a prosecutor dismissed the applicant's complaint about ill-treatment on the ground that he had sustained his injuries when jumping from the third floor of an apartment building. The prosecutor relied mainly on the declarations of the police officers that no violence had been inflicted on the applicant during his detention and on the forensic report dated 2 December 2002, which, in his view, confirmed that the applicant's injuries were caused by the fall. II.     RELEVANT DOMESTIC LAW 35.     The relevant domestic law has been set out in the Court's judgment Corsacov v. Moldova , no. 18944/02, §§   45-48, 4 April 2006. THE LAW 36.     The applicant complained under Article 3 of the Convention about being ill-treated by the police on 10 May 2001 and 10 July 2002. He also complained about the failure of the domestic authorities to investigate properly his complaints about ill-treatment. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 37.     The applicant argued that he did not have an effective remedy before a national authority in respect of the breaches of Article 3 of the Convention and alleged a violation of Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....” I.     ADMISSIBILITY OF THE COMPLAINTS 38.     The Court considers that the applicant's complaints under Articles   3 and 13 of the Convention raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article   29 §   3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.     The submissions of the parties 1.     Concerning the first alleged incident of ill-treatment 39.     The Government did not contest the authenticity of the medical report of 14 May 2001. However, they argued that the applicant's injuries had been caused as a result of his jumping from the car when being taken to the Călăraşi police station. The applicant had previous criminal convictions and was young. Despite being cited to appear before the police, he did not comply. Accordingly it was very likely that he had wanted to escape at any price. In the Government's view, it was very easy for him to open the door of the moving car and jump out, since there was only one police officer beside him. The Government also argued that the fact that the applicant did not complain about the alleged ill-treatment immediately, but only after having been arrested on 10 July 2002, demonstrated that the complaint was ill-founded. The Government also submitted that the domestic authorities had conducted a serious investigation into the applicant's allegations. 40.     The applicant contested the Government's submissions and argued that it followed clearly from the medical report of 14 May 2001 that his injuries had been inflicted by blows with blunt objects, and not through hitting the ground. He also submitted that the explanation given by the police and repeated by the Government was not credible given that it would have been virtually impossible for a person sitting next to a police officer to untie his arms and jump out of a car travelling at 70-80 km/hour. The applicant also argued that the investigation conducted by the domestic authorities was superficial and inefficient. 2.     Concerning the second alleged incident of ill-treatment 41.     The Government argued that all the applicant's injuries were caused by his jumping from the third floor. They relied on the forensic report of 2   December 2002, which, according to them, stated that all the injuries could have been caused as a result of a fall from the third floor and as a result of his body hitting hard objects. The fact that his body had hit hard objects was admitted by the applicant, who stated that after having jumped from the third floor he felt pain in his left leg. 42.     The applicant maintained that only his left leg had been hurt when he had jumped from the third floor. The rest of the injuries had been inflicted by policemen. He argued that it was not possible for a person to land on his feet and at the same time hurt his lips, ribs, head and neck. He also maintained that the forensic report of 2 December 2002 was unclear and that the investigation conducted by the domestic authorities had been superficial and inadequate. B.     The Court's assessment 1.     General principles 43.     As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR   1999 ‑ V, and the Assenov and Others v. Bulgaria judgment of 28   October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, §   93). 44 .     Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania , no.   42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention ( Selmouni v.   France , § 87). 45.     In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 46.     The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 47.     The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see the Assenov and Others v. Bulgaria judgment cited above, §   103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, Tanrıkulu v.   Turkey [GC], no.   23763/94, ECHR 1999-IV, §   104 et seq. and Gül v.   Turkey , no.   22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. 2.     The first alleged incident of ill-treatment 48.     It is not disputed that the applicant sustained his injuries while in police custody. The core of the Government's submissions is that they had been sustained when he allegedly jumped from a car travelling at 70-80   km/hour. 49.     The Court is not convinced by the reasons given by the Government and considers that they have failed to provide a plausible explanation as to how the applicant's injuries were caused. 50.     It notes in the first place that there were no independent witnesses who could confirm that the applicant jumped from the car in which he was being taken to the police station. The findings of fact made by the prosecutors were entirely based on the accounts of the police officers accused of ill-treatment. 51.     Not only have the Moldovan prosecutors accepted without reserve the submissions of the police officers, they also appear to have disregarded the contradictions in their statements. The Court notes that according to three police officers the applicant had been accompanied in the car by three policemen. The fourth police officer, however, declared that he had been accompanied by four policemen. 52.     The investigation carried out by the domestic authorities appears to have had other shortcomings. In particular, not all the occupants of the car were interrogated. The Court notes that G.O., the driver of the car, was never interrogated during the investigation and no reasons were given for this omission. In addition, it is noteworthy that the applicant himself was never interrogated. 53.     The domestic authorities do not, moreover, appear to have taken into account the nature of the applicant's injuries, which appear prima facie to be inconsistent with a jump from a speeding car. It appears from the medical certificate submitted by the parties that the applicant did not suffer a single bruise to his limbs as a result of his jump. However, he suffered eight different injuries to his head, such as bruises, swellings, wounds, a head concussion and a barotrauma. 54.     In the light of the above and on the basis of all the materials before it, the Court considers that the Government have not provided a plausible explanation for the applicant's injuries and concludes that they were the result of inhuman and degrading treatment while in police custody. Accordingly, there has been a violation of Article 3 of the Convention. 55.     Having regard to the deficiencies identified in the investigation (see above), the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant's allegations of ill-treatment. Thus, there has been a violation of Article 3 of the Convention also under its procedural head. 3.     The second alleged incident of ill-treatment 56.     It is not disputed that the applicant sustained part of his injuries when jumping or falling from the third floor. What is disputed is whether his jump was the cause of all his injuries. 57.     It is an established fact that the applicant jumped or fell from a considerable height just before the police arrived and that he complained of pain in his left leg. He was not, however, examined by a doctor until he was taken to hospital some thirteen or fourteen hours later. 58.     A medical report dated 12 July 2002, two days after the applicant's arrest, recorded that he had multiple serious injuries more or less all over his body (see paragraph 26 above) but it did not indicate the origin of the injuries. The applicant himself alleged that the injuries had resulted from his ill-treatment by the police. 59.     In response to these allegations the Prosecutor's Office ordered a medical forensic investigation to determine the origin of the injuries. 60.     Such an investigation was carried out on the basis of previous medical reports on the applicant and a final report of 2 December 2002 stated that the applicant's injuries had been inflicted by blows with blunt objects. However, the forensic doctors also acknowledged that the injuries might have been caused by a fall from the third floor, if the applicant's body had hit hard objects (see paragraph 33 above). 61 .     It is true that the victim of the theft and a neighbour declared to the police that the applicant was hanging from a window which broke, causing the applicant's fall (see paragraph 31 above). However, that statement was contradicted by another neighbour, who declared that the applicant jumped only after being hit on his hands (see paragraph 28 above). In any event the Moldovan prosecutors did not finally conclude, and the Government have not argued, that the applicant had collided with hard objects during his fall or jump (such as open windows for example) or that he had landed on anything other than the ground (such as a tree or a car for example). 62 .     The Court further notes that the police failed to have the applicant medically examined in the immediate aftermath of the fall or jump. This failure of the police was amplified by the prosecutor's failure to follow the instructions received from the Prosecutor General's Office (see paragraph 30 above), and to interrogate the occupants of the apartment building about the extent to which the applicant appeared to have hurt himself as a result of the fall or jump. Moreover, the Court finds it a cause for concern that while the applicant's serious injuries were allegedly caused on the night of 10   July   2002, the authorities appear to have formed the view that he needed urgent medical care only in the afternoon of the next day. 63.     Given the failure of the police to have the applicant medically examined immediately after his fall or jump, the Court is not able to determine with certainty the manner in which he sustained his injuries. At the same time, the Court cannot ignore the undisputed fact that the applicant had jumped from a considerable height. Given that fact, and despite the matters of concern described in paragraphs 61 and 62, the Court can only conclude that it has not been established beyond reasonable doubt that the injuries sustained by the applicant were the result of ill-treatment. 64.     The above conclusion, however, does not preclude the Court from finding a violation of Article 3 on the ground that the State authorities failed to conduct a proper investigation into the applicant's allegations of ill-treatment (see paragraph 62 above). Accordingly, there has been a violation of Article 3 on that ground. III.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 65.     The applicant argued that he did not have an effective remedy before a national authority in respect of the breaches of Article 3 of the Convention and alleged a violation of Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....” A.     The submissions of the parties 66.     The applicant submitted inter alia that due to the outcome of the criminal investigation in respect of his ill-treatment, he was prevented from bringing a civil action for damages against the police officers. 67 .     The Government disagreed and argued that there has been no violation of Article 13. They submitted that since the guilt of the policemen who had allegedly ill-treated the applicant had not established, the latter could not claim any compensation for pecuniary and non-pecuniary damage. B.     The Court's assessment 68.     As found above, the applicant's right not to be subjected to ill-treatment and to benefit from an effective investigation of his complaints about ill-treatment was breached by the State. The applicant's complaints in this regard were therefore “arguable” for the purposes of Article   13 (see the Boyle and Rice v.   the United Kingdom judgment of 27   April   1988, Series A no. 131, p. 23, §   52). 69.     According to the Moldovan Civil Code in force at the material time (see paragraph 47 above), the applicant could have claimed compensation for pecuniary and non-pecuniary damage, only if the damage was caused by illegal acts. Since the criminal investigation, conducted by the domestic authorities, concluded that the actions of the police officers had been lawful, any civil action against them would have been ineffective. The Government confirmed that (see paragraph 67 above). 70.     In such circumstances, the Court concludes that the applicant did not have an effective remedy under domestic law to claim compensation for his ill-treatment as regards events that took place on 10 May 2001 (see Corsacov v. Moldova , cited above, §§   80-82) and accordingly there has been a violation of Article 13 of the Convention as regards the complaints under Article 3.   IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 71.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Non-pecuniary damage 72.     The applicant claimed 12,000   euros (EUR) for non-pecuniary damage suffered as a result of the ill-treatment and of the failure of the authorities to investigate his case properly. 73.     The Government argued inter alia that in view of the fact that the applicant had not been subjected to any form of treatment contrary to Article   3, he was not entitled to any compensation. In any event, he did not adduce any evidence to show that he had suffered non-pecuniary damage. 74.     The Court notes that the applicant has suffered numerous serious injuries, such as head trauma and head concussion, bruises, barotraumas, broken ribs, broken fingers at the hands of State agents. It considers that the violations committed in respect of the applicant must have caused him severe suffering and awards him EUR   8,000. B.     Costs and expenses 75.     The applicant claimed EUR   2,034.91 for costs and expenses. He claimed that this amount covered translation fees and the costs of representation. He submitted an itemised list of expenses according to which his lawyer had spent 40 hours on the case at a rate of EUR   50 per hour. 76.     The Government did not agree with the amount claimed, arguing inter alia that the number of hours assessed by the applicant's lawyer was excessive. Moreover, the applicant's lawyer had not drafted the initial application and had mistakenly indicated the application number of another case in his observations. 77.     The Court recalls that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, §   62, ECHR   1999-VIII). 78.     In the present case, regard being had to the itemised list submitted by the applicant and the above criteria, the Court awards him EUR   1,400 for costs and expenses. C.     Default interest 79.     The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.     Declares unanimously the application admissible;   2.     Holds by six votes to one that there has been a violation of Article 3 of the Convention since the applicant was subjected to inhuman and degrading treatment on 10 May 2001;   3.     Holds by six votes to one that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the applicant's complaints about being ill-treated by the police on 10 May 2001;   4.     Holds by four votes to three that there has been no violation of Article 3 of the Convention as regards the alleged subjecting of the applicant to inhuman and degrading treatment on 10-11 July 2002;   5.     Holds unanimously that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the applicant's complaints about being ill-treated by the police on 10-11 July 2002;   6.     Holds by six votes to one that there has been a violation of Article   13 of the Convention on account of the lack of effective remedies in respect of the ill-treatment complained of;   7.     Holds by six votes to one (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44 §   2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 1,400 (one thousand four hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   8.     Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   T.L. Early   Nicolas Bratza   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: a)     concurring opinion of Sir Nicolas Bratza; b)     partly dissenting opinion of Mr Bonello, joined by Mr Traja and Mrs   Mijović; c)     partly dissenting opinion of Mr Pavlovschi. N.B. T.L.E. CONCURRING OPINION OF SIR NICOLAS BRATZA The Chamber was unanimous in finding a procedural violation of Article   3 of the Convention in relation to both incidents involving the applicant's arrest and detention and divided only on the question whether it had been sufficiently shown that the injuries sustained on both occasions resulted from his ill-treatment by the police, in violation of the substantive aspect of that Article. In common with the majority of the Chamber, I take the view that, whereas it has been shown that the injuries recorded in the medical report of 14 May 2001 were the result of ill-treatment by the police following the applicant's arrest on 10 May, the same cannot be said of the injuries sustained by the applicant on 10 July 2002 and recorded in the medical report of the following day. The different conclusion reached by the majority in relation to the two incidents flowed from the principles developed in the case-law of the Court concerning the burden and standard of proof in relation to complaints of violations of Article 3. As noted in paragraph 45 of the judgment, the oft-repeated principle that the burden lies on an applicant to prove “beyond reasonable doubt” that he has been subjected to ill-treatment attaining the threshold set by that Article has been tempered by the equally well-established principle that such proof may follow from the co-existence of sufficiently strong, clear and concordant influences and similar unrebutted presumptions of facts. One such strong presumption arises in respect of injuries sustained by a person during detention, first explained by the Court in the case of Tomasi v. France (judgment of 27 August 1992, Series A no.   241-A, pp. 40-41, §§ 108-111) in which the Court stated that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see to similar effect Ribitsch v. Austria , judgment of 4 December 1995, Series A, No. 336, pp.   25-26, § 34; Selmouni v. France [GC], no. 25803/94, § 87, ECHR   1999 ‑ V). As regards the first incident, the medical report of 14 May 2001 revealed that the applicant had sustained relatively minor physical injuries inflicted by blows with blunt objects, possibly on 10 May 2001. These injuries were consistent with the applicant's account that on the latter date he had been punched, kicked and beaten with a wooden baton in the office of the village police inspector at the time of his arrest. The medical examination was carried out several days after the applicant had escaped from custody on or shortly after 10 May but the respondent Government have at no stage argued that the injuries were caused after the applicant's escape from custody and have not disputed that they were in fact sustained while he was in police custody. The sole explanation offered by the Government for the injuries is th