1811/18

FIFTH SECTION CASE OF CUŞNIR v. THE REPUBLIC OF MOLDOVA (Application no. 1811/18) JUDGMENT STRASBOURG 11 June 2026 This judgment is final but it may be subject to editorial revision. In the case of Cuşnir v. the Republic of Moldova, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: María Elósegui, President, Diana Sârcu, Sébastien Biancheri, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.1811/18) 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”) on 22 December 2017 by a Moldovan national, Ms Valentina Cuşnir (“the applicant”), who was born in 1954, lives in Călărași and was represented by Mr V. Iordachi, a lawyer practising in Chișinău; the decision to give notice of the complaint concerning the investigation of the applicant’s alleged ill-treatment to the Moldovan Government (“the Government”), represented by their Agent at the time, Mr D. Obadă, and to declare the remainder of the application inadmissible; the decision to give priority to the application (Rule 41 of the Rules of Court); the parties’ observations; Having deliberated in private on 21 May 2026, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.The case concerns the alleged failure to properly investigate the applicant’s allegation of ill-treatment by the police. It raises an issue under Article3 of the Convention. 2.Following the general election of 5 April 2009, growing discontent amongst the population concerning alleged electoral fraud resulted in massive public protests on 6 and 7 April 2009. At approximately 1 a.m. on 8April 2009 various police and special forces units started a massive operation aimed at re-establishing public order. However, as subsequently established by a parliamentary 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 8April 2009 and thereafter, long after the protests had ended on the evening of 7April 2009. For further details see, inter alia, Taraburca v.Moldova(no.18919/10, §§ 33-37, 6December 2011) and Boboc and Others v. the Republic of Moldova (no. 44592/16, §§ 6 et seq., 7 June 2022). 3.According to the applicant – who was at the relevant time a member of parliament – after her active involvement in the protests which had started on 6April 2009, in a news conference on 7 April 2009 P.C., a police colonel, accused her of provoking young people into protesting. After a day of protests in the Chișinău main square (Piața Marii Adunări Naționale – PMAN) on that day, she spent time with her friends in her apartment. At around 11p.m. she saw her friends off, then went to a shop near PMAN, where dozens of young people were still protesting. She spoke with one young man and then saw a group of young men kick a newsstand. At that moment a group of armed special forces officers wearing balaclavas[1] approached and started to cruelly beat up the youngsters. The applicant protested but had to retreat to safety towards the Government building when she heard gun shots. At that moment she was grabbed by her hand and by her hair by two police colonels, D.R. and P.C. She was dragged onto the ground, then hit on her hip and on the nape of her neck, after which she lost consciousness. When she recovered, she was lying on the ground. She finally reached her apartment and called an ambulance. She was treated there and told the ambulance staff that she had been assaulted by the two colonels. 4.On 8 April 2009 she was treated by the ambulance service, which on the same day informed the Buiucani police station of the applicant’s alleged ill-treatment. On 10 August 2009 she was examined by a forensic doctor, who on 17August 2009 issued a report, according to which he had found bruises of medium severity (requiring more than 21 days of treatment) on the applicant’s body, notably a radial styloid fracture, head trauma and concussion, abrasions of the tender tissues on the head, and bruising and abrasions to the left arm and sacroiliac region on the left side. The injuries had been caused by a blunt object. 5.On 16 April 2009 the applicant made a formal complaint of ill-treatment by P.C. and D.R. On 29 June 2009 the Chișinău Military Prosecutor’s Office started a criminal investigation into the applicant’s allegations under Article 152 (2) of the Criminal Code (intentionally causing injuries of medium severity). On 21 July 2009 the applicant was formally recognised as a victim. The prosecution questioned R.D. on 11September 2009 and P.C. on 9 November 2009. 6.On 6 August 2014 the Chișinău District Court (Buiucani district) acquitted the two suspects for lack of evidence that they had committed the offence. The court found notably that there was no direct evidence proving the suspects’ participation or even their presence near the place of the assault as indicated by the applicant. Moreover, her explanations were contradictory. The witnesses on her behalf had only confirmed that she had called them immediately after the incident or later on 8 April 2009 and complained that she had been beaten by the two suspects, but none of them had seen anything in person. The video recordings taken from security cameras around PMAN did not contain any useful information because the individuals had been filmed from afar and in bad lighting. The court finally found that the defence had also shown several breaches of procedure by the prosecuting authority. 7.Both the prosecution and the applicant lodged appeals. In her appeal, the applicant noted, inter alia, that aside from receiving a notification about the start of the criminal proceedings, by February 2010 she had not received any information about the progress of the investigation. Only after the investigation was over had she and her lawyer found out about the change of the charge against the suspects from Article152 to Article 328 of the Criminal Code (excess of power). At the same time, they found out that the initial decision of 29 June 2009 to start the criminal investigation and to entrust the Military Prosecutor’s Office with that task had been replaced with another one, dated 6 July 2009, handing over the investigation to the Chișinău Prosecutor’s Office. She also mentioned that the criminal file transferred from the Military Prosecutor’s Office to the Chișinău Prosecutor’s Office did not have a list of included documents, and that at least one document which had been in the file (the medical information issued to her by the ambulance service in which her injuries had been described) had disappeared from that file. The applicant further mentioned that three CDs with recordings made by security cameras of the Government building, as well as a CD with intercepted communications from the suspects’ telephones had not been formally included by the prosecution in the list of evidence, which led the court to reject viewing that material. When studying the case file in court at the end of the investigation, the applicant and her lawyer discovered the absence of the three CDs from the file. Only in April 2011 had they seen the content of the CDs which had re-appeared in the file, without any explanation as to who had taken them and without any guarantee that they had not been replaced or tampered with. 8.On 31 January 2012 a criminal investigation was started into the tampering with the medical evidence concerning the applicant’s treatment by the ambulance service on 8 April 2009. 9.During the examination of the case on appeal a new witness, D., was heard after the applicant saw his interview from 16 April 2009 to a local TV channel about his own ill-treatment on PMAN. He told the court that on the night of the incident he was amongst the young people protesting on PMAN. He had seen P.C., whom he knew, move about in various parts of the square and subsequently he had seen him drag a female along the ground. 10.On 13 December 2016 the Chișinău Court of Appeal upheld the lower court’s judgment, essentially relying on the same arguments. It added that the prosecution had not asked for the suspects’ re-hearing before the Court of Appeal after their acquittal, which meant that they could not be convicted without breaching the law and their rights under Article 6 of the Convention. The court found that that failure by the prosecution was equivalent to not maintaining the accusation, which was another reason for rejecting the prosecutor’s appeal. 11.According to the documents submitted by the applicant, the Chișinău Court of Appeal set the date for delivering the fully reasoned judgment for 27December 2016. However, on an unknown date that was changed to 17January 2017. On that date and in the absence of all the parties, the court set a new date for 27 January 2017. On the new date, again in the absence of all the parties, the court read out the judgment. 12.The prosecution appealed on an unknown date. On 28 February 2017 the applicant lodged a partly reasoned appeal in cassation before the Supreme Court of Justice. She noted that she had not been present at the delivery of the judgment on 27 January 2017 and asked for 30 days to prepare her fully reasoned appeal. She noted, inter alia, that the Court of Appeal had not commented on a number of her requests, including that of rectifying some of the facts important for the case; the refusal to view video recordings annexed by the prosecution; the refusal to examine the prosecution’s request to annex more video material; and the intentionally incorrect assessment of certain facts by the courts, as well as procedural breaches, such as the failure to include as co-defendants the Ministry of Internal Affairs and the Ministry of Justice, despite express requests to do so. On 3 April 2017 the applicant submitted a fully reasoned appeal, while noting that she had still not obtained certain documents, such as copies of transcripts of the hearings before the Court of Appeal. 13.On 30 May 2017 the Supreme Court of Justice upheld the lower courts’ judgments. It found that the applicant’s appeal had been submitted outside the legal time-limit of 30 days, which had started on 28 January 2017 and had ended on 27 February 2017. The law did not provide for “preventive appeals” and the applicant had not submitted her reasoned appeal in time. It rejected the prosecutor’s appeal as unfounded, for reasons similar to those of the lower courts. 14.In the meantime, on 11 May 2017 the applicant complained about the disappearance from the file of the three CDs with recordings from the security cameras around PMAN. On 18 July 2017 the Judicial Inspector rejected that complaint. He found that while the fact of the disappearance of the CDs had been confirmed, it could not be attributed to the judge in charge of the case. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 15.The Government argued that the applicant had failed to exhaust available domestic remedies by failing to lodge a fully reasoned appeal in cassation within the legal 30-day time-limit. The applicant submitted that the copy of the reasoned judgment of 13 December 2016 had been sent to her, according to postal stamp, on 2 February 2017 and she had received it on 7February 2017. 16.The Court has frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case(seeGherghina v. Romania [GC], no. 42219/07, § 87, 9 July 2015). 17.In the present case, the Court finds that given the complexity of the case and the delay in receiving a copy of the fully reasoned judgment, which the Court of Appeal itself took more than a month to deliver from the date of adopting it, the applicant’s request for more time, which was done within the 30-day time limit, was not unreasonable. Importantly, the Supreme Court of Justice apparently did not reply to that request in any manner. It is also to be noted that the prosecutor’s appeal was lodged on time and allowed the Supreme Court of Justice to fully examine all aspects of the case. Therefore, it could not be said that that court had not had the opportunity to set right the alleged omissions of the lower courts in examining the case against the suspects. Accordingly, this preliminary objection must be dismissed. 18.The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 19.The general principles concerning the effective investigation of allegations of ill-treatment have been summarised in X and Others v.Bulgaria [GC] (no. 22457/16, §§ 184-92, 2 February 2021). 20.In the present case, the Court notes that the applicant has suffered physical violence, leading to several weeks of treatment. Accordingly, Article3 of the Convention is applicable. The applicant complained to the domestic authorities that she had been ill-treated by two police officers. Given the medical confirmation of her injuries, the authorities had the obligation to carry out an effective investigation into her allegations. 21.It is noted that on the very day of the applicant’s ill-treatment on 8April 2009, the ambulance service informed the police about that fact (see paragraph 4 above). However, a criminal investigation into the applicant’s ill-treatment, as confirmed by medical evidence, was not started until almost three months later, on 29 June 2009, and she was recognised as a victim after three more weeks, on 21 July 2009. Moreover, the applicant was only formally examined by a forensic doctor on 10 August 2009 (see paragraph 4 above), while the two suspects who she had identified from the very beginning were not questioned until approximately five and seven months after the incident (see paragraph 5 above). No explanation was given for those delays which, in the absence of any compelling reasons, are incompatible with the requirement of promptness of the investigation (see X and Others v.Bulgaria, cited above, § 188). 22.Moreover, it would appear that one of the most objective types of evidence – the video recordings from security cameras – has temporarily disappeared from the case file, therefore breaking the chain of custody, with the resulting effect on the credibility of that evidence (see paragraphs 7 and 14 above). It would also appear that when the Supreme Court of Justice examined the appeals in cassation, the video recordings were not in the file. Another piece of evidence – D.’s testimony about seeing P.C. drag a female along the ground (see paragraph 9 above) – was never commented on by the courts. 23.It is also apparent that the applicant and her lawyer were not properly involved in the proceedings, so much so that they were not notified until after the end of the investigation of the amended charges against the suspects (from Article152 to Article 328 of the Criminal Code, see paragraph 7 above). 24.In addition, the prosecution’s failure to include the CDs with the recordings from the security cameras in the list of evidence and to ask to re-examine the suspects before the Court of Appeal, expressly noted by the courts as procedural failures and even classed as not maintaining the accusation, also undermined the effectiveness of the investigation. 25.In the Court’s view, the combination of the various unexplained delays, inappropriate storage of evidence and failures mentioned above undermined the effectiveness of the investigation to an extent which is incompatible with the authorities’ procedural obligations under Article 3 of the Convention. 26.There has accordingly been a violation of that provision in the present case. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,802 in respect of costs and expenses incurred before the domestic courts and before the Court. 28.The Government considered that the sums claimed were exaggerated. 29.The Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 30.Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,000 covering costs under all heads, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 3 of the Convention; Holds that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 June 2026, pursuant to Rule77§§2 and 3 of the Rules of Court. Martina KellerMaría Elósegui Deputy RegistrarPresident 1.A balaclava is a piece of close headgear exposing only part of the face,usually the eyes and mouth.