BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF COBZARU v. ROMANIA
(Application
no. 48254/99)
JUDGMENT
STRASBOURG
26 July
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 Cobzaru v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mrs E. Fura-Sandström,
President,
Mr C. Bîrsan,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48254/99) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Belmondo Cobzaru (“the
applicant”), on 11 May 1999.
- The applicant was represented successively by Ms M.
Macovei, a lawyer practising in Bucharest, by the Romanian Helsinki
Committee, an association based in Bucharest, and by
the European Roma Rights Centre, an association based in Budapest
(Hungary). The Romanian Government (“the Government”)
were represented successively by their Agent, Mrs B. Ramaşcanu,
Director in the Ministry of Foreign Affairs and by their co Agent,
Ms R. Paşoi, also from the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that he was subjected to inhuman
and degrading treatment while in police custody, in breach of Article
3 of the Convention; that the authorities failed to satisfy their
obligation to carry out a prompt, impartial and effective
investigation into the allegations of ill treatment, also in
breach of Article 3; and that he had no effective remedy under
domestic law for his allegation of ill-treatment, in violation of
Article 13 of the Convention. The applicant also complained of a
violation of Articles 6 and 14 taken in conjunction with Articles 3
and 13 of the Convention.
- On
22 May 2001 the Court decided to give notice of the application to
the Government.
- On
23 June 2005 the Court decided, in accordance with the provisions of
Article 29 § 3 of the Convention, to examine the merits of the
application at the same time as its admissibility.
- The
applicant and the Government each filed observations on the merits
(Rule 59 §1). The parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Belmondo Cobzaru, is a Romanian
national, born in 1973. He lives in the
town of Mangalia (Constanţa).
1. Facts as submitted by the applicant
- On
4 July 1997 at around 7.30 p.m. the applicant and his girlfriend
Steluţa M. arrived at the flat which they were sharing and which
belonged to Steluţa. The applicant then left the flat for about
20 minutes to get some money, as he and Steluţa were planning to
go out that evening. However, when he came back, he found the door
locked. He asked his neighbours whether they had seen Steluţa,
but was told that nobody had seen her. Fearing that she might have
attempted to take her life, as she had already done in the past, the
applicant forced open the door of the flat in the presence of his
neighbour, Rita G. He found nobody there, so decided to go to
the police to enquire about her fate. As he was leaving the apartment
block, he met Steluţa's brother-in-law, Crinel M., accompanied
by three men armed with knives, who attempted to attack him, but from
whom he managed to escape.
- On
4 July 1997 at around 8 p.m. Crinel M. called the police and lodged a
complaint against the applicant. According to the complainant, the
applicant had tried to break into Steluţa's flat, but had run
away when Crinel M. appeared. The complaint was certified by the
police officer Dumitru CA.
- Dumitru
CA sent a police patrol to conduct an on-site investigation into the
facts complained of by Crinel M. The report drafted by the police
patrol concluded that there were no traces of rummaging or violence
in the flat. Rita G., who was present during the investigation,
stated that the applicant had broken into the flat in her presence,
fearing that Steluţa might have committed suicide.
- A
short time after he escaped from Crinel M., that is, between 8 and 9
p.m., the applicant learned that the police were looking for him and
went to the Mangalia City Police Department, accompanied by his
cousin Venuşa L.
He
reported to the police officer on duty, Dumitru CA., that some
individuals had attempted to beat him up as he was leaving his flat,
and that although he had managed to escape, he was still afraid that
Crinel M. might beat him up. After he presented his identity card, he
was told to wait. Other policemen were also present.
- At
around 10 p.m. police officers Gheorghe G., Curti D. and Ion M. came
back from the on-site investigation they had carried out at Steluţa's
flat. Gheorghe G. grabbed the applicant by his hair and pulled him
upstairs to an office. Gheorghe G. and Curti D. punched him in the
head until his nose started to bleed, and he was thrown to the ground
and kicked. A newspaper was placed on the back of his neck and
he was hit with a wooden stick. Four plainclothes officers observed
the assault, but took no steps to prevent or halt it. The police told
the applicant that the fact that his father was the local leader of a
Roma association would not help him and forced him to sign a
statement according to which he had been beaten up by Crinel M. and
other individuals. Then he was told to leave and to come back the
next day. The police kept his identity card.
- The
applicant left, but as he was feeling very weak, he stopped and sat
in front of the police station. Gheorghe G. came out and told him to
go home. Seeing that the applicant was in bad shape, Venuşa
invited him back with her and offered him a coffee. The applicant
showed her the bumps on his head and the other marks of the blows to
his back.
- Later
that evening the applicant was admitted to the emergency ward of
Mangalia Hospital with injuries diagnosed as craniocerebral trauma.
He was transferred to Constanţa County Hospital where an X-ray
was performed. He was informed that a further scan was necessary, but
this was never performed.
- On
7 July 1997 the applicant was discharged from hospital, allegedly at
the request of someone whose name the hospital staff could not
disclose.
- On
8 July 1997 the applicant was examined by a forensic medical expert
of the Forensic Institute of Constanţa, who noted in his report
that the applicant had severe headaches and stomachaches, difficulty
in walking, bruises around both eyes, on his fingers, on the back of
his right hand, on his chest, on his right thigh and calf, and a
haematoma on his head. The report concluded that the injuries had
been caused by being hit “with painful and hard objects”.
The doctor said that the applicant would need 14-15 days to recover.
- On
8 July 1997 the applicant lodged a complaint with the head of the
Mangalia Police Department against police officers Curti D. and
Gheorghe G.. He alleged that after he had managed to escape from
Crinel M. and his friends, he had gone home, but as he had found out
that the police were looking for him, he had gone to the police
station. There, Gheorghe G. and Curti D. had beaten him and made him
sign a statement, after which they had told him to go home and come
back the next day.
The
complaint was registered on 9 July 1997 and forwarded to Major P.
- On
10 or 11 July 1997 Major P. took written statements from the police
officers involved in the applicant's questioning: Gheorghe G.,
Curti D. and Ion M. All police officers denied, in succinct
terms, having beaten the applicant. None of them mentioned having
seen any bruises on the applicant's face upon his arrival at the
police station. The statements were dated 11 July, but Major P.
certified them as having been made on 10 July.
- In
a statement certified by Major P. as having been made on 11 July 1997
Dumitru CA., a police officer on duty on 4 July 1997, explained that
at 8.15 p.m. he had received a telephone call from Crinel M., who had
told him that the applicant had forcibly entered Steluţa M.'s
flat and had subsequently fled. The duty officer then sent to the
flat a police patrol, composed of three police officers: Gheorghe G.,
Curti D. and Ion M. In the meantime the applicant arrived at the
police station, accompanied by his cousin, Venuşa L. He told
Dumitru CA. that he had forcibly entered the flat because he thought
his girlfriend was inside. On his way out, on the staircase of the
building, a number of individuals had approached him and tried to
catch him, but he had run away and come to the police in order to
avoid being beaten up by them. The police officer told the applicant
and his cousin to wait in the waiting room. Police officer Gheorghe
C. was there as well. At around 10 p.m. the police patrol returned
from the flat and took the applicant to their office on the first
floor for questioning. After approximately half an hour, the
applicant was sent home and asked to come back the next morning.
Dumitru CA. made no mention of the bruises which the applicant had
allegedly had on his face upon arrival at the police station.
- By
a letter dated 10 July 1997 Major P. forwarded the preliminary
investigation file to the Military Prosecutor's Office in Constanţa.
The case file contained the following documents:
(i) an
undated statement by the applicant according to which, after he had
left Steluţa's flat in the evening of 4 July 1997, he had met
her relatives, who had beaten him up;
(ii) the
report dated 4 July 1997, 8.15 p.m. drawn up by police officer
Dumitru CA. stating that Crinel M. had complained to the police that
the applicant had broken into Steluţa's flat (see paragraph 9
above);
(iii) a
statement dated 4 July 1997 by Crinel M. from which it appeared that
he had threatened the applicant in the evening of 4 July 1997 and had
even thrown a stone at him, which had missed its target, but that he
had definitely not beaten him up;
(iv) the
on-site investigation dated 4 July 1997;
(v) a
statement dated 4 July 1997 by Rita G., confirming the applicant's
allegation, namely that at around 6 p.m., he had broken into
Steluţa's flat in her presence, out of concern that she might
have committed suicide, and that he had left when he had seen that
Steluţa was not there; no mention was made of any physical
assault against the applicant;
(vi) a
police report dated 7 July 1997 issued by Gheorghe G., listing the
clothes belonging to Steluţa allegedly torn up by the applicant
on 28 June 1997;
(vii) a
written notification issued on 7 July 1997 by the police requesting
that the Forensic Institute examine Steluţa M., who “had
been beaten up by Cobzaru Belmondo on 3 July 1997”;
(viii) Steluţa's
statement dated 9 July 1997 from which it appeared that on 3 July
the applicant had beaten her up while she was at his flat, and that
on 4 July he had taken her to her flat and told her not to
leave; as soon as he had gone, Steluţa had gone onto the roof of
the building where she had remained for about two hours; from there
she had seen the applicant come back and break into the flat; as he
had found nobody, he had gone away. Steluţa further stated that
as the applicant was leaving the building, he had met Crinel M., who
“had beaten him up, asking him why he had broken into the
flat”; no details were given as to the alleged beating; at the
end of her statement she mentioned again that the applicant had
broken into her flat with a screwdriver he had borrowed from a
neighbour, but that when he saw Crinel M., he had run away;
(ix) a
statement dated 9 July 1997 by Elena, Steluţa's mother,
according to which the relationship between the applicant and Steluţa
had already deteriorated; on 28 June 1997 the applicant had torn up
some clothes belonging to Steluţa and on 4 July 1997, while
Steluţa was on the roof of the building, the applicant had
broken into the flat but had not stolen anything;
(x) the
statements dated 10 or 11 July 1997 made by police officers Gheorghe
G., Ion M., Curti D. and Dumitru CA. (see paragraphs 18 and
19 above).
- On
17 July 1997 the applicant and his father, president of the
Association of Roma in Mangalia, lodged a complaint with the
Department for National Minorities and requested an investigation in
respect of the police officers who had beaten the applicant. They
submitted a medical certificate issued on 8 July 1998, a copy of a
newspaper article describing the applicant's allegations of
ill-treatment and the statements of Venuşa, who had accompanied
the applicant to the police station on 4 July 1997 and who had seen
him coming out of the police station in excruciating pain. The
complaint was forwarded to the Military Prosecutor's Office in
Constanţa on 23 July 1997.
- On
21 July 1997 the applicant's father lodged a complaint with the
Constanţa Military Prosecutor's Office.
- On
28 July 1997 the applicant lodged a separate criminal complaint with
the Bucharest Military Prosecutor's Office. He also claimed pecuniary
and non-pecuniary damages. The complaint was registered the same day
with the Prosecutor General's Office and forwarded on 14 August 1997
to the Constanţa Military Prosecutor's Office.
- On
18 August 1997 the military prosecutor charged with the investigation
interviewed the police officers and the applicant. Police officers
Curti D. and Gheorghe G. maintained their statements made before the
Mangalia police, and the applicant maintained his allegations of
ill treatment. He complained, moreover, that he had been forced
to sign a statement according to which he had been hit by Crinel
Marin and his girlfriend's other relatives.
- On
18 September 1997 the military prosecutor took a statement from
Venuşa L. She stated that on 4 July 1997 she and a friend,
Valentina T., had accompanied the applicant to the police station and
that about 30 minutes later the applicant had come out and
complained to them that he had been beaten by the police with a
wooden stick. He had also shown them the bruises on his hand, back
and fingers.
- On
29 September 1997 the General Prosecutor's Office in Bucharest urged
the Constanţa military prosecutor in charge of the investigation
to complete the investigation and render a final decision by
12 December 1997.
- On
6 October 1997 the Constanţa military prosecutor went to the
Mangalia City Police Department, where he took statements from the
following witnesses:
(i) witnesses
Amet F. and Nuri M. stated that they had heard that an altercation
had taken place between Crinel M. and the applicant; Amet F. further
stated that he had seen Crinel M. chasing the applicant with a stone
in his hand;
(ii) police
officer Dumitru CI., who gave a written statement according to which
he was at the police station on 4 July 1997 when the applicant
arrived there at around 9.30 p.m., and saw that the applicant had
bruises on his face when he entered the police station; he had
explained to the duty police officer, Dumitru CA., that he had been
hit by someone when breaking into the flat;
(iii) Ion
M. was interviewed again and stated this time that when the applicant
had arrived at the police station, at around 9.30 p.m., he had
bruises on his face and declared that he had been hit by someone when
breaking into the flat;
(iv) police
officer Marius I., who had also participated in the on-site
investigation at Steluţa's flat on 4 July 1997, stated that the
applicant had arrived at the police station after the team of
policemen had come back from the on-site investigation and that he
had noticed that the applicant had obvious bruises on his face, which
had been caused a short time beforehand;
(v) Crinel
M. confirmed that on 4 July 1997 he had seen the applicant breaking
into Steluţa's flat and that after making an unsuccessful
attempt to catch the applicant, he had only managed to throw some
stones at him, which had missed their target; he further confirmed
that some neighbours had witnessed the incident, including Rita G.
The
prosecutor did not put any questions to the police officers who had
submitted written statements.
- On
12 November 1997 the military prosecutor of Constanţa refused to
open a criminal investigation in respect of the applicant's
complaints against police officers Gheorghe G. and Curti D., on the
ground that the facts had not been established. The prosecutor noted
that both the applicant and his father were known as “antisocial
elements prone to violence and theft”, in constant conflict
with “fellow members of their ethnic group” and that it
was in this context that in the evening of 4 July 1997 the applicant
had broken into his girlfriend's flat and had destroyed many of her
clothes. It further found that, according to various testimonies,
including those of the police officers from the Mangalia Police
Department, the applicant's girlfriend, her mother and Nuri M., the
applicant had been hit by Crinel M. for breaking into Steluţa's
flat. The prosecutor found that it was for “obvious reasons”
that Crinel M., a “gypsy as well”, had denied having
beaten the applicant. The prosecutor considered that the statement
given by Venuşa L., from which it appeared that the applicant
had come out of the police station with bruises on various parts of
his body, could not be taken into consideration since she was also a
gypsy – and, moreover, the applicant's cousin – and
therefore her testimony was insincere and subjective.
- By
separate decisions of 26 February and 27 July 1998 the public
prosecutor of the Mangalia County Court discontinued the proceedings
instituted against the applicant by his girlfriend and her
brother-in-law for physical assault and material damage.
- On
4 March 1998 the applicant lodged an appeal against the decision of
12 November 1997 refusing to open a criminal investigation. The
appeal was registered on 11 March 1998 by the military section of the
Prosecutor General's Office. They sent it to the military prosecutor
of the Bucharest Court of Appeal, who, in turn, sent it back to the
Constanţa Chief Military Prosecutor.
- On
4 May 1998 the Constanţa Chief Military Prosecutor dismissed the
applicant's appeal on the ground that no evidence had been adduced
that the police officers had beaten the applicant, “a
25-year-old gypsy” “well known for causing scandals and
always getting into fights”. He found that, on the contrary,
the applicant's injuries “might have been caused during the
altercation which he had had with fellow members of his ethnic group.
As a matter of fact, there were indications that the young man's
father, who had been very insistent under the hypothetical title of a
leader of an ethnic local association, had tried to use the complaint
against the policemen to extinguish the other conflict”.
- On
23 September 1998 the applicant lodged an appeal with the military
section of the Prosecutor General's Office.
- On
18 November 1998 the Chief Prosecutor of the military section of the
Prosecutor General's Office informed him that his appeal had been
dismissed and that the decision was final.
2. Facts as submitted by the Government
- The
Government submitted that the applicant had been beaten up by Crinel
M. and that these facts had been confirmed by some of the witnesses
heard during the investigation, in particular by the applicant's
girlfriend, who had seen the applicant being beaten up by Crinel M.
from the roof of the building, and by three police officers, who had
noted very recent marks of violence on the applicant's face when he
arrived at the police station. The Government pointed out in this
connection that the applicant's allegation that he had bruises on his
face had been contradicted by the medical forensic examination, which
did not reveal any such marks.
- The
Government also denied that Major P. had pre-dated the statements
given to him on 10 July by the police officers questioned, and
contended that the date of 11 July 1997 which the police officers
wrote in their statements was obviously a mistake.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL
SOURCES
1. Relevant domestic law and practice
- The
relevant provisions of the Code of Criminal Procedure in force at the
time when the facts occurred read as follows:
Article 10
“Criminal proceedings cannot be instituted and, if
instituted, cannot be continued if
(a) the act was not committed at all;
(...)
(c) the act was not committed
by the defendant;
...”
Article 14
“The aim of the civil action is to establish the
civil liability of the accused and the liability for damages of any
other person who can be held legally responsible.
The civil action can be brought together with the
criminal action in a criminal trial, by way of joining the
proceedings.”
Article 15
“The person who has suffered civil damage can join
the criminal proceedings...
He or she can do so either during the criminal
investigation... or before the court...”
Article 22
“The findings contained in a final
judgment of the criminal court concerning the issue whether the act
in question was committed and the identification of the perpetrator
and establishment of his guilt are binding on the civil court when it
examines the civil consequences of the criminal act.”
Article 19
“(1) The victim who has not joined the
criminal proceedings instituted before the court can lodge an action
with a civil court ...
“(2) The civil proceedings will be
suspended until the criminal case is decided.
...”
Article 278
“Complaints about decisions and acts of the
prosecutor ... shall be examined by the chief prosecutor at the
Prosecutor's Office. If it is the chief prosecutor who took the
decision ... the complaint shall be examined by the higher
Prosecutor's Office...”
Article 343 § 3
“In case of a conviction or an acquittal, or the
termination of the criminal trial, the court shall deliver a judgment
in which it also decides on the civil action.
Civil damages cannot be awarded if the
accused is acquitted on the ground that the impugned act did not
occur or was not committed by the accused.”
- In
its decision no. 486 of 2 December 1997, the Constitutional Court
ruled that Article 278 of the Code of Criminal Procedure was
constitutional only in so far as it did not deny anyone who was
dissatisfied with a decision of the Prosecutor's Office direct access
to a court in accordance with Article 21 of the Constitution.
- Law
no. 281 of 24 June 2003 amended the Code of Criminal Procedure. It
introduced, inter alia, Article 278(1) regulating appeals to
the courts against the prosecutor's decision. It prescribes the
time-limit for lodging an appeal, the competent court and the
procedure to be followed.
- The
relevant provisions of the Civil Code are worded as follows:
Article 998
“Any act committed by a person who causes damage
to another shall render the person through whose fault the damage was
caused liable to make reparation for it.”
Article 999
“Everyone shall be liable for damage he has caused
not only through his own act but also through his failure to act or
his negligence.”
40. The
Government submitted a number of cases in which the domestic courts
had decided that the prosecutor's decision, based on Article 10 (b)
of the Code of Criminal Procedure, not to open a criminal
investigation on account of the absence of intention – as an
element of the offence – did not prevent the civil courts from
examining a civil claim arising out of the commission of the act by
the person in question.
41. The
Government submitted a single case, dating back to 1972, in which the
Supreme Court had decided that the prosecutor's decision, based this
time on Article 10 (a) and (c) of the Code of Criminal Procedure, not
to open a criminal investigation having regard to the fact that the
acts were not committed at all or were not committed by the
defendant, should not prevent civil courts from examining a civil
claim arising out of the commission of the same act by the person in
question. However, the Supreme Court's decision dealt solely with the
competence issue and did not specify whether there was a legal
provision offering a chance of success for such an action.
42. The
common view of the criminal-procedure specialists is that a civil
court cannot examine a civil action filed against a person against
whom the prosecutor has refused to open a criminal investigation on
the grounds provided for in Article 10 (a) and (c) of the Code of
Criminal Procedure that the acts were not committed at all or were
not committed by the defendant (see Criminal Procedural Law –
General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest
1994, and A Treaty on Criminal Procedural Law – General
Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996).
- The
common view of the civil-procedure specialists and of some
criminal-procedure specialists is that the prosecutor's decision
refusing to open a criminal investigation on the grounds mentioned in
the previous paragraph, does not prevent a civil court from examining
a civil action brought against the defendant and from making its own
assessment on the facts which were committed and by whom. However,
the view is that when making this assessment, civil courts have to
rely on the findings of the prosecutor set out in the decision
refusing to open a criminal investigation (see The Civil Action
and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997,
and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest
1988).
2. International documents on the situation of the Roma
community in Romania
44. In
its Resolution No. 1123/1997 on the honouring of obligations and
commitments by Romania, the Parliamentary Assembly of the Council of
Europe urged the Romanian Government “to promote a campaign
against racism, xenophobia and intolerance and take all appropriate
measures for the social integration of the Roma population”.
45. The
European Union's Commission noted in the 1998 Regular Report on
Romania's progress towards Accession, that “discrimination
against the large Roma minority in Romania remains widespread”
and that in “general terms, the protection of minorities in
Romania remains satisfactory, with the major exception of Roma”.
46. In
its Regular Report on Romania's progress towards Accession of
8 November 2000, the European Commission stated, inter alia,
that
“Roma remain subject to widespread
discrimination througout Romanian society. However, the Government's
commitment to addressing this situation remains low and there has
been little substantial progress in this area since the last regular
report”.
47. In
its publication “Roma - Justice Delayed, Justice Denied”,
issued in 1998, Amnesty International reported cases of killings,
beatings and other forms of ill-treatment of Roma and criticised the
failure of law enforcement officers to protect Roma from racist
violence in Romania.
48. US
Department Yearly Reports on Romania from 2000 until 2006 reported
routine police brutality - including beatings - and racial harassment
of the Roma population, and noted that investigations of
police abuses generally were lengthy, inconclusive and rarely
resulted in prosecution or punishment.
- In
its second report on Romania adopted on 22 June 2001, the European
Commission against Racism and Intolerance (ECRI) found that:
“Grave problems ... persist throughout the country
as regards police attitudes and behaviour towards members of the
Roma/Gypsy community. ECRI deplores in particular that cases of
police violence against members of the Roma/Gypsy community,
including the use of firearms, continue to occur, and have led to
serious and sometimes lethal injuries...
Such abuses, although well-documented and reported to
the authorities by the non-governmental organisations and
individuals, do not appear to be thoroughly investigated or
sanctioned: cases which are investigated are usually dismissed...”
50. On
24 June 2005 ECRI adopted a third report on Romania, in which it
stated the following on the progress made by the Romanian authorities
in improving the situation of Roma:
“...As regards the existence of a body responsible
for looking into complaints made against police officers or law
enforcement officials, the Romanian authorities have told ECRI that a
procedure has been set in motion for that purpose within the Ministry
of the Interior itself. [...] However, although the Romanian
authorities have acknowledged that large numbers of police officers
have been arrested for wrongful behaviour, they have provided no
information on the victims. Furthermore, ECRI notes with concern that
despite the existence of these procedures, the Romanian authorities
have stated that no complaints have been recorded against police
officers or law enforcement officials for discriminatory acts. It
therefore wonders whether this does not reflect a lack of confidence
among the general public in the authorities' capacity to punish the
perpetrators of such acts.”
51. In
a report on his first visit to Romania between 5 to 9 October 2002,
the Council of Europe's Commissionner for Human Rights stated,
inter alia, with regard to the Roma community in Romania:
“47. The Roma/Gypsy community suffers greatly from
poverty, unemployment, lack of schooling, lack of access to health
care and justice and discrimination in all its forms. Likewise,
according to Roma/Gypsy organisations, one of this community's
growing concerns is the "anti Roma/Gypsy phenomenon",
which is gaining ground both in Romania and in Europe.”
52. In
his follow-up report on Romania for the period 2002-2005, the
Commissioner described as follows the general situation of the Roma
community:
“54. According to the 2002 census,
535,250 persons were registered as Roma, representing 2.5% of the
Romanian population. Nonetheless, the UNHCR estimated in 2004 that
the Roma population actually numbered between 1.8 and 2.5 million
persons.
[...]
56. From a general point of view, the Roma
situation continues to be a cause for concern. The NGOs and the
representatives of the Roma community continue to report violence on
the part of the police and discrimination and state that a negative
image of the Roma is spread by the media and a part of the political
class.
[...]”.
THE LAW
I. ADMISSIBILITY
- The Government raised an objection of non-compliance
with the six-month rule. While conceding that Article 278 of the
Criminal Procedure Code provided that a complaint could be lodged
against the decision of a prosecutor with the superior prosecutor and
thereafter with the Prosecutor General, they submitted that the
applicant's complaint lodged with the Prosecutor General's Office on
23 September 1998 was not an effective remedy. As a consequence, the
six-month time-limit laid down by Article 35 of the Convention
had started to run on 4 May 1998, when the Constanţa Chief
Military Prosecutor confirmed the decision not to press charges, and
not, as suggested by the applicant, on 18 November 1998, when the
military section of the Prosecutor General's Office informed him that
they had dismissed his appeal.
They
further asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention and argued that, in accordance
with the Constitutional Court's decision no. 486 of 2 December 1997,
the applicant could have brought an action before a court challenging
the military prosecutors' decision not to press charges.
- The
applicant claimed that he had simply followed the internal law, which
allowed him to appeal up to the Prosecutor General's Office.
In
reply to the alleged possibility of challenging before a court a
decision not to press charges, he stressed that in a number of
decisions adopted by the Supreme Court subsequent to the
Constitutional Court's decision of 4 May 1998, it had been held
that complaints before a court against a prosecutor's decision not to
press charges were inadmissible.
- The
Court observes that Article 278 of the Code of Criminal Procedure
provides that the prosecutor's decisions can be challenged before the
superior prosecutor, which is precisely what the applicant did. It
further recalls that it has previously dismissed an analogous
objection by the Government of non-exhaustion of domestic remedies in
a similar case (see Notar v. Romania (dec.), no.
42860/98, 13 November 2003). The Court finds no reason to reach a
different conclusion in the instant case. It therefore dismisses
the Government's objections.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicant complained that he had been subjected to
ill-treatment while in police custody, in violation of Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested the applicant's allegations. They submitted that
the applicant was not formally arrested, but came of his own volition
to the police station, where he stayed no more than two hours. The
police had no obligation whatsoever to subject the applicant to a
medical examination in order to establish his state of health at the
time of his arrival at the police station. They further stated that
the medical forensic certificate submitted by the applicant referred
only to lesions on those parts of the body normally covered by
clothing. It did not refer to bruises on the applicant's face. This
certificate was consonant with Venuşa L.'s statement, according
to which upon his arrival at the police station, the applicant had no
traces of violence on the uncovered parts of the body. On the other
hand, according to the Government, distinct pieces of evidence, such
as the statements made by Steluţa M and by police officer
Dumitru CI., indicated that the applicant had been in a fight with
Crinel M. prior to his arrival at the police station. The Government
concluded that there was not enough evidence to indicate that the
applicant was in good health when he arrived at the police station.
- The
applicant contended that he had been in police custody at least for
the purpose of Article 3, since he could not have left the building
without the permission of the police officers questioning him and
they had kept his identity card. Therefore, the authorities had to
give an alternative explanation for the injuries on his body. Many of
the injuries were on his head and fingers, and therefore visible. The
applicant stressed that the Government's allegations that the
injuries had been caused by Crinel M. were full of inconsistencies.
First of all, Crinel M. had himself denied having hit the applicant,
while admitting that the applicant “would have deserved it”.
Moreover, no investigations were ever initiated against Crinel M.
for physically assaulting the applicant, although the military
prosecutor made this finding with respect to the injuries on the
applicant's body. The applicant argued that it was only in October
1997, more than four months after the events, that some police
officers stated that they had seen bruises on his body upon his
arrival at the police station. Such statements could therefore be
seen as attempts to protect their colleagues.
- The
Court reiterates that Article 3 enshrines one of the fundamental
values of democratic society. Even in the most difficult of
circumstances, such as the fight against terrorism or crime, the
Convention prohibits in absolute terms torture or 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 of the Convention even in the event of a
public emergency threatening the life of the nation (see Assenov
and Others v. Bulgaria, judgment of
28 October 1998, Reports of Judgments and Decisions 1998 VIII,
p. 3288, § 93).
- Ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim (see Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 162;
Kudła v. Poland [GC], no. 30210/96, § 91, ECHR
2000-XI; and Peers v. Greece, no. 28524/95, § 67,
ECHR 2001-III). The Court has considered treatment to be “inhuman”
because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense
physical and mental suffering. It has deemed treatment to be
“degrading” because it was such as to arouse in the
victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them (see Kudła, cited above, §
92).
- In
considering whether a particular form of treatment is “degrading”
within the meaning of Article 3, the Court will have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible with Article
3 (see Raninen v. Finland, judgment of 16 December 1997,
Reports 1997-VIII, pp. 2821, § 55). However, the
absence of any such purpose cannot conclusively rule out a finding of
a violation of Article 3 (see Peers, cited above, § 74).
The suffering and humiliation involved must in any event go beyond
that inevitable element of suffering or humiliation connected with a
given form of legitimate treatment or punishment.
- The
Court considers that the degree of bruising found by the doctors who
examined Mr Cobzaru (see paragraphs 14 and 16 above) indicates
that the latter's injuries, whether caused by the police or by
someone else, were sufficiently serious to amount to ill-treatment
within the scope of Article 3 (see, for example, A. v. the
United Kingdom, judgment of 23 September 1998, Reports
1998-VI, p. 2699, § 21, and Ribitsch v. Austria, judgment
of 4 December 1995, Series A no. 336, pp. 9 and 26, §§ 13
and 39). The Government did not dispute that the applicant's
injuries, assuming that it were proved that they had been
deliberately inflicted on him while under police control, reached a
level of severity sufficient to bring them within the scope of
Article 3.
It
remains to be considered whether the State should be held responsible
under Article 3 in respect of these injuries.
- The
Court reiterates its jurisprudence confirming the standard of proof
“beyond reasonable doubt” in its assessment of evidence
(see Avşar v. Turkey, no. 25657/94, § 282, ECHR
2001). Such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact.
- The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Article 3
of the Convention the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v.
Austria, cited above, Series A no. 336, § 32, and Avşar,
cited above, § 283) even if certain domestic proceedings and
investigations have already taken place.
- The
Court observes that shortly after he left the police station in the
evening of 4 July, the applicant was admitted to Mangalia Hospital
with injuries diagnosed as craniocerebral trauma. On 7 July 1997 he
was discharged from the hospital. On 8 July 1997 a forensic doctor
examined him and found bruises around his eyes, on the fingers of his
right hand, on his chest, on his right thigh and calf, and a
haematoma on his head. The applicant alleged that all these injuries
had been caused by the policemen during the time he spent in the
police station, whereas the Government alleged that it was Crinel M.
who had hit the applicant shortly before the latter arrived at the
police station.
- It
is not disputed that the applicant was the victim of violence on
4 July 1997 either shortly prior to his arrival at the police
station or during his stay at the police station. Having regard to
the seriousness of the injuries sustained by the applicant, the Court
finds it inconceivable that, had the applicant arrived at the police
station with bruises on his body, the policemen would not have
noticed them. Moreover, had the police noticed any bruises, they
would normally have questioned him as to their origin and either
taken him to the hospital or called a doctor.
- The
Court observes that, despite the Government's allegation, there is no
evidence of anyone hitting the applicant before he entered the police
station. In particular, no evidence gathered by the police
immediately after the incident, that is, in July 1997, suggests that
the applicant had been hit by Crinel M., save for the applicant's
statement of 4 July 1997, which he withdrew on 8 July, alleging that
it had been made under pressure from the police.
It
was not until 6 October 1997 that three policemen presented a new
version of the events, stating that the applicant arrived at the
police station after the policemen had come back from the on-site
investigation of 4 July 1997, and that he had bruises on
his body upon arrival. None of the eyewitnesses to the altercation
between the applicant and Crinel M. confirmed the new version
presented by the police, namely, that Crinel M. had beaten the
applicant up. As to Crinel M., he consistently denied having beaten
the applicant up.
- Turning
to the findings of fact made by the prosecutors, the Court finds that
they were entirely based on the accounts of October 1997 given by the
police officers accused of ill-treatment or their colleagues. Not
only did the prosecutors accept without reserve the submissions of
these police officers, they also appear to have disregarded crucial
statements, such as those of Rita G., eyewitness to the altercation
between the applicant and Crinel M., and of Venuşa L., who had
accompanied the applicant to the police station. The latter stated in
July and September 1997 that the applicant had had no bruises before
going to the police, but had presented marks of violence when he left
the police station.
- The
investigation carried out by the domestic authorities appears to have
had other shortcomings. In particular, except for Rita G., none of
the other neighbours who had witnessed the incident between the
applicant and Crinel M. was questioned. Nor was the police officers
Gheorghe C. mentioned in Dumitru CA.'s statement of 11 July 1997
(paragraph 19).
- It
is also noteworthy that the applicant himself was never questioned
about the origin of his bruises, either when allegations were made
that it was Crinel M. who had beaten him up, or after he had
complained to the prosecutor that it was the police who had beaten
him up. Similarly, none of the police officers who had declared that
the applicant had bruises upon his arrival at the police station was
asked to explain why he had not been questioned about the origin of
his bruises either on his arrival at the police station on 4 July
1997 or later, when they learned that he had been admitted to
hospital. No explanation was provided by the authorities as to why no
steps had been taken to investigate his alleged beating by Crinel M.
- The
Court also notes that the decision of 4 May 1998 of the Constanţa
Chief Military Prosecutor not only failed to clarify the issue of who
was responsible for the applicant's injuries, but in addition
formulated certain accusations against various individuals without
adducing any evidence in support of those accusations.
- Finally,
the Court notes a number of contradictions in the investigation file:
whereas Dumitru CA. declared on 11 July 1997 that the applicant
arrived at the police station before the police patrol had come back,
police officer Marius I. stated on 6 October 1997 that the applicant
had arrived after the team of policemen had come back from the
investigation (see paragraphs 20 and 27). Moreover, the prosecutor's
decision of 12 November 1997 refusing to open a criminal
investigation in respect of the police officers mentioned that it was
on 4 July 1997 that the applicant had destroyed some of his
girlfriend's clothes, whereas Steluţa's mother stated on 9 July
1997 that this had happened on 28 June (see paragraphs 20
and 28).
- In
the light of the above and on the basis of all the material placed
before it, the Court considers that the Government have not
satisfactorily established that the applicant's injuries were caused
otherwise than by the treatment inflicted on him while he was under
police control at the police station on the evening of 4 July 1997,
and concludes that these injuries were the result of inhuman and
degrading treatment. Accordingly, there has been a violation of
Article 3 of the Convention.
- Having
regard to the above-mentioned deficiencies identified in the
investigation, 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.
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- The applicant maintained that the investigation
conducted by the authorities was insufficient to meet the Convention
standards. In this respect, he invoked Article 6 § 1 of the
Convention, which provides, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
and
Article 13 of the Convention, which provides:
“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.”
- The
Government contended that the alleged assault on the applicant on 4
July 1997 had been adequately investigated and that therefore the
Romanian legal system had not failed to afford the applicant an
effective remedy.
A. Article 6 § 1 of the Convention
- The
Court observes that the applicant's grievance under Article 6 § 1
of the Convention is inextricably bound up with his more general
complaint concerning the manner in which the investigating
authorities treated his complaint that he had been beaten up by the
police on 4 July 1997 and the repercussions which this had on his
access to effective remedies. It accordingly finds it appropriate to
examine this complaint in relation to the more general obligation on
States under Article 13 to provide an effective remedy in respect of
violations of the Convention (see, among other authorities, Kaya
v. Turkey, judgment of 19 February 1998, Reports 1998 I,
p. 329, § 105).
- The
Court therefore finds it unnecessary to determine whether there has
been a violation of Article 6 § 1.
B. Article 13 of the Convention
- The
Court reiterates that Article 13 of the Convention guarantees the
availability, at the national level, of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the
nature of the applicant's complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective”
in practice as well as in law; in particular, its exercise must not
be unjustifiably hindered by the acts or omissions of the authorities
of the respondent State (see Tekdağ v. Turkey, no.
27699/95, §95, 15 January 2004).
- The Court reiterates that Article 13 of the Convention
requires that where an arguable breach of one or more of the rights
under the Convention is in issue, there should be available to the
victim a mechanism for establishing any liability of State officials
or bodies for that breach. The Contracting States are afforded some
discretion as to the manner in which they comply with their
Convention obligations under this provision. As a general rule, if a
single remedy does not by itself entirely satisfy the requirements of
Article 13, the aggregate of remedies provided for under domestic law
may do so (see, among many other authorities, Kudła v. Poland
[GC], no. 30210/96, § 157, ECHR 2000-XI; see also Čonka
v. Belgium, no. 51564/99, § 75, ECHR 2002 I).
- However, the scope of the State's obligation under
Article 13 varies depending on the nature of the applicant's
complaint, and in certain situations the Convention requires a
particular remedy to be provided. Thus, in cases of suspicious death
or ill-treatment, given the fundamental importance of the rights
protected by Articles 2 and 3, Article 13 requires, in addition to
the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible for the acts of ill-treatment (see
Anguelova v. Bulgaria, no. 38361/97, §§ 161-162,
ECHR 2002 IV; Assenov and Others v. Bulgaria, cited
above, § 114 et seq.; and Süheyla Aydın v. Turkey,
no. 25660/94, § 208, 24 May 2005).
- On
the basis of the evidence adduced in the present case, the Court has
found that the State authorities were responsible for the injuries
sustained by the applicant on 4 July 1997. The applicant's complaints
to the domestic authorities in this regard were based on the same
evidence and were therefore “arguable” for the purposes
of Article 13 (see Boyle and Rice v. the United Kingdom,
judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
The authorities thus had an obligation to carry out an effective
investigation into his allegations against the police officers. For
the reasons set out above no effective criminal investigation can be
considered to have been carried out in accordance with Article 13,
the requirements of which are broader than the obligation to
investigate imposed by Article 3 (see mutatis mutandis,
Buldan v. Turkey, no. 28298/95, § 105, 20 April 2004;
Tanrıkulu v. Turkey, no. 23763/94, § 119, ECHR
1999-IV; and Tekdağ, cited above, § 98).
Consequently, any other remedy available to the applicant, including
a claim for damages, had limited chances of success and could be
considered as theoretical and illusory, and not capable of affording
redress to the applicant. While the civil courts have the capacity to
make an independent assessment of fact, in practice the weight
attached to a preceding criminal inquiry is so important that even
the most convincing evidence to the contrary furnished by a plaintiff
would often be discarded and such a remedy would prove to be only
theoretical and illusory (see Menesheva v. Russia, no.
59261/00, § 77, 9 March 2006, and Corsacov v. Moldova,
no. 18944/02, § 82, 4 April 2006). This is illustrated by the
fact that among the numerous examples of domestic case-law submitted
by the Government, some dating back to the 1970s, there has not even
been one case showing that a civil court would not consider itself
bound by a decision of the prosecuting authorities finding that the
State agents had not committed ill-treatment.
The
Court can therefore conclude that, in the particular circumstances of
the case, the possibility of suing the police for damages is merely
theoretical.
- The
Court therefore finds that the applicant has been denied an effective
remedy in respect of his alleged ill-treatment by the police.
Consequently, there has been a violation of Article 13 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH
ARTICLES 3 AND 13 OF THE CONVENTION
- The
applicant complained that the ill-treatment he suffered and the
refusal of the military prosecutor to indict the police officers
responsible for the ill-treatment was in substantial part due to his
Roma ethnicity, and therefore inconsistent with the requirement of
non-discrimination laid down by Article 14 taken together with
Articles 3 and 13. Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
applicant maintained that the ill-treatment he was subjected to by
the police while he was inside the Mangalia police station and the
passive conduct of the authorities resulted mainly from the fact that
he was of Roma origin. He contended that his ethnic origin was known
to the police officers. He also alleged that his ethnic origin was
openly and repeatedly referred to by the investigating authorities as
a factor militating against his complaint of police abuse. The
applicant stressed that his allegation should be evaluated within the
context of the well-documented and repeated failure of the Romanian
authorities to remedy instances of anti-Roma violence and to provide
redress for discrimination.
- The
Government considered the applicant's complaint to be
unsubstantiated.
- The
Court's case-law on Article 14 establishes that discrimination means
treating differently, without an objective and reasonable
justification, persons in relevantly similar situations (Willis v.
the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV).
Racial violence is a particular affront to human dignity and, in view
of its perilous consequences, requires from the authorities special
vigilance and a vigorous reaction. It is for this reason that the
authorities must use all available means to combat racism and racist
violence, thereby reinforcing democracy's vision of a society in
which diversity is not perceived as a threat but as a source of its
enrichment. (see Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 145, ECHR 2005 VII).
- The
Court further recalls that when investigating violent incidents,
State authorities have the additional duty to take all reasonable
steps to unmask any racist motive and to establish whether or not
ethnic hatred or prejudice may have played a role in the events (see,
Nachova and others v. Bulgaria, cited above, §
160).
- Treating
racially induced violence and brutality on an equal footing with
cases that have no racist overtones would be turning a blind eye to
the specific nature of acts that are particularly destructive of
fundamental rights. A failure to make a distinction in the way in
which situations that are essentially different are handled may
constitute unjustified treatment irreconcilable with Article 14 of
the Convention (see, Nachova and others v. Bulgaria,
cited above, with further references).
- Admittedly,
proving racial motivation will often be extremely difficult in
practice. The respondent State's obligation to investigate possible
racist overtones to a violent act is an obligation to use its best
endeavours and is not absolute; the authorities must do what is
reasonable in the circumstances of the case (see, Nachova and
others v. Bulgaria, cited above, § 160).
- Faced
with the applicant's complaint under Article 14, the Court's task is
to establish first of all whether or not racism was a causal factor
in the applicant's ill-treatment by the police and in relation to
this, whether or not the respondent State complied with its
obligation to investigate possible racist motives. Moreover, the
Court should also examine whether in carrying out the investigation
into the applicants' allegation of ill-treatment by the police, the
domestic authorities discriminated against the applicant and if so,
whether the discrimination was based on his ethnic origin.
- As
to the first limb of the complaint, in particular the allegation that
the ill-treatment was based on racial prejudice, the Court recalls
that in assessing evidence in this connection, it has adopted the
standard of proof “beyond reasonable doubt”. However, it
has never been its purpose to borrow the approach of the national
legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States'
responsibility under the Convention. In the proceedings before it,
the Court puts no procedural barriers on the admissibility of
evidence or pre-determined formulae for its assessment. It adopts the
conclusions that are, in its view, supported by the free evaluation
of all evidence, including such inferences as may flow from the facts
and the parties' submissions. According to its established case-law,
proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact. Moreover, the level of persuasion necessary for reaching a
particular conclusion and, in this connection, the distribution of
the burden of proof are intrinsically linked to the specificity of
the facts, the nature of the allegation made and the Convention right
at stake. The Court is also attentive to the seriousness that
attaches to a ruling that a Contracting State has violated
fundamental rights (see, Nachova and others v. Bulgaria,
cited above, § 147 and further references).
- The
Court notes that the applicant did not refer to any specific facts in
order to substantiate his claim that the violence he sustained was
racially motivated. Instead, he claimed that his allegation should be
evaluated within the context of documented and repeated failure by
the Romanian authorities to remedy instances of anti-Roma violence
and to provide redress for discrimination.
- However,
the expression of concern by various organisations about the numerous
allegations of violence against Roma by Romanian law enforcement
officers and the repeated failure of the Romanian authorities to
remedy the situation and provide redress for discrimination does not
suffice to consider that it has been established that racist
attitudes played a role in the applicant's ill-treatment.
- Turning
to the other aspect of the applicant's allegation, namely the State's
obligation to investigate possible racist motives, the Court notes
that it has already found that the Romanian authorities violated
Article 3 of the Convention in that they failed to conduct a
meaningful investigation into the applicant's ill-treatment (see
paragraphs 69 to 75 above).
It
also notes that there was no allegation of any racist verbal abuse
having been uttered by the police during the incident involving the
use of force against the applicant. Therefore, contrary to the
situation in the case of Nachova and others (judgment cited
above, § 166), the prosecutors in the present case did not have
before them prima facie plausible information of
hatred-induced violence requiring investigation into possible racist
motives in the events.
- However,
the Court observes that the numerous anti-Roma incidents which often
involved State agents following the fall of the communist regime in
1990, and other documented evidence of repeated failure by the
authorities to remedy instances of such violence were known to the
public at large, as they were regularly covered by the media. It
appears from the evidence submitted by the applicant that all these
incidents had been officially brought to the attention of the
authorities and that as a result, the latter had set up various
programmes designed to eradicate such type of discrimination.
Undoubtedly, such incidents, as well as the policies adopted by the
highest Romanian authorities in order to fight discrimination against
Roma were known to the investigating authorities in the present case,
or should have been known, and therefore special care should have
been taken in investigating possible racist motives behind the
violence.
- Not
only was there no attempt on the part of the prosecutors to verify
the behaviour of the policemen involved in the violence,
ascertaining, for instance, whether they had been involved in the
past in similar incidents or whether they had been accused of
displaying anti-Roma sentiment, but the prosecutors made tendentious
remarks in relation to the applicant's Roma origin throughout the
investigation (see paragraphs 28 and 31 above). No justification was
advanced by the Government with regard to these remarks.
- The
Court has already found that similar remarks made by the Romanian
judicial authorities regarding an applicant's Roma origin were purely
discriminatory and took them into account as an aggravating factor in
the examination of the applicants' complaint under Article 3 of the
Convention in the case of Moldovan and Others v. Romania (no.
2) (nos. 41138/98 and 64320/00, judgment of 12 July 2005, §§
108 to 114 and 120 and 121).
- In
the present case, the Court finds that the tendentious remarks made
by the prosecutors in relation to the applicant's Roma origin
disclose a general discriminatory attitude of the authorities, which
reinforced the applicant's belief that any remedy in his case was
purely illusory.
- Having
regard to all the elements above, the Court finds that the failure of
the law enforcement agents to investigate possible racial motives in
the applicant's ill-treatment combined with their attitude during the
investigation constitutes a discrimination with regard to the
applicant's rights contrary to Article 14 taken in conjunction with
Articles 3 in its procedural limb and 13 of the Convention.
It
follows that there has been a violation of Article 14 of the
Convention taken together with Articles 3 under its procedural head
and 13.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
- The
applicant claimed 60,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government requested the Court to dismiss the applicant's claims
since they were exaggerated and unsubstantiated.
- The
Court notes that the applicant suffered numerous injuries at the
hands of State agents, such as cranial trauma and bruises around his
eyes, on the fingers of his right hand, on his chest, and on his
right thigh and calf. The Court has found the authorities of the
respondent State to be in breach of Article 3 on account of the
ill-treatment inflicted on the applicant by State agents and on
account of the authorities' failure to investigate the applicant's
allegations. It has further found that the applicant was denied an
effective remedy in respect of his alleged ill-treatment by the
police in breach of Article 13 and that the applicant was
discriminated against based on his ethnic origin in the enjoyment of
his rights under Article 3 and 13. In these circumstances, it
considers that the applicant's suffering and frustration cannot be
compensated for by a mere finding of a violation. Having regard to
its previous case-law in respect of Article 3 (see in particular,
Khudoyorov v. Russia, no. 6847/02, ECHR 2005 X
(extracts); Matko v. Slovenia, no. 43393/98,
judgment of 2 November 2006; and Dilek Yilmaz
v. Turkey, no. 58030/00, judgment of 31 October 2006)
and making its assessment on an equitable basis, the Court awards him
EUR 8,000.
B. Costs and expenses
-
The applicant claimed a further
EUR 14,271 for legal costs and expenses incurred both at the domestic
level and during the proceedings before the Court by his
representatives, to be paid directly to them as follows:
(i) the
European Roma Rights Centre requested EUR 605 for 15 hours' legal
work spent reviewing the evidence and pleadings, advising on
strategy, and drafting the submissions to the Court;
(ii) the
applicant also submitted a contract of legal assistance concluded
with his lawyer, Ms Macovei, according to which the latter would be
paid according to certain fees per hour, based on a schedule of hours
actually worked. A detailed document was submitted indicating the
precise dates and the number of hours worked in preparing the case,
which amounted to 116 hours in all, and the hourly fee for each
type of activity: EUR 5 per hour for simple letters and other
secretarial activities, EUR 20 per hour for travel expenses
necessarily incurred, EUR 45 per hour for meetings, interviews and
written statements and EUR 120 per hour for research on case-law and
legislation, studying the case-file's documents, drafting the
observations on the admissibility and merits and just satisfaction.
Detailed time-sheets of the hours actually worked were also
submitted, including time-sheets and costs of travelling between
Bucharest and Mangalia and for the meetings between the lawyer and
the applicant and his father. The total fees requested by the lawyer
amounted to EUR 13,366;
(iii) finally,
the Romanian Helsinki Committee requested
EUR 300 for technical support and various correspondence.
- The
applicant's representatives argued that the number of hours spent by
them on the case was not excessive and was justified by its
complexity and abundance of detail. The time was also justified by
the repeated attempts to obtain access to the medical file and by the
fact that all the correspondence with the Court was conducted in a
foreign language.
- As
to the hourly fees, the representatives argued that it was within the
average of the fees which are normally charged by law firms in
Bucharest, that is, EUR 200 per hour. In addition, an hourly fee of
EUR 120 was reasonable, having regard to the lawyer's reputation as
an expert in the field of human rights.
- The
Government did not dispute the number of hours spent by the
applicant's representatives, given the complexity of the case.
However, they considered that the lawyer's hourly rate of EUR 120 was
excessive, and referred in this respect to a number of Bulgarian
cases where the Court had granted fees amounting to hourly rates of
EUR 40-50. They further submitted that the applicant had not
submitted any contract with the European Roma Rights Centre as an
objective basis for calculating its fees. Finally, they submitted
that the amount of EUR 300 requested by the Helsinki Committee was
not supported by any proof.
- The
Court reiterates that in order for costs and expenses to be
reimbursed 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, and Boicenco v.
Moldova, no. 41088/05, § 176, 11 July 2006). In
accordance with Rule 60 § 2 of the Rules of Court, itemised
particulars of all claims must be submitted, failing which the
Chamber may reject the claim in whole or in part.
- In
the present case, having regard to the above criteria, to the
itemised list submitted by the applicant and to the number and
complexity of issues dealt with and the substantial input of the
lawyers from 1999 until today, the Court awards the applicant the
requested amount, as follows: EUR
605 to the European Roma Rights Centre, EUR 13,366 to Ms
Monica Macovei and EUR 300 to the Romanian Helsinki Committee, to be
paid separately to a bank account indicated by each of the
applicant's representatives.
C. Default interest
- 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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention both under its substantive and procedural limbs;
- Holds 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;
- Holds that there has been a violation of Article
14 taken together with Articles 3 under its procedural limb and 13 of
the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the following amounts:
(i) EUR
8,000 (eight thousand euros) to the applicant in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount, to be converted into Romanian lei (RON) at the rate
applicable at the date of settlement;
(ii) EUR
14,271 (fourteen thousand two hundred and seventy one euros) in
respect of costs and expenses, plus any tax that may be chargeable on
that amount, to be paid into a bank account indicated by each
representative as follows:
(α) EUR
605 (six hundred and five euros) to the European Roma Rights Centre;
(β) EUR
13,366 (thirteen thousand three hundred and sixty six euros) to
Ms Monica Macovei, to be converted into Romanian lei (RON) at the
rate applicable at the date of settlement; and
(γ) EUR
300 (three hundred) to the Romanian Helsinki Committee, to be
converted into Romanian lei (RON) at the rate applicable at the date
of settlement;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Elisabet Fura-Sandström
Registrar President
