CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 septembre 2004

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Costa , President ,   Mr   A.B. Baka ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 2 September 1998 and registered on 25   January 1999, Having regard to Article 5 § 2 of Protocol No.   11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant is a Romanian national of Roma origin, born in 1963 and living in Bucharest. The case concerns the death of the applicant's brother, Mr Gabriel Carabulea. The applicant was represented before the Court by Ms M. Macovei, a lawyer practising in Bucharest, and by the European Roma Rights Centre, an association based in Budapest (Hungary). The respondent Government were represented by their Agent, Mrs Roxana Rizoiu, from the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Gabriel Carabulea's arrest and subsequent death On 21 March 1996 police station no. 9 in Bucharest sent a telegram to all police stations in Bucharest ordering the arrest of Mr Carabulea, the applicant's brother, for various robberies allegedly committed by him. At that time, no formal charge existed against him. On 13 April 1996 Mr Carabulea was apprehended by three police officers from police station no. 14 in Bucharest. In a subsequent report, the police described the arrest as follows. While conducting a car patrol, the officers saw Mr Carabulea driving a car and followed him. A few minutes later, the officers witnessed an accident between Mr Carabulea's car and a car driven by I.I. As Mr Carabulea jumped out of his car and ran towards some nearby apartment buildings, the police followed him and caught him. They then took him to police station no. 14. The report makes no reference to any injury which Mr Carabulea might have suffered in the car accident. Two hours after the arrest, the applicant's brother was taken to police station no. 14, where two counterfeit foreign banknotes were seized from him. According to a police report dated the day of the arrest, Mr Carabulea was informed that he was “guilty of aiding and abetting robbery and the possession of counterfeit foreign currency” and that he would be “detained for the next 24 hours”. The report was signed by a police officer and an officially appointed lawyer, but not by Mr Carabulea. The same day, the applicant's brother was charged with a robbery that had allegedly taken place during the night of 19-20 March 1996. He was not charged with possession of counterfeit currency. An arrest warrant valid for a period of 24 hours was issued by police officer I.P. The warrant did not indicate the time at which the 24-hour period commenced. On entering the lock-up at police station no. 9, the applicant's brother was subjected to a body search. No doctor examined him. The testimony and reports of all police officers who had contact with him during this period were in agreement that he was in good health on entering the police lock-up. On 13 April 1996 Mr Carabulea was questioned on the charge of robbery and admitted the offence. On 14 April 1996 he was taken to the prosecutor, who questioned him and then issued an arrest warrant for five days on the robbery charge. According to the testimony of one of Mr Carabulea's fellow detainees and of the police officer in charge of the lock-up, early in the morning of 16   April, while taking his shower with the other detainees, Mr Carabulea felt sick owing to the steam in the shower room. He was taken to the kitchen to breathe some fresh air and was given a massage. As the police officer thought he was feeling better, he took him back to the cell. After half an hour, Mr Carabulea again complained that he was feeling unwell. He was taken to the police dispensary, where a medical assistant observed “an altered general health condition, pain in breathing and physical weakness.” Mr Carabulea was taken to the Ministry of the Interior Hospital, where a doctor found that his blood pressure was 5 and his pulse 100, and concluded that he was suffering from a “respiratory viral infection with an altered general health condition.” A lung X-ray showed a “normal thoracic image.” The doctor ordered his admission to Jilava Penitentiary Hospital. Contrary to this recommendation, Mr Carabulea was taken back to the police lock-up. He was taken out of the lock-up on the same day at 1.20   p.m. and brought before the public prosecutor, who issued another warrant authorising his pre-trial detention for up to 25 days. Mr Carabulea was not questioned by the prosecutor. It was only at 5 p.m. that he was admitted to Jilava Penitentiary Hospital, where his condition was described as a “deteriorated general state, with sharp pain in the thorax, epigastric pain, and dyspnoea on minimal effort”. As he was also found to have a paroxysmal tachycardia (increased heart rate), it was decided to transfer him to St John's Hospital. At 8 p.m. he was transferred to St John's Hospital, where the initial diagnosis was a massive digestive haemorrhage. The doctors noted that Gabriel Carabulea was in a deep state of “shock”, his blood pressure was 5   and his pulse was 100. Taken to the Emergency Ward of the Cardiology Section, he was found to be in a state of shock, with cyanotic and cold extremities, repeated vomiting with drops of blood (of the “coffee grounds” type), and intense pains in the epigastria region, which were deemed to require surgical consultation. The doctors described the history of the disease as follows: “after the examination of the patient, it appears that the shock occurred in the morning, but no potential cause was indicated: ingestion of toxic substances, drugs, foreign bodies or trauma”. Because of the “deep state of shock”, it was decided to put him in intensive care with a view to restoring his haemodynamic condition. A further examination based on “clinical and paraclinical information supported by a cardiological examination” led to the conclusion that the diagnosis of massive digestive haemorrhage was to be ruled out. The victim was found to be suffering from pulmonary embolism and it was decided to transfer him to Fundeni Hospital, which specialised in cardiology. Later in the evening, he was admitted to Fundeni Hospital, where the initial diagnosis was syncope of undetermined cause, pulmonary embolism, paroxysmal tachycardia (right heart deficiency) and a perihepatic haematoma. Having regard to the seriousness of Mr Carabulea's condition, they recommended that his stay in hospital be prolonged. It was decided to keep him under permanent medical watch. Mr Carabulea remained at that hospital, under permanent police surveillance, in a ward in which he was the only patient. A police officer was placed in the ward. Therefore, all medical examinations took place in his presence. From an unsigned examination note drawn up by one of the doctors on 16 or 17 April 1996, it appears that the patient explained “in a moment of lucidity” that on 13 April 1996 he had had a car accident. This had resulted in a “cranial, thoracic and abdominal trauma which he [had] neglected, and since 14 April he [had] had slight pains in the upper area of the abdomen, a dry cough and dyspnoea.” On the medical consultation sheet drafted on 24 April 1996 at Fundeni Hospital, the surgeon ordered the discontinuation of the injections administered with a view to restoring the haemodynamic condition (dopamine), administered other drugs (Romergan (promethazine), diazepam, Xilina (lidocaine) and atropine) and ordered heart catheterisation. On the medical examination sheet there appears no indication as to the duration of the previous treatment or of the newly administered treatment. While Gabriel Carabulea was in Fundeni Hospital, his wife, his brother (the applicant), his cousin Constantin Gheorghe and his friend Dumitru Dinu tried to visit him every day. Each time the authorities refused to admit the visitors on the ground that he was under arrest. An account of the visits they made to the victim is summarised in part 4 below (Extrajudicial statements). Gabriel Carabulea died on the morning of 3 May 1996 at the age of 27. The hospital notified the Prosecutor's Office of his death, reporting that the patient had died of a “recurrent pulmonary embolism (17 April, 24 April and 3 May), severe pulmonary hypertension, thoracic and abdominal trauma due to the car accident of 13 April 1996, a right heart insufficiency, phlebitis in the left leg and irreversible cardio-respiratory blockage.” His family were not notified of his death, but learned of it when they came later that day to visit him. When they saw Mr Carabulea's body at the hospital's mortuary, they observed large bruises around his abdomen and on his face, legs and genitalia. They were told to come back on 5 May. In an on-site report dated 3 May 1996 at 1 p.m., the military prosecutor I.C. indicated that the death was the result of a car accident suffered on 13   April 1996. He stated that the corpse showed no external signs of violence and no symptoms of any internal lesions and that, while in the hospital, the patient had not referred to any alleged assault by the police officers at the place of detention. The report also indicated that no relatives of the victim were present, and that no other data could therefore be obtained. No doctor signed the report. The prosecutor then ordered an autopsy, which was carried out on 4   May   1996 at the Forensic Medicine Institute in Bucharest. The deceased's family were not informed about the autopsy. The death certificate, issued on 4 May 1996 by the same doctor who had performed the autopsy, indicated “acute cardio-respiratory insufficiency” as the immediate cause of death and “bronchopneumonia” as the initial and determinant cause of death. On Monday 5 May 1996 the deceased's family returned to Fundeni Hospital, but they were told that the corpse had been transferred to the morgue of the Forensic Medicine Institute, where an autopsy had already been performed. Before the burial of the body, a photographer instructed by the family was allowed to take some pictures of the lower right side of the body. It appears from these pictures that the corpse had bruises on the right hand and right leg and in the genital area. On 7 May 1996 the Bucharest Institute of Pathology issued the deceased's wife with a medical certificate stating that Gabriel Carabulea had been examined at its clinic in 1995 and that, pathologically, there was nothing to be reported on his pulmonary condition. A provisional report by a forensic doctor, P.P., dated 10 May 1996 concluded that Gabriel Carabulea's death was “non-violent and was the result of acute cardio-respiratory insufficiency following pulmonary embolism, with widespread areas of pulmonary infarction, against a background of pre-existing chronic diseases, myocardial sclerosis, and aggressive chronic hepatitis with progression towards cirrhosis. The ecchymosis observed is more than 3-4 days old and could have been produced by the impact of a hard object, but did not cause death.” On 30 July 1996 P.P. produced his final autopsy report. The conclusion was drafted in identical terms to those used in his provisional report of 10   May 1996. The examination of the corpse indicated the existence of an ecchymosis on the right iliac crest, the fracture of two ribs “along the mid-clavicular line” of the thorax, without indicating whether it was on the right side or on the left side, and 100 ml of serous-sanguineous fluid in the right pleural cavity, without indication of the source of bleeding. The forensic doctor lastly found that the genitalia and veins were “normal.” 2.     The investigation into the death On 8 May 1996 the widow, Nela Carabulea, filed a complaint with the Military Prosecutor's Office in Bucharest, claiming that her husband, who had been in sound physical condition when he had entered police custody, had died following the administration of beatings by police officers U. and B. at police station no. 9. She requested that the two police officers be investigated for murder and attached to her complaint a medical certificate issued in May 1995 by the Clinical Pathology Institute certifying that her husband's pulmonary and pleural condition had been good. On 8 May 1996 Captain U. addressed a written report to his superiors indicating the circumstances of the arrest and detention of Gabriel Carabulea. He stated that when the detainee had undressed for the body search preceding entry to the lock-up, there had been no signs of violence on his body. He denied having used any physical pressure while interrogating him. He also mentioned that on 16 April 1996 Nela Carabulea had arrived at the police station with a package for her husband, but she had not been allowed to see him or give him the package, as packages could only be received on Thursdays. On 8 May 1996 A.M., a lieutenant at police station no. 9, addressed a written report to his superiors indicating that he had been on duty the day Gabriel Carabulea had been brought into the station and that during Mr   Carabulea's detention at the lock-up he had not heard any noises or screams coming from his cell. On 9 May 1996 the family's lawyer filed another complaint with the Military Prosecutor's Office seeking, in particular, the investigation of Captain U. for the crime of physical assault resulting in death. The complaint alleged that the inhuman treatment to which the victim had been subjected had been intended to obtain a confession to the offence with which he was charged, and that during the victim's stay in hospital, both his family and the lawyer himself had been hindered in their contacts with him. The lawyer also complained that all medical documents concerning Mr   Carabulea had been sealed and sent to the Forensic Medicine Institute, and that the family had not been allowed to see them. The military prosecutor S.C. was placed in charge of the investigation. On 9 May 1996 I.P., the officer in charge of the lock-up, addressed a written report to his superiors, in which he indicated that on 13 April 1996 Gabriel Carabulea had been brought to the lock-up at the police station and that when he had undressed for the body search, preceding entry to the lock-up, there had been no signs of violence on his body. According to him, on 16 April 1996 Mr Carabulea and two other suspects had been examined by a medical assistant, who had recommended that an X-ray examination be carried out on Mr Carabulea. The X-ray had been taken at the Ministry of the Interior Hospital and the doctor who had attended to him had ordered that he be treated as an in-patient at Jilava Penitentiary Hospital. On 9 May 1996 Police Officer G.B., serving under the orders of Captain U., took statements from N.B. and E.B., who had been placed in the same police lock-up as Mr Carabulea and were in custody at the time when the statements were taken. They declared that neither during their time in the cell together nor on 16 April 1996, when they had been transferred together to the doctor under police guard, had Mr Carabulea complained about police ill-treatment. On 17 May 1996 the military prosecutor took statements from two police officers working at Jilava Penitentiary Hospital who had guarded the victim during his transfer to St John's Hospital and subsequently to Fundeni Hospital. They stated that, during the transfer, Mr Carabulea had been lying down as he was not feeling well, and had not spoken to them. They had witnessed all his medical examinations but had not heard him complain to the civilian doctors about an assault while in police custody. On 14 August 1996 the military prosecutor questioned the police officers U., I.P. and G.B. Captain U.'s statement largely corresponded to his reports of 8   May   1996. I.P. explained that, as Mr Carabulea had not felt well on the morning of 16   April 1996 in the shower room, he had taken him to the medical assistant at the police station and then to the Ministry of the Interior Hospital, where he had been examined and sent to Jilava Penitentiary Hospital. Before taking him to Jilava Penitentiary Hospital, I.P. had gone to the prosecutor's office for the 2nd district, where a 30-day warrant had been issued. G.B. explained that between 13 and 15 April 1996 he had been on leave. On 15 August 1996 the military prosecutor questioned the duty officer in the police lock-up on 13 April 1996, who reported having taken part in the body search of the victim. He declared that he had not seen any signs of violence on the victim's body. On 20 August 1996 the military prosecutor decided not to open a criminal investigation in respect of the police officers I.P. and G.B., finding that the death of Gabriel Carabulea had been non-violent and due to organic diseases which had developed progressively and had led to a deterioration in his general state of health after the car accident of 13 April 1996, during which he had suffered thoracic, abdominal and cranial contusions. On 21 January 1997 the Romanian Helsinki Committee sent a letter to the Military Section of the Procurator-General's Office requesting a new investigation. It pointed out, in particular, that the victim had never complained of any pain before being taken into police custody, that the bruising in the genital area could not have been caused by a car accident and that M.I., the victim's alleged co-defendant on the robbery charge, had not been questioned. On 12 February 1997 the prosecutor D.V. from the Military Section of the Procurator-General's Office overturned the decision of 20 August 1996 and sent the case file back for further preliminary inquiries in respect of the alleged assault by the police officers, with the following instructions: that a statement be taken from the victim's wife; that the report concerning the car accident on 13 April 1996 be examined; that all the police officers who had arrested Gabriel Carabulea on 13 April 1996 be questioned, as well as all those present during the interrogation of Mr Carabulea, including the prosecutor and the officially appointed lawyer; that the various pieces of information concerning the interrogation of both Mr Carabulea and I.M., the alleged co-defendant, be examined and assessed; and that a supplementary forensic report be produced with a view to determining whether the fracture on the right mid-clavicular line and the bruise in the genital area were the result of the alleged assault. On 19 February 1997 the case was registered at the Military Section of the Procurator-General's Office and a new prosecutor was assigned. In a report dated 3 March 1997, the military prosecutor indicated that, following an article published in the newspaper Cotidianul on 24   February   1997, he had invited Mrs Nela Carabulea, the widow, to come to the prosecutor's office. During this meeting it had been agreed that she would return at a later date, with her lawyer, in order to consult the file relating to her husband's death and to have the opportunity to submit her objections to the way in which the investigation had been carried out. The Government claimed that, after this meeting, Mrs Carabulea had refused to visit the prosecutor. They produced two summonses dated 6   May   1997 and 30 June 1997, informing Mrs Carabulea that her failure to appear before the prosecutor would lead to the discontinuance of the proceedings, to which Mrs Carabulea allegedly failed to reply. They also submitted four acknowledgments of receipt of various summonses addressed to Mrs Carabulea, none of them signed by her. The applicant submitted in reply that Mrs Carabulea had not received any of these summonses. Moreover, the prosecutor had spoken to Mrs   Carabulea on 3 March 1997 but had not asked her any questions. On 25 August 1997 the prosecutor submitted a written request to the Bucharest Police Department for a copy of the file concerning the car accident on 13 April 1996, and for information as to the rules governing arrests and the transfer of persons in police custody. On 5 September 1997 the Bucharest Police responded that the file on the car accident was at the prosecutor's office for the 4th district. They also indicated that, according to Instruction no.   410/1974 issued by the Ministry of the Interior, any sign of physical violence noted during the body search had to be notified to the doctor in charge of the lock-up, who would advise whether the detainee should be admitted to the lock-up and would make preparations for a thorough medical examination. In any event, all detainees had to be medically examined within 24 hours of incarceration. On 12 September and 28 October 1997, the military prosecutor requested the deceased's medical file from the Bucharest Police Department. According to this file, the first entries date from 16 April 1996. On 18 November 1997 the Marius Nasta Institute of Pulmonary Medicine informed the military prosecutor that Gabriel Carabulea had never been examined there. In late 1997 the military prosecutor received the investigation file concerning the car accident on 13 April 1996. It appears from this file that the driver of the other car had given a short statement describing how Mr   Carabulea had jumped out of the car and run away, followed by the police. Neither this statement nor the file contained any information concerning the damage sustained by either vehicle or the persons involved. On 7 January 1998 the military prosecutor ordered that a forensic medical examination be carried out by experts from the Bucharest Forensic Medicine Institute in order to assess the cause of the death, whether the measures taken by the medical staff who assisted Gabriel Carabulea had been correct and appropriate for his health problems and whether any signs of violence had been found in the genital area, what they consisted of and how many days of medical treatment would have been necessary to cure them. A colour photograph of the victim's genitalia submitted by the family was also attached to the order. On 17 February 1998, at the request of the public prosecutor, Dr P.P., who had performed the autopsy on 4 May 1996, produced an additional forensic medical report, in which he maintained his previous findings. In addition, he stated that the fracture of the mid-clavicular line could have been produced post mortem , during the cardiac resuscitation that had been apparently performed at Fundeni Hospital. Moreover, the changes of colour in the genital area appearing on the picture had also appeared post mortem , such changes being very common in medical practice. On 4 March 1998, on the basis of these new elements, the military prosecutor decided not to open criminal investigations into the allegations of physical assault resulting in the death of the victim or of an inadequate investigation by Captain U. and G.B. The prosecutor found that the death had been due to natural causes and had not constituted a criminal act. 3.     Other medical opinions concerning the applicant's death The Government submitted an expert opinion by Dr D., a forensic pathologist, dated 20 June 2001. Dr D. concluded that Gabriel Carabulea had died of a pulmonary embolism caused by phlebitis of the left leg. Dr D. also mentioned the applicant's child, who had died at the age of 20 months as a result of a congenital anomaly of the venous system, and concluded that it was “reasonable to believe that Carabulea had similar anomalies of the venous system which favoured the development of thrombosis.” Dr D. stressed that “the traffic accident did not cause any internal or external injuries” and that “there [was] no causal link whatsoever between the traffic accident and the appearance of pulmonary phlebitis.” On 29 August 2001 the applicant submitted an expert opinion concerning the death of Gabriel Carabulea. The opinion was drafted by Dr S., a forensic pathologist practising at the Institute of Forensic Medicine at Semmelweis University in Budapest (Hungary), who had specialised for six years in the United States. His opinion was based on documents in the prosecution file on Gabriel Carabulea, including all medical documents and some of the prosecutors' decisions. According to the expert, the medical documents submitted lacked proper medical information, such as laboratory data, ordinary daily medical data, especially for the victim's last day alive, how he had died, the drugs administered throughout his stay in hospital, and their dosage and application. The expert noted a number of inconsistencies in the medical documents. In the first place, he noted the alterations in diagnosis from a respiratory (pulmonary) viral infection made at Jilava Hospital, to an “upper digestive haemorrhage” made at St John's Hospital, and later to a pulmonary embolism, although no explanations had been provided for these changes. Furthermore, the diagnosis of a pulmonary embolism made at St John's Hospital, at Fundeni Hospital, and later in the autopsy report contained no explanation of how this diagnosis had been reached, since no blood clot (embolus) was ever mentioned as having been found. As to the “thrombo-phlebitis of the lower limbs” mentioned as one of the causes of death in the notice issued by Fundeni Hospital on 3 May 1996, the expert stated that “thrombo-phlebitis of the lower limbs” was not a deadly disease and could not “at all” predispose to thrombo-embolism. Moreover, he found no numerical data available to quantify the severity of the pulmonary hypertension mentioned in the medical notification, and expressed the view that the “thoracic and abdominal trauma caused by the car crash” was an insufficient explanation, as no specific diagnosis had been made and there was no indication of the organs affected and the kind of injuries sustained in the accident. In reply to the statement by Dr D. that Gabriel Carabulea might have had anomalies of the venous system, he pointed out that the autopsy indicated that the venous system of the victim was normal. He further stressed that the isolated vena cava developmental anomaly which had caused the death of the Carabulea child was a very rare condition and that for such a disease the heredity rate was around 1-2% in the offspring. Moreover, no medical document, including the autopsy, had ever mentioned that the victim had thrombo-phlebitis. In general, the forensic autopsy report was described as “basically professionally useless, loaded with scanty and incomplete descriptions and medically erroneous conclusions”. The expert concluded that crucial information was missing, preventing any genuine appraisal of the case, and pointed out that in similar cases he might have suggested a second autopsy, depending on the technique of conservation of the body. 4.     Extrajudicial statements On 27 September 1998 the applicant, D.D., the victim's friend, and C.G., the victim's cousin, submitted written statements to the applicant's lawyer concerning the circumstances surrounding Gabriel Carabulea's death. (a)     The applicant's statement The applicant stated that before his brother's arrest, he had been living with him and his family – his brother's wife Nela and their daughter, a baby of a couple of months. His brother (hereafter “Gabriel”) was a healthy man. His wife was suffering from tuberculosis, which caused Mr Carabulea to have an X-ray, the results of which showed that he was in good health. On 13 April 1996, the Saturday before Easter, Nela received a telephone call from police station no.   14, telling her that her husband had been arrested and that she could bring him clothes and food. The applicant and Nela went to see Gabriel around lunchtime. He was in good health, he did not complain of any ill-treatment and his clothes were in good condition, being neither torn nor creased. He told them that he would be transferred to police station no. 9 and asked the applicant to take care of his wife and daughter. The applicant went home, while Nela stayed with Gabriel until around 4 p.m., when he was transferred to police station no.   9. On the following Monday, 15 April 1996, Nela went to police station no.   9 to bring her husband food and, after she had bribed Captain U. with some cigarettes, she was allowed to give Gabriel the food and talk to him for a few minutes in the presence of Captain U. Gabriel was taken to Captain U.'s office with the help of two policemen, as he had difficulty walking. After this short visit, Nela told the applicant that Gabriel “was looking bad”, but that she had not dared ask her husband what had happened, as Captain U. was present. On the following day, at around 10 a.m., the applicant, Constantin Gheorghe and Nela went to see Gabriel, but they were told that he was not there any longer, as he had been taken to Jilava Penitentiary Hospital. They went to Jilava, where they were told that Gabriel was not there. They then returned to police station no. 9, where the police officer on duty did not give them any further information, so they went home. That evening, their neighbours Tudor and Mariana told them that their cousin Mara, a cleaning lady at Fundeni Hospital, had telephoned them because she had seen Gabriel in the Intensive Care Unit ( reanimare ) there. The applicant, Nela and Constantin Gheorghe went to Fundeni. At the hospital reception they were told that Gabriel was there but that it was not possible to see him, as he was being guarded by the police. On the following day, 17 April 1996, they made a further attempt to see Gabriel, but the policeman who was inside Gabriel's ward did not let them come in as he was under arrest. The officer warned them not to come any more. No doctor was available, but some medical assistants told them that Gabriel's condition was serious. It was not until the following day that Nela was allowed to see her husband for a few minutes, after long negotiations with the police officer who was on guard. After the visit, Nela came out of the ward crying and told the applicant, Constantin Gheorghe and Dumitru Dinu that Gabriel was looking very bad, but she was unable to find out any more because of the police officer who was present. Some days later, Nela and Dinu again managed to enter Gabriel's ward for a few minutes. When they came out, they told the applicant and Constantin Gheorghe that Gabriel had complained that the police had suspended him from a cupboard for a while using handcuffs, and had then congratulated him for having beaten the world record for hanging. He had also been rolled up in a wet carpet and beaten. On another occasion, Dumitru Dinu managed to see Gabriel through the door to the ward, which was slightly open. The applicant and Constantin Gheorghe, who were a few metres away, heard Gabriel shouting at Dinu: “They've killed me, I'm a wreck!” (“ M-au omorât, m-au nenorocit” ). The applicant, Nela, Constantin and Dinu went to the hospital every day to try to see Gabriel. During all this time, the medical staff refused to talk to them. On one occasion, when asked about the diagnosis, a doctor told them that the doctors did not know. On 3 May 1996, a Saturday, when they came to the hospital, they were told at reception that Gabriel had died and were sent to the hospital's mortuary. They saw Gabriel's body and noticed that he had bruises on his front, in the area of the ribs and stomach, on one thigh and in the genital area. They wanted to take his body home, but were told that it was not possible and that they should come back on Monday. When they returned to the hospital the following Monday, they learned that the body had been taken to the Forensic Medicine Institute, where an autopsy had been performed. The same day, they brought the body home, took photographs and buried it. (b)     Dumitru Dinu's statement Dumitru Dinu stated that he had managed on one occasion to persuade the police officer to enter the ward together with Nela in order to help Gabriel change his clothes. Whispering, Gabriel complained that he had been brutally mistreated by the police, who had suspended him from a locker with his hands tied behind his back and had beaten him while he was hanging there. When he refused to admit to the charge of robbery, he had been rolled in a carpet, swooped upon, and beaten with sticks. The victim identified Captain U. as the chief of the police officers who abused him. The police officer terminated the meeting when he realised that they were talking about Gabriel's detention. As Dumitru Dinu and Nela went out of the ward, a medical assistant told them that a doctor wanted to talk to them. They went to see the doctor, who told them that Gabriel had very little chance of survival and that he was living on a drip. She told them that Gabriel had blood in the lungs and liver, and a swollen heart and that his kidneys were blocked. He went to the hospital to see Gabriel a second time. As the police officer did not allow him to enter the room, he forced the door open and asked Gabriel whether he was all right. He heard him shouting back “They killed me! Don't leave me here, take me out of here otherwise I'll die!” The applicant, Nela and Constantin Gheorghe were also present and heard this. Before the burial, Dumitru Dinu, who had brought the photographer who took the only pictures of Gabriel's body, saw various injuries on the corpse: bruises in the stomach area, and on the face, legs and genitals. (c)     Constantin Gheorghe's statement In his statement, Constantin Gheorghe confirmed that Gabriel had been kept in a ward under permanent police surveillance. Although he never saw Gabriel during his stay in the hospital, he accompanied Nela and Dumitru Dinu and heard Gabriel shouting “They killed me!” He witnessed Nela and Dumitru Dinu coming out of Gabriel's ward and telling him how Gabriel had complained that he had been tortured by the police under the command of Captain U. He saw Gabriel's corpse afterwards; there were bruises on the legs, face and genitals, and under the chin. B.     Relevant international reports 1.     Report of 19 February 1998 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on Romania In its report, the CPT indicated that a considerable number of detainees, interviewed at the police lock-up cells and prisons visited by its delegation, alleged having been physically ill-treated by the police. The following types of ill-treatment were constantly mentioned: slaps, punches, kicks and blows with a truncheon (the victim sometimes being rolled up in a carpet or something similar). Some of the persons met complained of beatings of the soles of the feet (falaka), which were apparently inflicted while the victim was on his knees on a chair or suspended from a solid bar in the position known as the “spit-roaster”. These allegations related exclusively to the moment when the suspects were apprehended and to later stages of the interrogation by the police. The CPT delegation noted that when a prosecutor was asked how he would act in the presence of a suspect alleging ill-treatment by the police, he gave the following answer: “The police are my colleagues. I would regard this allegation as a lie coming from a recidivist...” 2.     The United Nations Model Autopsy Protocol The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it notes that an abridged examination or report is never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report are required to prevent the omission or loss of important details: “It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.” In part 2(c), it states that adequate photographs are crucial for the thorough documentation of autopsy findings. Photographs should be comprehensive in scope and must confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report. 3.     Report by Sir Nigel Rodley, Special Rapporteur on the Question of Torture, submitted pursuant to the United Nations Commission on Human Rights resolution 1999/32 The Special Rapporteur's report on Romania states, inter alia : “...the system of investigation in which the military prosecutors have the exclusive authority to investigate and prosecute is ineffective. At a minimum, there is a perception that the military prosecutors lack independence and impartiality... [I]n most cases the investigations result in decisions not to prosecute. It is also of concern that the military prosecutors are assisted by the police in these investigations...” COMPLAINTS 1.     Relying on Article 2 of the Convention, the applicant complained that his brother had died as a result of intentional police mistreatment, that the failure of the police to provide adequate medical care for the victim following his arrest had resulted in his brother's death and that the authorities had failed to carry out a prompt, impartial and effective official investigation to determine the cause of the death. 2.     The applicant complained under Article 3 of the Convention that his brother had been subjected to torture and inhuman and degrading treatment during his stay in police custody, from his arrest on 13 April 1996 until his admission to hospital on 16 April 1996, and that he had been subjected to inhuman and degrading treatment during his period in hospital from 16   April to 3   May 1996, when, although he was in great pain and needed care and support, all contact with his family had been prohibited and police officers had been permanently in his ward. As his death had been caused by the most severe injuries, the treatment he had been subjected to amounted to torture. The applicant claimed that his brother had been tortured for the purpose of compelling him to admit to certain crimes. He also complained that the Romanian authorities had failed to satisfy their obligation to carry out a prompt, impartial and effective investigation into the allegations that the victim had been subjected to torture and other forms of ill-treatment while in police custody. 3.     The applicant claimed that the decision of the prosecuting authorities not to open a criminal investigation in respect of the police officers responsible for the mistreatment of his brother had denied him effective access to a court, in breach of Article 6 § 1 of the Convention. He complained that under Romanian law a victim could only in limited circumstances pursue a claim for civil damages in a separate lawsuit from the criminal trial and that in his case, in the absence of a decision ordering the opening of a criminal investigation or the indictment of the persons accused, he had had no possibility of bringing his civil claim before a court. 4.     The applicant also complained that the authorities' failure to carry out a thorough and effective investigation into the violations of Articles 2 and 3 constituted a violation of his right to an effective remedy before a national authority, in breach of Article 13 of the Convention. 5.     Lastly, the applicant complained that his brother's death in custody, the ill-treatment to which he had been subjected and the refusal of the military prosecution authorities to open an investigation in respect of the police officers responsible had been partly due to his Roma ethnicity and had therefore been inconsistent with the requirement of non-discrimination set forth in Article 14 taken together with Articles 2, 3 and 13 of the Convention. THE LAW 1.     The applicant complained under Article 2 that his brother had died because of injuries intentionally inflicted by the police, who had failed to provide adequate medical treatment for these injuries which had ultimately led to his brother's death, and that the State authorities had failed to carry out a thorough and effective investigation. Article 2 provides as follows: “1.     Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” The Government submitted that the applicant's brother had not been in perfect health when taken into police custody, as was clear from the notification of death addressed by the hospital to the prosecutor on 3   May   1996. The cause of death had been non-violent and related to pre-existing diseases suffered by the applicant's brother. They further contended that there was no medical evidence of any relationship between the pulmonary embolism and any possible trauma caused by the car accident or by the alleged violence inflicted by the police. Moreover, thrombo-embolism could occur in the absence of any external cause or of any apparent symptoms, and sometimes sudden death could occur without any prior signs. The Government contended that the fracture along the mid-clavicular line had been caused by the resuscitation process, that the bruise on the right iliac crest had most probably been caused by an accidental trauma occurring during the period spent in hospital, and that the scrotum lesions had been caused, as explained by the second forensic report, by the normal post mortem drying process. As to the fact that both the provisional and the final autopsy reports had been produced by the same doctor, they pointed out that such a procedure had been required by the Forensic Medicine Institute. The Government agreed that the diagnosis of bronchopneumonia indicated in the death certificate issued on 4 May 1996 and the mention of the car accident of 13 April 1996 could have given rise to legitimate concerns about the real cause of death. While they found regrettable the contradiction between the various medical documents, they considered that the references in the death certificate issued on 4 May 1996 should not be regarded as established proof of the cause of death, since only the autopsy report determined the real cause of death. The Government noted that the only evidence sustaining the thesis of police abuse were the extrajudicial testimonies of three persons, one of whom, the deceased's widow, Nela Carabulea, had constantly refused to give any information to the military prosecutor. The Government pointed out that there was no evidence of ill-treatment on the part of the police serious enough to lead to the thrombosis which had caused Mr Carabulea's death, and that in any event, the allegation that the death had resulted from trauma caused by police brutality had not been proved beyond “all reasonable doubt.” The Government also denied that the authorities had failed to provide the applicant's brother with adequate medical care. During his stay in police custody, his health had gradually deteriorated, leading to the situation on 16   April 1996, when he had been taken to a number of hospitals where he received adequate medical treatment, including a tomography and cardiac catheterisation, as was confirmed by the supplementary forensic report of 17   February 1998. The Government considered that the fact that Mr Carabulea had not been examined by a doctor within the first 24 hours of detention was not relevant, given that the cause of death, thrombo-embolism, had occurred on 16   April   1996. The Government submitted that there had been a prompt, impartial and effective investigation into the death. The investigation had lasted only three months and had ended on 20 August 1996, when the prosecutor had issued a decision of non-indictment. It was only because of the allegations by the applicant and a non-governmental organisation that the prosecutor had decided to reopen the proceedings. The new investigation had ended on 4   March 1998 with the prosecutor's renewed decision of non-indictment. The Government further contended that the investigation had been effective and impartial. The prosecutor had relied entirely on the conclusions of the forensic expert. Since the applicant had not indicated any clear evidence to support the idea that the expert had had an interest in infringing the law an