CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 janvier 2018

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ROMANIA   (Application no. 70040/13)                 JUDGMENT   This version was rectified on 16 February 2018 under Rule 81 of the Rules of Court   STRASBOURG   9 January 2018   FINAL   09/04/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Vasile Victor Stanciu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Egidijus Kūris,   Iulia Motoc,   Georges Ravarani,   Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 5 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 70040/13) 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 Vasile Victor Stanciu (“the applicant”), on 1   November   2013. 2.     The applicant was represented by Ms N. Popescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3.     The applicant alleged that he had been subject to ill-treatment at the hands of police and that that the ensuing investigation into his allegations of ill-treatment had been ineffective. He further argued that in practice he had not had at his disposal an effective remedy by which to complain to the courts of the alleged violation of Article 3. 4.     On 16 September 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1957 and lives in Bucharest. A.     Incidents on 11 December 2011 1.     Applicant’s version 6.     On 11 December 2011 one of the applicant’s neighbours called the police to complain about the fact that the applicant had stored personal items in the common space of their apartment building. 7.     At 6 p.m. on 11 December 2011 two police officers arrived at the applicant’s door and asked for his identification papers without giving their names or informing him of the purpose of their visit. The applicant asked them what the purpose of their request was but they did not answer. For that reason, the applicant refused to present his papers, telling the police officers to come “some other time” ( altădată ). 8 .     The police officers immobilised the applicant, threw him to the ground and then handcuffed him. Noting the escalation of events, the applicant’s partner, G.C., searched for his identification papers and handed them all to the police officers: identity card, pension benefits slip and a certificate that he had been a fighter in the 1989 Revolution. 9.     The police officers took the papers without looking at them and took the applicant to police station no. 19 to be identified. 10.     At the police station the applicant was struck with fists, feet and truncheons. The pain was so intense that the applicant soiled himself. During the beating, the applicant’s mobile phone and still camera were destroyed and his clothes were torn. 11.     When the beating ended, the police officers checked the applicant’s papers and then left him alone for fifteen minutes in a room. When they returned they informed him that they were leaving on a mission. After being again left alone, the applicant managed to find the officer on duty at the police headquarters ( ofiţerul de serviciu ) to ask permission to use the toilet. The police officer sent him home to clean himself up. 12.     The applicant went home and then returned to the police section to recover his identity papers. 13 .     On 16 December 2011 the applicant was examined by a forensic doctor at Mina Minovici National Forensic Institute (“the Forensic Institute”). The doctor drafted a medical report dated 16 December 2011; a copy of the report was given to the applicant on 4 January 2012. It noted that the applicant had borne traces of violence on his wrists, arms and legs as a consequence of having been hit with a hard object; that he had complained of chest pains; and that the injuries could have dated from 12   December   2011 and had needed four to five days of medical care. 14 .     Two weeks after the incident, the applicant received by mail an offence report ( proces verbal de contravenţie ) drafted by the police officers on 23 December 2011 in his absence, whereby he was fined 100   Romanian   lei (RON) for “refusal to present data necessary for his identification”. 2.     Government’s version 15.     On 11 December 2011 two police officers were directed by the officer on duty at police station no. 19 to settle a conflict between the applicant and a neighbour. Upon arrival, the police officers asked the applicant to present his identity papers, but he became violent and refused to comply. When the applicant tried to return to his apartment the police officers handcuffed him and transported him to the police station. After his identity had been established, the applicant left the police station. B.     Criminal proceedings against the police officers 16 .     The applicant lodged a criminal complaint against the two   police officers, accusing them of unlawful deprivation of liberty, unlawful investigation and torture, and seeking compensation. The complaint was registered with police station no. 19 on 13 January 2012. On 7   August   2012 the file was sent for investigation to the internal investigations department of the Bucharest General Police Headquarters, and police officers from that department were delegated to conduct all relevant investigations. 17.     These investigators heard evidence from the two police officers, from the officer on duty on the day of the events and from the neighbour’s husband (see below). 18 .     On 11 September 2012 the investigating police officers heard evidence from the neighbour’s husband, who declared that when the applicant, “known as a mentally ill person”, had refused, in inappropriate and disrespectful language, to present his identification papers and had attempted to return to his apartment, the police officers had immobilised him on the ground and handcuffed him, without ill-treating him in the process. 19.     The officer on duty declared on 3 October 2012 that he had not spoken at all to the applicant on the night in question and had only seen him when the police officers had brought him in to establish his identity; those same officers had subsequently advised him to leave the police station – the officer on duty stated that he had seen the applicant again when he was leaving the building. He added that as he had been very busy in his office he had seen the applicant only for a couple of seconds, and had thus not been in a position to see whether the applicant had been injured. 20.     Lastly, the two police officers gave their statements on respectively 4 and 5 October 2012. One of the officers declared that at the time of the events in question, the applicant had been under the influence of alcohol, because he had smelled of alcohol and had displayed a defiant attitude towards the police officers. Both officers mentioned in very similar terms that when asked to present his identification papers, the applicant had tried to evade the measure (“ se   sustrage măsurii legitimării” ) and had attempted to re-enter his apartment by using physical force; for this reason, they had proceeded to handcuff him and had taken him to the police station. Both officers denied having inflicted any harm on the applicant, claiming that they had acted proportionately in view of the applicant’s opposition to their request. 21.     G.C., the applicant’s partner, was never heard by the investigators. 22 .     On 12 November 2011 the prosecutor’s office attached to the Bucharest County Court decided not to prosecute. On the basis of the evidence in the file, attesting, inter alia , to the fact that the applicant was known as a person who engaged in violent behaviour and who was frequently under the influence of alcohol, the prosecutor decided that the injuries suffered by the applicant had been superficial and that the use of force had been proportionate and necessary in order to immobilise him and take him to the police station, as provided for by Articles 26 § 1 (2) and Article   31   §   1   a) and b) of Law no. 218/2002 on the Organisation and Functioning of the Romanian Police (see paragraph 26 below). 23.     The applicant lodged an objection. The prosecutor’s decision was upheld on 22 March 2013 by the head of the above-mentioned prosecutor’s office, who considered that the police intervention had been rendered necessary by the applicant’s violent behaviour and had not been excessive, as demonstrated by the fact that the injuries suffered had been insignificant. 24.     The applicant lodged a complaint with the Bucharest County Court against the two decisions. He mainly argued that the investigation had been superficial, and that the conclusions of the investigation had been based exclusively on the statements given by the two police officers who had behaved aggressively towards him, while his partner, for instance, had never been heard. He contested the prosecutor’s opinion that the injuries incurred had been superficial. He referred to the Court’s relevant case-law, which required a plausible explanation for any traces of violence sustained while a person had been under police supervision. He also contested the proportionality of the police reaction, pointing out that he had merely refused orally to show his identification and that the police officers could not claim or prove that they had sustained any traces of violence during that intervention. 25 .     On 11 June 2013 the County Court dismissed the complaint and consequently upheld the prosecutors’ decisions. The court considered that the police intervention had been lawful. It further held that the applicant’s minor lesions had been caused when he had fallen at the moment of his being immobilised by the police, which had been necessary because of the applicant’s verbal and physical resistance. The court considered that the applicant had not been kept unlawfully in the police station but had been released as soon as his identity had been established, and that the consequences of the police intervention had not been serious enough to constitute the crime of torture, as alleged by the applicant. The decision was final, no further appeal being possible. II.   RELEVANT DOMESTIC LAW 26.     Article 26 of Law no. 218/2002 on the Organisation and Functioning of the Romanian Police enumerates among the main tasks of the police the taking of measures to maintain public order and peace and citizens’ safety, preventing and combating criminality, and identifying and counteracting actions that affect the life, liberty, health and integrity of persons. The relevant excerpts of Article 31 of the Law are cited in the case of Ulisei Grosu v. Romania (no. 60113/12, § 19, 22 March 2016). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 27.     The applicant complained that on 11 December 2011 he had been ill-treated by police officers and that the subsequent criminal investigation into the incident had been ineffective. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 28.     The Court notes that this complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 29.     The applicant submitted that he had been ill-treated by the police, and that the violence exerted upon him had been both unwarranted and disproportionate to his behaviour. He contested the assertion that he had been aggressive towards the police officers, arguing that any such behaviour, if real, could have been addressed either via a criminal complaint lodged against him by the officers, or via an offence report sanctioning him for it; however, the offence report issued in respect of the incident of 11   December   2011 had not referred in any way to any violent incident, and the fine that he had received had related to his refusal to present his identification papers. 30.     He further submitted that the force used against him had been aimed at punishing him for having allegedly defied the police officers. The serious consequences of the incident had been not only physical, but also psychological. In this context, the applicant asserted that the unjustified police aggression had been even more appalling considering that he was a disabled person, as proved by the pension slip attesting to his early retirement on account of his disability. 31.     He stressed that according to the forensic medical report, his injuries had been consistent with his having been struck with a hard object; this ruled out the authorities’ explanation that they had been caused by the handcuffing procedure alone. 32.     The applicant indicated that the investigation into the incident had not been conducted by an independent body, in view of the fact that those in charge of it had belonged to the same structure as the officers under investigation. He further argued that the investigation had constituted a mere formality and had been ineffective, given that it had failed to clarify significant aspects of his allegedly violent behaviour and the necessity of the police officers using force. (b)     The Government 33.     The Government submitted that the applicant’s description of the alleged abuse was inconsistent with the findings of the Forensic Institute, which had noted the existence of injuries requiring four to five days of medical care, thus pointing to a harsh, but not exaggerated physical intervention by the police officers in their attempt to immobilise the applicant. 34.     Referring to the prosecutor’s conclusions, according to which the applicant was well-known as a person was both violent and very often drunk, the Government argued that the conduct adopted by the police agents had constituted a proportional and necessary response to the applicant’s resistance. All domestic decisions had confirmed this conclusion, and had been based on evidence carefully and thoroughly produced and assessed. 2.     The Court’s assessment (a)     General principles 35.     The relevant principles concerning the State’s obligations under Article   3 of the Convention in instances of police violence, including when it is alleged that the force used by the police during an arrest was excessive, are set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and §§   114-123, ECHR 2015; see also Samachișă v. Romania , no.   57467/10, §§   60-64, 16 July 2015). (b)     The application of those principles to the present case (i)     Alleged ill-treatment by the police 36.     In the instant case, the Court notes that in their submissions, the Government relied on the findings of the domestic authorities. Consequently, they did not dispute that on 11 December 2011 the applicant had been under the control of State agents at the time of the incident or that the injuries suffered by the applicant, as recorded by the available medical evidence, had been the result of the police officers’ intervention. 37.     However, the parties disagreed about the context in which the applicant was injured. The Government submitted that the injuries had been inflicted during his immobilisation and handcuffing as a result of his resistance, whilst the applicant argued that they had been sustained as a result of ill-treatment by the police after he had been taken to the police station. 38.     The Court has previously stated that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid , cited above, §§ 83-84 and 98). 39.     This notwithstanding, in the particular circumstances of the present case, the Court does not deem it necessary to determine the exact timing of the applicant’s injuries. Instead, it will proceed to assess whether, even assuming that they occurred as submitted by the Government, namely at the point of the applicant’s arrest, the justification given for the force used by the police was sufficient and convincing. 40.     To start with, in so far as the Government’s submissions before the Court may be understood as constituting an argument that the injuries suffered by the applicant did not meet the level of severity required to fall within the scope of Article 3 of the Convention, the Court notes that the medical evidence produced shortly after the incident attested to the fact that the applicant had complained of pain in the thorax and that he had several scratches, contusions and bruises on his wrists, arms and legs as a consequence of being hit with a hard object. Given the available medical evidence, the Court considers that the degree of bodily harm suffered by the applicant indicates that his injuries were sufficiently serious as to amount to treatment which meets the level of severity required to fall within the scope of Article 3 of the Convention (see, for example, Stoica v.   Romania , no.   42722/02, § 62, 4 March 2008 and Samachișă , cited above, § 66). 41.     In this connection, the Court observes that according to the available evidence, including the offence report drawn up in connection with the alleged incident – stating that the applicant was fined exclusively for refusing to identify himself – the applicant’s conduct during his conversations with the police officers, although uncooperative, was neither violent nor disproportionate. 42.     The Court notes that the applicant himself acknowledged that he had refused to present his identification papers, while using language considered by the police officers to be defiant. The statement given by the neighbour’s husband confirms the use by the applicant of language that was to a certain extent inappropriate and disrespectful (see paragraph 18 above). However, there is no evidence in the file to suggest that during the whole incident, the police officers involved were in any way assaulted, much less injured by the applicant. No charges, be they civil, administrative or criminal, were subsequently brought against him in respect of inflicting or attempting to inflict bodily harm, disobeying police orders or insulting the police officers. 43.     In these circumstances, the Court cannot accept that any restraint was needed in order to pre-empt further outbursts from the applicant, and to prevent him from becoming physically violent (see Samachișă , cited above, §   73 – by way of contrast). However, even assuming that a measure of restraint could have been rendered necessary by the applicant’s obstinate behaviour, the domestic authorities did not provide sufficient explanation as to whether any measure inflicting injuries as sustained by the applicant was proportionate. 44 .     The Court notes that the findings of the domestic investigation do not explain which specific techniques were applied by the police officers when immobilising and handcuffing the applicant, and how they correlated to the applicant’s specific actions or omissions, whatever they might have been, especially in view of the conclusions of the forensic report, which stated that that the applicant’s injuries had been caused by his being hit with   a hard object (see, mutatis mutandis , Danilov v. Ukraine , no. 2585/06, §   65, 13   March   2014, and Dinu v. Romania , no. 64356/14, §   77, 7   February   2017). 45.     Consequently, the Court considers that neither the domestic court nor the Government have sufficiently and convincingly shown that, in the particular circumstances of the present case, the force employed by the police officers against the applicant, irrespective of the time when the incident might have taken place, was proportionate (see, mutatis mutandis , Samachișă , cited above, § 75). Consequently, the measures taken against the applicant amounted to conduct in breach of Article 3. 46.     Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. (ii)     Alleged ineffectiveness of the investigation 47.     The Court observes that, following the applicant’s complaint, registered with the police station on 13 January 2012, the domestic authorities sent the file for investigation on 7 August 2012, so that an inquiry into his allegations of ill-treatment could be carried out. While noting that the investigation was not necessarily promptly initiated (see, for instance, Hilal Mammadov v. Azerbaijan , no. 81553/12, §   92, 4   February   2016), the Court however accepts that the authorities did react to the complaints of the applicant. In this connection, the Court notes that the police officers from the Bucharest General Police Headquarters, who arguably belonged to the same structure as the police officers who were involved in the incident, were delegated to conduct all relevant investigations (see paragraph 16 above). Nevertheless, the Court also notes that the investigation was conducted in accordance with statutory requirements, under the authority of a prosecutor, whose decision was subsequently contested before a criminal court (see paragraph 25 above). The Court cannot but conclude that the investigation was under the control of an independent authority (see Bouyid , cited above, § 127 and by way of contrast, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2   others, §   333, ECHR 2014 (extracts)). 48.     The Court is not, however, convinced that the domestic authorities’   response to the applicant’s allegations was sufficiently thorough or “effective” as to meet the requirements of Article 3. 49 .     In this connection, the Court firstly notes that the domestic authorities failed at all stages of the investigation (and without giving any justification for this failure) to question the applicant’s partner, G.C., who was one of the main witnesses of the incident of 11 December 2011 (see paragraphs   8 and 21 above). 50.     Moreover, the domestic investigation did not establish the respective participation of, and role played by, each of the police officers involved, especially in relation to the medical report’s conclusions, stating that the applicant’s injuries had been caused by blows inflicted with a hard object (see paragraphs 13 and 44 above). 51.     Thirdly, the questioning of the witnesses was conducted in September and October 2012 (see paragraphs 18-20 above) – that is to say several months after the impugned incident. In this connection, the Court reiterates that it has repeatedly emphasised the importance of contacting and questioning witnesses in the immediate aftermath of such incidents, when memories are fresh (see, for example, Doiciu v. Romania , no. 1454/09, §   62, 5   May   2015). 52.     The Court further notes that the domestic authorities acknowledged that the police officers had immobilised and handcuffed the applicant, and considered that the officers had acted within the framework of their work duties (see paragraphs 22, 23 and 25 above). However, in examining the circumstances of the case, the domestic authorities did not effectively consider the question of the proportionality of the force used by the police officers (see Petruş Iacob v. Romania , no. 13524/05, §   49, 4   December   2012), especially in view of the fact that the case file contained no substantiation of any violence or physical aggression directed against the police officers, nor any state of inebriety on the part of the applicant on the day of the incident. The Court considers that the prosecutor’s general remarks in connection with the applicant’s allegedly widely known violent behavior and constant state of inebriation cannot constitute appropriate confirmation of the proportionality of the measures applied by the police officers on 11 December 2011. 53.     In view of the above-mentioned findings, the Court considers that the investigation cannot be said to have been thorough and “effective”. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54.     Relying on Article 13 of the Convention, the applicant reiterated that there was no mechanism available allowing him to not only complain about the police abuse and about the ineffectiveness of the investigation, but also to receive an effective answer to his complaints and to his claim for compensation. Article 13 reads as follows: “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.” 55.     The Court observes that this complaint concerns the same issues as those examined above under the procedural limb of Article 3 of the Convention and should therefore be declared admissible. However, in the light of its conclusions above under Article 3 (see paragraphs 49-53 above) above), the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see, mutatis   mutandis , Jeronovičs v. Latvia [GC], no. 44898/10, § 125, ECHR 2016, and the authorities cited therein). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 56.     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 57.     The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage, alleging that he had been particularly affected by the alleged incident in view of his disability. 58.     The Government requested that the claim be dismissed for lack of substantiation of any harm inflicted on the applicant. In any event, they submitted that the amount granted should be in line with the Court’s relevant case-law. 59.     The Court accepts that the applicant suffered some non-pecuniary damage as a result of the infringement of those of his rights that are guaranteed by Article 3 of the Convention. Making an assessment on an equitable basis, it awards the applicant EUR 9,000 under this head, plus any tax that may be chargeable. B.     Costs and expenses 60.     The applicant also claimed EUR 4,255 for the costs and expenses incurred before the Court – namely, EUR 3,955 for his lawyer’s fee and EUR   300 for the costs borne by the Association for the Defence of Human Rights in Romania – Helsinki Committee (“APADOR-CH”) related to technical support and postal expenses. He submitted an itemised list of the costs of legal assistance based on the contract he had concluded with his lawyer. 61.     The Government contended that the sum claimed was excessive, in view of the complexity of the case and of the corresponding submissions drafted by the applicant’s representative. 62.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 63.     In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim made in respect of APADOR-CH, as this association did not represent the applicant in the current proceedings (see, notably, Șerban Marinescu v.   Romania , no.   68842/13, §§ 78-80, 15 December 2015, and Drăgan v.   Romania , no.   65158/09, §§ 99-102, 2 February 2016). 64.     The Court further considers it reasonable to award the applicant the sum of EUR 3,955 in respect of lawyers’ fees, to be paid directly into the bank account indicated by the applicant’s representative. C.     Default interest 65.     The Court considers it appropriate that the default interest rate 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, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 3 of the Convention both under its substantive and procedural limbs;   3.     Holds that there is no need to examine the complaint under Article 13 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three   months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 3,955 (three thousand nine hundred and fifty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account indicated by the applicant’s representative [1] ; (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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 January 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Marialena Tsirli   Ganna Yudkivska   Registrar   President [1] .     Rectified on 16 February 2018; the text was “EUR 3,955 (three thousand nine hundred and fifty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses”.