CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 mai 2020

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ROMANIA (Application no. 21171/16)             JUDGMENT                 STRASBOURG 7 May 2020   This judgment is final but it may be subject to editorial revision. In the case of Gheorghe Cobzaru v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Faris Vehabović, President,   Iulia Antoanella Motoc,   Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application 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   Gheorghe Cobzaru (“the applicant”), on 1 April 2016; the decision to give notice to the Romanian Government (“the   Government”) of the complaint concerning the respondent State’s failure to carry out an effective official investigation into the death of the applicant’s son; the parties’ observations; Having deliberated in private on 24 March 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The application concerns the alleged ineffectiveness of the investigation into the killing of the applicant’s son, as continued after the adoption of the Court’s judgment of 25 June 2013 in the case of Gheorghe Cobzaru v.   Romania (no. 6978/08), in which a breach of Article 2 of the Convention had been found, and concluded by a judgment of the Bucharest County of 25   June   2013 holding that in the particular circumstances of the case the killing had been justified. THE FACTS 1.     The applicant was born in 1957 and lives in Bucharest. He was represented by Romani Criss, a non-governmental organisation based in Romania. 2.     The Government were represented by their Agent, most recently Ms   S.-M.   Teodoroiu, from the Ministry of Foreign Affairs. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The proceedings in the case of Gheorghe Cobzaru v. Romania , application no. 6978/08 4.     On the night of 18 September 2006 the applicant’s son, who was suspected of stealing merchandise from a truck and of fleeing the police with a stolen car, was involved in a car chase with the police and was struck by a bullet in the throat; he eventually died from his injuries. 5.     Relying in particular on Article 2 of the Convention, the applicant complained that his son had been murdered by the police officer A.S. and that no effective investigation had been carried out with a view to punishing those responsible. 6 .     In its judgment of 25 June 2013 (“the principal judgment”) the Court found a violation of Article 2 of the Convention under both its substantive and procedural limbs. Under Article 41 of the Convention, the Court granted the applicant EUR   30,000 in respect of non-pecuniary damage. 7 .     In particular, the Court found that the Romanian authorities had not shown that use of firearms by police officer A.S., in the middle of the night and without sufficient precautionary measures being taken before shooting, had been “absolutely necessary” in the circumstances, given also the absence of an adequate legislative and regulatory framework (see paragraphs   65-66 of the principal judgment). 8 .     The Court further found that the criminal investigation carried out into the incident of 18 September 2006 had been ineffective; it relied on the judgment of the Bucharest County Court of 28 November 2012 (see paragraphs   30 and 31 of the principal judgment) which had remitted the file to the prosecutor on account of several procedural shortcomings. These shortcomings were also identified by the Court, as follows: the significant delay in the investigation which at the time of the Court’s judgment was still pending before the domestic authorities (paragraphs 71 and 75 of the principal judgment); various flaws in the taking of evidence including in the preparation of a ballistics report aimed at elucidating the circumstances of the applicant’s son’s death (paragraphs 72 and 73 of the principal judgment); and the insufficient public scrutiny and insufficient protection of the applicant’s interests during the investigation (paragraph 74 of the principal judgment). The subsequent proceedings before the domestic authorities 9 .     Subsequent to the remittal of the case to the prosecutor, as ordered by the Bucharest County Court on 28 November 2012 (see also paragraph   8 above), the criminal investigation into the incident of 18   September   2006 was reopened. 10 .     On 4 June 2015 the prosecutor’s office attached to the Bucharest County Court decided to close ( clasare ) the criminal investigation against A.S. in so far as the impugned acts had been committed with justifiable cause, as set out in Article 21 § 1 of the Criminal Code (see paragraph   17 below). In particular, A.S. had acted in compliance with his obligations and duties as a police officer in charge of patrolling the area of the incident on the night of the events; the officer had acted on a reasonable suspicion that a crime was being committed. The fatal indirect shot (see paragraph   15 below) had been fired only after A.S. had issued a verbal warning and fired three   vertical warning shots; it had thus been in compliance with the legal provisions regulating the use of firearms (see paragraph 18 below). 11 .     The prosecutor’s office based its decision on the following elements: statements given by A.S. as well as by the applicant; statements taken from the witnesses called by the applicant; ballistic and trace analysis reports of 28   March   2013 and 2 March 2015, aimed at elucidating the exact direction and distance of the fatal shot, the trajectory of the bullet and the relative positions of the shooter and the victim; and medical documents as well as a reconstruction of the events. 12 .     A forensic report designed to identify various other factors in the shooting, based on samples taken from the clothing of the police officer A.S. and the victim, could not be performed owing to the fact that the evidence gathered had become unsuitable for examination, having been damaged by a flood in 2012. Similarly, the National Institute of Forensic Medicine informed the investigation that samples taken on duct tape from the victim’s body tissue during the autopsy procedure had deteriorated as a result of specific laboratory examinations conducted in assessing the additional factors involved in the shooting; no other samples taken for the purpose of long-term conservation existed. 13 .     The prosecutor’s office stated that the taking of evidence had been performed in accordance with the applicant’s and his lawyer’s requests. The applicant and his lawyer had been involved in the reconstruction of events, as well as in the preparation of the ballistics reports and the forensic report, by being allowed to file requests and challenge the experts’ conclusions. They had had access to the items in the domestic case file throughout the entire investigation. 14 .     The decision of 4 June 2015 (see paragraph 10 above) was subsequently upheld by the Bucharest County Court on 14   October   2015. The court concluded that A.S. had acted in the exercise of his duties as a police officer in charge of patrolling in the area where the incident took place, with a view to ensuring public safety and preventing street crime. 15 .     The court also relied on the conclusions of the ballistics reports, which stated that the impact of the shot had been indirect, with the victim being hit by a fragment of bullet which had ricocheted from the concrete pavement in the courtyard where the shooting had taken place. The decision of the Committee of Ministers of the Council of Europe 16 .     On 21 September 2017, that is, after the termination of the domestic proceedings (see paragraph 14 above), the Committee of Ministers of the Council of Europe, at its 1294th session, examined the status of execution of the Court’s judgment of 25 June 2013 (see paragraph 6 above) and adopted Decision CM/Del/Dec(2017)1294/H46-21, the relevant parts of which are set out below. To date, the Committee of Ministers has not concluded its supervision of the execution of the judgment under Article   46   §   2 of the Convention, as the general measures to be taken in relation to a larger group of similar cases are still pending. “ Status of Execution: ... The Romanian authorities have regularly submitted information on the execution of these judgments, most recently in an action plan of 24 July 2017 ( DH-DD(2017)790-rev ). Individual measures: 2) Gheorghe Cobzaru : After the European Court’s judgment was delivered, the prosecutor’s office continued the investigation into the fatal shooting of the applicant’s son and took several investigative steps. In particular, it requested a new ballistics expert report and conducted a reconstruction of the events and new hearings of the perpetrator, witnesses and the civil party. In June 2015 the prosecutor’s office decided to terminate the investigation, finding that the officer who had fired the shot had acted in accordance with the domestic legal framework in force at the material time. This decision was upheld by the national courts, to which the applicant referred the matter... Decisions “ As regards individual measures ... 2. noted, in view of the information provided by the authorities, that no individual measure is now possible in the case[s] of Gheorghe Cobzaru , ... As regards general measures 3. noted with interest the legislative amendments brought in 2016 to regulate more strictly the use of firearms by the police in situations similar to those at the origin of the case[s] of (...) Gheorghe Cobzaru (...); took note also of the regulation adopted in 2009 on the operation of special intervention units, which appears capable of ensuring that the deployment of these units is duly justified; 4. called on the authorities to update the practical instructions given to police officers on the application of the legislative framework governing the use of firearms in line with the provisions introduced in 2016 and to inform the Committee of the measures taken or envisaged to ensure that law enforcement operations are planned so as to avoid, as far as possible, the use of lethal force; 5. noting with interest the measures adopted by the General Prosecutor’s Office to guarantee the effectiveness of criminal investigations, encouraged the authorities to extend their application to all investigations concerning the use of firearms by the police and to indicate whether additional measures have been taken or are envisaged to guarantee the effective judicial review of these investigations.” RELEVANT LEGAL FRAMEWORK 17 .     Article 21 § 1 of the Romanian Criminal Code sets out one of the grounds of justification which remove an offence from the criminal sphere. It reads as follows: “Article 21 - Exercising a right or fulfilling an obligation (1) An act proscribed by the criminal law shall be justified when it is committed in the exercise of a right conferred by law or an obligation mandated by law, in compliance with the conditions and limitations set out by the law.” 18 .     The relevant domestic law concerning the use of firearms and the organisation of the Romanian police force is described in the principal judgment, paragraphs 32-35. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 19.     The applicant complained that the national authorities had failed anew to conduct an adequate and effective investigation into the use of lethal force against his son. He relied on Article 2 of the Convention, which reads 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.” 20.     In so far as relevant, Article 46 of the Convention reads as follows: “1.     The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2.     The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” Admissibility Submissions by the parties 21.     The Government argued that the case fell outside the Court’s jurisdiction ratione materiae , in so far as it concerned aspects relating exclusively to the execution of the principal judgment and was thus subject to the supervision of execution by the Committee of Ministers under Article   46 of the Convention. They pointed out that the said supervision of execution of the case was still under way, although the Committee of Ministers had taken note of the fact that no individual measure was possible in the case (see paragraph 16 above). 22.     The applicant considered that following the adoption of the principal judgment of 25 June 2013 there were sufficient relevant developments in the criminal investigation concerning the death of his son to qualify as “new facts” within the meaning of the relevant Court’s case-law. The Court therefore had jurisdiction to assess them from the perspective of Article 2 of the Convention. The Court’s assessment (a)    Whether Article 46 of the Convention precludes the examination of the applicant’s complaint 23.     In examining the admissibility of the present application, the Court must ascertain whether it has jurisdiction to consider the applicant’s complaint without encroaching on the prerogatives of the Committee of Ministers under Article 46 of the Convention in the execution of the Court’s judgment in the case of Gheorghe Cobzaru v. Romania (no.   6978/08, 25   June   2013). 24.     With regard to the relevant principles concerning its jurisdiction in this context, the Court refers to the principles recently set out in the case of Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§   47-48, 11   July   2017). 25.     Applying the above principles to the case before it, the Court must therefore ascertain whether the present follow-up application concerns only the execution of the initial application without raising any relevant new facts or whether it contains relevant new information possibly entailing a fresh violation of the Convention, for the examination of which the Court is competent ratione materiae (see Egmez v. Cyprus (dec.), no.   12214/07, §   57, 18   September 2012). 26.     The Court notes that in its principal judgment of 25 June 2013 it found that the investigation into the applicant’s claims of use of lethal force by the police against his son had not been effective, contrary to the requirements of the procedural limb of Article 2 of the Convention. Moreover, it concluded that the substantive limb of Article 2 had also been breached in view of the fact that it had not been shown that the use of firearms by A.S. had been absolutely necessary in the circumstances (see paragraphs   7-8 above). 27.     Pending the proceedings before the Court and following the domestic court’s decision of 28 November 2012 to remit the case to the prosecutor for further investigation, the prosecutor reopened the proceedings against police officer A.S. at the end of 2012. Subsequently, the prosecutor’s office conducted a fresh investigation into the incident (see paragraphs   9-13 above; see also, in the context of the duty to investigate under Article 3 of the Convention following the Court’s strike-out decision, Jeronovičs v. Latvia [GC], no. 44898/10, §§ 117- 118, 5 July 2016). 28.     The fresh investigation gave rise to a number of further procedural measures by the prosecutor’s office, which led to the collection of further evidence and the establishment of new facts concerning the case of the applicant’s son (see paragraphs 11-13 above, and compare and contrast Egmez , cited above, §§ 62-65, where the investigation was merely opened but then came to a complete standstill as the investigator could not contact the applicant and proceed with the investigation). The applicant’s complaints in the present case concern the effectiveness of the fresh investigation after the Court’s principal judgment and the decision of the domestic authorities to terminate that investigation on the basis of new evidence adduced and facts established (see Moreira Ferreira , cited above, §   47). 29.     In these circumstances, the Court considers that the alleged ineffectiveness of the fresh investigation, and more specifically the errors which the applicant claimed had vitiated the decision of the prosecutor’s office to terminate the proceedings, constitute new information in relation to the Court’s previous judgment (see, mutatis mutandis , Moreira Ferreira , cited above, § 56). As these issues could not have been decided by the previous judgment since they are related to the way the new investigation was conducted, they may be dealt with by the Court in the present case (ibid., § 47 (b); see also Egmez , cited above, §§ 52-55). 30.     Furthermore, the Court notes that a supervision procedure in respect of the execution of the initial judgment is still pending before the Committee of Ministers (see paragraph 16 above, and, mutatis mutandis , Moreira Ferreira , cited above, § 23). However, as explained above, that does not prevent the Court from considering a new application in so far as it includes new aspects which were not determined in the initial judgment (see, respectively in the context of Articles 3 and 8 of the Convention, V.D. v.   Croatia (no. 2) , no. 19421/15, § 53, 15 November 2018, and Liu v.   Russia (no.   2) , no. 29157/09, §§ 64-68, 26 July 2011). 31.     The Court therefore finds that Article 46 of the Convention does not preclude it from examining the applicant’s new complaint under the procedural limb of Article 2 of the Convention. (b)    Other grounds for inadmissibility 32.     The Court further concludes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits Submissions by the parties 33.     The Government submitted that the criminal prosecution measures performed in the period following the reopening of the case on 28   November   2012 were apt to remedy the shortcomings identified by the Court in its principal judgment, and that the case had been determined on a lawful and substantiated basis after the completion of the investigation. 34.     The applicant submitted that in spite of the Court’s findings in its principal judgment concerning the shortcomings of the criminal investigation into the circumstances of his son’s death, the authorities had failed once more to fulfil their procedural obligation under Article 2 to carry out an effective investigation into the use of lethal force against his son. 35 .     The applicant identified in this connection a series of shortcomings in the investigation. He claimed that the investigation had not been impartial since the individuals who had carried out the investigative measures had been, directly or indirectly, colleagues in the same Ministry of Interior of the officers under investigation within the police (the applicant pointed to the case of Anton v. Romania , no. 57365/12, § 56, 19 May 2015). He also argued that the authorities had failed to elucidate the actual reasons why the forensic evidence had conveniently become unfit for examination (see paragraph   12 above). The expert reports had failed to answer the crucial question of how exactly his son had been shot, in view of the fact that several inaccuracies with regard to the bullet traces as well as the direction of the bullet had been highlighted throughout the investigation. 36.     Lastly, the applicant considered that the investigation had been inadequate, as it had failed to clarify the exact circumstances of his son’s death and had put undue emphasis on the statements of the perpetrator and his colleagues. The Court’s assessment 37.     The Court reiterates that it assesses compliance with the procedural requirement of Article 2 on the basis of several essential parameters: the adequacy of the investigative measures, the promptness and reasonable expedition of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter ‑ related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed (see, mutatis mutandis , Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §   229-239, 30   March   2016, and Mazepa and Others v. Russia , no. 15086/07, §   70, 17   July   2018). 38 .     Turning to the present case, the Court notes that during the relevant period, which started with the reopening of the criminal proceedings at the end of 2012 (see paragraph 9 above), the prosecuting authorities did not remain passive and performed within a reasonable timeframe (namely, by 4   June   2015, when the investigation was terminated – see paragraph   10 above) several investigative steps concerning the hearing of witnesses and of the parties, expert reports, a reconstruction of events, and the submission of relevant documents (see paragraphs 11-13 above). 39.     The Court therefore finds that the fresh investigation was sufficiently prompt and expeditious, as it lasted in total for approximately two and a half years despite the relative complexity of the case, which required the questioning of several witnesses and, more importantly, the obtaining of an expert report and other documentary and forensic evidence concerning the incident. 40.     Furthermore, the Court notes that the applicant and his lawyer had the opportunity to actively participate in the proceedings, as well as to challenge the ballistics and forensic experts’ conclusions and to ask for new evidence to be obtained (see paragraph 13 above). The Court therefore finds that the investigation was accessible to the applicant to the extent necessary to safeguard his legitimate interests. 41.     In this context, the Court also notes that during the investigation several difficulties prevented the experts from being able to formulate exhaustive conclusions in their ballistics and forensic reports, which constituted evidence of considerable relevance in the case. However, the Court considers that these difficulties were of an objective nature which can be attributed to the loss of evidence due to unpredictable events such as the flooding of the room where the corpus delicti was stored and the deterioration of the evidence as a result of specific laboratory examinations that had been conducted previously (see paragraph 12 above; see also, mutatis mutandis and in the context of Article 6 of the Convention, Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII (extracts), concerning, in the ambit of a criminal investigation for murder, the loss or destruction of pieces of evidence such as the victim’s clothes, the car used by the killers and the bullets that had been removed from the body or found at the scene of the murder). 42 .     In view of all the above considerations, and given the available evidence, the Court does not find sufficient grounds to conclude that the investigation after the reopening of the criminal proceedings at the end of 2012 or the collection of evidence in that period was insufficiently thorough. The Court recalls in this context that it had already identified several shortcomings of the investigation in its principal judgment of 25   June   2013 (see paragraph 8 above), shortcomings which inevitably had a certain negative impact on the effectiveness of the later investigative steps. However, the original shortcomings cannot be taken into account anew in the assessment of the adequacy and effectiveness of the fresh investigation. 43.     Furthermore, the domestic authorities’ decision in June 2015 to close the criminal proceedings was not taken hastily or arbitrarily, and followed investigative work which resulted in the accumulation of a large body of evidence, including forensic and technical elements. That evidence addressed questions raised within the framework of the criminal proceedings, including the question of how the shooting had occurred. In the light of the materials in its possession, the Court does not perceive any reason to consider that the authorities acted inappropriately when conducting a fresh investigation into the circumstances of the applicant’s son’s death. 44.     In this context, the Court takes note of the concerns expressed by the applicant about the lack of impartiality of the investigation (see paragraph   35 above) due to the fact that the persons responsible for and carrying out the investigation were not independent from those implicated in the events. Similar concerns have already been endorsed by the Court in the case of Anton (cited above, § 56), where it had relied on the Council of Europe Commissioner for Human Rights’ recommendation as to the establishment of a fully independent complaints mechanism covering the action of all law enforcement authorities, in accordance with Council of Europe standards (ibid., 32), 45.     Nevertheless, these concerns about the statutory independence of the investigative authorities at the relevant time, however understandable, are not in themselves sufficient to conclude that the investigation was lacking in independence. It is necessary to examine in concreto the independence of the case prosecutor, by verifying on the one hand whether he had ties to the person or persons likely to be investigated and, on the other, whether there was tangible evidence of bias in his conduct (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 237, 14 April 2015. 46.     From that respect, the Court firstly notes that the case prosecutor, who directed the investigation, had no ties, hierarchical or otherwise, with the main suspect, or with his direct colleagues. Secondly, the prosecutor gathered all the evidence that was necessary and still possible to obtain, and he cannot be reasonably criticised for failing to take a particular investigative measure (see also paragraph 38 above). The prosecutor’s reasoned decision was subjected to further control by the domestic courts, whose independence and impartiality is not called into question in the present case, and who fully confirmed his conclusions. 47.     In view of the above, the Court considers that the specific conduct of the investigative authorities does not reflect a lack of independence or impartiality in the handling of the investigation, and the fact that there was insufficient evidence to bring proceedings against the suspect cannot in any way be regarded as the sign of a lack of independence (see, mutatis mutandis , Mustafa Tunç and Fecire Tunç , cited above, § 253). 48.     Furthermore, the Court reiterates that Article 2 does not entail the right to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Armani Da Silva , cited above, § 238). The procedural obligation under Article 2 is not an obligation of results, but of means (see Mazepa and Others , cited above, § 74, with further references). 49 .     Therefore, the Court considers that, in the absence of any apparent lack of thoroughness in the authorities’ examination of the circumstances surrounding the death of the applicant’s son, their decision to close the proceedings against police officer A.S. (see paragraphs 10 and 14 above) appears to have been based on an objective and impartial analysis of all the relevant elements in the file (ibid., § 234). 50 .     The foregoing considerations are sufficient to enable the Court to conclude that the fresh investigation into the circumstances of the death of the applicant’s son, did not fall short of the procedural obligation under Article   2 of the Convention. 51.     There has accordingly been no violation of the procedural limb of that provision. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52.     Lastly, the applicant raised various other issues under Articles 2 of the Convention concerning the death of his son and under Article 6 of the Convention, concerning the alleged lack of impartiality of the investigating authorities as well as the overall length of the investigation, which had started in 2006. 53.     The Court has examined these complaints carefully. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 54.     It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaint raised under the procedural limb of Article 2 of the Convention concerning the adequacy of the fresh investigation into the applicant’s son’s death admissible and the remainder of the application inadmissible; Holds that there has been no violation of Article 2 of the Convention under its procedural limb. Done in English, and notified in writing on 7 May 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Ilse Freiwirth   Faris Vehabović Deputy Registrar   President