CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2013

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } THIRD SECTION Application no. 40355/11 Leon BOACĂ and others against Romania lodged on 13 June 2011 STATEMENT OF FACTS A list of the applicants is set out in the appendix. The applicants are all Romanian nationals of Roma origin and heirs of Mr Ion Boacă who initiated the domestic proceedings. Those proceedings were still pending when Mr   Ion Boacă passed away on 1 April 2010. Mr Ion Boacă’s heirs pursued the case before the domestic courts and lodged a complaint before the Court on his behalf and on their own behalf. The applicants are represented by Romani Criss, a non-governmental organization based in Romania. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 30 March 2006 around 5 pm A.N, Mr Ion Boacă’s daughter-in-law, was victim of an aggression in the vicinity of Mr Ion Boacă’s home. Mr Ion Boacă’s three sons (the applicants from nos. 1 – 3 in the annexed list) and the victim’s father went to the Clejani Police Station to report the assault. In front of the Police Station they were allegedly attacked by a group of 50 villagers. When Mr Ion Boacă arrived there, attracted by the noise, he saw C.G.M. injured and his head was covered with blood. His sons’ car was also damaged (the windows were broken and the car’s bonnet was folded up). Mr Ion Boacă also saw that the villagers were chasing his sons and attacking them with stones, bats and bricks. At around 6 pm, the police agents T.B. and M.N. accompanied by the special intervention team (Rapid Intervention Squad, Detaşamentul Poliţiei pentru Intervenţie Rapidă ) arrived at Mr Ion Boacă’s home in order to take him into custody. The police intervention team entered the yard and arrrested Mr Ion Boacă. The applicants alleged that the special intervention team also called Mr   Ion Boacă’s 13-year-old son (M.B.) and daughter-in-law (M.D.) “disgraceful gipsies”, shouted abuse on them and made them lie down so that their faces touched the ground and their arms were behind their backs . Mr Ion Boacă asked T.B. if they had a search warrant, but he pointed to the special squad and told him “They are my search warrant!”. The police agents escorted Mr Ion Boacă, M.B. and M.D. to the Clejani Police Station. According to the applicants, M.B. and M.D had to put their hands and faces to the wall and Mr Ion Boacă was brought into the Chief police’s office at the Clejani Police Station. Later, Mr Ion Boacă’s sons were also brought to the Clejani Police Station. According to the applicants, the police agents assaulted them all the way to the police station, cursed them and called them “miserable and disgraceful gipsies” and shouted abuse on them. Inside the Clejani Police Station they were put in the same office with Mr   Ion Boacă. The police agents beat them during interrogation. They kicked Mr Ion Boacă in the ribs, on his right side; they punched them all and beat them with batons in order to make them confess several crimes, including a rape of a foreign woman and theft of some pipes. The police agent T.B. also called the chief of the Letca Noua Police Station and told him to come for “a match with the boys” (la o partidă cu băieții). The police agents beat Mr Ion Boacă and his sons with batons and they kicked them in order to obtain confessions. Mr Ion Boacă fell on the ground. His sons started screaming and told the police officers that he needed medical help. The police agent allowed Mr Ion Boacă to leave but told his sons that they would only be released if they signed the confession which had already been written by the police agents. They did not have the possibility to read the content of the above confession. They signed the confession and were allowed to leave the police station. Mr Ion Boacă was immediately hospitalised at the Bucharest University Hospital until 4 April 2006. He suffered serious traumas caused by the aggression and needed an urgent surgery. On 11 April 2006 a forensic doctor examined him. The medical certificate concluded that he had suffered a thoracic trauma inflicted by a “blow caused by a body or by body impact”. The doctor said that he would need 15 - 19 days to recover. On 1 June 2006 Mr Ion Boacă and his sons lodged a criminal complaint with the Prosecutor’s Office of Giurgiu County, against the police agents who had allegedly ill-treated them. They also complained of discrimination arguing that because of their Roma origin, the police agents had an aggressive attitude towards them. On 18 December 2006 the Giurgiu Prosecutor’s Office dismissed the criminal complaint on the grounds that the police agents’ actions did not disclose any signs of criminal offence. The prosecutor’s decision upheld the Giurgiu Police report and described the villagers’ alleged aggressive behaviour as being “a fight between two Gypsies clans” ( scandal între două grupuri de țigani ). The applicants appealed against that decision to the hierarchically superior prosecutor. On 29 January 2007 the hierarchically superior prosecutor of the Giurgiu Prosecutor’s Office dismissed their appeal. The applicants challenged that decision before the Giurgiu County Court. On 16 April 2007 the Giurgiu County Court upheld the prosecutor’s decision, considering that the applicants did not prove their allegations. The applicants appealed and on 27 June 2006 the Bucharest Court of Appeal quashed the above mentioned decision and ordered the prosecutor to continue the criminal investigation. It found inter alia that it was undisputed that the applicants had sustained their injuries on 30 March 2006 either at the Police Station or on their way there; however the circumstances needed to be clarified. The court also found that the prosecutor had not taken into account Mr Ion Boacă’s medical certificate, had not heard either the applicants or the eyewitnesses and had not allowed Mr Ion Boacă and his sons to adduce evidence. On 29 August 2007 the Giurgiu Prosecutor’s Office refused to institute criminal proceedings against the police agents. The prosecutor considered that the plaintiffs had not sustained their allegations of ill-treatment and discrimination. It found that the police agents acted lawfully, trying to counter the applicants’ attack by using gas guns and sharp objects. Mr Ion Boacă and his sons appealed against the Giurgiu Prosecutor’s Office decision. On 21 October 2008 the Prosecutor in Chief upheld the above mentioned decision. The applicants challenged those decisions before the Giurgiu County Court. On 3 February 2009 the Giurgiu County Court quashed the decisions of the Giurgiu Prosecutor’s and the Prosecutor in Chief and sent the case back to the prosecutor. The Giurgiu Prosecutor’s Office challenged that decision and on 12 June 2009 the Bucharest Court of Appeal allowed the appeal on points of law in part. It found that the criminal investigation should be continued only regarding Mr Ion Boacă’s injuries. As concerned Mr Ion Boacă’s sons, it considered that the criminal investigation should be closed as they had not endorsed the appeal against the decisions of 29 August 2007 and of 21   October 2008. On 28 October 2009 the Giurgiu Prosecutor’s Office refused to institute criminal proceedings against the police agents on the ground that their actions were according to their professional duties. On 4 December 2009 the Prosecutor in Chief upheld that decision. Mr   Ion Boacă appealed against both decisions before the Giurgiu County Court, which on 22 April 2010 dismissed his complaint. The domestic court noted that the prosecutor heard Mr Ion Boacă and four villagers who were in front of the Clejani Police Station and allegedly aggressed Mr Ion Boacă’s sons. The four villagers declared that Mr Ion Boacă had had no injury when he left the Clejani Police station. On 1 April 2010 Mr Ion Boacă died of causes unrelated to the present aggression and his heirs (the applicants) continued the proceedings instituted before the domestic courts. On 14 December 2010 the Bucharest Court of Appeal upheld the decision delivered by the Giurgiu County Court and dismissed the appeal on points of law raised by Mr Ion Boacă’s heirs. B.     Relevant domestic law and practice The relevant provisions of the Code of Criminal Procedure in force at the time when the facts occurred are detailed in Cobzaru v. Romania (no.   48254/99, § 36, 26 July 2007). COMPLAINTS 1.     Relying on Article 3 of the Convention, the applicants complain in their own name and on behalf of Mr Ion Boacă about the fact that on 30   March 2006 Mr Ion Boacă and the first three applicants (see the annexed list from nos. 1 to 3) were subjected to ill-treatment in the Clejani Police Station. 2.     The applicants also claim that the ill-treatment suffered by Mr Ion Boacă and the decision not to bring criminal charges against the police agents who had beaten him were predominantly due to his Roma ethnicity, contrary to the principle of non ‑ discrimination set forth in Article 14 of the Convention taken together with Article 3. 3.     Invoking Article 6 § 1 of the Convention alone and in conjunction with Article 13 of the Convention, the applicants complain in their own name and on behalf of Mr Ion Boacă about the lack of an effective investigation and the unfairness of the criminal proceedings. QUESTIONS TO THE PARTIES 1.     Has Mr Ion Boacă been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?   2.     Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   3.     Has Mr Ion Boacă suffered discrimination in the enjoyment of his Convention rights on the ground of his Roma origin contrary to Article 14 of the Convention read in conjunction with Article 3?   Appendix List of Applicants   1.     Leon BOACĂ born on 14 December 1979 and living in Clejani 2.     Cristian BOACĂ born on 25 September 1984 and living in Clejani 3.     Nicuşor BOACĂ born on 16 May 1988 and living in Clejani 4. Tănţica BOACĂ born on 23 May 1986 and living in Bucharest 5.     Nina NICULAE born on 12 May 1956 and living in Clejani 6.     Marian BOACĂ born on 2 June 1993 and living in Clejani 7.     Costel NICULAE born on 22 November 1981 and living in Clejani