CEDH · CASELAW;CLIN;ENG — 22 février 2011

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Romania - 24329/02 Judgment 22.2.2011 [Section III] Article 2 Article 2-2 Use of force Excessive use of police force: violation   Article 3 Degrading treatment Police questioning of witnesses for nine and half hours without food or water: violation   Facts – The first applicant, accompanied by his brother, both of whom were of Roma ethnic origin, saw his former brother-in-law in the street. The two brothers began to chase after him. Some police officers on patrol apprehended them and one of the officers shot the first applicant in the head, causing serious injuries. The other two applicants witnessed the incident. The first applicant and the Government gave differing versions of the events. The first applicant claimed that he had been unarmed and that the police officer had shot him while forcing him to crouch down. In the Government’s submission, the first applicant had stabbed the police officer who was attempting to arrest him, whereupon the latter had taken out his gun in order to fire a warning shot, but had lost his balance and as a result the shot had hit the first applicant directly in the head. The police officer who had fired the shot suffered superficial abdominal wounds caused by a sharp object. An investigation was opened the same evening. The other two applicants were invited to attend the police station to give evidence. They arrived at the police station at about 7.30 p.m. and were questioned on three occasions until early morning. They stated that the tragic events that they had witnessed, the time spent in the police station and the lack of food and water had left them physically and mentally exhausted. They also alleged that they had been intimidated by the police, who had pressurised them into saying that the first applicant and his brother had been carrying knives. They lodged a complaint concerning the conditions in which they had been questioned but no action was taken by the prosecutor in response. The investigation took account of the incident report written by the three police officers implicated in the events and the report of the National Forensic Medicine Institute on the police officer’s injuries and the state of health of the first applicant, who is now semi-paralysed on the right-side of his body. The various proceedings against the police officer who had fired the shot were discontinued. Law 1.     The first applicant Article 3: (a)     Substantive aspect (i)     Legal and administrative framework – At the time of the events, there were no provisions governing the use of weapons during police operations, apart from a requirement to issue a warning, nor were there any guidelines on the planning and management of such operations. The legal framework in question did not therefore appear to have been sufficient to provide the required level of protection “by law” of the right to life. The police officer who had fired the shot had therefore enjoyed considerable autonomy of action and had had opportunities to take ill-considered initiatives, which would probably not have been the case had he had the benefit of proper training and instructions. The criminal investigation had provided no indication as to the compatibility of the police officer’s conduct with any relevant applicable rule or practice. Furthermore, the Government had not indicated that any disciplinary proceedings had been taken against the police officers involved. Therefore, as regards the positive obligation to put in place an adequate legislative and administrative framework, the authorities had not, at the relevant time, done all that could be reasonably expected of them to afford to citizens the level of safeguards required, in particular in cases of the use of potentially lethal force, and to avoid the real and immediate risk to life that was liable to arise, albeit only exceptionally, in police operations. (ii)     The responsibility of agents of the State, the necessity and proportionality of the force used – The first applicant and the Government had given differing versions of the facts, which facts were crucial in determining the State’s responsibility for events which could have cost the applicant his life. The applicant had done everything in his power to make out a prima facie case. It had therefore been for the Government to provide a plausible explanation for the injury caused by a shot fired at close range. However, the authorities could not be considered to have truly attempted to ascertain whether or not the applicant had been armed with a knife and whether or not he had stabbed the police officer. The insufficiency of the facts and evidence gathered by the authorities prevented the Court from assessing the facts of the case. Consequently, the omissions attributable to the investigating authorities led the Court to reject the Government’s submission that the applicant’s injury had been caused by a police officer who had been attacked with a knife and had accordingly been acting in self-defence. Since the Government had not demonstrated that the potentially lethal force used against the first applicant had not gone beyond the bounds of what was absolutely necessary, was strictly proportionate and pursued the aims authorised under Article 2 § 2, the State’s responsibility was engaged. Conclusion : violation (unanimously). (b)     Procedural aspect – An investigation had been carried out by the military prosecutor’s office both into the allegations that the police officer had shot the first applicant and the charge of offensive behaviour brought against the applicant. Following a change in the legislation, the investigation had been handed over to a civilian prosecutor’s office, which had discontinued the proceedings relating to the injury inflicted on the first applicant on the ground that the police officer had acted in self-defence. The Court’s case-law clearly indicated that the military prosecutor’s office had not been independent, since at the relevant time the latter had been a military official, as had the police officers under investigation. The intervention of the civilian prosecutor had not been sufficient to overcome that deficiency, since most of the evidence had been gathered by the military prosecutor during the preliminary, and particularly important, stages of the investigation. The military prosecutor had not acted impartially when investigating the actions of the police officer. He had confined himself to ordering the police officers involved in the incident to write reports on the facts at issue which, in the context of criminal proceedings, could in no way replace interviews with those involved. Moreover, the conduct of the investigation had been deficient in a number of respects: for instance there had been manifest delays in producing the forensic medical report concerning the applicant and neither the applicant nor his lawyer had been informed of the reasons for the decision to discontinue the proceedings. This sufficed to show that the action taken following the incident in question could not be considered to constitute a swift and effective investigation. Conclusion : violation (unanimously). Article 14 in conjunction with Articles 2 and 3: While the conduct of the police officer who fired the shot was open to serious criticism, it did not in itself provide a sufficient basis for concluding that it had been racially motivated. There was no evidence to suggest, either, that the police officers implicated in the incident had made racist remarks. Lastly, the fact that, on the evening of the incident, the police officer who had fired the shot had stated that he had been “attacked by a Gypsy” was not sufficient in itself to require the authorities to ascertain whether the incident had been sparked by racist motives. Conclusion : no violation (four votes to three). The Court also found, unanimously, that there had been a violation of Article   13 in conjunction with Article   2. 2.     The second and third applicants Article 3: Substantive aspect – The Government did not dispute that the other two applicants had been kept at the police station from 7.30 p.m. to 5 a.m. without food or water. Furthermore, they had not produced before the Court any document governing the status of witnesses in criminal cases and setting out the manner in which they should be treated when expected, as in the instant case, to remain for several hours at the disposal of the investigating authorities. Regard being had to the circumstances of the case, in particular the duration of the questioning undergone by the other two applicants following the dramatic events and the feelings of anxiety and inferiority that the treatment complained of had caused them, such treatment had to be qualified as degrading. Conclusion : violation (unanimously). Article 41: EUR 90,000 in respect of pecuniary damage and EUR 40,000 in respect of non-pecuniary damage to the first applicant; EUR 10,000 in respect of non-pecuniary damage to each of the second and third applicants.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes