CASE OF STOICA v. ROMANIA
Violation of Art. 3;No violation of Art. 13;Violation of Art. 14+3;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1987 and lives in Gulia, a village with an 80% Roma population in the commune of Dolhasca, Suceava county. 6. On 3 April 2001 the deputy mayor, four police officers from the Dolhasca Police Force and their chief, six public guards from Dolhasca and a driver, left in three cars to enforce a by-law against owners whose cattle were grazing on public pasture. Three of the public guards were wearing black uniforms with hoods and carrying truncheons. At around 8 pm, on their way back to Dolhasca Police Station, they entered C.C.’s bar in Gulia to check the owner’s documents. A conflict arose between the authorities and the 2030 Roma gathered in front of the bar. The parties’ submissions differ as to the sequence of events. 7. F.L., a villager of Roma origin, was just leaving the bar as the police entered. Sergeant D.T. asked him whether he was a “Gypsy (ţigan) or Romanian”. When F.L. answered that he was a Gypsy, the deputy mayor asked the police officers and the public guards to teach him and the other Roma “a lesson”. The police and public guards started beating F.L. and other Roma who happened to be in the vicinity of the bar. 8. The applicant, who had just bought something from a nearby shop, ran away with other children, but was tripped up by D.T. who started beating, kicking and hitting him on the back of his head and pushed him into a ditch. The applicant told D.T. that he had just undergone head surgery and that the beating could endanger his life. D.T. continued beating him until the applicant lost consciousness. Several persons, including the applicant’s schoolmates witnessed the incident. The deputy mayor and police officers were heard shouting racist remarks. 9. The officials left the premises, leaving the applicant unconscious on the ground. A.S., V.D. and I.C., witnesses to the incident, carried him to his parents’ home. 10. The deputy mayor entered C.C.’s bar with a police officer and complained about the insalubrious conditions in the premises and that C.C. allowed people to drink excessively. 11. C.C. asked his customers to leave the bar. During the discussions with the authorities, C.C. and his wife urged their customers, who were gathered in front of the bar, to antagonise the officials. The customers became aggressive. The police officers surrounded the deputy mayor in order to protect him. The officials returned quickly to their cars and left the premises immediately. The deputy mayor’s car, which was the last to leave, was attacked by the locals with bats. 12. On the evening of 3 April 2001 the applicant was taken by his parents to Sfânta Maria Hospital in Iaşi. 13. On 6 April 2001 he was examined by a doctor from the Iaşi Forensic Institute. The certificate issued recorded the following: “- On the exterior upper side of the left elbow: a discontinuous excoriation of 1,2x1 cm with red haematic crust. - The space between the scapula and the vertebras: purple transversal linear ecchymoses, ranging from 9x3,2 cm to 5,52x2,8 cm, two on the right side, one on the left side. - On the exterior side of the right arm: one red transversal linear ecchymosis of 5,5x2 cm. - The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior posttraumatic lesions... Conclusion Stoica Constantin presents with ecchymoses, thoracic concussion and excoriation, inflicted by a linear blunt instrument, which could date from 3 April 2001. He needs three to five days of medical care to recover.” 14. With regard to his medical history, the applicant was diagnosed with brain disease and was operated upon on 20 December 1999. On 12 April 2001, the Commission for the Protection of Handicapped Persons established that he had a first-degree disability which required permanent supervision and a personal assistant. 15. On 4 April 2001, the 3 April incidents between the Roma and the authorities were discussed in the Mayor’s office with representatives of the Prefect’s Office, the Government and the Roma Party. Several persons gave evidence, including the applicant’s mother and eyewitnesses. On 5 April 2001 a report was sent to the Suceava Police Inspectorate (“the Suceava Police”). 16. On 9 April 2001 the Romani CRISS, acting on behalf of the applicant, asked the commander of the Suceava Police to open criminal investigations into the incidents. The same day, they expressed their concern to the Prefect about the racist motivation behind the incidents. 17. On 18 April 2001 the Prefect informed the Romani CRISS that the Mayor’s investigation of 4 April, in which his representative had also taken part, had excluded the possibility of any racist motivation being behind these incidents. 18. On 18 April 2001 the applicant’s father lodged, on behalf of his son, a criminal complaint with the Bacău Military Prosecutor, against D.T., the other police officers and the deputy mayor. 19. On 5 June 2001 the Ombudsman, informed of the events by Romani CRISS, requested the opening of investigations by the Suceava Police, the Bacău Military Prosecutor, the Suceava Child Protection Agency and Suceava County Council and asked for compensation and aid for the applicant’s family. 20. On 20 August 2001 the Suceava Child Protection Agency informed the Ombudsman that conciliation proceedings had been started and that 2,000,000 old Romanian lei (ROL) had been awarded to the applicant’s family in aid for assistance in the psychological and medical recovery of the applicant. 21. On 29 May 2001 the Romani CRISS filed a criminal complaint with the Bacău Military Prosecutor against D.T. and the other persons allegedly responsible for the incidents, accusing them of abusive behaviour. 22. The Suceava Police, hierarchically superior to Dolhasca Police Force, started the investigations into the case. 23. On 7 May 2001 evidence was heard from villagers D.D. and F.L., eyewitnesses, F.S., the applicant’s mother and A.S., the father of another alleged victim. They stated that either police officers or public guards had tripped up and then beaten the applicant. 24. Two police officers and the deputy mayor gave evidence on 8 May 2001. They stated that C.C. criticised the deputy mayor, alleging that he had won Roma votes by making false promises which he had reneged upon when elected. These words had roused the Roma gathered in front of the bar to protest against the officials, to insult them in Romani and to attack their cars as they were leaving. They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the premises in a hurry by car. 25. Villager L.D. testified the same day that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching. 26. On 16 May 2001, the police heard evidence from the applicant. He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach, kicked him in the back and beaten him with a truncheon. 27. Giving evidence on the same day D.T. denied that he had beaten the applicant, declared that he had not even been carrying his truncheon that day and gave the same version of the facts as the other police and public guards. 28. Two police officers and four passers-by gave evidence that day, all stating that no violence had been used by the authorities. 29. On 1 June 2001 the Suceava Police sent its final report to the Bacău Military Prosecutor. It proposed not to press charges against the accused persons. 30. On 11 June 2001 the Suceava Police informed the Ombudsman and the Romani CRISS that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending, and that the final decision would be taken by the Military Prosecutor’s Office. On 11 July 2001 the Suceava Police informed the Ombudsman that the case had been sent to the Bacău Military Prosecutor with recommendation not to press charges. 31. On 20, 21 and 31 August, 3 and 13 September 2001 the prosecutor heard evidence from several persons: C.C., the owner of the pub, and E.C., his wife, the applicant, his father, D.S., and mother, D.F., four villagers who had witnessed the conflict, the deputy mayor (twice), the eleven police officers and guards, including D.T. and four passers-by. All of them maintained the version of events they had given to the Suceava Police. The Roma involved contended, mainly, that they had seen the police officers and public guards using violence against some of the Roma children present while the officials denied the allegations. The passers-by supported the authorities’ version. The school principal and the head of the Roma Party stated that the Roma refused to send their children to school after the incidents, for fear of reprisal. 32. C.C. stated the following: “20 to 30 Roma armed with bats, axes etc. gathered around the three cars. I yelled at the deputy mayor: ‘We voted for you in the elections and now you come to kill our people!’ As the situation became tenser ... I yelled at the Roma present not to come close to the three cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for Dolhasca. The cars were not hit, but Roma were insulting the occupants of the cars until they left. I did not see any Roma getting beaten that evening by the police or public guards, but I heard later that D.S.’s son (the applicant) had been beaten by the police officers... While I was present, none of the police officers or public guards hit, insulted or threatened the Roma. It is not true that the conflict that evening was of a racial nature...” 33. His wife, E.C., confirmed his statements. 34. The applicant’s father stated in particular that: “Scared of what was happening in front of the pub ... my son came out [of the store] and started running home, but a public guard tripped him up and then Sergeant D.T. savagely beat him... My son ... ran home on the evening of 3 April 2001, out of fear, although he knew that he was not allowed to run [due to his medical condition].” 35. The applicant declared that: “Seeing what was happening, I got scared and started running home. After 4-5 steps, the police officer D.T. tripped me up, so I fell to the ground. After I fell I saw that officer D.T. wanted to hit my head with a truncheon, so I told him ‘don’t hit my head, I have had head surgery’. He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body, on my back and chest.” 36. On 23 August 2001 the Suceava Police informed the military prosecutor that the Dolhasca police officers had not filed a report in order to have criminal investigations started against the Roma for insulting behaviour, for the following reason: “[T]he way in which some of the Roma acted is pure Gypsy behaviour (pur ţigănesc) and does not constitute the crime of insulting behaviour.” 37. On 2 October 2001 the Bacău Military Prosecutor decided not to prosecute, as the evidence did not confirm the alleged violence against the applicant. The relevant parts of his decision state as follows: “At a certain point, bothered by the [deputy mayor’s] criticism, C.C. became verbally aggressive, complaining to the deputy mayor about certain aspects of his professional activity. C.C. came out of his bar and, speaking in Romani, incited the twenty-thirty Roma there present against the two officials [the deputy mayor and one of the police officers who accompanied him]. Considering that the situation was likely to degenerate, as the Roma were becoming extremely aggressive and violent, and as they were armed with blunt objects, the police officers surrounded the deputy mayor to protect him, then they got into their cars and left in a hurry towards the centre of Dolhasca. The Roma nationals (cetăţeni) attacked the last vehicle, where the deputy mayor was seated, with blunt objects, but no damage was caused since the vehicle was already leaving the area. C.C. declared that he had not seen any Roma being beaten by the police that evening. He also denied that the incidents amounted to racial conflict. His statement corroborates those of the police officers and public guards [who testified in the case]. Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the three cars had left. Moreover these witnesses’ statements are contradictory and do not corroborate the statements made by [the applicant and his father] who alleged that [the applicant] had been punched, kicked and beaten with the truncheon all over his body, including on his head... This conclusion tallies with the medical certificate in the file... The [applicant’s] witnesses’ statements show that when the incident started [the applicant] ran home, against the medical recommendations that had been made to him...” It also considered that C.C.’s statements, supported by those given by the police officers and public guards, confirmed that the conflict had not been racially motivated. 38. On 3 October the military prosecutor informed Romani CRISS of its decision, stating that “the evidence gathered showed that the applicant was not injured, insulted or threatened by the police officers”. 39. The applicant’s mother and Romani CRISS contested the conclusion reached in the investigations. 40. On 14 May 2002 the prosecutor’s decision was confirmed by the Military Prosecutor’s Office attached to the Supreme Court of Justice, on the ground that the case indicated that no violence had been inflicted on persons of Roma origin. 41. On 19 February 2002 the applicant’s father asked Romani CRISS to file a complaint with the competent authorities about some incidents that had occurred during the investigations. He alleged that, on 3 September 2001 the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the Romani CRISS representative. Consequently, some witnesses had refused to testify. Moreover, he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family. On 7 December 2001 a police patrol had come to the applicant’s house at around midnight but had left when told that the applicant’s father was not home. In February 2002 D.T. had allegedly threatened and punched the applicant’s grandfather. 42. On 19 February 2002 Romani CRISS forwarded the complaint to the Suceava Police, which dismissed it as unsubstantiated on 20 March 2002. 43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor Ruler are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). 44. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005). 45. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004).