CASE OF GHIŢĂ v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
6. The applicant was born in 1961 and lives in Bucharest. 7. At 1 a.m. on 3 May 2006 the applicant and Ms C.B. were sitting in his car, which was parked in a spot where the street lights were not working. A police patrol of two officers from the Public Order Unit of Bucharest Police Section No. 3 approached the car and asked for their identity papers. 8. The applicant presented his passport and driving licence for inspection. Police officer D.U. asked him, “Do you think you are at border control?” (“bă, ce te crezi, la vamă?”) and asked him to present his Romanian identity card (cartea de identitate). The police agents checked his identity but then refused to return his papers, claiming that he was drunk. The applicant denied being drunk and offered to go to the Forensic Medicine Institute to have his blood alcohol level tested. The police refused, saying that they were not traffic police. 9. Police officer A.H. took the identity papers and went to the police van. Meanwhile, officer D.U. invited the applicant to step out of his car and prove that he was not drunk. When the applicant got out, the police officer pushed him between his car and the wall of a building. The applicant said: “Poor old chap, you’re behaving like a militiaman” (“tataie, te porţi ca un miliţian”). D.U. immediately handcuffed the applicant with his hands in front. He then pulled the handcuffs down, causing the applicant to fall to the ground. 10. The two officers then kicked him several times, first in the stomach then in the kidneys. His glasses came off and his mobile phone fell to the ground. The applicant started shouting. The two officers pulled him to his feet and hustled him into their van. 11. During this time Ms. C.B. was still inside the applicant’s car and because it was dark she could not see outside. A.H. returned to the applicant’s car and invited Ms. C.B. to accompany them to the police station, which she did. A.H. drove the van and D.U. sat on the back seat with the applicant and continued to punch him in the head, eyes and temples all the way to the police station. The applicant protected his mouth and nose with his handcuffed hands. 12. At the police station the applicant was taken to a room in the basement. His glasses and mobile phone were returned to him. He immediately called M.N., a lawyer friend, and told him that he had been beaten up by police officers. The lawyer asked him to pass the phone to one of the police officers. After a phone conversation between the lawyer and agent A.H., the police took the handcuffs off the applicant and allowed him to leave the station, after asking him not to press charges. 13. The police agents drafted a report on the incident which they dated 3 May 2006. It was registered with Police Section No. 3 on 29 May 2006. 14. They stated that they had approached the applicant’s car as they had noticed that the occupants were having sexual intercourse; they had to insist that the applicant present his passport for identification; after obtaining the identity papers, they had asked Ms. C.B. to get into their van while they drafted the offence report (procesul verbal de contravenţie). At that moment, the applicant became aggressive, threw his glasses, mobile phone and then himself to the ground, shouting that he was being abused by police. Their description of the incident continued as follows: “To defuse the situation we decided to handcuff [the applicant] and take him and [Ms C.B.] to the [police station]... We had to use physical force to handcuff [the applicant] because he himself was using physical force against us, trying to push us away while threatening us. He deliberately hit his head on the ground and on the van doors. It was only with difficulty that we managed to protect him from his own violence and agitation. After the discussions we had at the police station... he calmed down and apologised for his previous behaviour, claiming that he was drunk and got scared that his wife would find out about what had happened that night. We took note of the change in his behaviour and decided to give him a verbal warning.” 15. Officer D.U. drafted a standard report on the use of force during the incident. He described the incident in a few lines and recorded that he had used physical force and handcuffs. He described the applicant as being under the influence of alcohol and aggressive, refusing to calm down and thus disturbing public order. He left blank the box on the report form concerning any visible injuries on the applicant. He reported that the applicant had been sanctioned with a verbal warning. Lastly, the police agents wrote an offence report on Ms C.B., whom they fined 500 new Romanian lei (RON) for prostitution. She admitted the offence and signed the report. 16. The Government shared the point of view of the official reports on the incidents. They stated that the police officers had approached the applicant and Ms C.B. that night, informing them that they were about to be fined for engaging in sexual intercourse. Ms C.B. had previously been on trial for prostitution by this time. The applicant was under the influence of alcohol, refused to present his identification papers and threatened the police officers with allegations that he had relatives in the police hierarchy. He got out of the car and handed his passport to officer D.U., but started shouting that he was being abused by police, then lost his balance, fell to the ground and injured himself. He became aggressive and police agent H.A. had to use handcuffs to restrain him. 17. At 11.35 a.m. on 3 May 2006 the applicant consulted a forensic doctor, who drafted a medical report, noting as follows: “– tumefaction of the right temporal bone with inhomogeneous ecchymosis of approximately 4.4/4.5 cm; – right upper eyelid showing inhomogeneous purple ecchymosis of approximately 1.5/1.5 cm; – left lower eyelid showing inhomogeneous purple ecchymosis of approximately 3/1.5 cm; subconjunctival haematoma in the external quadrant of the left eye; – inhomogeneous purple ecchymosis on the left temporal bone with a subjacent tumefaction of approximately 4.5/4.5 cm; – red ecchymosis of approximately 3.5/1.5 cm (3.5 cm on the horizontal axis) on the cervical inferior median artery; – bilateral, radial, red horizontal marks of approximately 3.5/0.5-0.8 cm each around the radio-carpal articulations; – complaints of headaches, bilateral lumbar pains.” 18. At 12.33 p.m. the forensic doctor noted the existence of bruising and that the temporal bone had not been damaged. The X-ray and ultrasound scan revealed no damage to the lungs, internal organs or spine. 19. The applicant was hospitalised from 29 to 31 May 2006 for further investigation of his severe and persistent headaches. No cranial trauma was discovered. 20. On 6 June 2006 the Mina Minovici National Forensic Institute (“the Forensic Institute”) issued a report reiterating the findings above and concluding as follows: “[The applicant] had, on the date of the examination by [the Forensic Institute] (3 May 2006) traumatic injuries that could have been produced on the same day by being repeatedly hit with a hard object and possibly through being handcuffed (lesions noted around the radio-carpal articulations bilaterally). He needed eight to nine days of medical care.” 21. The applicant submitted pictures taken on 4 May 2006 which show bruises on his right temple, bruising around both his eyes and redness around his left eye. He also submitted several pictures of the place where the incident had occurred. 22. On 10 May 2006 the applicant lodged a criminal complaint against the two police officers. The Criminal Investigation Unit of Bucharest Police interviewed the applicant, the two police officers, Ms. C.B. and the applicant’s lawyer friend. 23. On 13 July 2006 the applicant was interviewed by the investigators. He presented his version of the events, claiming police brutality. He admitted to having drunk two spritzers and an espresso earlier in the evening of the incident. He said that he had shouted at the police that night, but that he had only been trying to protect himself from their aggressive behaviour. 24. The two officers denied inflicting any violence on the applicant. Their version of the events reiterated the statements made in the official police report of 3 May 2006. They claimed that they had informed the applicant that he and Ms. C.B. were committing an offence, for which they were going to be sanctioned. They stated that the applicant had started shouting and had become violent, thus disturbing public order. They had therefore been forced to take action, by handcuffing him and taking him to the police station. 25. In her statement of 7 July 2006, Ms. C.B. admitted that she and the applicant had been negotiating a price for sexual services when the police had arrived. She said that the applicant had been drunk, loud and abusive towards the police officers. She had seen the applicant fall to the ground and be helped up by the police officers, who had then handcuffed him with his hands behind his back and escorted him to the police station. She did not see the police officers being violent towards him during the incident or at the police station. According to her statement, the applicant hit his eye when he fell to the ground and banged himself on a step. 26. M.N. was interviewed on 18 July 2006. He stated that the applicant had called him that night, had sounded scared and had claimed to have been beaten up by police officers. M.N. stated that the officer had explained over the phone why the applicant had been taken to the police station and informed him that the applicant was not under arrest. Five minutes later he called the applicant again on his mobile phone, by which time the latter had already been released. 27. On 18 July 2006 the police sent the file to the Prosecutor’s Office of the Bucharest District Court for further investigation of the accusation of abusive behaviour, and to the District Court regarding the applicant’s allegations that he had been hit and had suffered other forms of violence. 28. On 25 August 2006, based on the evidence gathered by the police and without hearing fresh testimony from those involved in the incidents, the Prosecutor’s Office decided not to prosecute. On 10 October 2006 the head of the Prosecutor’s Office upheld that decision, despite the applicant’s complaint. 29. On 6 November 2006 the applicant complained to the Bucharest District Court about the prosecutor’s decisions, citing police brutality and the lack of an effective investigation. 30. On 12 December 2006 the District Court dismissed the complaint. On the basis of the documents in the file and after hearing pleas from the parties’ representatives and the prosecutor but not from the applicant or the police officers involved in the events, it established that the applicant had behaved aggressively that night, had been under the influence of alcohol, had disturbed public order and had deliberately tried to hurt himself. It found no evidence in the file that the reports made by the police officers were untrue, and noted that the applicant had not contested their veracity. It also noted that the applicant had been engaged in illegal activities, which gave the police permission to intervene, to check his identity and to prevent him from continuing. Lastly, it reiterated that according to the applicable law, the police were not to be held responsible for minor injuries caused to a person during the lawful exercise of their powers. 31. The applicant appealed, dissatisfied in particular with the interpretation given by the court of the evidence in the file, and pointing out that he had not complained about the reports made by the police on the incidents, but about the police officers’ brutality that night. 32. In a final decision of 26 April 2007 the Bucharest County Court reexamined the evidence in the file and upheld the District Court’s judgment. The decision became available to the parties on 8 June 2007.