CĂCESCU v. ROMANIA
Inadmissible
Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
1. The applicants, Mr Eduard Mihael Căcescu (“the first applicant”), Mr Mihael Căcescu (“the second applicant”) and Mrs Viorica Căcescu (“the third applicant”), are Romanian nationals who were born in 1982, 1949 and 1952 respectively and live in Tecuci. The second and third applicants are the first applicant’s parents. They are all represented before the Court by the second applicant, who is a lawyer practising in Tecuci. 3. On 9 December 2000 the first applicant, who was then eighteen years old, went with eleven school friends in four cars to a neighbouring town, Focşani, to attend a concert. After the event they drank soft drinks and coffee at a restaurant. At around 1 a.m. they returned to their cars in order to leave for home. The applicant was on the back seat of one of the four cars when a patrol composed of a police officer and a gendarme approached him and asked him to produce the car papers. 4. According to the applicant, he replied that he did not have the papers as he was not the driver. The police officer became angry and told him to step out of the car. When the applicant did so, the police officer immobilised him and started to punch and kick him, hitting him about the head and mouth with his walkie-talkie. The applicant fell to the ground but the police officer continued kicking him in the mouth. The gendarme and two security guards from the restaurant also took part in the attack. 5. The first applicant was bleeding heavily and lost consciousness. When he woke up he was at the police station in Focşani, where he had been taken along with two of his friends. He was held there for three hours and informed that he would be fined for refusing to present his identity papers. The applicant refused to sign the contravention report, which he later contested before the courts. In a final decision of 12 September 2001 the Vrancea County Court annulled the report. 6. One of the first applicant’s friends contacted the second and third applicants and told them what had happened to their son. At 4 a.m. the parents went to Focşani police station and found their son bleeding, toothless and with torn clothes. They took him to Tecuci Hospital, where he was examined by a doctor and sent to Sfânta Elena Clinic in Galaţi. 7. The medical reports drafted on 11 December 2000 stated that the applicant had swollen lips, recent post-traumatic lesions and broken teeth. 8. From 12 to 18 December 2000 the first applicant underwent corrective dental surgery in Elisabeta Doamna Hospital in Galaţi. 9. On 27 December 2000 a forensic doctor issued a further medical report that confirmed the conclusions of the previous examinations and described the operations. It concluded as follows: “1. Căcescu Eduard Mihael presents traumatic facial and dental lesions which could have been caused by being hit with a hard object. 2. The lesions could have occurred on the night of 9/10 December 2000. 3. They require thirty to forty days of medical care from the day of their occurrence, if no complications arise, with the repair of broken teeth by means of prostheses.” 10. On 27 June 2002 the first applicant underwent a dental examination in a private clinic in order to assess the need for further treatment. The orthodontist noted that six teeth were still affected and needed prostheses, and that one tooth had been removed completely due to post-traumatic complications. The orthodontist mentioned that, in any case, the applicant’s teeth could not be restored to their original condition by more than 75%. The orthodontist estimated the cost of the surgery at 77,207,500 Romanian lei (ROL). 11. On 27 December 2000 the first applicant lodged a criminal complaint against the police officer, the gendarme and the two security guards. 12. The Bacău Military Prosecutor’s Office started investigations and on 16 May 2002 committed the police officer, the gendarme and one civilian security guard for trial accused of serious bodily injury causing disfigurement (“vătămare corporală gravă având ca urmare sluţirea”). In addition, the police officer was indicted for abusive behaviour (“purtare abuzivă”). 13. The applicants participated in the proceedings as civil parties. 14. Before the Iaşi Military Court the prosecutor asked for the offence to be re-classified as bodily injury, in the light of the medical reports. The civil parties objected to the re-classification. 15. On 5 February 2003 the Military Court gave judgment on the case. 16. On the facts, it found that the police intervention had been prompted by a fight that had occurred in the vicinity of the restaurant where the applicant had been drinking with his friends. It also found that when asked to identify himself, the applicant had refused and told the police officer that he “did not show identification papers to a night watch” and that his father was a lawyer. The court examined the evidence and ruled that only the injuries sustained to the head had been proven and that nothing in the case file supported the applicant’s allegations that he had sustained punches and kicks to his entire body while lying on the ground. As for the gravity of the abuse, the court noted that the first applicant needed only thirty to forty days to recuperate and had suffered only temporary aesthetic damage. 17. Given the less severe consequences of the abuse, the court changed the legal classification of the offence as proposed by the prosecutor. It then found, based on the evidence in the file, that by hitting the applicant in the face, the culprits had committed the offence of bodily injury (all culprits) and abusive behaviour (the police officer), and convicted them of those offences. The court gave the police officer a two-year suspended sentence and the other two culprits received eighteen-month suspended sentences. 18. Lastly, the court examined the civil claims in the light of the extensive evidence. It set aside part of the pecuniary claims as it found that they had not been properly justified, and held that the amount sought by the first applicant for non-pecuniary compensation was exaggerated. It therefore awarded him ROL 14,996,713 in respect of pecuniary damages and ROL 50,000,000 in respect of non-pecuniary damages. It dismissed entirely the non-pecuniary claims lodged by the second and third applicants, as it held that they were not entitled to make any claims in the proceedings and that in any case they could enjoy the award made to the victim under that head. 19. All the parties appealed against the judgment. On 24 June 2003 the Bucharest Military Court noted that general Amnesty Law no. 543/2002 was applicable to the criminal sentences in the case and modified the judgment accordingly. It maintained the lower court’s decision concerning the civil awards and noted that recent expert medical reports had attested that the victim had by then recovered completely as a result of treatment. 20. The accused persons appealed on points of law. In a final decision of 30 October 2003 the Bucharest Military Court of Appeal dismissed the appeals and upheld the decision of 24 June 2003. The final decision became available to the parties on 14 November 2003.