CASE OF PIU AND CÎRSTENOIU v. ROMANIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Iulia Motoc;Marko Bošnjak;Nona Tsotsoria
5. The first applicant was born in 1980 and the second applicant was born in 1981. They live in Jdioara and Darova respectively. 6. On 16 November 2012 the first applicant’s husband, Mr Ciprian Ionel Piu, went to the forest near Jdioara, accompanied by I.M.R. and L.D. The latter was the son of I.D.D., a local police officer 7. According to the applicants, they all took part in an illegal logging operation. The person who organised the aforementioned operation was L.D. He regularly recruited young men from the village to do this. He bought them alcohol and took them to the forest without providing them with the necessary protective equipment or with any essential safety information. His practices, known by the locals, had created two other victims previously. One of the victims had died and the other had suffered serious injuries. The investigations opened into the aforementioned two incidents had failed to identify and punish those responsible, because of the alleged involvement of local police officers. 8. According to the first applicant her husband’s death happened in suspicious circumstances and the perpetrators of the offence were police officers and others protected by them. She further stated that on the day her husband went to the forest she and her family were informed by a third party that her husband had met with an accident. They went looking for him and found him dead in the forest. 9. On 16 November 2012 the Gavojdia Police Department was informed about the incident by a third party. 10. On the same date, the aforementioned police department, in particular police officers C.S. and M.S., carried out an investigation at the scene of the accident (cercetare la fața locului) in the presence of two assistant witnesses, namely I.M. and V.A. 11. On the same date the Gavojdia Police Department, namely police officer C.S., opened of its own motion a preliminary investigation against I.M.R. for involuntary manslaughter (ucidere din culpă). 12. On the same date police officer C.S. asked the Timişoara Forensic Institute to produce a forensic necropsy report. He asked the aforementioned institute to establish the victim’s cause of death, whether the victim’s body had signs of violence, and if so what had caused them, as well as the alcohol level in the victim’s blood. 13. On 17 November 2012 and 3 October 2013 police officer C.S. took a statement from I.M.R. with regard to the circumstances of the accident. 14. On the same date the Timiş Forensic Department produced a medical certificate confirming the first applicant’s husband’s death. According to the aforementioned report, his death had been violent and had been caused, inter alia, by a closed angle cranium-cerebral trauma and by the resulting haemorrhage. 15. On 15 January 2013 the Timişoara Forensic Institute produced the forensic necropsy report (see paragraph 12 above). It concluded that the victim’s death had been violent and had been caused by an acute cardiorespiratory insufficiency following a cranial cerebral trauma and a resulting haemorrhage. Moreover, the signs of violence discovered on the victim’s body could have been caused by being hit with or striking against a hard object in the context of the impugned forest accident. Furthermore, the alcohol level in the victim’s blood was 1.05 grams for every thousand millilitres. 16. On 6 February, 26 February and 13 May 2013 police officer C.S. took statements from members of the victim’s family, including the victim’s mother and the first applicant, who had asked the authorities, inter alia, to punish those responsible for the death of their relative. 17. On 8 February 2013 police officer C.S. took a statement from L.D. with regard to the circumstances of the accident. 18. By a report (referat) of 19 March 2013 police officer C.S. noted that LDIACR and the victim’s family had made repeated requests for the investigated offence to be requalified from involuntary manslaughter to murder. Consequently, he proposed that the case be referred to the Timiş Prosecutor’s Office, which had the competence to investigate such allegations. 19. In March 2013 the victim’s mother also asked the Lugoj Prosecutor’s Office to open a criminal investigation against L.D., I.M.R. and I.D.D. for murder (omor). 20. On 26 March 2013 the Lugoj Prosecutor’s Office noted the victim’s family’s requests for a murder investigation and decided to refer the case to the Timiş Prosecutor’s Office, which had the competence to investigate the allegations. 21. On 8 April 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation (neȋceperea urmăririi penale) against L.D., I.M.R. and I.D.D. for murder. Moreover, he referred part of the case back to the Lugoj Prosecutor’s Office for the investigation against I.M.R. for involuntary manslaughter to be continued. The prosecutor held that according to the available evidence and the statements of I.M.R. and L.D., the victim’s death had been the result of an accident and had not been caused intentionally by any of the suspects. That decision was communicated to the victim’s mother. 22. On 22 and 23 May 2013 both the victim’s mother and the first applicant joined the criminal proceedings as civil parties and claimed pecuniary and non-pecuniary damages. 23. On 17 October 2013 police officer C.S. took the testimony of I.H., one of those familiar with the events which had resulted in the first applicant’s husband’s death. 24. By a report of 14 November 2013 police officer C.S. proposed not to open a criminal investigation (neȋceperea urmăririi penale) against L.D. and I.M.R. It established that on the day of the incident the first applicant’s husband had gone to the forest by tractor together with L.D. and I.M.R., the owner and operator of the tractor, to collect dried wood. While they had been using the tractor to tow a tree the aforementioned tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. Because the victim had not been an employee of a company at the time of the accident, what happened could not have been considered a work accident. The witness I.H. had testified that he did not know how many people had gone to the forest that day or any other details concerning the accident. Also, the witness R.S., another person familiar with the events which had resulted in the first applicant’s husband’s death, was unavailable for questioning because he had left the country. 25. The report held that the first applicant’s husband’s accident was caused by a flawed logging operation, which had not foreseen solutions that could have reduced or eliminated the risks of him suffering an accident. He had not kept a safe distance from the tree which was being towed with a flexible steel cable, so that the directions of its movement could not have been controlled. Also he did not have the appropriate equipment for working in the forest. 26. The report further held that L.D. had not been close to the area where the accident had happened, and therefore he could not have been responsible for an act of involuntary manslaughter. Furthermore, the impugned act had lacked one of the elements of an offence, namely guilt. An act which had occurred as a result of unforeseeable circumstances (caz fortuit) could not amount to an offence. The suspects had been unable to foresee that event, notably the fact that the tree had changed direction while it was moving, thus killing the victim. 27. On 26 November 2013 a prosecutor attached to the Lugoj Prosecutor’s Office examined the aforementioned proposal and decided not to open a criminal investigation against L.D. and I.M.R. The decision was communicated to the first applicant’s mother-in-law. 28. The first applicant’s mother-in-law challenged the decision before a superior prosecutor. 29. On 27 January 2014 a superior prosecutor attached to the Timiş Prosecutor’s Office allowed the victim’s mother’s challenge, quashed the decision of 26 November 2013 (see paragraph 27 above), and referred the case back to the Lugoj Prosecutor’ 30. In March 2014 the Lugoj Prosecutor’s Office ordered the Lugoj Police Department to reopen the investigation into the circumstances of the first applicant’s husband’s death. 31. On 11 March 2014 the Lugoj Police Department decided to open a criminal investigation against L.D. and I.M.R. for involuntary manslaughter. 32. On 19 March 2014 the victim’s mother lodged a challenge (cerere de recuzare) against the investigators of the case and asked for the investigation to be carried out by investigators outside Timiş County. She alleged that the inquiry had been delayed by the investigators and that they had been trying to unlawfully protect those responsible. 33. On an unspecified date the victim’s mother informed the Lugoj Prosecutor’s Office that her challenge had not concerned police officer C.A., who was investigating the case after the reopening of the proceedings, or the prosecutor who was supervising the aforementioned police officer. 34. On 7 April 2014 a prosecutor attached to the Lugoj Prosecutor’s Office dismissed as inadmissible the victim’s mother’s challenge (cerere de recuzare) against the investigators of the case and her request for the investigation to be carried out by investigators outside Timiş County. It held, inter alia, that the victim’s mother had failed to indicate any of the reasons provided by law for a challenge in order to support her application. Furthermore, there had been no evidence that police officer C.A., had lacked impartiality. The decision was communicated to the victim’s mother. 35. On 19 May, 23 and 24 June 2014 the Lugoj Police Department questioned I.M.R. and L.D. and took R.S.’ 36. On 20 May 2014 the Lugoj Police Department asked an appointed expert to produce a technical expert report by 10 June 2014 in order to clarify the circumstances of the victim’s death and to identify those responsible for the accident. 37. On 10 June 2014 the aforementioned expert produced his report. 38. On 24 June 2014 the Lugoj Police Department took the victim’s mother’s statement. In her statement she had acknowledged that she had been given a copy of the technical expert report produced in the case and that she had no objections in respect of the appointed expert or the content of the report. 39. By a report of 25 June 2014 the Lugoj Police Department proposed to close the criminal investigation against L.D. and I.M.R. It held, inter alia, that once L.D., I.M.R. and the first applicant’s husband were in the forest they had started moving trees from a difficult area to a more easily accessible one, using the tractor being operated by I.M.R. Before they had started moving a fourth tree, L.D. had been sent to collect some of their belongings which had been left in a different location. Meanwhile, the first applicant’s husband had attached the tree to the tractor and had signalled I.M.R. to start moving the tree. During the moving operation, the tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. 40. The report also held that according to I.M.R.’s statement the time which had elapsed between the moment he had checked (s-a asigurat) that the first applicant’s husband was at a safe distance from the tree and the moment the victim was hit by the said tree was very short. Once he had realised what had happened he had stopped the tractor immediately and rushed to help the victim. When L.D. had returned with their belongings, I.M.R. had asked him to call the emergency services. As L.D. had not been able to make a phone call in the forest because of poor cellular network, he had decided to rush towards the village in search of a better location for a phone call. Eventually L.D. had reached the village of Jdioara and had managed to call the emergency services. At the same time he had met the victim’s brother and had informed him of the accident. Subsequently, L.D. had gone home in order to wait for the police and the ambulance in order to lead them to the location of the accident. Once L.D. had returned to the location of the accident accompanied by the police, he had been advised to leave again in order to avoid a potential conflict with the victim’s family. 41. The report further held that R.S., the witness proposed by the victim’s mother, had stated that he had been at work at the time of the accident and had been informed about the victim’s death by telephone. 42. The report noted that according to the technical expert report the main cause of the accident was the victim’s failure to position himself at a safe distance from the tree and to maintain permanent visual contact with I.M.R. in order to determine whether the moving tree had stopped or had become stuck. Therefore, he had breached the relevant safety and security norms for working in the forest and had not been wearing protective equipment, in particular a helmet. If the victim had been positioned correctly, the accident would not have happened even if the tree had started rolling. Another important cause of the accident was the fact that according to the toxicology report the victim had been working under the influence of alcohol. 43. Relying on the aforementioned considerations and the conclusions of the technical expert, the report concluded that the individuals responsible for causing the accident could not be identified. However, it was clear that the two suspects had not been at fault. Moreover, the relevant legislation concerning work safety had not been applicable because those involved in the incident were not employees. 44. On 30 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close (clasat) the criminal investigation opened against L.D. and I.M.R. The prosecutor held on the basis of the available evidence that none of the suspects had been responsible for the victim’s death. The incident had been the result of unforeseeable circumstances given that the tree had been towed with a flexible steel cable whose direction of movement would have been impossible to control, and there was no appropriate equipment for working in the forest. It would have been impossible for the suspects to foresee the event, as the tree had changed direction while it was moving and thus had killed the victim. Moreover, L.D. was not near the location of the accident at the time. Consequently, there was no connection between his conduct and the act of involuntary manslaughter. 45. On 3 July 2014 the aforementioned decision was communicated to the victim’s mother at her home address in Lugoj. 46. The second applicant is the first applicant’s brother. 47. On 2 July 2013 the second applicant and two of his brothers lodged a criminal complaint with civil claims against L.D. and R.S. for assault, insult, slander and attempted murder. They also lodged a criminal complaint with civil claims against an unidentified gendarme for assault, abuse of office, and misconduct. The second applicant argued that on 30 June 2013 he had visited the first applicant in Jdioara and had taken part in a ceremony commemorating his brother-in-law. After the ceremony had ended he had been followed by L.D. and R.S.; the former had hit him, rendering him unconscious. Subsequently, both L.D. and R.S. had punched and kicked him. After a police officer and two unidentified gendarmes had arrived at the scene of the incident, he had been threatened, caught by the nose, slapped and cursed by one of the two unidentified gendarmes. 48. On 4 July 2013 the Timişoara Forensic Institute produced a forensic report concluding that the second applicant had suffered traumatic lesions which could have been sustained on 30 June 2013 and could have been the result of being hit by or against hard objects. Moreover, the lesions had required seven days of medical care, in the absence of complications. 49. The forensic report noted that the forensic examination had established that the second applicant had suffered a bruised left eye and injuries to the lower and upper lip and to his forehead. Moreover, it noted that according to the medical documents produced by the Lugoj Town Hospital on 1 July 2013 the second applicant had been taken to hospital by ambulance and had suffered, inter alia, an acute closed cranium cerebral trauma and contusions on the nasal pyramid, lower jaw and thorax. 50. On 27 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case on the grounds that there was no evidence that the suspects had committed the alleged offence. 51. The second applicant challenged the decision before a superior prosecutor. 52. On 6 October 2014 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of the lower prosecutor. 53. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. 54. On 20 January 2015 the Lugoj District Court allowed the second applicant’s appeal, quashed the Lugoj Prosecutor’s Office’s decisions, and referred the case back to the aforementioned prosecutor’s office in order for a criminal investigation to be opened against L.D. It held that the prosecutor’ 55. On 23 June 2015 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case in respect of L.D. At the same time it disjoined part of the case and referred it back to the Gavojdia Police Department in order to continue the investigation and identify the perpetrators of the alleged offences. The prosecutor noted that even though the victims of the incident had been heard again and they had repeated their earlier statements as well as their request for those against whom they had complained to be punished, they had not asked for additional evidence to be adduced to the case file. Also, seven witnesses had been heard again in the case, but none of them had provided new information about the events of 30 June 2013. None of the said witnesses could have confirmed that L.D. or another person had hurt or threatened the second applicant. Only one of the witnesses had testified that he had seen the second applicant on the ground at the site of the incident and that the latter had told him that L.D. had hit him. However, the aforementioned witness had also stated that at the moment of his conversation with the second applicant he had not seen L.D. in the area and therefore he could not have confirmed the second applicant’s statement. 56. The prosecutor also noted that even though the victims of the incident had later declared that they knew the identity of the perpetrators, at the time of the incident and after the police had arrived they had been unable to identify the perpetrators and had stated that they did not know their identity. 57. The prosecutor further noted that one of the witnesses proposed by one of the second applicant’s brothers had not been heard because he had left the country and no substitute had been suggested. Also the applicant’s other brother, who had also been involved in the incident, was not interviewed after he had lodged his complaint against the alleged perpetrators, and there was no evidence that he had been threatened or coerced to remain silent. 58. The prosecutor held that even though the occurrence of the incident of 30 June 2013 had not been contested and had been proven by the available forensic report, it was not possible to establish clearly that L.D. or R.S. had committed the alleged offences, as they had not been seen at the site of the incident or in the company of the victim. Given the absence of direct and clear evidence which could have proven L.D.’s or R.S.’s guilt, there is doubt that they committed the alleged offences, which works to their advantage. 59. The second applicant challenged the decision before a hierarchical prosecutor. 60. On 21 July 2015 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of 23 June 2015. 61. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. He argued, inter alia, that the decisions of the prosecutor’s office had been unfair and unlawful and had both protected and failed to investigate the State agents involved in the incident. 62. By a final judgment of 6 October 2015 the Lugoj District Court dismissed the second applicant’s appeal and upheld the decisions of the prosecutor’s office. It held that the investigating authorities had heard evidence from the victims, the suspects and the witnesses in the case and had correctly established the facts of the case. 63. To the knowledge of the Court the investigation against other possible perpetrators of the incident of 30 June 2013 is still open. 64. On 14 January, 8 March, 2 July, and 10 December 2013 the applicants or their family informed LDIACR about the abuses that had allegedly been committed against them and against their family by L.D., R.S. and certain local police officers on 16 November 2012 and after that date. Moreover, they voiced their concern that the investigations initiated into the first applicant’s husband’s death and into the incident of 30 June 2013 had been suppressed and delayed because of the family relationships between one of the suspects and several local police officers. Consequently, they asked LDIACR for help in punishing those responsible. 65. On 8 and 13 February 2013 LDIACR informed the Romanian Ministry of the Interior and the Timiş County Police Department about the applicants’ and their family’s allegations, including the alleged family relationships between one of the suspects and several local police officers, and asked them for an investigation. 66. On 17 April 2013 the Internal Affairs Department of the Timiş County Police Department informed LDIACR, inter alia, that the issues raised by the non-governmental organisation in its notifications could not be established as fact. 67. On 17 October 2013 the Internal Affairs Department of the Romanian Police notified LDIACR that its allegations did not refer to acts or circumstances which had clearly attested that certain police officers had willfully (cu vinovăție) breached the relevant ethical and deontological standards and/or those concerning the fulfilment of their professional duties. 68. On 8 February 2013 LDIACR initiated proceedings before the Timiş Prosecutor’s Office denouncing an abuse of office (abuz în serviciu) allegedly committed by the local police officers involved in the investigation of the first applicant’s husband’s death. It argued, inter alia, that police officer I.D.D., together with two other police officers who were his brother-in-law and son-in-law, had manipulated the investigation, had tried to protect their own interests, and had attempted to distort the truth about what had happened on the day the first applicant’s husband died. 69. On 2 October 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation against the aforementioned police officers. It held, inter alia, that the three police officers who were the object of the denunciation were identified as I.D.D., G.B. and C.S. Moreover, given the statements taken from the police officers and from the first applicant, there was no indication that I.D.D. and G.B. had committed any act of abuse of office, as they had not been involved in the investigation into the first applicant’s husband’s death. Also, the first applicant’s husband had been asked to take part in the logging operation by L.D., and therefore there had been no indication that I.D.D. had incited the victim to commit an offence. Furthermore, there was no sufficiently strong indication that police officer C.S. had knowingly failed to fulfil or had insufficiently fulfilled his lawful duties during the investigation into the first applicant’s husband’s death, or that he had affected the legal interest of the victim’s family. 70. The decision was communicated both to LDIACR and to the first applicant. 71. LDIACR challenged the decision before a superior prosecutor attached to the Timiş Prosecutor’s Office. It argued, inter alia, that its action had been based on statements made by the victim’s family and by villagers. Moreover, the investigators had ignored I.D.D.’s threats and aggressive behaviour towards the family of the victim, as well as the fact that two other similar incidents had happened in the area before 16 November 2012. 72. On 9 October 2013 a superior prosecutor attached to the Timiş Prosecutor’s Office dismissed LDIACR’s challenge and upheld the decision of the lower prosecutor. The decision was communicated to LDIACR.