CASE OF SAMACHIȘĂ 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)
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1956 and lives in Fălticeni. 6. On 31 July 2008, the applicant was driving to Galați accompanied by C.P. in a car registered in the United States of America. At about 7 p.m. they visited a mutual friend, O.C. Shortly thereafter, all three of them returned to his car, which was parked near O.C.’s home. They found it surrounded by three police cars, approximately ten police officers and dozens of curious civilians. 7. The applicant overheard one of the police officers informing his colleagues that they had found out the car registered in America had been involved in that accident in which some pedestrians had been injured. He informed the police officers that he was the owner of the car and denied that he had been involved in an accident. 8. The police officers immediately proceeded to detain the applicant aggressively, without checking his identity papers. Police officer G.S. twisted the applicant’s arm behind his back and hit him in the legs. The blow was so powerful that the applicant had to grab one of the police car’s wing mirrors and window in order to avoid falling down. At the same time he was hit on the head and his mouth was covered because he was shouting for, amongst other things, his identity documents, which were in his car. Police officer I.V.V. also punched the applicant repeatedly. 9. Once he was in the police car, the applicant was handcuffed with his hands behind his back and two police officers, who remained unidentified, continued to hit him. He lost his dentures and eventually fainted. Police officer R.P. travelled in a separate car and police officer M.G. drove the police car in which the applicant was detained. Consequently, the applicant concluded that those two officers could not have hit him. 10. At the police station police officer C.M. removed the handcuffs from the applicant. 11. On 31 July 2008, the applicant was caught speeding and refused to stop his car at a police officer’s request. When the police eventually found his car parked in an area surrounded by blocks of flats, the applicant and his friends became very agitated and the applicant refused to show his identity papers to the police officers. He claimed that he was immune to prosecution because he was an American citizen. 12. The police officers lawfully took the applicant to the police station in order to establish his identity and to fine him for speeding. According to eyewitness statements, the police officers handcuffed the applicant in a stern, but not abusive manner. They confirmed that the applicant and his friends had been verbally abusive towards the police officers. 13. On 1 August 2008, following a request by the applicant, the Galați Forensic Medical Service produced an expert report concluding that the applicant had suffered traumatic lesions which could have been sustained on 31 July 2008. It also concluded that he had suffered an injury to the lower lip and damage to the dental prosthesis next to his upper-right canine as a result of his being struck with a solid object, possibly on the chin. In addition, the skin on the bridge of his nose and the left side of his neck had been scratched by a hard and sharp nail-like object. The bruises located on his left shoulder and below his left clavicle had resulted from being struck with a solid object. The bruise on the inside of his right arm had resulted from finger compression. Also his left forearm and the back of his left hand had been scratched with or by solid sharp objects. The report concluded that the contusion of his thorax together with the bruise below his left clavicle would require, in the absence of any complications, four to five days of medical care in order to heal. The rest of the lesions would require one to two days of medical care to heal and he might have to have the prosthesis next to his upper-right canine repaired. 14. The forensic report stated that on 31 July 2008 the emergency unit of the Galați County Hospital had diagnosed the applicant with cranio-cerebral and thorax trauma, as well as a severe thorax contusion. The thorax X-ray that had been produced on the same date did not show any broken ribs or post-traumatic lung damage. Also the dental emergency unit attached to the same hospital had diagnosed the applicant with a contusion in the chin area as a result of a blow which had damaged the dental work on his upper-right canine. It stated that the repairs to his upper-right canine could require the destruction of his fixed maxillary prosthesis. 15. On 14 August 2008 the applicant underwent an encephalography at the Baia Mare County Hospital. He was advised to rest for ten days on account of anxiety. 16. At the applicant’s request, on 18 August 2008 the Suceava Forensic Medical Service produced a forensic expert report. The report stated that according to a dental specialist, the dental-alveolar lesions suffered by the applicant as a result of the assault of 31 July 2008 would require twentyeight to thirty days of medical care to heal and repair. 17. The forensic report further stated that according to the medical documents presented by the applicant, he had been prescribed treatment with pain killers for five days for his dental-alveolar lesions. In addition, his fixed maxillary prosthesis needed to be repaired as a result of the damage caused to his upper-right canine; the report estimated that the repairs would take thirty days. 18. On 4 August 2008 the applicant brought criminal proceedings against the police officers who had been involved in the incident of 31 July 2008 for violent behaviour. In addition, he requested that those responsible for the impugned events be brought to justice. He claimed that on 31 July 2008 he had been ill-treated by police officers and had suffered physical injuries, including damage to his dental prosthesis. 19. On 11 August 2008 O.C. and A.C., friends of the applicant and C.P., submitted two statements before the Galați Police Department. O.C. stated that when the applicant had returned to his car, police officers had already been waiting for him, claiming that the car had been involved in an accident, even though there had been no visible damage to the car. Although the applicant had attempted to present his identity papers to the police, they had abusively and violently grabbed him and handcuffed him. Subsequently, the applicant had been thrown into a police car and hit until he fainted. When O.C. had attempted to find out what police station the applicant was being taken to, one of the officers had elbowed him in the chest. 20. A.C. stated that on arrival at the police station she had noticed a smell of alcohol on the breath of one of the prosecution witnesses. The witness had been collected by the police officers from the terrace of a restaurant located near the scene of the incident. He had been insulting the applicant on account of his American citizenship. He had admitted that he had been drinking and when he had started becoming aggressive, one of the officers had asked him to leave the room. 21. On 14 August 2008 the investigating authorities heard D.Z. as a witness. He stated that he had seen the applicant park his car at the scene of the incident and run together with C.P. through the blocks of flats. The police had arrived shortly afterwards and waited for the applicant to return. When the applicant had returned the officers had asked him politely to identify himself. The applicant had refused vehemently to identify himself and claimed that the police officers could not touch him because he was an American citizen. As the police officers had been unable to reason with him, they had been forced to immobilise him in order to place him in the police car, which the applicant had almost wrecked. At the same time the applicant had continued to verbally offend the officers and him. He had seen the applicant being placed in the police car; the applicant had not been beaten by the police officers. Moreover, the applicant had not been abused, either physically or verbally, by the police officers at the police station. 22. On 20 August 2008 the investigating authorities heard M.M. and I.P. as witnesses. They both stated that they had seen police officers speak to the applicant and attempt politely to identify him. The applicant had refused to give his identity by shouting that he was an American citizen. The police officers had made several more attempts to politely reason with the applicant and once that had failed they had proceeded to immobilise him and to place him in a police car. Once inside the police car, the applicant had started shouting again, at which point several other bystanders, including M.M., had started to remonstrate with him. Consequently, C.P. had started insulting them. The witnesses further stated that they had not seen the police officers hit the applicant. 23. On an unspecified date C.P. stated before the investigating authorities that on 31 July 2008 when the applicant had been driving to Galați, she had noticed a police car on the road and had seen a police officer make a signal. However, it had not been the correct signal for a motorist to stop. The applicant had not stopped the car but had continued to drive. When they had arrived in Galați she had seen another police car, but the police had not signaled the applicant to stop. 24. On 3 February 2009 the prosecutor’s office attached to the Galați District Court discontinued the criminal proceedings brought by the applicant against the police officers, on the grounds that the police officers had not committed the offences of which they had been accused or that the alleged offences were not provided for by criminal law. It held, on the basis of the police officers’ statements corroborated by the statements of M.M., I.P. and D.Z. that the applicant had repeatedly refused to show the police officers his identity papers, despite warnings that he would be taken to a police station if he failed to provide proof of his identity. The police officers had attempted to take the applicant to the police station, but he had resisted. Consequently, the officers had immobilised him. When they had attempted to place him in the police car, he had continued to resist, physically struggling and being verbally aggressive towards them. The prosecutor’s office further held that the time required for medical care could not be confused with the time required for full recovery. In this connection, it noted that in the applicant’s case the reconstruction work that was needed on his upper teeth would take thirty days. Consequently, the thirty days referred to by the forensic expert report of 18 August 2008 could not be understood to mean days of medical care within the meaning of the law. Lastly, the use of force by the police officers had not been disproportionate and had been aimed solely at immobilising him. 25. The applicant challenged the decision before the superior prosecutor attached to the Galați District Court. He argued that the witnesses who had been heard had committed perjury, probably because they had been influenced by the police. 26. By a final decision of 19 March 2009 the superior prosecutor dismissed the applicant’s challenge. He held, amongst other things, based on the eyewitness statements, that the police officers’ actions had been in response to the applicant’s aggressive and offensive behaviour. Consequently, the police officers had not overstepped their bounds. Also, the number of days of medical care required by the applicant, according to the forensic expert report produced on 18 August 2008, concerned the period required for the reconstruction of his upper dental prosthesis and not the time it would take for the dental-alveolar lesions to heal. 27. The applicant appealed against the decision before the domestic courts. He argued that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused. 28. By a judgment of 16 October 2009 the Galați District Court dismissed the applicant’s appeal and upheld the decision of 3 February 2009. It noted, amongst other things, that according to the forensic expert report of 1 October 2008, the applicant had suffered injuries which required, depending on their severity, one to five days of medical care. In addition, according to the criminal investigation carried out in respect of the case, the police officers who had been involved in the events of 31 July 2008 were R.P., I.V.V., M.G., G.S., C.M. and T.R. as well as two Police Academy students, I.M. and A.I. According to the statements of C.M. and T.R., the applicant had been caught speeding. He had ignored T.R.’s signals to stop and had continued to drive. Consequently, C.M. and T.R. had asked their colleagues to locate and stop the applicant’s car. I.M. had made a second attempt to stop the applicant, but he had ignored the police sirens and the signals to stop. The police officers had searched for the applicant’s car and had eventually found it parked near O.C.’s home. According to the statements of R.P., M.G., I.V.V. and G.S., when the applicant returned to his car he refused the police officers’ request to show his identity papers on the grounds that he was an American citizen and was not subject to Romanian law. Even though he was informed that he had broken the law, he continued to refuse to show his identity papers to the police or to accompany them to the police station. 29. The court also noted that M.G. and R.P. stated that G.S. and I.V.V. had had to handcuff the applicant and force him into the police car, because he had refused to climb into the car and had resisted by grabbing the car door and wing mirror. G.S. and I.V.V. stated that after the applicant had been immobilised and forced into the police vehicle, during the drive to the police station he had continued to bang his head against the windows of the police car. At the police station C.M. had fined the applicant for the offence and prepared a police report, which had eventually been signed by the applicant. C.M. stated that from the time the applicant had arrived at the police station, he had had no further contact with the other police officers and had shown no signs of violence. 30. The court further noted that according to C.P.’s statement, she had seen the applicant being handcuffed and how several police officers had tried to place him in the police car, even though he had wanted to prove to them that he was an American citizen. She had not been allowed to travel with the applicant to the police station and when she had arrived there his clothes had been dirty and he had blood stains on his face. According to O.C., the applicant had been handcuffed prior to being placed in the police car and had not been asked to identify himself or told why was he being taken to a police station. O.C. had seen the applicant resisting getting into the police car, but the police officers had used force. He also contradicted the applicant’s statement that after leaving the police station they had gone to the Galați County Hospital. 31. The court also noted that D.Z. had seen the whole incident and had stated that the applicant had refused to identify himself because he was an American citizen and together with C.P. he had insulted the police officers and the other witnesses. Also the applicant had been forcefully placed in the police car because he had been behaving aggressively and had been grabbing the car door and wing mirror. D.Z.’s statement concerning the applicant’s behaviour had also been confirmed by witnesses I.P. and M.M. 32. The court held that according to the available evidence, in particular the witness statements of D.Z., G.S. and I.V.V., the applicant had had to be handcuffed because he had been behaving aggressively both prior to and after being placed in the police car as well as during the drive to the police station. The court noted that the applicant had claimed that the injuries he had suffered at the hands of the police had amounted to ill-treatment in breach of the guarantees set out in Article 3 of the European Convention on Human Rights. However, the European Court of Human Rights had been reluctant to sanction the behaviour of State agents if they had used force in order to counteract the aggressive behaviour of an arrested person. The applicant’s refusal to show the police officers his identity papers and his aggressive conduct on account of his foreign nationality had not been justified given that he had been informed that he had committed an offence and had a duty to observe the laws of the State. Consequently, the force used by the State agents did not appear excessive. 33. The applicant appealed on points of law (recurs) against the judgment. He argued that the prosecutor’s office attached to the Galați District Court had not been competent ratione materiae to carry out the criminal investigation in his case. The investigation had been superficial because not all the police officers involved in the events had been identified and because the police officers who had informed their colleagues that the applicant’s car had been involved in a car accident had not been heard. The authorities had refused to allow him to identify the individuals against whom the criminal proceedings had been brought, and witnesses C.M. and A.I. had committed perjury. At the time of the incident he had been denied the right to contact the American Embassy or a lawyer. The statements of witnesses C.P. and O.C. had been incomplete, and the first-instance court had ignored the fact that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused. 34. By a final judgment of 18 February 2010 the Galați District Court dismissed the applicant’s appeal on points of law. It held that the prosecutor’s office attached to the Galați District Court had been competent ratione materiae to carry out the criminal investigation in the case. Also the investigation had not been superficial and the authorities had identified and heard the four police officers who had handcuffed the applicant and had driven him to the police station. Other police officers had been heard, including the two Police Academy students as well as relevant eyewitnesses who were not police officers. 35. The court also held that the investigation had focused on all the applicant’s allegations and the authorities had heard the defence witnesses requested by him, namely C.P. and O.C. The fact that the authorities had not adduced all the data considered relevant by the applicant was not unlawful, considering that a preliminary investigation could be limited in respect of both quality and quantity by its lawful purpose. Moreover, the applicant’s allegation that some of the witnesses had committed perjury had been refuted by the corroboration of their statements by other evidence. The prosecutor’s office solution remained valid given that most of the witnesses had confirmed that the applicant had refused to go to the police station and had behaved aggressively, both verbally and physically, and that none of the witnesses had confirmed that he had been hit before being placed in the police car. Consequently, the measures taken against him had not been excessive or unjustified and had met the requirements of section 31 of Law no. 218/2002 on the organisation and operation of the Romanian police force. 36. The court further held that the fact that the statements of the applicant’s friends had contradicted those of the remaining witnesses was a consequence of their friendly relations with the applicant. 37. The court considered that the authorities had correctly interpreted the available medical documents. The scratches on the left side of the applicant’s neck, on his left forearm and the back of his left hand, as well as the bruises on his left shoulder, below his left clavicle and on the inside of his right arm had been inflicted by the police officers when they had handcuffed him and placed him in the police car. Their actions had been proportionate given his strong opposition. It was clear that handcuffing and the operation of placing a person in a police vehicle, if that person physically resisted the measure, would cause injuries. The superficial nature of the injuries and the areas of the body where the bruises and scratches had been sustained merely confirmed the proportional nature of the police officers’ actions. It was clear that the applicant had exaggerated the nature of his injuries in his complaint against the officers, given that there was no evidence in the file suggesting that he had been repeatedly kicked. It appeared that the internal lip injury and the dental damage suffered by the applicant had been caused by an impact to the chin, possibly when he had been resisting his handcuffing and placement in the car. The police officers could not be considered guilty as long as the applicant had continued to behave violently in the police vehicle. He had not suffered any external lesions in the chin area which could have been caused by an impact with a solid object. 38. On 31 July 2008 the applicant was fined for speeding and for failure to stop when signaled to do so by a police officer. 39. By a final judgment of 3 May 2010 the Galați County Court dismissed on the merits the applicant’s action seeking the annulment of the speeding fine imposed on 31 July 2008 and of the suspension of his driving licence.