CASE OF GHIURĂU v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
6. The applicant was born in 1963 and lives in Oradea. 7. According to the applicant, at about 4 p.m. on 27 November 2006, police officers belonging to the special intervention forces of Bihor Police Inspectorate took the applicant into custody in order to transport him from his home in Borş to Cluj, about 200 km away. They had not presented any warrant or other legal document justifying his arrest, nor informed him of the reason for his arrest or where they intended to transport him. 8. The applicant contended that while in custody he had been beaten by police officers so severely that he had lost consciousness. As a result, he needed urgent medical assistance and was admitted to the emergency ward of Huedin Hospital. While he was on a drip at the hospital, he was hit again and handcuffed by police officers. This occurred in the presence of his lawyer. 9. The Cluj Police immediately transferred him from Huedin Hospital to the emergency ward of Cluj Hospital, where he remained for about three hours from 9.15 p.m. until midnight. 10. At about 0.45 a.m., although unable to speak because he had been given sedatives in hospital, he was transported from the hospital directly to the Cluj Police Headquarters in order to be interviewed. There, he was informed for the first time of the reason for his arrest, namely that he was suspected of making repeated phone calls threatening to kill someone. He was interviewed until 1.52 a.m. 11. A preliminary criminal investigation was initiated in connection with allegations that the applicant had made threatening telephone calls against a resident of Cluj-Napoca. On 27 November 2006, the prosecutor attached to the Cluj-Napoca District Court therefore issued an order for the applicant to be brought before him for questioning. 12. At 4 p.m. on the same day, having been informed by police officers about the order, the applicant agreed to accompany the police officers to the Prosecutor’s Office in Cluj. On their way to Cluj, near Huedin, the applicant informed them that he was feeling sick and became physically agitated, presenting the symptoms of an epileptic seizure. 13. The police officers took the applicant to the nearest hospital in Huedin, where he was examined and received immediate medical treatment. While in the consulting room, the applicant had a panic attack and started hitting his legs and hands against the bed. Two police officers had to intervene and immobilise the applicant’s hands so that he could be disconnected from the medical devices. 14. The applicant was transported in an ambulance from Huedin Hospital to the emergency ward of Cluj-Napoca Hospital for further medical examinations, which took place from 9 p.m. until midnight. The diagnosis was abdominal trauma and abrasions. 15. As no traumatic injuries or clinical indications requiring an immediate operation were diagnosed, the applicant was discharged from the hospital and presented himself at the police station for questioning. 16. After questioning, the applicant gave a written statement, which according to the prosecutor was barely legible. He was assisted by his lawyer during the questioning. 17. On 28 November 2006 the Bihor Forensic Institute examined the applicant and issued a report that stated that his injuries could have been caused the previous day by being hit with a hard object. It noted the existence of bruising and abrasions on the upper abdomen and on both hips, and estimated that the applicant would need four to five days to recover. 18. A medical certificate issued by Cluj-Napoca Hospital on 19 December 2006 showed that the applicant had been hospitalised on 27 November 2006 for about three hours. The certificate stated that the applicant had been diagnosed with a minor cranial trauma, abdominal trauma and abrasions, and concluded with the expression “Affirmative assault” (“Afirmativ agresiune”). 19. The applicant contended that although on 29 November 2006 he had submitted a request with the Bihor Police Inspectorate to be provided with a copy of the order to which the police officers had referred in order to justify the deprivation of his liberty, he had not received a copy. 20. On 22 June 2009 the Prosecutor’s Office attached to Cluj County Court decided to discontinue the criminal proceedings against the applicant for making threatening phone calls on the grounds that his guilt could not be proved. 21. On 7 December 2006 the applicant lodged a criminal complaint against ten police officers alleging unlawful arrest, abuse of authority, abuse of the officers’ powers of investigation and deprivation of liberty. 22. On 4 January 2007 the applicant’s lawyer, B.V., made a written statement concerning the events that had occurred on 27 November 2006. She submitted that the manager of the applicant’s company had called her at about 4 p.m. informing her that two police patrols had taken the applicant into custody. She had called the applicant, who had confirmed that he was in police custody. She also submitted that she could hear police officers insulting and hitting the applicant. As she had understood from their phone conversation that the applicant did not feel well, she had decided to accompany him. She had called the ambulance service and discovered that the applicant had been taken to the Huedin Hospital emergency ward. When she found him there, he had been connected to medical devices but supervised by three police officers from the Cluj Police Department. She alleged that she had seen the police officers punch the applicant because he refused to remain in bed. She had accompanied the applicant to ClujNapoca Hospital and then to the police headquarters, assisting him during questioning. 23. On 12 March 2007 the applicant’s criminal complaint was registered with the Prosecutor’s Office attached to the Cluj Court of Appeal. 24. On 6 February 2008 four of the police officers against whom the applicant had lodged a criminal complaint were heard by the prosecutor. Their written statements were all identical. 25. On 12 February 2008 the Prosecutor’s Office attached to the Cluj Court of Appeal decided not to prosecute on the grounds of lack of evidence that the offences in question had been committed. The decision stated that criminal proceedings had been initiated against the applicant on 27 November 2006. His deprivation of liberty had been justified by the necessity to interview him immediately, even before summoning him on the basis of an order to appear before the investigating body (mandat de aducere) issued by a prosecutor. The decision further stated that the applicant had agreed to accompany the police officers and that, in any event, the applicant’s allegation that he had not been given a copy of the warrant could not lead to the conclusion that the police officers had abused their position, as his legal interests had not been infringed. In addition, the prosecutor held that the applicant had been provided with the order on the way from Huedin Hospital to Cluj-Napoca Hospital. In respect of the applicant’s allegation that he was subjected to physical violence by the police officers, he concluded that the injuries noted by the forensic doctor had been self-inflicted. The police officers had accompanied him to Huedin Hospital because he had mentioned that he did not feel well. While he was being examined by a doctor, he had had a panic attack and had started to hit the hospital’s bed with his body, hands and feet. The police officers’ intervention had therefore been necessary; they had immobilised him in order to disconnect him from the various medical devices. 26. On 1 August 2008 the head of the Prosecutor’s Office dismissed the applicant’s appeal against the aforesaid decision on the grounds that it had been lodged outside the time-limit set by the law. He stated, inter alia, that the order to appear before the investigating body had been issued because the applicant, although legally summoned, had refused to go to the police station to be interviewed. He added that the decision of 12 February 2008 had been communicated to the applicant on 14 February 2008 by registered letter and kept at the local post office until 26 February 2008. As the applicant had not collected the letter, it had been returned to the sender. 27. On 23 September 2008 the applicant appealed to the Cluj Court of Appeal against the prosecutor’s decisions. 28. On 15 January 2009 the Cluj Court of Appeal dismissed the appeal on the grounds that it had been lodged outside the time-limit. It stated that the decision of 1 August 2008 had been communicated to the applicant by registered letter on 5 August 2008, but had not been collected by him from the post office. It concluded that the legal term of twenty days for lodging an appeal against the prosecutor’s decision had begun on 5 August 2008 and not on 16 September 2008, the date on which the applicant had allegedly found out about the decision. 29. The applicant appealed again, claiming that the decision of 1 August 2008 had never been communicated to him and, therefore, that the term for submitting his complaint against it had not started to run. 30. On 18 May 2009 the High Court of Cassation and Justice allowed the appeal on points of law lodged by the applicant on the grounds that the appeal had been lodged within the time-limit set by law, quashed the judgment of 15 January 2009 and referred the file back to the Cluj Court of Appeal. 31. The applicant lodged an application with the High Court of Cassation and Justice for the removal of the file to another court on the grounds that the Cluj Court of Appeal was not impartial. His application was granted on 2 November 2009 and the file was transferred to the Ploieşti Court of Appeal. 32. On 19 January 2010, the Ploiesti Court of Appeal allowed the applicant’s appeal against the prosecutors’ decision not to prosecute. It sent the file back to the Prosecutor’s Office attached to the Cluj Court of Appeal for further investigation on the grounds that the investigation proceedings had not been properly conducted. It noted, inter alia, that the investigation of the allegations against the police officers had not been thoroughly investigated on the basis of the evidence against each of them. It added that despite the fact that the file contained 236 pages, the procedural acts carried out by the criminal investigation body were mentioned only at pages 21732 and consisted of four identical statements made by four of the police officers involved in the incident, and the statements of the applicant (pages 50-54) and the applicant’s lawyer (pages 12-14). The rest of the file contained copies of documents submitted by the applicant and copies of documents not related to the case. It also noted that the prosecutor, in deciding not to prosecute, had provided no explanation as to why only four police officers out of ten had been interviewed, why their statements were identical and why he had not taken into account the documents submitted by the applicant attesting that the applicant had suffered injuries. It made particular reference to the medical certificate issued by the Bihor Institute of Forensic Medicine on 28 November 2006, as well as the medical certificate issued by Cluj Hospital on 19 December 2006. It concluded that in the light of such medical certificates, a competent court could not decide that there was a lack of evidence that the offences in question had been committed. 33. On 14 April 2010 the High Court of Cassation and Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office attached to the Ploieşti Court of Appeal. Consequently, the decision to continue the investigation was upheld. 34. On 18 January 2011 the prosecutor questioned for the first time the six other police officers involved in the events of 27 November 2006. 35. On 21 April 2011 the applicant’s lawyer made a written statement that she had not only heard during her phone conversation with the applicant but had also seen how the latter had been subjected to ill-treatment by the police officers on 27 November 2006. She added that despite the fact that she had repeatedly asked to see the order to appear before the investigating authority on the day of the events, she had only seen it two years later in the case file. 36. On 22 August 2011 the prosecutor heard two of the police officers who had already made statements on 6 February 2008. 37. On 25 August 2011 the Prosecutor’s Office attached to the Cluj Court of Appeal again decided not to prosecute the police officers. It found that the applicant had not been subjected to ill-treatment by the police officers and had been deprived of his liberty pursuant to a warrant that had been issued in compliance with the law. 38. The applicant lodged an appeal against this decision with the chief prosecutor, claiming that the prosecutor in charge had not observed the instructions of the High Court of Cassation and Justice in respect of the evidence to be re-administered. He also claimed that despite the fact that he had been summoned to appear before the prosecutor on 18 July 2011, he had not been heard because the prosecutor had been absent from his office for the whole day. The applicant also submitted that not all of the police officers against whom he had lodged the criminal complaint had been heard by the prosecutor; he made the same claim with respect to other individuals who had witnessed the events of 27 November 2006 but had never been heard by the investigating body. 39. On 21 September 2011 the chief prosecutor dismissed the applicant’s appeal on the grounds that the injuries mentioned in the forensic certificate had been self-inflicted while he was simulating an epileptic seizure. He held inter alia that the order to appear before the investigating body had been issued because the applicant had failed to appear before the prosecutor, despite the fact that he had been summoned. 40. By a decision of 11 November 2011, the Ploiesti Court of Appeal allowed the applicant’s appeal. It held that the prosecutor had not complied with its decision of 19 January 2010 and again remitted the case to the Prosecutor’s Office, ordering it to commence criminal proceedings against the ten police officers mentioned in the initial criminal complaint. 41. The criminal proceedings are still pending and no judgment on the merits has been rendered. 42. Excerpts from the relevant provisions of the Romanian Criminal Code with regard to ill-treatment can be found in Iambor v. Romania (no. 64536/01, § 130, 24 June 2008). 43. Article 180 of the Romanian Criminal Code deals with bodily harm and provides, inter alia, that the harm caused to the physical integrity or health of a person requiring up to twenty days of medical care is punishable by one to three months’ imprisonment or a fine. 44. Article 250 deals with abusive behaviour and provides that a public servant on duty who uses insulting language while physically harming someone shall be punished by six months to five years’ imprisonment. 45. The order to appear before the courts (mandatul de aducere) was, at the material time, provided for by Articles 183-184 of the Code of Criminal Procedure, which read as follows: “(1) A person may be brought before [a] criminal-investigation body or [a] court on the basis of an order to appear, drawn up in accordance with the provisions of Article 176, if, having been previously summoned, he or she has not appeared, and his or her hearing or presence is necessary. (2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summoned, if the criminal-investigation body or the court considers that, and provides reasons why, this measure is necessary for the determination of the case.” “(1) [An] order to appear is enforced by the police. (2) If the person specified in the order cannot be brought [before the authorities] because of an illness or for any other reason, the police officer appointed to enforce the order shall mention this situation in an official report, which shall immediately be handed to the criminal-investigation body or the court. (3) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address, he shall investigate and, if unsuccessful [in locating the individual], shall draw up an official report including mention of the investigative activities undertaken. (31) If the offender or the defendant refuses to accompany a police officer or tries to escape, he or she may be forced to obey the order.”