CASE OF CHINEZ v. ROMANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicants, who are brothers, were born in 1986, 1987 and 1985 respectively and live in Bucharest. 6. In the early hours of 17 March 2008, around five minutes after midnight, the applicants, together with their parents, decided to go to a police station to report that the applicant Marius-Romeo Chinez had been a victim of crime. They stopped a taxi on the street and because the taxi driver, B.G., refused to take them, they got involved in a verbal dispute with him and one of the applicants punched the bonnet of the car. Shortly afterwards, several taxi drivers from the same taxi company arrived at the scene. A team of two police officers (D.M. and F.I.) who were patrolling the area also arrived at the scene of the incident. They were followed by three additional police units. 7. In the presence of the police the dispute between the applicants and the taxi drivers escalated, with the applicant Mihai Chinez being hit in the face. When he tried to retaliate, the police handcuffed him and took him to their car. At the same time the applicant Ionuţ Ludovic Chinez was hit on the head by an unknown person and lost consciousness. When he saw his brother lying on the ground, the applicant Mihai Chinez refused to get into the police car. At this point the three police officers who had hold of him started hitting him and used their electric stun gun to force him into their car. Afterwards, Ionuţ Ludovic Chinez was lifted off the ground, handcuffed and put into a police car. The applicant Marius-Romeo Chinez, who was watching the scene from a distance, was pushed to the ground by two policemen, handcuffed and taken to another police car nearby. 8. The applicants were then taken to the police station, where Mihai and Marius-Romeo were punched and kicked in the stomach and chest by the police officers who had brought them in. After several hours of waiting without being questioned and without making a statement, Marius-Romeo was taken by ambulance, under police escort, to the Floreasca Emergency Hospital, where he had treatment for two days. 9. The other two applicants were questioned separately by different police officers. On 17 March 2008, at around 4 p.m., when a lawyer hired by their father arrived, they were allowed to leave the police station. 10. According to the incident report drafted by the chief of the police units involved, on 17 March 2008 at around 00.20 a.m. the team of two police officers who were on patrol had seen a group of five persons attacking a taxi driver. When they intervened to stop the fight and to identify the persons involved, the applicants became aggressive towards them too and punched them. The officers asked for support and additional patrol units arrived at the scene. Subsequently, the decision was taken to accompany the attackers, namely the applicants, to the police station to identify them, but because they refused to go the police officers had to use force and handcuff them. The report further mentioned that the applicants had damaged a taxi belonging to Mr. B.G., who was identified by name, age, personal identity number and address. The report also stated: “Before the arrival of the police units, several colleagues came to protect the taxi driver and assaulted the five [people]; because of the injuries he sustained Marius-Romeo Chinez was taken to the Floreasca Emergency Hospital, where he was admitted to the surgical ward ... On the occasion of the investigation at the crime scene four eyewitnesses were identified and gave statements ...” 11. The report concluded that, in accordance with an order given by the prosecutor by telephone, an investigation was immediately launched in connection with assault on police officers by the applicants and their father. 12. On the same day the chief asked for forensic expert reports from the National Forensic Medicine Institute in connection with the injuries suffered by police officers F.S.I. and N.C. The reports issued on 14 May 2008 confirm that officer F.S.I. had a 4 x 1 cm ecchymosis and excoriation on the left lumbar region, which could have been caused on 17 March 2008 by being hit with a hard object, and which required one to two days’ medical treatment. With respect to officer N.C., the report mentioned that he had a 2 x 2 cm ecchymosis in the left occipital region, which could have been caused by being hit with a hard object on 17 March 2008 and which required one to two days’ medical treatment. 13. According to a forensic medical report issued on 2 April 2008, Mihai Chinez had a haematoma of 1 x 0.5 x 0.5 cm in the occipital area, numerous ecchymoses on the face, arms and left leg, and five electrical burns on the left thigh. It was considered that the injuries, which could have occurred on 17 March 2008, were caused by being hit with a hard object, and required two to three days’ medical treatment. 14. According to a forensic medical report issued in June 2008, Marius-Romeo Chinez had an excoriation of 3 x 2 cm on the right of the forehead, a 1.5 x 1 cm ecchymosis outside the right eye, several ecchymoses and haematomas on the head, a 1 cm wound on the upper lip which had been sutured, several ecchymoses of 7 x 3 cm and 6 x 4 cm on the back and the lower right thorax, as well as on the right elbow. The report mentioned that he was drunk when he was brought to the Emergency Hospital. It was considered that the injuries, which could have been inflicted on 17 March 2008, had been caused by being hit with and against a hard object or surface, and required eight to nine days’ medical treatment. 15. A forensic medical report issued in August 2008 mentioned that Ionuţ Ludovic Chinez had a haematoma of 1 x 0.5 x 0.3 cm on the right side of the head and two ecchymoses on the right thigh. He also had limited capacity to open his mouth because of an injury to the right side of the jaw. The report concluded that the injuries could have been inflicted on 17 March 2008 by being hit with and against hard surfaces and objects, and that they required one to two days’ medical treatment. 16. On 7 July 2008 the applicants brought criminal proceedings against the police officers who were involved in the events of 17 March 2008, for abusive behaviour, unlawful arrest and misconduct. They claimed that on 17 March 2008 they had been beaten by police officers both before and after they were taken to the police station, following an incident they had been involved in with a taxi driver. 17. The investigation of the applicants’ complaint conducted by N.I., a police officer from the Control Unit of the Ministry of Internal Affairs, commenced by taking statements from the applicants on 11, 12 and 14 August 2008. They described the course of the events as mentioned in paragraphs 6 to 9 above. The applicant Ionuţ Ludovic Chinez stated that, while he was approaching the two police officers who were handcuffing his brother Mihai, he was hit on the head and lost consciousness. He further mentioned that after his arrival at the police station he had not been ill-treated. The applicant Mihai Chinez stated that “he was told later that [Ionuţ Ludovic] had been hit by taxi drivers and policemen”. The applicants mentioned that they did not know the names of the taxi drivers involved in the incident or of the police officers present at the scene. Lastly, they requested criminal sanctions against the police officers who had assaulted them both in the street and inside the police station. 18. On 11 August 2008, J.V., the applicants’ mother, who was present during the incident, declared that she had seen around twenty or thirty taxi drivers hitting the applicants Mihai and Ionuţ Ludovic Chinez. Then she had seen the two police officers pushing Marius-Romeo to the ground, hitting him and handcuffing him. She then stated that when the two police officers saw Ionuţ Ludovic lying on the ground they ran towards him, dragged him to their car, slapped him, turned him over with his face to the ground and handcuffed him. By this time all the taxi drivers had left the scene. Once they arrived at the police station she was not allowed to enter or to contact her sons. After approximately one hour she saw the applicant Marius-Romeo being taken away by ambulance, with his handcuffs still on and under police escort. 19. The investigation continued with the identification of the police officers involved in the incident. In this respect, on 20 August 2008, the operational order of 17 March 2008 as well as the incident report drafted by the police chief (see paragraph 10 above) were attached to the investigation file. 20. On 24 August 2008 N.I. took statements from police officers D.M. and F.S.I. They declared that they had been on patrol together in a police car when they saw several taxis and several individuals hitting another person. They immediately approached the scene of the incident and asked the aggressors to stop. When they refused the two officers called for back-up, and then intervened in order to remove from the crowd one person who was violent and had blood on his face. When they tried to immobilise this person he went up to a taxi and hit its windscreen with his fist, breaking it. They decided to handcuff him, and at that moment he kicked F.S.I. in the chest and refused to get into the police car, pointing to his brother, who had been beaten and was lying on the ground, and asking them to call an ambulance. Then they put him into the police car with the help of two other colleagues and drove him to their police station. They mentioned in their statement that they did not use any physical or psychological pressure on the person in question, and that they were not equipped with electric stun guns. When they arrived at the police station the person was identified as Mihai Chinez and “was taken over by officer F.L. from the criminal investigations unit and other colleagues who continued the investigation”. 21. The same day officer D.A.M. gave a statement in which she mentioned that she was part of one of the units called as back-up by officers D.M. and F.S.I. When she arrived at the scene she found one person pointing out a taxi driver who had allegedly just beaten his brother. She got back into her car and drove in the direction indicated but could not find the taxi driver. Then she returned to the scene and, according to her statement, she “identified two eyewitnesses who could describe the incident and they accompanied her to the police station”. She further declared that, once inside the police station, she did not participate in the questioning and did not physically or verbally assault any of the persons involved in the incident. 22. On 26 August 2008, in a note drafted by officer N.I., police officers D.M., Z.C., N.C., F.I., D.D.M., D.A., P.M.C. and S.L.E. were identified as having been present during the incident under investigation “together with other public order forces”. 23. On 5 September 2008 officer N.G., who was on duty at the police station on the night of the incident, gave a statement mentioning that he had helped his colleagues D.M. and F.I. to identify the applicants and their parents, and took a statement from J.V., the applicant’s mother. 24. On 24 and 25 September 2008 statements were taken from officers F.L.C. and D.D.M. They stated that they had not been on duty on the night of the incident, but were called in and asked to come to the police station. When they arrived they were informed about the incident and asked to help their colleagues. F.L.C. declared that he had heard statements from two eyewitnesses. D.D.M. declared that he had questioned Mihai Chinez. Both officers declared that they had not assaulted any of the participants in the incident. 25. On 25 September 2008 investigating officer N.I. took a statement from officer A.S, who had also been called in from home to the police station in the early hours of 17 March 2008. He stated that “at the station there were a number of people, including taxi drivers, witnesses and members of the Chinez family”. He then proceeded to question Ionuţ Ludovic Chinez. He continued by stating that he was aware that the applicants were being investigated for charges of assault against police officers. Lastly, he concluded that between 2005 and 2007 he was the community police officer in charge of the area in which the applicants lived. He stated in this respect that the applicants were disruptive individuals who had been sanctioned on numerous occasions for disturbing public order, and that in his opinion their complaint was “biased and based on untruths”. 26. The statements allegedly taken from the applicants and eyewitnesses immediately after the incident inside the police station were not included in the investigation file. 27. On 2 October 2009 the Prosecutor’s Office of the Bucharest Court of Appeal decided to relinquish jurisdiction to the Prosecutor’s Office of the Bucharest County Court. On 14 January 2010 it was decided that the Prosecutor’s Office of the Bucharest Court of Appeal was competent to examine the case after all, and the file was sent back to them. 28. On 15 and 17 March 2011 officers F.L.C., A.S. and D.D.M. were heard again, this time before the prosecutor. In addition to his initial statement given in 2008, officer F.L.C. pointed out that, once inside the police station and while he was handcuffed, the applicant Mihai Chinez had banged his own head against the wall and the floor several times. 29. On 1 June 2011 the Prosecutor’s Office of the Bucharest Court of Appeal dismissed the criminal complaint lodged by the applicants against some of the police officers who had taken part in the incident of 17 March 2008, in particular those officers who had questioned the applicants after they were taken to the police station, on the ground that no unlawful act had been committed by them. It held that following the incident the applicants had been restrained by police officers and taken to the police station for identification and questioning, because a car had been destroyed during the incident and police officers had been assaulted. It was further held that when they reached the police station it was already apparent from physical evidence that the applicants had been involved in a violent incident. There was therefore no evidence in the criminal investigation file to prove beyond reasonable doubt that the police officers who questioned the applicants at the police station, in particular A.S, F.L.C. and D.D.M., had acted violently against the applicants. Moreover, it was held that one of the applicants, namely Mihai Chinez, had inflicted injuries on himself. The prosecutor finally decided that the criminal investigation in respect of the remaining police officers, not identified by name, should be continued by the Prosecutor’s Office of the Bucharest County Court. 30. The applicants complained against this decision, arguing, inter alia, that no statements had ever been taken from any of the taxi drivers involved in the incident. They also argued that they had been hit by the taxi drivers in the presence of the police officers, who had done nothing to protect them. On the contrary, the police officers had also brutally attacked them, immobilising them in the street and then beating them up once they were inside the police station. They further alleged that two witnesses, namely I.S. and the applicants’ legal representative, had seen the injuries suffered by them but were never called to testify. 31. On 30 June 2011 the applicants’ complaint was rejected as ill-founded by the General Prosecutor of the Prosecutor’s Office of the Bucharest Court of Appeal. 32. The applicants appealed against the prosecutors’ decisions before the Bucharest Court of Appeal, reiterating their previous arguments (see paragraph 30 above). Their appeal was rejected with final effect on 20 October 2011. In reaching this decision the Bucharest Court of Appeal firstly considered that sufficient investigative action had been taken, such as taking statements from the applicants and the police officers present in the police station, and, because the alleged ill-treatment took place in a police station, no other evidence was available that could verify the applicants’ complaint with respect to police officers A.S, F.L.C. and D.D. The court further held that it could not decide with respect to the incident which took place in the street and which involved the taxi drivers, because it was the object of an ongoing investigation conducted by the Prosecutor’s Office of the Bucharest County Court. 33. The criminal investigation with respect to the rest of the police officers and concerning the incident which took place in the street is still pending before the Prosecutor’s Office of the Bucharest County Court. 34. The criminal investigation against the applicants for assaulting police officers (see paragraph 11 above) has also not been completed to date.