CASE OF BOLOVAN v. ROMANIA
Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
6. The applicant was born in 1944 and lives in Cioroiaşi. At the material time he was working as a professional driver. 7. On 21 June 1997, at around 7 p.m., the applicant parked his car at the side of the road, with the intention of spending the night in his outhouse. He was accompanied by his girlfriend, S.U. When they started walking away from the car, two lower ranking police officers (plutonieri) got out of a car and approached them, one in uniform (S.D.) and the other in plain clothes (P.D.). Other police officers were also present at the scene, as traffic controls were being carried out. S.D. asked for the applicant’s identification papers, but the latter could not produce them as he had left them in his other car. S.D. grabbed the car keys from his hand with the intention of searching the car. The applicant told him that he would not find the papers in the car and that, in fact, he had just been fined for the same offence. He put his hand in his pocket to pull out the police report. At that moment, the police officer punched the applicant in the mouth and tried to hit him again. The applicant stepped back and lifted his leg in defence. P.D. intervened and the two police officers threw the applicant face down on his car and searched him and the vehicle. As his lip was bleeding, the applicant shouted at the police, calling them “militia agents” (miliţieni). He told them he would go straight to a forensic doctor and would then press charges against them. 8. On 21 June 1997, at around 7 p.m., the applicant was driving his car while under the influence of alcohol. When he saw the police performing traffic controls, he decided to stop the car and continue on foot, in order to avoid being caught drunk driving. The police officers S.D. and P.D. noticed the applicant and assumed that he was trying to avoid being checked. They approached him in their car. S.D. introduced himself and asked to see the applicant’s identification papers. The applicant turned his back on the police, shouted abuse and told them he did not have the papers on him. He was incoherent and smelled of alcohol. The police asked him to go with them to the hospital for a blood test. The applicant refused to follow them. When S.D. tried to take him by the arm, the applicant became violent and abusive. He kicked S.D. in the leg. He was then immobilised by S.D. and P.D. but managed to tear S.D.’s uniform. 9. After the incident, the applicant was taken straight to hospital to have his blood alcohol content tested. The physician concluded, after carrying out the standard tests, that the applicant was not under the influence of alcohol. She also noted in the clinical evaluation form that the applicant had a small bruise on the left upper lip. Two urine samples were taken and sent to the laboratory for further testing. The results (available on 23 June 1997) showed a blood alcohol content of 1.45g/oo. 10. Later that evening, the applicant was taken from the hospital to the police headquarters. His car was also brought to the police courtyard. His girlfriend was interviewed until 11 p.m., when she was released. 11. On 22 June 1997 the prosecutor ordered the applicant’s arrest. On 23 June 1997 he was remanded in custody for thirty days. He remained in custody until the end of the criminal proceedings against him. 12. A few days after the incident, the police allowed S.U. to take the applicant’s car from the police yard. 13. On 8 July 1997 the Prosecutor’s Office attached to the Dolj County Court indicted the applicant for driving under the influence of alcohol and for insult and violence. It described the incident as follows: “As [the applicant] did not have his identity papers, [S.D.] insisted that they go to the hospital and when he tried to take his arm to lead him to the police car, [the applicant] became violent, tearing himself away and kicking him in the left femur, near the hip. ... During the interview [the applicant] partially admitted the facts; he declared that he had only drunk one bottle of beer at around 11 a.m. and that he had only kicked the police officer after having been slapped by him.” 14. On 8 September 1997 the court heard statements from S.U. and a witness, D.P. They maintained the statements they had made to the prosecutor but the former added that she had seen the police officer hit the applicant and that he had started bleeding, and the latter added that he had seen the applicant bleeding. 15. On 20 October 1997 the Dolj County Court convicted the applicant as charged and sentenced him to three years’ imprisonment. The court upheld the prosecutor’s version of the events. The applicant reiterated that he had been hit by S.D. The court discarded the statements given by S.U. and D.P as follows: “It is true that before the court the witness [S.U.] declared that the applicant had been hit by [S.D.], and witness D.P. had noticed that the applicant had been bleeding, without having seen whether he had been hit. However, these statements will be set aside as insincere in so far as during the criminal prosecution the witnesses did not make such statements and could not justify why they did not do so.” 16. The applicant appealed against the decision. He reiterated that he had been hit first by the police officer and made reference to the clinical evaluation form to prove the violence suffered. The Craiova Court of Appeal based its examination on the statement the applicant made to the prosecutor and considered that his allegations were not supported by evidence. It therefore upheld the county court’s decision, on 12 February 1998. 17. On 19 June 1998 the Supreme Court of Justice dismissed an appeal on points of law lodged by the applicant and upheld his sentence. It held that: “None of the witnesses heard in the case confirmed the applicant’s defence that he had been hit straight after the request to produce his identity papers.” 18. On 7 August 1998 the applicant requested the Procurator General to appeal against the final decision of 19 June 1998. On 30 October 1998, the Procurator General informed him that there were no reasons to request the reopening of the proceedings (recurs în anulare). He received the same answer even after he complained that his intention had been to lodge a request for the annulment of the final decision (contestaţie in anulare). 19. On 26 July 1997 the applicant lodged a criminal complaint against S.D. with the Craiova Military Prosecutor’s Office. He accused the police officer of having punched him in the mouth and in the back of his head. 20. He was interviewed on 14 August 1997 and 8 January 1998. 21. On 12 September 1997 S.D. made a statement. 22. On 23 September 1997 the applicant filed a complaint of theft from his car, apartment and outhouse, all keys being in the set that had been confiscated by the police and then returned to S.U. 23. The police officers who had been witnesses to the incident were interviewed by the prosecutor. They all declared that the applicant had been recalcitrant and had hit S.D. 24. On 30 January 1998 the Craiova Military Prosecutor’s Office decided not to start criminal proceedings against S.D. and the other police officers. It considered that the applicant had behaved aggressively on the evening of 21 June 1997. The decision made no reference to any act of violence having been perpetrated by the police officer. As for the accusations of theft, it noted that: “The car was transported to the Traffic Police headquarters and, as the driver was arrested the same day by the Prosecutor’s Office attached to the Dolj County Court for insult and violence, it was released to [S.U.], the driver’s mistress, and a report was drafted. ... There is no evidence indicating that anything was stolen from the car; the report confirms that it was given [to S.U.] in good condition.” 25. Subsequent complaints lodged by the applicant did not result in the reopening of the case by the military prosecutor, the latest decision not to prosecute being dated 26 August 1999. 26. The relevant provisions of the Code of Criminal Procedure and of the provisions governing the police and military prosecutor are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). 27. In paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above, there is a description of the development of the law concerning complaints about decisions by the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004).