CASE OF COBZARU v. ROMANIA
Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3 both under its substantive and procedural aspects;Violation of Art. 13 on account of the lack of effective remedies in respect of the ill-treatment complained of;Violation of Art. 14+3 under its procedural aspect and Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
David Thór Björgvinsson;Elisabet Fura
7. The applicant, Belmondo Cobzaru, is a Romanian national, born in 1973. He lives in the town of Mangalia (Constanţa). 8. On 4 July 1997 at around 7.30 p.m. the applicant and his girlfriend Steluţa M. arrived at the flat which they were sharing and which belonged to Steluţa. The applicant then left the flat for about 20 minutes to get some money, as he and Steluţa were planning to go out that evening. However, when he came back, he found the door locked. He asked his neighbours whether they had seen Steluţa, but was told that nobody had seen her. Fearing that she might have attempted to take her life, as she had already done in the past, the applicant forced open the door of the flat in the presence of his neighbour, Rita G. He found nobody there, so decided to go to the police to enquire about her fate. As he was leaving the apartment block, he met Steluţa's brother-in-law, Crinel M., accompanied by three men armed with knives, who attempted to attack him, but from whom he managed to escape. 9. On 4 July 1997 at around 8 p.m. Crinel M. called the police and lodged a complaint against the applicant. According to the complainant, the applicant had tried to break into Steluţa's flat, but had run away when Crinel M. appeared. The complaint was certified by the police officer Dumitru CA. 10. Dumitru CA sent a police patrol to conduct an on-site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat. Rita G., who was present during the investigation, stated that the applicant had broken into the flat in her presence, fearing that Steluţa might have committed suicide. 11. A short time after he escaped from Crinel M., that is, between 8 and 9 p.m., the applicant learned that the police were looking for him and went to the Mangalia City Police Department, accompanied by his cousin Venuşa L. He reported to the police officer on duty, Dumitru CA., that some individuals had attempted to beat him up as he was leaving his flat, and that although he had managed to escape, he was still afraid that Crinel M. might beat him up. After he presented his identity card, he was told to wait. Other policemen were also present. 12. At around 10 p.m. police officers Gheorghe G., Curti D. and Ion M. came back from the on-site investigation they had carried out at Steluţa's flat. Gheorghe G. grabbed the applicant by his hair and pulled him upstairs to an office. Gheorghe G. and Curti D. punched him in the head until his nose started to bleed, and he was thrown to the ground and kicked. A newspaper was placed on the back of his neck and he was hit with a wooden stick. Four plainclothes officers observed the assault, but took no steps to prevent or halt it. The police told the applicant that the fact that his father was the local leader of a Roma association would not help him and forced him to sign a statement according to which he had been beaten up by Crinel M. and other individuals. Then he was told to leave and to come back the next day. The police kept his identity card. 13. The applicant left, but as he was feeling very weak, he stopped and sat in front of the police station. Gheorghe G. came out and told him to go home. Seeing that the applicant was in bad shape, Venuşa invited him back with her and offered him a coffee. The applicant showed her the bumps on his head and the other marks of the blows to his back. 14. Later that evening the applicant was admitted to the emergency ward of Mangalia Hospital with injuries diagnosed as craniocerebral trauma. He was transferred to Constanţa County Hospital where an X-ray was performed. He was informed that a further scan was necessary, but this was never performed. 15. On 7 July 1997 the applicant was discharged from hospital, allegedly at the request of someone whose name the hospital staff could not disclose. 16. On 8 July 1997 the applicant was examined by a forensic medical expert of the Forensic Institute of Constanţa, who noted in his report that the applicant had severe headaches and stomachaches, difficulty in walking, bruises around both eyes, on his fingers, on the back of his right hand, on his chest, on his right thigh and calf, and a haematoma on his head. The report concluded that the injuries had been caused by being hit “with painful and hard objects”. The doctor said that the applicant would need 14-15 days to recover. 17. On 8 July 1997 the applicant lodged a complaint with the head of the Mangalia Police Department against police officers Curti D. and Gheorghe G.. He alleged that after he had managed to escape from Crinel M. and his friends, he had gone home, but as he had found out that the police were looking for him, he had gone to the police station. There, Gheorghe G. and Curti D. had beaten him and made him sign a statement, after which they had told him to go home and come back the next day. The complaint was registered on 9 July 1997 and forwarded to Major P. 18. On 10 or 11 July 1997 Major P. took written statements from the police officers involved in the applicant's questioning: Gheorghe G., Curti D. and Ion M. All police officers denied, in succinct terms, having beaten the applicant. None of them mentioned having seen any bruises on the applicant's face upon his arrival at the police station. The statements were dated 11 July, but Major P. certified them as having been made on 10 July. 19. In a statement certified by Major P. as having been made on 11 July 1997 Dumitru CA., a police officer on duty on 4 July 1997, explained that at 8.15 p.m. he had received a telephone call from Crinel M., who had told him that the applicant had forcibly entered Steluţa M.'s flat and had subsequently fled. The duty officer then sent to the flat a police patrol, composed of three police officers: Gheorghe G., Curti D. and Ion M. In the meantime the applicant arrived at the police station, accompanied by his cousin, Venuşa L. He told Dumitru CA. that he had forcibly entered the flat because he thought his girlfriend was inside. On his way out, on the staircase of the building, a number of individuals had approached him and tried to catch him, but he had run away and come to the police in order to avoid being beaten up by them. The police officer told the applicant and his cousin to wait in the waiting room. Police officer Gheorghe C. was there as well. At around 10 p.m. the police patrol returned from the flat and took the applicant to their office on the first floor for questioning. After approximately half an hour, the applicant was sent home and asked to come back the next morning. Dumitru CA. made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station. 20. By a letter dated 10 July 1997 Major P. forwarded the preliminary investigation file to the Military Prosecutor's Office in Constanţa. The case file contained the following documents: (i) an undated statement by the applicant according to which, after he had left Steluţa's flat in the evening of 4 July 1997, he had met her relatives, who had beaten him up; (ii) the report dated 4 July 1997, 8.15 p.m. drawn up by police officer Dumitru CA. stating that Crinel M. had complained to the police that the applicant had broken into Steluţa's flat (see paragraph 9 above); (iii) a statement dated 4 July 1997 by Crinel M. from which it appeared that he had threatened the applicant in the evening of 4 July 1997 and had even thrown a stone at him, which had missed its target, but that he had definitely not beaten him up; (iv) the on-site investigation dated 4 July 1997; (v) a statement dated 4 July 1997 by Rita G., confirming the applicant's allegation, namely that at around 6 p.m., he had broken into Steluţa's flat in her presence, out of concern that she might have committed suicide, and that he had left when he had seen that Steluţa was not there; no mention was made of any physical assault against the applicant; (vi) a police report dated 7 July 1997 issued by Gheorghe G., listing the clothes belonging to Steluţa allegedly torn up by the applicant on 28 June 1997; (vii) a written notification issued on 7 July 1997 by the police requesting that the Forensic Institute examine Steluţa M., who “had been beaten up by Cobzaru Belmondo on 3 July 1997”; (viii) Steluţa's statement dated 9 July 1997 from which it appeared that on 3 July the applicant had beaten her up while she was at his flat, and that on 4 July he had taken her to her flat and told her not to leave; as soon as he had gone, Steluţa had gone onto the roof of the building where she had remained for about two hours; from there she had seen the applicant come back and break into the flat; as he had found nobody, he had gone away. Steluţa further stated that as the applicant was leaving the building, he had met Crinel M., who “had beaten him up, asking him why he had broken into the flat”; no details were given as to the alleged beating; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour, but that when he saw Crinel M., he had run away; (ix) a statement dated 9 July 1997 by Elena, Steluţa's mother, according to which the relationship between the applicant and Steluţa had already deteriorated; on 28 June 1997 the applicant had torn up some clothes belonging to Steluţa and on 4 July 1997, while Steluţa was on the roof of the building, the applicant had broken into the flat but had not stolen anything; (x) the statements dated 10 or 11 July 1997 made by police officers Gheorghe G., Ion M., Curti D. and Dumitru CA. (see paragraphs 18 and 19 above). 21. On 17 July 1997 the applicant and his father, president of the Association of Roma in Mangalia, lodged a complaint with the Department for National Minorities and requested an investigation in respect of the police officers who had beaten the applicant. They submitted a medical certificate issued on 8 July 1998, a copy of a newspaper article describing the applicant's allegations of ill-treatment and the statements of Venuşa, who had accompanied the applicant to the police station on 4 July 1997 and who had seen him coming out of the police station in excruciating pain. The complaint was forwarded to the Military Prosecutor's Office in Constanţa on 23 July 1997. 22. On 21 July 1997 the applicant's father lodged a complaint with the Constanţa Military Prosecutor's Office. 23. On 28 July 1997 the applicant lodged a separate criminal complaint with the Bucharest Military Prosecutor's Office. He also claimed pecuniary and non-pecuniary damages. The complaint was registered the same day with the Prosecutor General's Office and forwarded on 14 August 1997 to the Constanţa Military Prosecutor's Office. 24. On 18 August 1997 the military prosecutor charged with the investigation interviewed the police officers and the applicant. Police officers Curti D. and Gheorghe G. maintained their statements made before the Mangalia police, and the applicant maintained his allegations of illtreatment. He complained, moreover, that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend's other relatives. 25. On 18 September 1997 the military prosecutor took a statement from Venuşa L. She stated that on 4 July 1997 she and a friend, Valentina T., had accompanied the applicant to the police station and that about 30 minutes later the applicant had come out and complained to them that he had been beaten by the police with a wooden stick. He had also shown them the bruises on his hand, back and fingers. 26. On 29 September 1997 the General Prosecutor's Office in Bucharest urged the Constanţa military prosecutor in charge of the investigation to complete the investigation and render a final decision by 12 December 1997. 27. On 6 October 1997 the Constanţa military prosecutor went to the Mangalia City Police Department, where he took statements from the following witnesses: (i) witnesses Amet F. and Nuri M. stated that they had heard that an altercation had taken place between Crinel M. and the applicant; Amet F. further stated that he had seen Crinel M. chasing the applicant with a stone in his hand; (ii) police officer Dumitru CI., who gave a written statement according to which he was at the police station on 4 July 1997 when the applicant arrived there at around 9.30 p.m., and saw that the applicant had bruises on his face when he entered the police station; he had explained to the duty police officer, Dumitru CA., that he had been hit by someone when breaking into the flat; (iii) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station, at around 9.30 p.m., he had bruises on his face and declared that he had been hit by someone when breaking into the flat; (iv) police officer Marius I., who had also participated in the on-site investigation at Steluţa's flat on 4 July 1997, stated that the applicant had arrived at the police station after the team of policemen had come back from the on-site investigation and that he had noticed that the applicant had obvious bruises on his face, which had been caused a short time beforehand; (v) Crinel M. confirmed that on 4 July 1997 he had seen the applicant breaking into Steluţa's flat and that after making an unsuccessful attempt to catch the applicant, he had only managed to throw some stones at him, which had missed their target; he further confirmed that some neighbours had witnessed the incident, including Rita G. The prosecutor did not put any questions to the police officers who had submitted written statements. 28. On 12 November 1997 the military prosecutor of Constanţa refused to open a criminal investigation in respect of the applicant's complaints against police officers Gheorghe G. and Curti D., on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as “antisocial elements prone to violence and theft”, in constant conflict with “fellow members of their ethnic group” and that it was in this context that in the evening of 4 July 1997 the applicant had broken into his girlfriend's flat and had destroyed many of her clothes. It further found that, according to various testimonies, including those of the police officers from the Mangalia Police Department, the applicant's girlfriend, her mother and Nuri M., the applicant had been hit by Crinel M. for breaking into Steluţa's flat. The prosecutor found that it was for “obvious reasons” that Crinel M., a “gypsy as well”, had denied having beaten the applicant. The prosecutor considered that the statement given by Venuşa L., from which it appeared that the applicant had come out of the police station with bruises on various parts of his body, could not be taken into consideration since she was also a gypsy – and, moreover, the applicant's cousin – and therefore her testimony was insincere and subjective. 29. By separate decisions of 26 February and 27 July 1998 the public prosecutor of the Mangalia County Court discontinued the proceedings instituted against the applicant by his girlfriend and her brother-in-law for physical assault and material damage. 30. On 4 March 1998 the applicant lodged an appeal against the decision of 12 November 1997 refusing to open a criminal investigation. The appeal was registered on 11 March 1998 by the military section of the Prosecutor General's Office. They sent it to the military prosecutor of the Bucharest Court of Appeal, who, in turn, sent it back to the Constanţa Chief Military Prosecutor. 31. On 4 May 1998 the Constanţa Chief Military Prosecutor dismissed the applicant's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant, “a 25-year-old gypsy” “well known for causing scandals and always getting into fights”. He found that, on the contrary, the applicant's injuries “might have been caused during the altercation which he had had with fellow members of his ethnic group. As a matter of fact, there were indications that the young man's father, who had been very insistent under the hypothetical title of a leader of an ethnic local association, had tried to use the complaint against the policemen to extinguish the other conflict”. 32. On 23 September 1998 the applicant lodged an appeal with the military section of the Prosecutor General's Office. 33. On 18 November 1998 the Chief Prosecutor of the military section of the Prosecutor General's Office informed him that his appeal had been dismissed and that the decision was final. 34. The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation, in particular by the applicant's girlfriend, who had seen the applicant being beaten up by Crinel M. from the roof of the building, and by three police officers, who had noted very recent marks of violence on the applicant's face when he arrived at the police station. The Government pointed out in this connection that the applicant's allegation that he had bruises on his face had been contradicted by the medical forensic examination, which did not reveal any such marks. 35. The Government also denied that Major P. had pre-dated the statements given to him on 10 July by the police officers questioned, and contended that the date of 11 July 1997 which the police officers wrote in their statements was obviously a mistake. 36. The relevant provisions of the Code of Criminal Procedure in force at the time when the facts occurred read as follows: “Criminal proceedings cannot be instituted and, if instituted, cannot be continued if (a) the act was not committed at all; (...) (c) the act was not committed by the defendant; ...” “The aim of the civil action is to establish the civil liability of the accused and the liability for damages of any other person who can be held legally responsible. The civil action can be brought together with the criminal action in a criminal trial, by way of joining the proceedings.” “The person who has suffered civil damage can join the criminal proceedings... He or she can do so either during the criminal investigation... or before the court...” “The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.” “(1) The victim who has not joined the criminal proceedings instituted before the court can lodge an action with a civil court ... “(2) The civil proceedings will be suspended until the criminal case is decided. ...” “Complaints about decisions and acts of the prosecutor ... shall be examined by the chief prosecutor at the Prosecutor's Office. If it is the chief prosecutor who took the decision ... the complaint shall be examined by the higher Prosecutor's Office...” “In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action. Civil damages cannot be awarded if the accused is acquitted on the ground that the impugned act did not occur or was not committed by the accused.” 37. In its decision no. 486 of 2 December 1997, the Constitutional Court ruled that Article 278 of the Code of Criminal Procedure was constitutional only in so far as it did not deny anyone who was dissatisfied with a decision of the Prosecutor's Office direct access to a court in accordance with Article 21 of the Constitution. 38. Law no. 281 of 24 June 2003 amended the Code of Criminal Procedure. It introduced, inter alia, Article 278(1) regulating appeals to the courts against the prosecutor's decision. It prescribes the time-limit for lodging an appeal, the competent court and the procedure to be followed. 39. The relevant provisions of the Civil Code are worded as follows: “Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” 40. The Government submitted a number of cases in which the domestic courts had decided that the prosecutor's decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question. 41. The Government submitted a single case, dating back to 1972, in which the Supreme Court had decided that the prosecutor's decision, based this time on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. However, the Supreme Court's decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action. 42. The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996). 43. The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant and from making its own assessment on the facts which were committed and by whom. However, the view is that when making this assessment, civil courts have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988). 44. In its Resolution No. 1123/1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe urged the Romanian Government “to promote a campaign against racism, xenophobia and intolerance and take all appropriate measures for the social integration of the Roma population”. 45. The European Union's Commission noted in the 1998 Regular Report on Romania's progress towards Accession, that “discrimination against the large Roma minority in Romania remains widespread” and that in “general terms, the protection of minorities in Romania remains satisfactory, with the major exception of Roma”. 46. In its Regular Report on Romania's progress towards Accession of 8 November 2000, the European Commission stated, inter alia, that “Roma remain subject to widespread discrimination througout Romanian society. However, the Government's commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report”. 47. In its publication “Roma - Justice Delayed, Justice Denied”, issued in 1998, Amnesty International reported cases of killings, beatings and other forms of ill-treatment of Roma and criticised the failure of law enforcement officers to protect Roma from racist violence in Romania. 48. US Department Yearly Reports on Romania from 2000 until 2006 reported routine police brutality - including beatings - and racial harassment of the Roma population, and noted that investigations of police abuses generally were lengthy, inconclusive and rarely resulted in prosecution or punishment. 49. In its second report on Romania adopted on 22 June 2001, the European Commission against Racism and Intolerance (ECRI) found that: “Grave problems ... persist throughout the country as regards police attitudes and behaviour towards members of the Roma/Gypsy community. ECRI deplores in particular that cases of police violence against members of the Roma/Gypsy community, including the use of firearms, continue to occur, and have led to serious and sometimes lethal injuries... Such abuses, although well-documented and reported to the authorities by the non-governmental organisations and individuals, do not appear to be thoroughly investigated or sanctioned: cases which are investigated are usually dismissed...” 50. On 24 June 2005 ECRI adopted a third report on Romania, in which it stated the following on the progress made by the Romanian authorities in improving the situation of Roma: “...As regards the existence of a body responsible for looking into complaints made against police officers or law enforcement officials, the Romanian authorities have told ECRI that a procedure has been set in motion for that purpose within the Ministry of the Interior itself. [...] However, although the Romanian authorities have acknowledged that large numbers of police officers have been arrested for wrongful behaviour, they have provided no information on the victims. Furthermore, ECRI notes with concern that despite the existence of these procedures, the Romanian authorities have stated that no complaints have been recorded against police officers or law enforcement officials for discriminatory acts. It therefore wonders whether this does not reflect a lack of confidence among the general public in the authorities' capacity to punish the perpetrators of such acts.” 51. In a report on his first visit to Romania between 5 to 9 October 2002, the Council of Europe's Commissionner for Human Rights stated, inter alia, with regard to the Roma community in Romania: “47. The Roma/Gypsy community suffers greatly from poverty, unemployment, lack of schooling, lack of access to health care and justice and discrimination in all its forms. Likewise, according to Roma/Gypsy organisations, one of this community's growing concerns is the "antiRoma/Gypsy phenomenon", which is gaining ground both in Romania and in Europe.” 52. In his follow-up report on Romania for the period 2002-2005, the Commissioner described as follows the general situation of the Roma community: “54. According to the 2002 census, 535,250 persons were registered as Roma, representing 2.5% of the Romanian population. Nonetheless, the UNHCR estimated in 2004 that the Roma population actually numbered between 1.8 and 2.5 million persons. [...] 56. From a general point of view, the Roma situation continues to be a cause for concern. The NGOs and the representatives of the Roma community continue to report violence on the part of the police and discrimination and state that a negative image of the Roma is spread by the media and a part of the political class. [...]”.