CASE OF STOIAN 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)
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1961 and lives in Bucharest. 6. On 19 September 1999, at approximately 1 a.m., a police patrol from the Ilfov Police Inspectorate pulled the applicant over in his car and asked him to produce an identity card. He replied that he did not have his identity card with him but that his name was Vasile Stoian and he was a lawyer and a former police officer. The applicant was invited to get out of the car. 7. After a few minutes, he got back into his car and drove off abruptly. According to the police officers, their colleague, A.A., was hit by the applicant’s car while he was trying to stop him. 8. The applicant alleged that he had left because the police officers had physically abused and insulted him. 9. The four police officers involved in the incident contested the applicant’s account of events. They stated that because the applicant had smelled strongly of alcohol, they had asked him to accompany them to a forensic laboratory to determine his blood alcohol content. The applicant had refused, got into his car and left the scene. 10. The police officers got into their car immediately and began chasing him. They also asked the police station for reinforcements. After about five kilometres the police car collided with the applicant’s car, forcing him to stop. The police officers immobilised and handcuffed the applicant. 11. As the applicant again refused to show an identity card, the police officers carried out a body search and a search of his car. 12. The applicant tried to escape, running towards the field to the left side of the road. Being handcuffed, he moved with difficulty. After about twenty metres, the police officers immobilised him again. The applicant claimed that he had been repeatedly kicked by the police officers. 13. One of the police officers had the idea to invite reporters from the “Antena 1” television channel to come to the scene in order to film the incident. Within thirty minutes a group of television reporters had arrived and started taking images of the applicant handcuffed and covered in blood. 14. The police officers continued their search, checking the contents of a bag found in the applicant’s vehicle. Inside the bag they found the applicant’s driving licence. 15. The applicant claimed that the police officers had carried out the search of his bag after breaking its lock despite the fact that he had expressed his intent to open the bag and give them his identity documents. This allegation was confirmed by witness statements and the images filmed by the television reporters. 16. In the end the applicant was taken to the forensic laboratory, where his blood alcohol content was tested. 17. The applicant underwent a medical examination at the National Forensic Institute. According to the medical certificate issued on 19 September 1999, he presented injuries that could have been caused by being hit with a hard object and would need twelve to fourteen days of medical treatment. 18. A few hours after the incident, the four police officers drafted an incident report, presenting their version of the events. The report was signed by V.L. and C.G., who allegedly eye-witnessed the incident. 19. The police officers also drafted a search report describing the items found in the applicant’s bag and car. This report was signed by C.G. and B.F., who were allegedly present when the search was carried out. 20. Other police officers arrived at the scene of the incident, carried out an investigation and drafted an on-site investigation report (raport de constatare la fața locului). According to their report, the Ilfov Police Inspectorate had asked for their intervention because their colleague, A.A., had been hit by a car driven by a person under the influence of alcohol. Their report was signed by V.L., who also signed the incident report. The report presented the same version of events as the incident report. 21. V.L. produced a written statement immediately after the incident, confirming the police officers’ version of events. In later statements made on 7 July 2000, 19 September 2002 and 15 January 2004, he changed his initial version of events, claiming that he had not been present at the scene of the incident. In this regard he admitted that on the night of 19 September 1999, he had been stopped by a police patrol and asked where he was going. After informing them that he was going to the nearby village, the police officers asked him to come back later. He alleged that he had not gone back but that on the following morning, at about 11 a.m., two of the police officers he had met the previous night accompanied by three other police officers had visited him at home. They had dictated a statement to him and asked him to sign it. They also asked him to sign an incident report and a search report, both of which were blank. 22. On 16 August 2004 the prosecutor’s office attached to the Bucharest Court of Appeal initiated a criminal investigation against him for false testimony. It noted that after he had signed the incident and on-site reports and produced a written statement which confirmed the version of events presented by the police officers, he had changed his position, stating that he had not been present at the scene of the incident. 23. On 25 January 2006 the criminal investigation was discontinued because other witnesses present at the scene of the incident stated that they had not seen V.L. on the night of 19 September 1999. 24. On 21 February 2000, C.G. changed his initial statement, claiming that it had been dictated to him by police officers. According to his latest statement he was stopped by police officers only after most of the events had already occurred. He had seen the applicant’s car in a ditch and three police officers approaching with the applicant from a nearby field. He had noticed that the applicant was handcuffed, had blood on his face and appeared to have an injury on his right temple. C.G. had heard the applicant telling the police officers his name and that he was a lawyer. 25. C.G. also stated that he had been present when the police officers invited reporters from the “Antena 1” channel to come and film the incident and that V.L had not been present at the scene of the events. 26. B.F. had been in the same car as C.G. on the night of 19 September 1999. 27. On 22 June 2000 she stated that on the night of the events she had seen the applicant with blood on his face and obvious signs of violence. She also mentioned that she had heard the applicant asking the police officers not to force his bag open because he would open the bag and give them his identity card himself. In her statement of 20 October 2003 she mentioned that the whole of her initial statement, made immediately after the events, had been dictated to her by the police officers. 28. In a statement made on 30 May 2000, E.I. contended that on the night of 19 September 1999 he had seen a police car following a white car. He had also seen the police car forcing the other car to stop and enter a ditch. He had left his car and gone closer to see what had happened. He claimed that he had seen the applicant on the ground and the police officers kicking him. He also claimed that he had heard the applicant crying out in pain and asking them not to kill him because he had children at home. All the police officers had been hitting and insulting him. Afraid to be caught watching the scene by the police officers, he had left, taking the opposite direction in order to avoid a possible meeting with the police car. 29. The following day, he had seen the footage taken by the “Antena 1” reporters and decided to make a statement before the prosecutor. 30. According to the chief prosecutor’s decision of 24 September 2004, on 30 June 2004 E.I. changed his initial statement, admitting that he had not been present at the scene of the events of 19 September 1999 but had been trying to help the applicant. 31. On 20 September 1999 the television channel “Antena 1” broadcast its weekly programme, “the Mobile Squad” (Brigada mobilă). Most of it concerned the applicant’s case. 32. The filmed images were broadcast to a large audience and the applicant was recognised by a large number of people, notably because of his profession as a lawyer. The footage was broadcast again on 23 September 1999 by the same television channel. 33. On 20 September 1999 a criminal investigation was initiated against the applicant for driving a vehicle under the influence of alcohol, causing bodily harm and using insulting behaviour. 34. On 2 August 2000 the prosecutor’s office attached to the Bucharest County Court discontinued the criminal investigation. It held that the offence of driving under the influence of alcohol had not been factually substantiated because according to a forensic report drafted on 19 September 1999, the applicant’s blood alcohol content had been 0.6 %. In connection with the body injury of police officer A.A., it noted that no medical certificate had been included in the file and held that the applicant had had no intent to harm him. In respect of the alleged insulting behavior, it held that no offence had been made out. It also noted that the applicant had got into his car and left the scene because he had been insulted and hit by the police officers. 35. The prosecutor’s decision stated that the police officers “had beaten the applicant, forced his bag, containing personal valuable items, open and invited the television channel “Antena 1” to report on the incident”. It concluded that the applicant had not committed any offence and that the police officers had breached their duties. It indicated that its findings were supported by the witness statements. It concluded by noting that the four police officers had behaved abusively towards the applicant and in order to cover up their actions they had fabricated false evidence. It appears that this decision remained final, as its findings were not challenged 36. On 20 September 1999 the applicant lodged a criminal complaint against the four police officers involved in the incident for theft and bodily injury. He claimed that they had beaten him and stolen 1,600 United States dollars from his bag. He also claimed that he had been handcuffed and unlawfully kept in the police car for about two hours. He added that the police officers had carried out unlawful searches of his car and bag. On 12 November 1999 the applicant added to his initial criminal complaint a new complaint for insult and slander against two of the police officers. The applicant alleged that they had made insulting comments about him while the television reporters were filming him. He based his complaint on Articles 205 and 206 of the Criminal Code in force at that time. 37. On 19 February 2001 a criminal investigation was initiated against the four police officers from Ilfov Police Inspectorate for abuse of authority, forgery of official documents, use of forged documents and instigation to false testimony. The military prosecutor held that on the night of 19 September 1999, while on duty, the police officers had subjected the applicant to ill-treatment, causing him injuries which needed between twelve and fourteen days of medical treatment. He also held that the police officers had tried to cover up their criminal activity by drafting reports which did not reflect what had actually happened and had forced the witnesses to make false statements. 38. On 29 March 2003 the military prosecutor discontinued his investigation in connection with the alleged theft. For the rest of the offences imputed to the police officers, he relinquished jurisdiction in favour of the prosecutor’s office attached to the Bucharest Court of Appeal. 39. On 12 November 2003 the applicant asked for the criminal investigation against the police officers to take other offences into account. He claimed that they had destroyed his bag, mobile phone, and watch bracelet. He again claimed that his honour and reputation had been damaged by the remarks made by the police officers in front of the television camera. 40. The applicant also asked the prosecutor to start an investigation against the police officers who had drafted the on-site report, claiming that they had forced V.L. to sign their report despite the fact that he had not witnessed the events. 41. On 19 August 2004 the prosecutor’s office attached to the Bucharest Court of Appeal decided to discontinue the investigation on the ground that there was no evidence that the police officers had subjected the applicant to illtreatment. Furthermore, he stated that the applicant’s injuries had been self-inflicted and that he had destroyed the bracelet of his watch and his mobile phone himself. The applicant’s complaint for insult and slander was dismissed on the ground that it had not been lodged within the legal time-limit of two months provided by Article 284 of the Code of Criminal Procedure (“the CCP”). In respect of the insulting remarks addressed to the applicant by the police officers, the prosecutor held that they had been justified by the applicant’s attitude. 42. He also pointed out that the body search and the search of the applicant’s bag had been necessary in order to establish his identity. As regards the on-site report, the prosecutor admitted that it had been forged but noted that it could not be established who had signed the report as the police officers denied that they had signed it. Therefore, in order to ensure the identification of the persons who had forged the report, he decided to sever those proceedings and concluded that the offences of forgery and use of forged documents had not been made out. He also held that V.L. had changed his initial statement under the influence of the applicant. His presence at the scene of the incident on the night of 19 September 1999 had been confirmed by all the police officers. 43. The prosecutor decided to sever the proceedings initiated by the applicant against the television reporters and to relinquish jurisdiction in favour of the prosecutor’s office attached to the Bucharest County Court. 44. On 24 September 2004 the chief prosecutor dismissed an appeal lodged by the applicant and confirmed the prosecutor’s decision. 45. The applicant lodged a complaint with the Bucharest Court of Appeal on the basis of Article 2781 of the CCP. On 31 May 2006 the firstinstance court dismissed the complaint, holding that the applicant’s injuries had not been caused by the police officers but had been selfinflicted when he was trying to take off the handcuffs. It based its findings on the initial statements given by witnesses C.G. and B.D. It also held that he had been handcuffed and made to sit in the police car because of his own behaviour. 46. The applicant appealed, claiming that the firstinstance court had simply reiterated the prosecutor’s decision without providing its own reasons. 47. On 22 January 2008 the High Court of Cassation and Justice dismissed the applicant’s appeal, upholding the judgment of the firstinstance court. 48. On 7 October 1999 the applicant lodged a criminal complaint against the reporters and the owners of the “Antena 1” television channel. He claimed a violation of Article 2 of Law 48/1992 (“the Audiovisual Act”). He claimed that the police officers had invited the reporters to film him handcuffed, with his face covered in blood and his clothes torn and dirty. The images had been broadcast without his consent on the following day at peak viewing time and again on 23 September 1999. He also claimed that the images had been accompanied by insulting comments presenting him as an offender despite the fact that he had not committed an offence, as proved by the discontinuance of the criminal proceedings against him. He joined a civil claim to the criminal complaint. 49. On 22 January 2001 the prosecutor decided not to open a criminal investigation. 50. On 4 February 2002 the prosecutor’s office attached to the Bucharest Court of Appeal upheld the decision not to initiate a criminal investigation. 51. The applicant’s appeal against the prosecutor’s decision was dismissed by the Bucharest District Court on 13 February 2004 on the ground that the investigating authorities had not obtained the authorisation of the Telecommunications Ministry and the Audio-visual Council. It held that such authorisation was mandatory for the initiation of a criminal investigation against a television channel under the Audio-visual Act.