NICOLAE v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Gheorghe Nicolae, is a Romanian national, who was born in 1951 and lives in Drăganu. He was represented before the Court by Mr G. Ionescu, a lawyer practising in Piteşti. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In the early hours of 18 August 2008 at around 1 a.m. the applicant, who had just returned home from a party, started arguing with his wife and twenty-one-year-old son. Fearing that the applicant might become physically violent, his wife, I.N., called the police. 4. Officer C.V. from the local police, accompanied by C.A.C., the night guard at the local mayor’s office, arrived shortly afterwards at the applicant’s house and entered the yard after being invited in by I.N., who complained that the applicant, who was drunk, was swearing and throwing stones. They found the applicant outside, in his underwear, in an agitated state. C.V. tried to talk to him in order to settle the dispute. After the applicant calmed down, I.N. asked the policeman not to leave, so that she could collect some personal things in order to leave the house with her son. According to C.V., at that very moment the applicant became agitated again and tried to hit his son. When C.V. stepped between them, the applicant started swearing at him, hit him in the face and then appeared to lean over to pick something up from the ground. At that point C.V., with the help of C.A.C., pushed him to the ground and handcuffed him. The applicant’s glasses were broken in the incident. 5. The applicant was then taken in the police car to Drăganu police station, where he was held for thirty minutes, until his wife and son arrived. He was then told he was free to leave, and walked the two-kilometre journey back home in his underwear. 6. In the meantime, officer C.V. had drafted an event report describing the incident (see paragraph 4 above). The applicant’s wife and son had signed the report as witnesses, stating in their own handwriting that “the facts mentioned in the present report are true”. 7. In addition, C.V. had drafted an offence report, fining the applicant 1,000 lei for disturbing public order. The report stated that the applicant had shouted vulgar words and insults addressed to both his wife and the police officer, both at his house and once at the police station. 8. Later that morning the applicant went to see a doctor and obtained a forensic medical certificate stating that he had a 2 x 2 cm excoriation on the left knee with swelling and functional immobility, three excoriations measuring 0.2 x 0.2 cm on the right knee, and a 2 x 2 cm and two smaller ecchymoses (bruises), with swelling, on the left hand. The doctor also mentioned that the applicant had complained of pain in the lumbar area, so he had recommended him an orthopaedic examination, which he had refused. His injuries were considered to require five to six days’ medical care. 9. The applicant contested the offence report drafted by C.V. at the time of the incident. He alleged that there were personal reasons connected to his wife and son which had provoked his behaviour that night; C.V. had abused his authority by not taking them into consideration and by handcuffing him and taking him to the police station. 10. On 12 January 2009 the Piteşti District Court held that the offence report drafted by C.V. was corroborated by the event report signed by the applicant’s wife and son. It was therefore in accordance with the law and presented the facts correctly. The court also took into account the fact that when asked to sign the offence report, the applicant, who refused to do so, did not make any objections concerning the facts as presented by C.V.; however, in view of the personal circumstances referred to by him, the court decided to replace the fine with a warning. 11. This judgment became final as the parties did not appeal. 12. On 20 August 2008 the applicant lodged a complaint concerning the incident with the prosecutor’s office of the Argeş County Court. He alleged that on 18 August 2008 he had not at all been violent. He had just been upset because his wife and son were constantly taking advantage of him and spending his money. The applicant considered that the police officer had only intervened that night to help I.N. take things from the family home. He further complained that he had been pushed to the ground by the officer and night guard, in spite of the fact that he was old and suffering from diabetes. He also claimed that his glasses had been broken in the incident. Lastly, he requested that the truth be uncovered. 13. On 17 September 2008 statements from all the parties involved in the incident, including the applicant, were taken by the investigating authorities. I.N. declared that she had been inside the house to collect some personal things and had not seen what had happened in the moments before the applicant had been pushed to the ground and handcuffed. The applicant’s son also declared that he could not see the incident as he had been busy taking things to his car. He also stated that he had offered to take the applicant home in his car on their return from the police station that night, but he had refused. A witness statement was also taken from a night guard who had been patrolling the field across from the applicant’s house. He declared that he had heard an argument that night between the applicant and his family. When the police had arrived, he had heard the applicant swearing at the police officer and had subsequently seen him resisting getting into the police car. 14. On 3 March 2009 the prosecutor’s office decided not to charge C.V. At first, the prosecutor classified the applicant’s complaint as a complaint of abusive conduct against C.V. Subsequently, the prosecutor held that C.V. had been invited into the applicant’s yard by his wife, who had requested protection, and that the officer had acted in conformity with Law no. 218/2002, which allows for anyone disturbing public order to be taken to a police station, and also allows the use of force in the event of any resistance on their part. In addition, the police officer acted in accordance with the same Law also when he requested support from C.A.C, who therefore was entitled to take part in the operation. 15. The applicant’s complaint about this decision was rejected as ill-founded on 26 March 2009 by the deputy prosecutor of the same prosecutor’s office. 16. The applicant contested the prosecutors’ decisions before the Argeş County Court. The applicant maintained to the court that there was no proof that he had been violent; the police officer had therefore acted unlawfully. He also highlighted the fact that he had been taken to the police station and then left to return home in his underwear. With respect to the investigation, he complained that he had neither been heard by the prosecutor nor confronted with the two alleged perpetrators, stressing that he had also lodged complaints against C.A.C., as well as both perpetrators, about the destruction of his glasses. 17. On 17 December 2009 the Argeş County Court decided to send the case back to the prosecutor’s office, because the applicant’s complaint about the prosecutor’s decision of 3 March 2009 had been solved by the deputy prosecutor and not the head prosecutor, as required by law. 18. On 8 February 2010 the head prosecutor rejected the applicant’s complaint about the decision of 3 March 2009 as ill-founded. 19. The applicant complained again to the Argeş County Court about the prosecutors’ decisions. He attached statements from his wife and son declaring that they did not know what they had signed at the Drăganu police station on 18 August 2008. 20. On 14 June 2010 the Argeş County Court rejected the applicant’s complaint as ill-founded. The applicant’s wife and son made statements to the court that on 18 August 2008 “the applicant was drunk and had an uncontrolled outburst” but had not been aggressive towards the police officer, who had reacted in an unjustified manner. The court decided not to take these statements into consideration since the two of them had mentioned, at the time of the incident, in their own handwriting, that the facts as described in the event report were true. The court further held in reply to the applicant’s allegations concerning the investigation that the initial complaint he had lodged was not clearly formulated; the prosecutor had therefore correctly classified it as a complaint of abusive conduct against the police officer who had conducted the operation on 18 August 2008. Lastly, the court concluded that C.V. had acted in accordance with Article 31 of Law no. 218/2002 on the organisation and functioning of the police in order to restrain the applicant, who had been aggressive towards his family and the police officer. 21. On 21 October 2010 the Piteşti Court of Appeal rejected an appeal on points of law (recurs) brought by the applicant against this judgment as ill-founded. 22. The applicant was represented by a lawyer of his own choosing throughout the entire proceedings before the domestic courts. 23. The relevant provisions of the Romanian Criminal Code in force at the time with regard to ill-treatment and abusive behaviour are summarised in the case of Ghiurău v. Romania (no. 55421/10, §§ 43 and 44, 20 November 2012). 24. The relevant provisions of Law no. 218/2002 on the organisation and functioning of the police, in force at the relevant time, are as follows: “1. In the exercise of their duties, police officers are trustees of public authority and have the following rights and obligations: ... b) to accompany to the police station those who pose a danger to others, public order or other social values ...; in cases of non-compliance with [their] orders, [the police] are authorised to use force ... k) to request if needed, the help of citizens in order to track, catch, restrain and accompany to the police station those suspected of committing crimes ...”