CASE OF PREDICA v. ROMANIA
Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1946 and lives in Bucharest. He is the father of Mr Marian Predică (“the applicant’s son”), a Romanian national who was born on 11 August 1983 and who died on 5 October 2003 while he was serving his prison sentence. 6. On 20 March 2000 the applicant’s son had been arrested under suspicion of having committed theft; he was taken into custody in the Gaeşti Correctional Institution for Minors on 2 November 2000. At that time, a medical examination was carried out, the report stating that he was clinically healthy. A copy of the results of a medical examination dated 18 June 1999, with similar conclusions, was attached to the medical file. A subsequent medical examination carried out on 12 March 2001 did not note any chronic or acute illness. 7. On 25 August 2001 the applicant’s son was transferred to Jilava Prison, and on 11 September 2003 he was transferred to Rahova High Security Penitentiary. He was placed in cell no. 626. On that date, a medical examination was carried out, stating that the applicant’s son was clinically healthy and that he did not show symptoms of any medical condition. The medical record showed no indication as to the existence of any illness that would require treatment. According to the same medical file, for the duration of his stay in Rahova Penitentiary, the applicant’s son never asked for any medical assistance. 8. In the morning of 1 October 2003, at 10.15, in answer to repeated calls by one of the prisoners, the guards went to cell no. 626, where prisoner T.P. reported that the applicant’s son needed to be taken to hospital urgently, as he had lost consciousness and had started to shake. The supervising officers transported him to the consulting room of the penitentiary. Following an examination performed at 10.27, it was concluded that the detainee was in a generally altered state, disoriented in time and space; a “suspicion of (medical) intoxication” was noted by the doctor, who also recommended that he be taken to Rahova Surgery Hospital urgently. There, at 10.40 he was diagnosed with “convulsions/symptoms of grand mal seizures” (criza comitiala). A consultation by a specialist was recommended. 9. As the condition of the patient kept deteriorating, artificial respiration was applied. The applicant’s son was then transported to the nearest emergency hospital, Bucharest University Hospital, where he was hospitalised at 11.15 in a coma. The diagnosis upon arrival was “intercerebral haemorrhage, left temporoparietal, with panventricular inundation”. The doctors noted that there were no signs of trauma on the cranium or vertebra. The patient underwent laboratory tests, tomography and surgical and neurosurgical tests. As there was no indication that neurosurgical intervention was necessary, he was moved to another ward, where his breathing was assisted with a mechanical ventilator and his heart beat maintained by perfusion. 10. In spite of the medical care provided, the applicant’s son never came out of the coma. His hospital medical record stated that he died on 5 October 2003, at 13.30, “due to a cardiac arrest, [while] under artificial respiration and perfusion with adrenaline. Severe damage to the cerebral trunk. Intercerebral haemorrhage, left temporoparietal, with panventricular inundation and compressive effects on the cerebral trunk.” The medical certificate attesting the death of the applicant’s son was issued on 8 October 2003. It stated that the direct cause of death was an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, with serious “cranial and facial trauma due to an aggression”. 11. The preliminary necropsy report issued on 14 October 2003 by the Institute of Forensic Medicine “Mina Minovici” contained the following conclusions: “The death of Marian Predică was violent. It was caused by an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, consequences of a trauma – cranial-cerebral and facial, with fracture of the nasal bones, facial ecchymosis and left occipital excoriation. The necropsy revealed excoriation and echhymosis in the left thoracic and pelvic areas. The traumatic lesions could have been produced by a blow with a solid object to the facial area, followed by falling and hitting a hard surface, with impact to the occiput and the left hemicorp. The traumatic lesions could have been inflicted between one to three days prior to the day of hospitalisation. There is a direct causal link between the cerebral traumatic lesions and the death of Marian Predică.” The final medical report issued on 4 December 2003 confirmed the preliminary observations, stating in addition that the traumatic injuries could have been inflicted “several days prior to the day of hospitalisation on 1October 2003” and concluded that “the cerebral lesions necessitated medical care, to be provided immediately”. 12. On 21 September 2006 the prosecutor requested the forensic expert from the Institute of Forensic Medicine to answer, on the basis of statements given by the victim’s cellmates describing the incident on the morning of 1October 2003, whether “it was possible that during a seizure, the victim could have bashed against various objects around him and thus self inflicted all the injuries detected at autopsy (including the facial lesions)”. The supplementary medical report issued stated that, “considering the morphology and the topography of the traumatic lesions, it could not be excluded that all the injuries were sustained in the same context – by falling and hitting a hard surface, several days before the date of death, possibly by hitting against a metal bed in the course of a grand mal seizure of epileptic aetiology, as it transpired from the investigation data forwarded by the prosecutor”. No deficiencies in the medical care provided to the victim prior to his death were detected. 13. The applicant alleged that he had last seen his son on 25 September 2003, when the latter had attended a hearing before the High Court of Cassation and Justice. At that time, he had borne no visible signs of violence. Before his incarceration and upon his transfer to Rahova Penitentiary, he had been healthy, as the medical examinations carried out in the penitentiary also confirmed. The applicant was informed about his son’s death on 6 October 2003; he, his wife and other son were allowed to take the body from the Institute of Forensic Medicine on 9 October 2003. According to the applicant, none of the family members could recognise the body, as the face was disfigured, the hair had been shaved off, the hands bore the marks of handcuffs and the left hand had a lesion in the handcuffed area. The identity of the deceased was allegedly confirmed based on a particular mark on the left hand. 14. On 5 October 2003, the Bucharest Military Prosecutor’s Office received a phone call from G.I., an officer at Rahova Penitentiary, informing it of the death of the detainee and asking the competent authority to establish the cause and the circumstances of his death. 15. A preliminary inquiry was carried out with respect to alleged criminal acts perpetrated by the twenty penitentiary guards charged with the supervision of the detainees. The military prosecutor in charge questioned the officers that had been on duty while the applicant’s son was detained at Rahova Penitentiary, in order to establish whether there had been any incidents between the detainee and his cellmates and whether there had been any incidents when force or other immobilizing methods were used with respect to the detainee. The guards reported that no incidents had occurred in cell no. 626 and that they had not noticed any injuries on the detainee’s face. Similar statements concerning the lack of any incidents in their cell were given by some of the applicant’s son’s cellmates. One of the cellmates, V.O.C., stated in his deposition given before the military prosecutor on 17 June 2004, that he had heard that Predică Marian had been beaten by “mascati” (masked special intervention officers) when he had returned from a visit or from the court because he had spoken disrespectfully to them. 16. On 26 January 2004, the military prosecutor decided not to indict the guards, as there were no suspicious circumstances regarding the applicant’s son’s death. The case was referred to a civilian prosecutor for a further investigation to be carried out with respect to his cellmates (see paragraphs 20-22 below). The decision was confirmed by the hierarchically superior prosecutor on 5 August 2004. The decision was contested by the applicant before the Military County Court of Bucharest. On 24 March 2005, the complaints were dismissed as inadmissible. However, that decision was quashed on 14 July 2005 by the Superior Military County Court of Bucharest and the case was remitted to the first instance. On 23 September 2005, the case was referred to the Bucharest 5th District Court, which gave judgment on 8 November 2005, declining jurisdiction in favour of the Bucharest County Court. 17. The applicant’s complaints were allowed on 21 February 2006 by the Bucharest County Court, which ordered the case to be remitted to the Prosecutor’s Office for further investigation. The court held that the investigations had been improperly conducted throughout the proceedings. Upon an appeal on points of law, the judgment was quashed on 20 April 2006 by the Bucharest Court of Appeal, in so far as the first-instance court had not provided grounds for its decision and had not specified exactly what evidence should be added to the file. The case was consequently remitted back to the first instance. 18. The Bucharest County Court rendered judgment on 20 October 2006. Assessing the evidence before it, it held that the criminal investigation conducted has not proved to be effective within the meaning of Articles 2 and 3 of the European Convention of Human Rights. The court further allowed the applicant’s claims and ordered the case to be remitted to the Prosecutor’s Office, as a further investigation needed to be carried out with respect to the criminal act of homicide as defined under section 174 of the Romanian Criminal Code. The court summarised the facts for the timeframe of 11 September (day of incarceration) to 1 October 2003, on the basis of the evidence adduced. It held that there was no proof of any altercation having occurred between the applicant’s son and his cellmates during that time. In the official register of the penitentiary there was no record of any disciplinary measures having been applied to him. The court criticised the fact that the prosecutors had discontinued the investigations in general, without making any reference to a specific criminal act, such as homicide, ill-treatment or torture – as defined respectively by sections 174, 267 and 267 – 1 of the Romanian Criminal Code. There was no concrete information on the circumstances of the applicant’s son’s death or on the persons to be held responsible for it in the evidence already adduced in the case, “even though his death had undoubtedly been violent”. The court also mentioned that in assessing the adduced evidence, the fact that the investigation authorities were attached to the military, while the European Court of Human Rights had repeatedly stated that such criminal inquiries conducted by a military prosecutor could not be regarded as effective, could not be overlooked. It further held that “None of the accused who attended, together with Marian Predică, the hearing before the High Court of Cassation and Justice on 25 September 2003 was questioned, in so far as they could have been witnesses to a conflict between Marian Predică and the guards of the Penitentiary (especially the accused V.L.). None of the guards belonging to the Special Intervention Unit on duty on 25 September 2003 and afterwards, until 1 October 2007, was ever questioned. The contradictory conclusions of the numerous medical reports are to be clarified by the Superior Commission of Forensic Medicine”. 19. This decision was upheld on an appeal on points of law lodged by the twenty incriminated penitentiary guards. On 3 April 2007 the Bucharest Court of Appeal held that the first-instance court’s reasoning was exhaustive and legally sound. The proceedings are currently pending before the judiciary police, delegated by the Prosecutor’s Office to carry out the investigation (see paragraphs 25, 27 below). 20. Concerning the investigation carried out with respect to the applicant’s son’s cellmates, the prosecutor decided on 10 March 2004 to discontinue the proceedings, as there was no indication of any criminal act having been committed in the file. The hierarchically superior prosecutor, however, quashed this decision on 28 May 2004, indicating that a further investigation should be conducted with respect to the offences listed under section 183 of the Romanian Criminal Code, namely, hitting or causing injury to a person resulting in death. 21. The prosecutor questioned the persons who had been detained in the same room as the applicant’s son, and other individuals. They declared that the applicant’s son had not been attacked by other prisoners or by the prison officers. Some of them also stated that on 1 October 2003 the applicant’s son had had a seizure and had hurt himself while falling between the beds and that he had immediately been taken to the consulting room. 22. On 3 November 2006 the prosecutor decided not to indict, finding that “the death was the consequence of [the applicant’s son] accidentally injuring himself during a grand mal seizure of epileptic aetiology”. 23. The decision was upheld on 28 December 2006 by the hierarchically superior prosecutor. His decision was contested by the applicant before the Bucharest County Court, which gave judgment on 18 October 2007. The court quashed the prosecutor’s decision not to indict, holding that it was necessary to adduce more evidence in the case, namely, the video recordings from the place of detention for the relevant period of time. 24. The Prosecutor’s Office appealed. In a judgment given on 12 February 2008, the Bucharest Court of Appeal held that the prosecutor needed to establish and clarify the circumstances in which the victim had died, as there was evidence of a homicide having been committed. To that end, the prosecutor was ordered to produce and assess certain pieces of evidence, namely, to identify and watch all video recordings from the hallways of the penitentiary and from the victim’s cell; to identify and question as a witness V.L. and a certain N.N. (mentioned in the Amnesty International report on Marian Predică’s death, see paragraph 30 below); to identify other medical documents regarding the victim’s state of health, prior and subsequent to incarceration. The case was remitted to the prosecutor for further investigation. 25. On 17 December 2009, the prosecutor initiated the criminal investigation in rem with respect to the offences listed under section 183 of the Romanian Criminal Code. By two consecutive decisions of 22 February and 1 April 2010 the prosecutor decided to delegate the competent police officers to conduct the criminal investigation in conformity with the courts’ requirements, as stated in their judgments of 20 October 2006 and 12 February 2008 (see paragraphs 18 and 24 above). He also concluded that at the time of the impugned events, Rahova Penitentiary had not had a video surveillance system in place. 26. The prosecutor also mentioned the fact that the Superior Commission for Forensic Medicine had validated the autopsy report of 4 December 2003, adding that: “[...] the trauma could have been produced by hitting with or against ... a hard surface (active blows to the facial area followed by a fall with cranial impact, the fatal lesions having been caused by the counter blow), with the following amendments: considering the type of the traumatic lesions, their morphology and their layout, including on an anterior and posterior plan, the possibility that they could have been sustained solely as the result of a fall during an epileptic seizure can be excluded; the other trauma could have been produced by hitting with or against... hard objects, in the same context as the fatal injuries to the cephalic extremity. No deficiencies in the provision of medical care have been detected.” 27. While delegating the judiciary police to carry out the criminal investigation, the prosecutor also decided that the case should be registered in the archives of the Police Service Homicide Division, under “criminal cases with unidentified perpetrators”. 28. With the exception of the proceedings lodged by him before the domestic courts contesting the prosecutors’ decisions not to indict, the applicant was not involved in the investigation and alleged that he was hence forced to go to considerable lengths to obtain any relevant information regarding the progress of the proceedings. 29. The criminal investigation is still pending. 30. In the report of 11 March 2004 named “Death in suspicious circumstances of Marian Predică”, Amnesty International summarily presented the circumstances of the applicant’s son’s death while in custody. The report also included the statements given to representatives of the NGO by the director of the Penitentiary and by N.N., an alleged acquaintance of Marian Predică. The relevant parts of this report read as follows: “Marian Predica, born on 11 August 1983, was arrested on 20 March 2000 and sentenced to a prison term of one and a half years for stealing car radios and spare wheels [...] According to information from Ion Predică, Marian’s father, on 6 October 2003 at around 8.30am two police officers from Section 23 came to his home and asked him to go urgently to the Rahova Penitentiary. At the Rahova Penitentiary he was told by the doctor that his son had died and that his body was at the Municipal Hospital. He asked the doctor how it had happened and she reportedly replied that Marian Predică had slipped and had a brain concussion [...] On 7 October at around 7.30am Ion Predică went to the Institute of Forensic Medicine (Institutul de Medicină Legală – IML) to inquire about the cause of death of his son and was told that his son’s body had not yet arrived. On the next day Ion Predică returned to the hospital but was unable to obtain any information about the cause of death of his son. At the Hospital Directorate he was told that this information was confidential because Marian Predică had died in detention. Together with his sons, Ion Predică went back to IML where the forensic doctor reportedly told them that on his son’s body there had been signs of injuries suffered as a result of some violent act.[...] On 3 November 2003 a representative of Amnesty International visited Rahova Penitentiary and spoke to the director. [...]When questioned whether Marian Predică’s hair had been shaved off as a disciplinary punishment, the director denied that such punishment is practical in the penitentiary. According to the director, his hair had been shaved in preparation for a brain scan at the Municipal Hospital. When the Amnesty International representative questioned the director why the family had not been notified that Marian Predică had been hospitalized, her reply was that there is no legal obligation to notify them in such circumstances. Their only duty is to provide the medical treatment.[...] Amnesty International’s representative also spoke to N.N. who was arrested together with Marian Predică. They were initially held at Găeşti and then in Jilava. [...]. He is sure that Marian Predică was beaten by the special intervention unit in Rahova after the hearing in the Supreme Court. The special intervention unit – also referred to as the masked unit – reportedly raids cells of detainees and beats anyone who complains. After the hearing on 25 September 2003 N.N. had been playing in the waiting room with a piece of rope when two masked officers handcuffed him and held him by the arms and the neck. He was then returned to prison where he was taken to the barber and had his hair shaved off. At the time of the interview in November 2003, N.N.’s hair was very short. This is reportedly a usual punishment [...]” 31. In a letter of 6 November 2003 sent to the Court in his own case, G.I., a detainee at Rahova Penitentiary and applicant before the Court in application no. 25867/03, described what happened – to his knowledge – in November 2003 in the Penitentiary, as follows: “In November 2003 in this penitentiary, the detainee Predică Marian was brutally beaten and killed [...] by the special intervention forces (mascaţi), who are criminals, beasts with human faces [...] the following witnesses can confirm what I have just stated: M.T.C., T.C., V.L., V. M., P. D. All these witnesses are, together with Predică Marian, parties in the same criminal proceedings”. The parties were invited to submit comments with regard to this statement. 32. In their observations on the merits, the Government expressed their view that the statement could not be included in the present file, in so far as the applicant had never mentioned G.I. or put him forward as a potential witness to be heard in the domestic trial. Subsequently, in their letter of 26 May 2010, the Government informed the Court that the statement had been sent to the Prosecutor’s Office responsible for the criminal investigation, in so far as the circumstances revealed therein should be taken into consideration. 33. The applicant considered that the statement should be included in the present file, as it was “a protest statement sent to the Court”, seen by G.I. as the only authority able to help the victim’s family. In reply to the Government’s argument, the applicant held that he could not have known the names of detainees who had information on his son’s death, and thus had not been able to put their names forward as witnesses; moreover, the identification of potential witnesses was not his duty, but primarily the duty of the State. 34. Bearing in mind the particular circumstances in which the impugned statement was given and submitted by G.I., the Court sees no valid reason why it should not be included in the present file and considered together with all the other documents in the assessment of the present case. 35. Romanian Criminal Code, in its relevant parts, reads as follows: Homicide shall be punished by detention from 15 to 25 years and the loss of certain rights. Should one of the acts in sections 180-182 (hitting or injuring) result in the victim’s death, the penalty shall be imprisonment from five to fifteen years. Subjection to ill-treatment of a person being detained, in detention or in the execution of a security or correctional measure, shall be punished by imprisonment from one to five years. (1) An act deliberately causing a person pain or intense suffering, either physically or mentally, in order to obtain from that person or from a third party information or confessions, to punish him/her for an act committed by him/her or a third party or that he/she or a third party is suspected of having committed, to intimidate or exercise pressure on him/her or on a third party, or for any other reason based on a form of discrimination, regardless of its nature, when such pain or suffering is applied by an agent of public authority or by any other person acting in official capacity or upon instigation or with the express or tacit consent of such persons shall be punished by imprisonment from 2 to 7 years. (2) If the act in para. (1) results in any of the consequences in section 181 or section 182, the penalty shall be imprisonment from 3 to 10 years. (3) Torture that results in the victim’s death shall be punished by life imprisonment or by imprisonment from 15 to 25 years. (4) An attempt to commit the offences in the present section is punishable. (5) No exceptional circumstance, whatever its nature may be, regardless of whether it is a state of war or the threat of war, internal political instability or any other exceptional state, can be invoked to justify torture; the order of the law or command of legitimate authority cannot be invoked either. (6) The acts in para.(1) shall not constitute offences of torture if the pain or suffering are the exclusive result of legal sanctions and are inherent to these sanctions or caused by them.” 36. The provisions of the Romanian Criminal Procedure Code prescribing civil actions lodged within criminal proceedings and the procedure for contesting a prosecutor’s decision not to indict are summarized in the case of Cobzaru v. Romania (no. 48254/99, § 36, 26 July 2007).