CEDO-update

Citeva noi cazuri de interes pentru Romania:


-Ţîmbal v. Moldova (no. 22970/02)-(in care e clar ca Moldova a luat-o mai razna decit Romania)
Violation of Article 6 § 1;Violation of Article 1 of Protocol No. 1

Comunicatul grefierului:

Alexandru Ţîmbal, a Moldovan national who was born in 1944 and lives in Chişinău (Moldova), complained about the failure to enforce a judgment of 16 September 1999 awarding him compensation of 8,394.4 Moldovan lei (equivalent to EUR 737.37 at the time). The judgment was enforced on 25 April 2003 after the case was communicated by the Court to the Moldovan Government.
The applicant complained of a violation of his right to have his civil rights determined by a court, guaranteed by Article 6 (right to a fair hearing) of the Convention, and his right to the peaceful enjoyment of his possessions, guaranteed by Article 1 of Protocol No. 1 (protection of property).
The Court held unanimously that there had been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and awarded the applicant EUR 370 for pecuniary damage and EUR 800 for non-pecuniary damage. (The judgment is available only in English.)

-Bursuc v. Romania (Chamber Judgment/application no. 42066/98)-textul integral disponibil numai in franceza--mi se pare notabil ca CEDO a retinut tortura in acest caz

The Court held unanimously that there had been:

·a violation of Article 3 of the European Convention on Human Rights (prohibition of torture) on account of the fact that the applicant was subjected to torture while in police custody;

·a violation of Article 3 of the Convention on account of the authorities’ failure to conduct an adequate and effective investigation into his treatment;

·a violation of Article 6 § 1 of the Convention (right to a fair trial within a reasonable time) on account of the length of the criminal proceedings that were brought against him.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant’s widow 10,000 euros (EUR) for non-pecuniary damage.

1. Principal facts

The applicant, Ioan Bursuc, was a Romanian national who was born in 1949 and worked as a legal adviser. At the time of his death in 2001 he was living in Piatra-Neamt (Romania). The Court gave his widow permission to continue the proceedings.

The facts are disputed.

The applicant asserted that he had been stopped by two police officers at approximately 8 p.m. on the evening of 27 January 1997 while in a bar at the local headquarters of the Democratic Party. They had asked him for his identity papers in an offensive manner and he had replied in the same tone. The police officers had then set about him with their batons and kicked him before dragging him away in handcuffs to a car parked some fifty metres or so away. The applicant was given a further beating by the police officers in the car and had lapsed into semiconsciousness. He was taken to the central police station where he alleged that he was violently assaulted by some eight officers who threw him to the floor, stamped on him, hit him with their batons, kicked him, sprayed him with water and spat and urinated on him.

The applicant was subjected to this treatment for more than six hours and lost consciousness several times. At about 4 a.m. he was taken to the Piatra-Neamţ Psychiatric Hospital where he was given tranquillisers before being sent to a neurosurgery unit on account of his condition.

The Romanian Government said that at about midnight on the evening of 27 January 1997 police officers were called to a bar at the Democratic Party headquarters by a security officer who said that the applicant was drunk and had attacked a barmaid. The applicant was very aggressive and refused to disclose his identity and so was taken to the police station. He had had to be restrained in the police car because of his aggressiveness; at the police station he had injured himself by throwing himself to the ground and against chairs and tables in the room in which he had been put.

On 29 January 1997 Mr Bursuc was admitted to the hospital neurosurgery service in a serious condition and diagnosed as suffering from “concussion and diffuse cerebral oedema following cerebral cranial trauma”. A medical report drawn up on that date referred inter alia to acute closed cranial trauma resulting from assault, swelling to the face including the right eye, excoriation and bruising to the face and hands, pain in the thorax and head, and dizziness. The applicant left the hospital on 4 February 1997 and the following day attended Mureş Provincial Clinic for tests which the doctors had refused to perform. He was found to be suffering from dolichosigmoid[2] and angina pectoris that were probably trauma-induced, cerebral cranial trauma with diffuse vasogenic cerebral oedema as a result of an assault, and headaches and dizziness.

On 27 February 1997 Mr Bursuc lodged a complaint against the police officers who had ill-treated him. He in turn was prosecuted for insulting the police officers who had arrested and detained him. The applicant’s complaint was initially investigated by the public prosecutor’s office of
Neamţ Provincial Court, which decided that it had no jurisdiction. Conduct of the investigation was then transferred to the Bacău military prosecutor’s office, which on 4 February 1998 decided to take no further action on the grounds that it had not been proved that the eight police officers concerned had committed an offence. The applicant’s appeals against that decision were dismissed.

In the other set of proceedings Mr Bursuc was committed to stand trial in Alba Provincial Court on the charge of insulting police officers. Those proceedings were discontinued on 12 February 2001 following his death.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 21 May 1998 and transmitted to the Court on 1 November 1998. It was declared admissible on 4 November 2003.

Judgment was given by a Chamber of 7 judges, composed as follows:
Jean-Paul Costa (French), President,
András Baka (Hungarian),
Loukis Loucaides (Cypriot),
Corneliu Bîrsan (Romanian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Wilhelmina Thomassen (Netherlands), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment[3]

Complaints

The applicant complained under Article 3 of the Convention of his treatment at the hands of the police officers and of the lack of an effective investigation by the authorities. He also complained under Article 6 § 1 of the length of the criminal proceedings that had been brought against him for allegedly insulting the police officers.

Decision of the Court

Article 3

The applicant’s treatment in police custody

The Court reiterated that if a person sustained injuries in custody when entirely under the control of police officers it was for the Government to provide a plausible explanation as to the cause of the injuries.

In the case before the Court, the Romanian Government had maintained that the serious injuries the applicant had sustained could have been intentionally self-inflicted or caused by a fall in the bar before the police officers’ intervention, since the applicant was suffering from a mental disorder and was drunk.

The Court noted that the forensic doctors’ reports produced during the course of the investigation indicated that the injuries had been caused by an assault, and were not self-inflicted or the result of a fall. In addition, there was no medical evidence of any psychiatric illness apart from a report drawn up on the applicant’s discharge from hospital shortly after the assault which referred to the existence of “neurosis, psychomotor agitation and poor concentration and memory”. The Court also noted that the statements which the public prosecutor’s office had obtained about the incident were contradictory and imprecise and the investigators failed to take a statement from the applicant.

The investigation had not uncovered any evidence to support the allegation that the applicant’s injuries were sustained as a result of the incident in the bar. In that connection, the Court was surprised to note that the security officer was not even charged in the course of the investigation. Although the allegation that the injuries were self-inflicted was supported by the findings of the criminal investigation department, the Court noted that neither the Government nor the domestic authorities had explained how Mr Bursuc could have caused himself injuries of that type and seriousness. There was no expert evidence to support the allegation while the depositions of the police officers who had made it were particularly brief and confused on that point.

As the Romanian Government had not furnished any evidence to support their assertions and in the absence of a plausible explanation, the Court found it established that the applicant’s recorded injuries were caused by treatment for which the Government’s responsibility was engaged.

The intensity of the blows to which the applicant was subjected had caused multiple bruising to the head, including cerebral cranial trauma as a result of an assault, with diffuse cerebral oedema entailing long-term effects. That ill-treatment had continued for several hours starting with his arrest in the bar and transfer to the police station, ending only when he was taken to the hospital in a serious condition at 4.20 a.m. Moreover, the applicant had been in a particularly vulnerable position, having being taken to the police station alone at night by at least five police officers following a minor incident in the bar.

In those circumstances, the Court found that the violence to which the applicant had been subjected was particularly serious and cruel and capable of causing “severe” pain and suffering; as such, it had to be regarded as torture within the meaning of Article 3. It accordingly held that there had been a violation of the Convention on that account.

The applicant’s death

Although she had not alleged a violation of Article 2 (right to life), the applicant’s widow invited the Court to assess the effects the ill-treatment had had on the applicant’s health. The Court found that no direct causal link could be established between the trauma sustained as a result of the ill-treatment in 1997 and the applicant’s death following a deterioration in his condition after a road traffic accident in 1999.

Consequently, it did not consider it necessary to consider whether there had been a violation of Article 2.

The investigations conducted by the Romanian authorities

The investigation, which was initially conducted by the public prosecutor’s office at Neamţ Provincial Court
and by the Neamţ police force, concerned both the matters complained of by the applicant and the charge of insulting the police. The Court noted that the evidence and statements were obtained by the Piatra Neamţ criminal investigation department, even though the police officers under investigation were still on duty. That state of affairs was incompatible with the rule that there should be no hierarchical or institutional link between the persons called upon to conduct the investigation and those implicated in the offence under investigation.

The Court noted that five months after the incident the public prosecutor’s office in charge of the investigation had declined jurisdiction and transferred the case to the Bacău military prosecutor’s office, which decided to discontinue the proceedings against the eight police officers without even hearing the applicant. In the light of the domestic regulations in force at the time, the independence of the military prosecutor who conducted the investigation was open to doubt. Like police officers at the material time, military prosecutors were active officers within the military structure that functioned on the basis of hierarchical subordination. Concrete evidence of the military prosecutor’s lack of independence as a result of that institutional link was to be seen in the biased manner in which the investigation into the allegations against the police officers was conducted in the case. Particularly striking in the Court’s eyes was the military prosecutor’s office failure to make any mention in its order discontinuing the proceedings to the findings set out in the forensic experts’ reports, the last of which had been drawn up at the request of the public prosecutor’s office at Neamţ Provincial Court and referred to an assault on the applicant.

It also appeared that the applicant’s appeal against the order discontinuing the proceedings was filed away by the representative of the military prosecutor’s office at the Supreme Court on the ground that it had already come before the Supreme Court twice previously occasions. Yet the Romanian Government had not provided a copy of any such decision.

In the circumstances, the Court found that the Romanian authorities had not conducted a thorough and effective investigation into the applicant’s allegation that he had been subjected to ill-treatment while in police custody. Consequently, it held that there had also been a violation of Article 3 on that account.

Article 6

The Court noted that the criminal proceedings against the applicant had lasted four years, including one year and nine months before the public prosecutor’s office and two years and three months before the court at first instance. In holding that there had been a violation of Article 6 § 1, it found that the length of the proceedings could not reasonably be justified by the nature or complexity of the case and that the judicial authorities should have been particularly alert to the need to expedite the proceedings, especially in view of Mr Bursuc’s condition.