- Judgment date: 2017-01-17
- Communication date: 2013-03-12
- Application number(s): 40374/11
- Country: ROU
- Relevant ECHR article(s): 3, 6, 6-1
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)
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.717352
- Prediction: Violation
Communication text used for prediction
A list of the applicants is set out in the appendix.
The applicants are all Romanian nationals of Roma origin and heirs of Mr Ion Boacă who initiated the domestic proceedings.
Those proceedings were still pending when Mr Ion Boacă passed away on 1 April 2010.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The incidents with the police In the night between 15 and 16 August 2008 Ms L.N.
moved in with her boyfriend, Mr Costel Niculae, Mr Ion Boacă’s son who lived in his father’s home.
She was sixteen at that time.
The next morning, accompanied by Nicuşor and Cristian Boacă, she went to Clejani Police and made a written statement before the chief police expressing her wish to live in her boyfriend’s home.
She chose to make this statement because she belonged to a well-off non-Roma family.
In the same evening Mr V.M., the applicants’ neighbour gave statement to the police, confirming that Ms L.N.
had arrived and remained voluntarily in Mr Boacă’s home.
On 21 August 2008 Mr Niculae and Ms L.N.
were invited to the Clejani Mayor’s Office where they met with the deputy mayor, a representative of the Department for Social Assistance from the Mayor’s Office, the chief police from Clejani Police Office, and two police agents from the neighbouring commune of Bulbucata and the town Mihăileşti.
reiterated that she was willingly living with Mr Niculae and returned her jewellery and mobile phone to her mother.
On 27 August 2008, around noon, the Clejani chief police, together with the special intervention forces and two plain clothes police agents came by car to Mr Ion Boacă’s house.
The plain clothes police descended and asked him if he was keeping a girl in his home against her will.
He reiterated that L.N.
was staying with them voluntarily as she herself had declared in front of the authorities.
He called for Ms L.N.
to show up.
He asked the men if they had a search warrant, to which one of them reacted by hitting him in the face and telling him that his warrant were the fist and the gun.
They told him that the warrant was left at the Mayor’s Office.
came out of the house and reiterated that she was living there of her own will.
At the sight of Ms L.N.’s, the man who hit Mr Boacă signalled to the masked police agents of the special intervention forces to enter the yard.
Several persons were present in the house at that time: the applicants Mr Costel Niculae, Mrs Nina Nicolae (Mr Boacă’s wife) and Mr Marian Boacă (Mr Boacă’s minor son) and Mrs C.I., Mr Boacă’s daughter-in-law and her minor children I.A.B.
(three years and eight months) and G.M.B.
(one year and eight months).
At the police intervention, Mr Ion Boacă also took refuge in the yard.
The police broke the gate and destroyed five windows.
They dragged Ms L.N.
out of the house.
In the course of the assault, the police fired rubber bullets, and one of them hit Mr Marian Boacă’s bottom.
He fell on the ground and was helped up by two neighbours.
The masked police continued to fire in the air and threw tear gas.
Mr Ion Boacă, the applicants and some of their neighbours left for the Mayor’s Office to seek the search warrant.
Shortly after, more police forces arrived, but the mayor asked them to leave as the situation was calm.
Mr Marian Boacă was taken to hospital in Bolintin Deal.
The medical report indicated the existence of a superficial wound.
He was 15 years old at that time.
The criminal investigation concerning the police intervention On 24 November 2008 Mr Ion Boacă filed a criminal complaint against six police agents, with the Prosecutor’s Office attached to Giurgiu County Court.
On 7 May 2009 the Prosecutor’s Office decided not to prosecute.
It considered that the police agents had had no intention to harm the applicants.
The prosecutor noted that Ms L.N.’s father had complained to the police that his underage daughter had disappeared from her home.
At the applicants’ home, on 27 August 2008, Ms L.N.
had told the police that she was voluntarily living there but that she wanted to return to her parents’ home.
At that moment, at Ms Nina Niculae’s order, the applicant family attacked the police.
Therefore, the force used was only defensive, to allow the police agents to leave the premises with Ms L.N.
The prosecutor also considered that the injury sustained by Mr Marian Boacă was not consistent with a gunshot wound and had not necessitated medical care.
He also noted that Mr Ion Boacă and Mr Costel Niculae refused to give statements.
On 12 June 2009, following a complaint by Mr Ion Boacă, the decision was upheld by the prosecutor in chief of the Giurgiu County Prosecutor’s Office.
Mr Ion Boacă lodged a complaint against the two decisions before the Giurgiu County Court.
He pointed out that the prosecutor failed to hear any witnesses and only took statements from the police agents involved.
He indicated the names of eyewitnesses.
He also averred that he had not received any summons to testify before the prosecutor.
The County Court gave its ruling on 11 November 2009.
Based on the evidence in the file, it dismissed the complaint.
It found that the police agents had acted within the lawful limits of their authority.
Their purpose had not been to harm the applicants, but rather to protect themselves and Ms L.N.
from the applicants’ imminent attack.
It also dismissed as unfounded Mr Ion Boacă’s allegation of not having been invited to testify before the prosecutor.
Mr Ion Boacă appealed against that decision.
He died while the appeal proceedings were still pending.
The applicants (except for Mrs Nina Niculae) continued the proceedings on his behalf.
On 14 December 2010, based on the evidence in the file, the Bucharest Court of Appeal dismissed the appeal; the County Court decision became thus final.
The applicants complain under Article 3 of the Convention of inhuman and degrading treatment inflicted by the police.
They state that Mr Ion Boacă was hit by the police, and Mr Marian Boacă, a minor at that time, was shot.
They consider that they were not aggressive towards the police agents and did nothing that would justify the use of force.
Under Articles 3, 6 and 13 of the Convention, they complain that the investigation into the police abuse was not effective, as the investigators, colleagues of the accused agents, were not impartial.
They further argue that the courts have not been independent and impartial as they did not properly establish the facts of the case, or hear evidence.
The courts also failed to give reasons for their decisions.
The investigation was aimed exclusively at exonerating the police agents and the access to court afforded to the applicants remained formal.
CASE OF BOACĂ AND OTHERS v. ROMANIA
(Application no. 40374/11)
17 January 2017
This judgment is final but it may be subject to editorial revision. In the case of Boacă and Others v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Paulo Pinto de Albuquerque, President,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 40374/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Romanian nationals on 13 June 2011. The name, year of birth and place of residence of each of the respective applicants is set out in the appendix. 2. The applicants were represented by the Roma Center for Social Intervention and Studies (“Romano CRISS”), a non-governmental organisation based in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3. On 12 March 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants are all Romanian nationals of Roma origin and heirs of I.B., who instituted the domestic proceedings. Those proceedings were still pending when I.B. died on 1 April 2010. 5. I.B.’s heirs pursued the case before the domestic courts and lodged a complaint before the Court both on his own and their behalf. A. Background
6. On the night of 15 August 2008, L.N. moved in with her boyfriend, the fifth applicant, at his father’s (I.B.’s) home. She was sixteen at the time. 7. The next morning, accompanied by the second and third applicants, L.N. went to Clejani Police and made a written statement before the chief police expressing her wish to live in her boyfriend’s home. She chose to make this statement because she came from an affluent non-Roma family. The same evening V.M., the applicants’ neighbour, gave a statement to the police, confirming that L.N. had arrived and was staying voluntarily in I.B.’s home. 8. On 21 August 2008 L.N. and her boyfriend were invited to the Clejani Mayor’s Office, where they met with the deputy mayor, a representative of the Department for Social Assistance from the mayor’s office, the chief police from the Clejani Police Office, and two police officers from the neighbouring commune of Bulbucata and the town Mihăileşti. L.N. reiterated that she was living with the Boacă family voluntarily and asked the police to hand over her jewellery and her mobile phone to her mother. B. Incidents of 27 August 2008
1. The applicants’ version
9. On 27 August 2008, around noon, the Clejani chief of police, together with members of the Giurgiu Rapid Intervention Squad (“the R.I.S.”, Detaşamentul Poliţiei pentru Intervenţie Rapidă) and two plain-clothes policemen travelled by car to I.B.’s house. One of the plain-clothes policemen got out of the vehicle and asked I.B. if he was keeping a girl in his home against her will. He reiterated that L.N. was staying with them voluntarily, as she herself had declared in front of the authorities. He called for L.N. to come out of the house. He asked the policemen if they had a search warrant, to which one of them reacted by hitting him in the face and telling him that his warrant consisted of “a fist and a gun”. They told him that the warrant was at the mayor’s office. 10. Meanwhile L.N. came out of the house and reiterated that she was living there of her own free will. At the sight of L.N., the man who had hit I.B. signalled to the masked R.I.S. officers to enter the yard. 11. I.B. took refuge in the yard. Several other people were also present in the house at that time: I.B.’s sons, the fifth and the sixth applicants; I.B.’s partner, the seventh applicant; and C.I., I.B.’s daughter-in-law, along with her minor children I.A.B. (three years and eight months) and G.M.B. (one year and eight months; see paragraphs 37 and 64 (b) below). 12. The police broke a gate and five windows. They dragged L.N. off the premises. In the course of the assault, the police fired rubber bullets. I.B. witnessed that the sixth applicant, who had become scared and started running towards the back yard, was hit in the buttocks by a bullet fired by one of the policemen. He fell to the ground and was helped up by two neighbours. The masked police continued to fire in the air and threw tear gas. The children I.A.B. and G.M.B. lost consciousness. 13. The sixth applicant was taken to hospital in Bolintin Deal. The medical report indicated the existence of a superficial wound and gave a detailed description of the ecchymosis (bruising). It concluded that the wound could have been caused by the impact of a hard object, but excluded firearms as there were no traces of gunpowder or an ecchymosed perilesional ring. The sixth applicant was 15 years old at the time. 14. I.B., the applicants, and some of their neighbours left for the mayor’s office to ask about the search warrant. Shortly afterwards, police officers entered the office, but the mayor asked them to leave again as the situation was calm. It was found that the police did not have a warrant to enter I.B.’s home that day. 2. The Government’s version
15. Relying on the findings of the domestic courts, the Government made the following submissions as to the incident in question. 16. On 27 August 2008 L.N.’s father reported to the police that his daughter had disappeared and had apparently gone to her boyfriend’s home. He believed that his daughter was being kept against her will and thought that she might have been drugged. 17. The police decided to investigate the whereabouts of the girl. As the boyfriend had a criminal record of violent crime and as the Boacă family members were known to the police for being violent, the local police team was reinforced by a team of five members of the R.I.S. 18. Upon arrival at I.B.’s home, the police showed their badges and inquired about the girl. I.B. and the fifth applicant invited them in. Four police officers entered the house and talked to L.N. The Boacă family members tried to influence L.N., but eventually she decided to go with the police back to her parents’ home. 19. At that point, the Boacă family became violent: the seventh applicant shouted “nobody leaves alive” and the men picked up bats and knives, threatening L.N.’s and the police officers’ physical integrity. In order to protect L.N. and themselves, the police issued a warning and then, as it had no effect, used tear gas against the assailants. The attack continued as the Boacă family threw stones, bricks and glass at the police car where L.N. had been put for safety. As a fresh warning was also ignored, the police fired vertical warning shots in the air. 20. According to the police statements, nobody was injured during the operation. C. The criminal investigation concerning the police operation
21. On 12 and 17 September and 24 November 2008 I.B. and his counsel filed criminal complaints against the policemen involved in the incident of 27 August 2008, alleging brutality. They described in detail the police operation and the harm sustained by the Boacă family members, including the destruction of their property. I.B. also complained that this was not the first instance of police brutality against his family and believed that the police discriminated against them and treated them badly because of their Roma origin. He informed the prosecutor that he wished to produce documents and to bring eyewitnesses to support his allegations. 22. The investigation was carried out by the prosecutor’s office attached to Giurgiu County Court. The prosecutor in charge took statements from the eight police officers who had participated in the events: the chief of police, the two local policemen and the five members of the rapid intervention squad. They all described the events as in paragraphs 16 to 20 above. L.N. and her parents also gave statements to the police. 23. Nobody from the Boacă family was interviewed by the police. The court officer in charge of the service procedure recorded that I.B. and the fifth applicant had refused to accept the summonses, which had therefore been posted on their door. I.B. and the fifth applicant had informed the court officer that Romano CRISS had taken on their defence case and that they would go to the prosecutor’s office if summonsed. 24. According to the police’s mission statement and the report of the operation, the police officers had been equipped with firearms and tear gas and had used them in self-defence. 25. The investigators concluded in their report that the use of force had been proportionate and had lasted only as long as the Boacă family continued to be violent. They ruled out any racial motive for the operation. They also recorded that the damage to the police van was being examined by a panel which would make a proposal regarding appropriate compensation. 26. Based on the investigators’ report, on 7 May 2009 the prosecutor’s office decided not to prosecute. It found that the police officers had had no intention of harming the Boacă family members. The prosecutor considered the force used to have been only defensive and employed in order to allow the policemen to leave the premises safely with L.N. after the police had come under attack by the Boacă family. The prosecutor also concluded that the injury sustained by the sixth applicant was not consistent with a gunshot wound and was thus irrelevant for the purposes of the investigation. Lastly, the prosecutor noted that I.B. and the fifth applicant had refused to accept the summons to give statements in the case. 27. I.B. contested the decision, arguing that the investigators had failed to hear evidence from the eyewitnesses. On 12 June 2009 the prosecutor in chief of the Giurgiu County Prosecutor’s Office upheld the decision of 7 May 2009 (see paragraph 26 above). 28. I.B. lodged a complaint against the prosecutors’ decisions with the Giurgiu County Court. He pointed out that the prosecutors had failed to question the eyewitnesses and had only taken statements from the policemen involved. He provided the names of the eyewitnesses. He also maintained that he had not received any summons to appear before the prosecutor. 29. The County Court gave its ruling on 11 November 2009. Based on the evidence in the file, it dismissed the complaint. It found that the police officers had acted within the lawful limits of their authority. Their purpose had not been to harm the Boacă family members, but rather to protect themselves and L.N. from imminent attack. It also dismissed as unfounded I.B.’s allegation that he had not been invited to testify before the prosecutor. 30. I.B. appealed against that decision but died while the appeal proceedings were still pending. On 12 October 2010, based on a certificate issued on 15 September 2010 by the local administration, the applicants (except for the seventh applicant, Mrs Nina Niculae) were recognised as heirs. The seventh applicant, who had also expressed her wish to participate in the proceedings after I.B.’s death, did not object to the interlocutory judgment of 12 October 2010. She did not participate in the ensuing proceedings. 31. On 14 December 2010, based on the evidence in the file, the Bucharest Court of Appeal dismissed the appeal. The County Court decision thus became final. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32. The applicants complained that I.B., the sixth applicant and the children I.A.B. and G.M.B. had been victims of police brutality and that the ensuing investigation had not been effective. They relied on Articles 3, 6 and 13 of the Convention. 33. The Court is the master of the characterisation to be given in law to the facts of the case and does not consider itself bound by the characterisation given by an applicant or a government (see, among the most recent authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 59, 18 September 2015). Therefore, it considers that the case falls to be examined under Article 3 alone, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Victim status
34. The Government contested the victim status of some of the applicants. They argued that although all seven applicants had signed the application form, they did not provide details as to the way in which they considered themselves to be victims (direct or indirect) of the alleged violations of the Convention. Their complaint referred only to the alleged violence against I.B., the sixth applicant, and the two children. Moreover, the children’s mother did not complain on their behalf and there was no indication in the file who was their father. Lastly, they contended that the seventh applicant had not participated in the domestic proceedings even after I.B.’s death. 35. The applicants argued that I.B. and the seventh applicant had lived most of their lives together and had raised their children together, thus constituting a family for the purpose of the Convention. The seventh applicant therefore had a legitimate interest in continuing the present application on behalf of her deceased husband. 36. The Court has already had the opportunity to assess the applicants’ victim status in Boacă and Others v. Romania (no. 40355/11, §§ 41‐52, 12 January 2016), which concerned another set of criminal proceedings for alleged police brutality against I.B. The victim’s children had pursued the domestic proceedings on his behalf and then lodged the application with the Court. Basing its ruling on the relevant principles, the Court decided in that case that I.B.’s children had had a legitimate interest in bringing before the Court an application which concerned issues of general interest pertaining to respect for human rights. It therefore recognised them as indirect victims (ibid., § 50). The Court also concluded in that case that Mrs Nina Niculae, who was in a situation identical to the one in the present case, could not be considered an indirect victim (ibid., § 51). 37. The Court sees no reason to depart from its previous conclusions. It therefore accepts that the applicants, save for the seventh applicant, may claim to be indirect victims of the alleged violations suffered by I.B. As for the alleged violences suffered by the sixth applicant and the two infant children, the Court notes that I.B. had validly lodged the initial complaint with the domestic authorities, comprising allegations of police abuse which had affected all victims. This complaint was continued by I.B.’s sons after his death. Moreover, the sixth applicant can validly continue to represent himself in the proceedings before the Court. As for the infant children, it is to be noted that after I.B.’s death, the second applicant stepped in, for instance, by seeking damages on their behalf (see paragraph 64 (b) below). The Government, who contest the paternity of the children, failed to put forward any evidence to this end. The Court finds no reason to question the applicants’ position in this respect. Accordingly, the Court allows the Government objection only insofar as it concerns the seventh applicant. 38. In its further examination of the case, “the applicants” will be considered to refer only to the first six applicants listed in the appendix. 2. Exhaustion of domestic remedies
39. The Government also contended that the applicants had failed to exhaust the domestic remedies. In particular, they pointed out that since I.B. alone had lodged the domestic complaint, the authorities could only have examined the brutality allegedly suffered by him and by his minor child, the sixth applicant. Consequently, the other family members had not exhausted the domestic remedies. 40. The applicants asserted that I.B. had exhausted the available remedies. They argued that their case should be reviewed in the light of the principles set out in Marie-Louise Loyen and Bruneel v. France (no. 55929/00, § 29, 5 July 2005). 41. The Court notes that the Government did not contest the effectiveness of the domestic remedy used by I.B., namely the criminal complaint lodged with the authorities. It cannot but conclude that the domestic proceedings were properly exhausted by I.B. and by the applicants after I.B.’s death. 3. Well-foundedness
42. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicants
43. The applicants argued that no evidential material in the file supported the allegations that they had been violent towards the police on 27 August 2008. The necessity of using tear gas and firearms was therefore not proven. Moreover, there could be no justification for using such weapons in the presence of infants. They reiterated that at least six police officers had been present during the operation, which had involved only four adult men and three women from the Boacă family. 44. They also argued that they had not given statements during the investigation. They pointed out that the alleged refusal to accept the summons (see paragraph 23 above) had only been signed by the court officer in charge of the service procedure, with no independent witness attesting that the summonses had indeed been delivered to their home. Moreover, they contended that the prosecutor’s decisions had all been served on them at their lawyer’s address, raising doubts as to whether the summonses to appear before the prosecutor had in fact been served on them at their home address. 45. The applicants argued that the investigation had been formal and had failed to clarify the facts or to hear evidence from both sides or to examine the necessity and proportionality of the force used by the police officers. (b) The Government
46. The Government contended that the police visit to I.B.’s home had been prompted by the complaint lodged by L.N.’s father and that the presence of a rapid intervention squad had been dictated by the family’s past history of violence. The family’s aggressive reaction to the police presence made it necessary to use tear gas and then rubber bullets in self-defence. The use of force was therefore neither brutal nor excessive, being proportionate and necessary in the context. 47. Moreover, they maintained that there was no record of any injury being sustained by I.B. or the two infants during the police operation. The allegations that the police had intentionally injured the sixth applicant were also unfounded. In any case, the harm suffered by the sixth applicant had not been sufficient to attain the threshold laid down of Article 3 of the Convention. 48. According to the Government, there was nothing in the file to cause the Court to doubt the domestic authorities’ conclusions in the case. Their decisions had been based on evidence gathered by means of an effective and thorough investigation, and were well reasoned. The authorities had questioned those involved and had corroborated evidence. The Government reiterated that the Boacă family members had refused to give statements. They further argued that the prosecutor leading the investigation had been completely independent from the police officers involved and referred, by way of contrast, to the cases of Dumitru Popescu v. Romania (no. 1) (no. 49234/99, §§ 75 and 76, 26 April 2007) and Stoica v. Romania (no. 42722/02, § 79, 4 March 2008). Lastly, the Government asserted that the length of the investigation had not breached the requirement of expeditiousness set by Article 3; they referred by contrast to Damian-Burueana and Damian v. Romania (no. 6773/02, § 81, 26 May 2009). 2. The Court’s assessment
49. The Court refers to the general principles set out in its case-law concerning the prohibition of ill-treatment and the requirement of an effective investigation into such allegations as enshrined in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-123, ECHR 2015; Boacă, cited above, §§ 66-67, 74-75 and 81-84; and Samachișă v. Romania, no. 57467/10, §§ 59-64, 16 July 2015). (a) Substantive limb: alleged ill-treatment
50. The applicants complained that the force used by the police on 27 August 2008 was neither necessary nor proportionate. 51. They alleged that I.B. had been hit during the intervention, the sixth applicant had been shot and the two children had lost consciousness as a consequence of tear gas being thrown by police. The victims were all in their home, where they had received the visit of an armed squad consisting of the local police and five members of the R.I.S. The Court considers that in the circumstances of the case the injuries alleged by the victims attained the minimum level of severity required by Article 3 of the Convention. 52. The Court notes that in their submissions the Government relied exclusively on the findings of the domestic authorities and argued that the force used by the police had been necessary and proportionate. However, the authorities’ findings were based exclusively on the police account of events and neither the applicants nor any eyewitnesses had been questioned during the investigation (see paragraphs 22 and 23 above and paragraph 58 below). For this reason the Court must make its own assessment of whether the force used by the police was necessary and proportionate. 53. The Court notes that the local police knew L.N.’s whereabouts and the fact that the Boacă family had a history of violent behaviour. This information should have allowed the R.I.S. unit to plan their mission carefully in order to take account of any potential escalation and to adapt their response accordingly. The mission statement does not indicate that any such careful planning took place (see paragraph 24 above). Moreover, there are clear indications that the police acted without a proper search mandate from a judge even though the goal of their mission was to retrieve L.N. from a private home (see paragraph 14 above, in fine). Even if the Court can accept that the presence of the R.I.S. members was necessary in the light of the information available to the police, the lack of preparation is not acceptable. 54. The Court further notes that the police squad consisted mostly of highly-trained officers specialised in rapid intervention and yet they were deployed face-to-face with civilians in a relatively confined space (their home). Nothing suggests that they were overwhelmed by the Boacă family. There is no record of any violent behaviour from the applicants during the incidents; no action, be it civil, administrative or criminal, was subsequently instituted against them on charges of bodily harm or disobeying police orders or destruction of property. In this context, there seems to be no justification for the use of tear gas and firearms (see, mutatis mutandis, Ali Güneş v. Turkey, no. 9829/07, § 37‐43 10 April 2012). 55. In the light of the above findings, the Court considers that neither the domestic courts nor the Government have convincingly shown that, in the particular circumstances of the present case, the force employed by the police officers during the events of 27 August 2008 was proportionate (see, mutatis mutandis, Samachișă, cited above, § 75). 56. Accordingly, there has been a breach of Article 3 of the Convention under its substantive limb. (b) Procedural limb: alleged lack of an effective investigation
57. The applicants complained of the lack of an effective investigation into their allegations of ill-treatment. 58. The Court notes that the prosecutors and courts based their decisions entirely on the statements produced by the policemen involved in the incidents of 27 August 2008. No eyewitnesses were questioned during the investigation despite the applicants’ requests (see paragraph 21 above). Likewise, no member of the Boacă family was interviewed, not even I.B. or the fifth applicant, who alleged that they had suffered brutality at the hands of the police (see paragraphs 22, 23 and 52 above). The Court notes that the two parties involved in the events gave opposing accounts of the incident, making it even more important for the investigators to hear not only the victims’ versions of the facts but also those of the independent witnesses, in addition to those of the police officers involved. In this context, service of a summons by affixation to the applicants’ door is not acceptable as a valid form of notification, in particular as the direct victims of the incidents were at the time represented by a lawyer who apparently was not informed of the invitation to testify (see paragraph 23 above). 59. The Court further notes that several important points were left unexplained by the investigation: namely whether the police had a proper mandate and warrant to conduct the search (see paragraph 14 above), how the mission had been planned and executed (see paragraph 24 above), or which type of firearms had been used by the police during the intervention and whether their use had been necessary in the circumstances. Moreover, the medical certificate issued in respect of the sixth applicant was dismissed as irrelevant without a proper explanation (see paragraph 26 above). Furthermore the domestic investigation did not establish the respective participation of and role played by each of the police officers involved (see, mutatis mutandis, Danilov v. Ukraine, no. 2585/06, § 65, 13 March 2014). 60. Lastly on this point, the Court notes that the consequences of the police operation were not explained by the authorities. The allegations of police brutality against I.B. – a slap on his face – and the sixth applicant – a rubber bullet in his buttocks – and also of destruction of property – broken windows and broken gate (see paragraphs 9 and 12 above) − were dismissed in the domestic decisions without a proper explanation. 61. Taking into account the above-mentioned deficiencies identified in the investigation, the Court concludes that the State authorities failed to conduct a proper investigation into the applicants’ allegations of ill-treatment. 62. There has therefore also been a violation of Article 3 of the Convention under its procedural head. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
64. The applicants claimed the following amounts in respect of non-pecuniary damage:
(a) 25,000 euros (EUR) sought by the sixth applicant for the injuries sustained at the hands of the police and for the overall violence suffered by his family on 27 August 2008;
(b) EUR 25,000 by the second applicant on behalf of his minor children I.A.B. and G.M.B. for the effects of tear gas on them; and
(c) EUR 70,000 by all applicants for the ill-treatment suffered by I.B. and for the overall violence suffered by his family on 27 August 2008. The applicants also asked that the Government adopt an action plan for the implementation of general measures aimed at preventing the occurrence of similar cases in the future. 65. The Government asked the Court to dismiss the claim lodged by the second applicant on behalf of the minor children and by all applicants claiming to be direct victims of a violation. Furthermore, concerning the claim lodged by the sixth applicant on his own behalf and the claim lodged on behalf of I.B., they considered that the applicants had failed to prove the existence of a causal link, that the claims were exaggerated and that the finding of a violation should constitute sufficient just satisfaction. 66. They also argued that the adoption of an action plan would be related to the execution of judgments and was thus outside the scope of an award under Article 41 of the Convention. 67. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 11,700 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B. Costs and expenses
68. The applicants also claimed EUR 3,338 for the costs and expenses incurred before the domestic courts and for those incurred before the Court by Romano CRISS, on behalf of the applicants, to be paid directly to the applicants’ representative. 69. The Government contested the claim. 70. Having given consideration to the documents in its possession and to its case-law, the Court considers it reasonable to award the entire sum of EUR 3,338 covering costs under all heads. The amount shall be paid directly into the bank account of the applicant’s representatives. C. Default interest
71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible in so far as it concerns the first six applicants in the appended list and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention in its substantive limb;
3. Holds that there has been a violation of Article 3 of the Convention in its procedural limb;
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,338 (three thousand three hundred and thirty eight euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident
APPENDIXlist of the applicants
First name LAST NAME
Place of residence