I incorrectly predicted that there was a violation of human rights in IVANOV v. ROMANIA.

Judgment

FOURTH SECTION
CASE OF IVANOV v. ROMANIA
(Application no. 81315/17)

JUDGMENT
STRASBOURG
2 November 2021

This judgment is final but it may be subject to editorial revision. In the case of Ivanov v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President, Iulia Antoanella Motoc, Pere Pastor Vilanova, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 81315/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Constantin-Daniel Ivanov (“the applicant”), on 21 November 2017;
the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning ill-treatment by the police and the ineffective investigation thereto;
the parties’ observations;
the decision to dismiss the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns allegations raised under Article 3 of the Convention in relation to the excessive use of force by the police against the applicant and the ineffective investigation into the incident. THE FACTS
2. The applicant was born in 1973 and lives in Oradea. He was represented by Mr L. Negruțiu, a lawyer practising in Oradea. 3. The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In the evening of 24 May 2013 the applicant went to the home of his girlfriend, M.E.V., driving a car which did not have any number plates. Following an argument with her, the applicant got into his car and bumped it into his girlfriend’s car, damaging it. M.E.V. immediately called the police, asking for their help. 6. When the police came, the applicant locked himself in his car and refused to get out; consequently, a unit of gendarmes was called to the scene. 7. The applicant tried to escape, but because his car was blocked by two police cars both in front and behind, he intentionally drove into those two cars, damaging them in the process. 8. D.P., one of the gendarmes, broke the front left window of the applicant’s car and sprayed some teargas inside. With the assistance of his colleagues, C.S.P. and A.P., he dragged the applicant out of the car by the broken window. Once they got him out, they threw him on the ground and handcuffed him. Since he was putting up forceful resistance and was using violent language against the police officers, the officers took him by force and dragged him to the police car. 9. As the applicant, who appeared to be inebriated, refused to take a test to establish his blood alcohol level unless his lawyer was also present, the officers took him to the Oradea Forensic Medicine Department (hereinafter “the FMD”) so that he could give a biological sample in order to establish his blood alcohol level. There, the applicant repeatedly refused to comply, as witnessed by C.G.P. and A.V.S. (see paragraphs 33-34 below). 10. The applicant was subsequently taken to the police station for questioning; as he continued to insult the police officers and to display violent behaviour, he was handcuffed again. The applicant, in the presence of an officially appointed lawyer, C.A.R., refused to give any statements. 11. A report was drawn up by the police officers concerning the above‐mentioned incidents. Two witnesses, A.V.S. and B.C.P., who had been present when the applicant had been apprehended and when he was taken to the FMD, signed and confirmed the report; the applicant refused to sign it. 12. A second report relating to the incident in which the applicant had damaged his own car and three other cars (see paragraphs 5 and 7 above) was drawn up on the same occasion. 13. A third report relating to the use of force by the State agents had been issued on the same day. The report stated that teargas and handcuffs had been used against the applicant, who had been found by the gendarmes blocked in a car that did not have number plates, and who had attempted to escape by bumping his car against the two police cars which had surrounded him. The gendarmes had broken the applicant’s car window and pulled him out; the report noted that the applicant had been visibly inebriated. 14. The police further decided to remand the applicant in custody (reţinere) for twenty-four hours. Therefore, he was taken to the Bihor County Police detention facility; upon his admission there, he was medically checked by a doctor, M.M. (see paragraph 30 below). 15. On 25 May 2013 the Oradea First Instance Court decided to place the applicant in pre-trial detention at the police detention facility; he was charged with having refused to give blood samples to establish the alcohol level in his blood, with having damaged M.E.V.’s car and, lastly, with having disturbed public order and having verbally assaulted two State agents. 16. Before entering the detention facility, the applicant was examined by a doctor, C.C., who noted in the medical report that there were no signs of assault on his body. 17. On 29 May 2013 the applicant was taken to the FMD of the Oradea Emergency Hospital, where he was examined by a forensic doctor. The doctor drafted a medical report, which noted that he had purple bruises on both his legs, on his right foot, including in one toe, and on the left knee, and a larger purple bruise on his left forearm. He complained of feeling pain in his left elbow, left knee and leg, as well as in both his temporomandibular joints. The injuries could have been the consequence of being hit with, or by, a hard object followed by a fall on a rough surface, which could have dated from 24 May 2013; they had required three to four days of medical attention. 18. Based on a report drawn up on 30 May 2013 by a psychiatrist who had examined the applicant and noted that he had symptoms of unspecific psychotic behaviour, on 4 June 2013 the applicant was taken to the Bihor Forensic Medicine Department, where he was examined by a panel made up of forensic doctors and psychiatrists. The report drawn up on 14 June 2013 held that the applicant had a schizoaffective disorder; therefore, at the relevant time and most probably also during the incident of 24 May 2013, he had lacked the capacity to understand the consequences of his actions (discernǎmânt absent). The report concluded that the applicant should be admitted to a medical facility pending criminal investigations in respect of him, as provided by Article 114 of the Criminal Code (see paragraph 54 below). 19. On 30 October 2013 the applicant was re-examined by a similar panel. The final medical report drawn up on 25 November 2013 confirmed the conclusions of the previous report and held that the measure to place and keep the applicant in a specialised medical facility was justified. 20. In his criminal complaint lodged on 6 June 2016, as soon as he had been released from the medical institution in which he had been placed by the court (see paragraphs 50-51 below), the applicant alleged that he had been ill-treated by the police on several occasions while he had been placed in detention, as described below. 21. On 24 May 2013 he was brutally apprehended from his car. In the police car, the police officers kicked and punched him. At the FMD he was denied the right to a lawyer. At the police station, police officer F.C.F. hit him and tried to force him to give a statement; L.P., the chief of the police station, also came and kicked him. The officially appointed lawyer, C.A.R., signed all the papers the police gave her, in spite of the applicant’s request to call a lawyer of his own choosing. A doctor examined him and refused to mention all his wounds in the report, because “those were not of any concern to him”. 22. Consequently, on 26 May 2013 the applicant started a hunger strike. 23. On 29 May 2013 he was taken to the FMD in order to obtain a medical certificate for his wounds (see paragraph 17 above).When he was returned to his cell, he asked for a copy of the Bible, which he started to read out loudly. As a result, the guards went in and hit him, causing him to bruise; however, they were not able to take his Bible away. 24. On 1 June 2013, during his daily walk, he wrote on the wall that he was in the service of the Holy Cross and of the Romanian people; the guards went to kick and punch him until he bled. 25. On 13 June 2013 a mattress was removed from his bed and the guards hit him because he “was a troublemaker”. 26. On 16 June 2013, when he started spitting out blood, he asked to be taken to hospital. He was taken to the regional hospital, where several blood tests were carried out. In spite of his desperate pleas to be hospitalised, for fear of being taken back into detention, nobody paid attention to what he was saying; moreover, the guards hit him. The applicant mentioned that I.R., a neighbour of his, had been present and could confirm his allegations. 27. On 17 June 2013 he was taken to Ştei Psychiatric Hospital, where he was well looked after, and therefore “his nightmare ended”. 28. Throughout his complaint, the applicant alleged that, while in the detention facility, he had been placed in “cell no. 3 (the cell of death)”, where he had not had any water to drink, so he had drunk his urine, and he had spent twenty-four days on hunger strike there. He indicated that those who were responsible for his ill-treatment were the police officer F.C.F. and L.P., the chief of the police station. 29. On 22 June 2016 the prosecutor started criminal investigations in rem, in relation to charges of ill-treatment and abuse of authority by the police. During those investigations, several witnesses, as well as the applicant, were examined. 30. On 21 July 2016 M.M., the doctor who had checked the applicant’s physical state before he was placed in custody (see paragraph 14 above), was examined by the prosecutor. He stated that the applicant had had some scratches on his knees and arms, which had been noted in the report drawn up at the time. He had not seen any other injuries and the applicant had not complained that he had been assaulted by the police officers. 31. On 26 July 2016 the prosecutor questioned C.C., the doctor who had examined the applicant upon his arrival at the detention facility. He stated that he did not remember the details of the applicant’s medical examination, adding that, in principle, if a doctor found any signs of assault on a patient, he or she had the duty to report the matter to the prosecutor and to send the patient to a specialist. 32. On 2 September 2016 C.A.R., the lawyer appointed to represent the applicant on 24 May 2013 at the police station, stated that when she had seen the applicant there, he had been very agitated and had repeated that he wanted to be arrested. She had not seen any signs of assault on the applicant and he had not mentioned anything to her about having been ill-treated or threatened by the police. Moreover, he had not requested to be assisted by another lawyer. 33. On 7 September 2016 C.G.P., a taxi driver, stated that one day in 2013 he had been asked by a police officer to witness the applicant giving biological samples in the hospital. Inside a hospital room, he had seen the applicant, who was in a T-shirt and shorts, without any visible traces of having been assaulted. The applicant had repeatedly refused to cooperate with the doctor and the police officers and had not given any biological samples. Subsequently, at the police station, he had also refused to sign any statements. While the witness was present, he had not seen the applicant being ill-treated or assaulted in any way. 34. On 14 September 2016 a similar statement was given to the prosecutor by A.V.S., one of M.E.V.’s neighbours. He had also witnessed the applicant’s apprehension by the police, confirming that the applicant had initially refused to present his identification papers to the police officers, and had then refused to get out of his car, locking himself in; when a reinforcement team arrived, the applicant had tried to escape by smashing into a police car. 35. On 28 November 2016 the applicant reiterated his complaints before the prosecutor and requested that the witness I.R. (see paragraph 26 above) be examined. 36. On 6 December 2016 I.R. declared that sometime in 2013, in his capacity as a security guard at the Oradea Regional Hospital, he had seen several police officers coming to the hospital with the applicant, following the latter’s request to have a medical check-up. The applicant had been agitated and shouting “these [people] beat me up”, without indicating who had been beating him. The witness had not at any moment seen any act of aggression against the applicant. 37. The prosecutor examined all the police officers who had been involved or who had been nearby during the incidents mentioned in the criminal complaint. The officers who had accompanied the applicant when he was taken to the hospital for medical investigations (see paragraph 26 above) stated that they had never ill-treated him; however, they contended that once in the hospital, he had repeatedly demanded to be kept there and not sent back to the detention facility. 38. The officers who guarded the applicant during his stay in the police detention facility stated that they had not witnessed any act of aggression against him. The applicant, however, had caused trouble by shouting, hurling insults and sometimes mentioning biblical characters in his monologues. 39. Based on the evidence on file, on 15 December 2016 the prosecutor decided to terminate the criminal proceedings (clasare), in so far as there was no proof that any unlawful act had been committed against the applicant by F.C.F. or by L.P.
40. In relation to the incident of 24 May 2013, the prosecutor found that the injuries inflicted on the applicant and confirmed by the medical certificate (see paragraph 17 above) had been caused by the gendarmes in their attempts to pull him out of his car and take him to the police car. During those attempts, the applicant had been handcuffed and pulled by force by the police officers because of his very aggressive behaviour, having first tried to escape by smashing into two police cars and then having resisted the measures by throwing himself on the ground and using insulting language. In such circumstances, the prosecutor considered that the immobilisation measures applied by the gendarmes had been necessary and in compliance with the provisions of Law no. 550/2004 on the organisation and functioning of the Romanian Gendarmerie, in particular with Article 29 (c) (see paragraph 53 below). 41. Concerning the other incidents mentioned by the applicant, the prosecutor found evidence indicating that during the time he had spent in the police detention facility, the applicant had on several occasions been physically and verbally aggressive towards the police guards and L.P.; therefore, on 13 June 2013, the latter had come to the applicant’s cell to talk to him and see why he had urinated on his mattress and then watered it in the shower, at which point the applicant had started to insult him. 42. The prosecutor further noted that the criminal proceedings instituted against the applicant for the unlawful acts committed on 24 May 2013 had been terminated on 6 December 2016 in view of the fact that a medical expert report had established that the applicant did not have capacity to be held criminally accountable in so far as, at the relevant time, he had been in the middle of a psychotic phase (see also paragraph 52 below). Consequently, the prosecutor considered that the subjective and objective elements on file indicated that none of the unlawful acts complained of by the applicant had been committed. 43. On 3 February 2017 the Chief Prosecutor dismissed the applicant’s challenge against the decision of 15 December 2016, holding that it was well-founded and that the reasoning relied on a sufficiently established factual basis. 44. The applicant challenged the prosecutors’ decisions before the court. 45. On 20 April 2017 the Oradea Court of Appeal dismissed the applicant’s complaint and upheld the prosecutor’s decision to terminate the criminal investigations against the police officers. The court held that the authorities had thoroughly and efficiently conducted the investigation, by examining all the direct witnesses. 46. In relation to the incident of 24 May 2013, the court held that the testimonial evidence corroborated the conclusions of the medical certificate in the sense that the injuries inflicted on the applicant were due to the measures taken by the police officers to pull him out of his car in order to handcuff him and drag him to the police car. The use of force against the applicant had been necessary and lawful; it had also been proportionate to the applicant’s own aggressive behaviour. 47. Concerning all the other incidents referred to by the applicant, the court found that the witnesses who had been examined – namely ten police officers and the witness I.R. who had been proposed by the applicant – had denied having perpetrated or witnessed any act of ill‐treatment against the applicant. Moreover, those witnesses had stated that throughout his detention, the applicant’s behaviour had been aggressive and threatening towards the guards and L.P.
48. The court’s decision was notified to the applicant on 26 May 2017. 49. Meanwhile, on 25 May 2013 the prosecutor had instituted criminal proceedings against the applicant in relation to the incident of 24 May 2013. The applicant was investigated for having refused to give blood samples to establish the alcohol level in his blood, for having disturbed public order and having verbally assaulted two State agents, as well as for inflicting damage to property (see paragraph 15 above). 50. On the basis of the medical report drawn up on 14 June 2013 (see paragraph 18 above), the court set aside the pre-trial detention order against the applicant and from 17 June 2013 he was placed in a medical facility, namely Ştei Psychiatric Hospital (see paragraph 27 above), in accordance with Article 114 of the Criminal Code (see paragraph 54 below). 51. On 16 September 2013 the Oradea First Instance Court decided that the applicant should remain in the above-mentioned medical facility until his full recovery. 52. On the basis of the conclusions of the medical reports confirming that the applicant could not be held criminally accountable in so far as at the relevant time he had lacked the capacity to understand the consequences of his actions (see paragraphs 18 and 19 above), the prosecutor decided on 6 December 2013 to terminate the criminal proceedings against him. RELEVANT LEGAL FRAMEWORK
53. Article 29 (c) of Law no. 550/2004 on the organisation and functioning of the Romanian Gendarmerie essentially provided at the material time that the gendarmerie was entitled to use protective shields, helmets, rubber truncheons, handcuffs, teargas and water jets and other means of restraint in order to immobilise people whose actions, inter alia, disturbed public order, put in danger the physical integrity of others or endangered public or private property or who used aggressive behaviour or language towards State agents. 54. Article 114 of the Criminal Code, as in force at the relevant time, provided as follows:
Article 114 – Admission to a medical facility
“1. Where an offender is mentally ill or is a drug addict and is in a state that presents a danger to society, his or her admission to a specialist medical institution may be ordered until he or she returns to health. 2. This measure may also be taken temporarily during a criminal prosecution or trial.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
55. The applicant complained that he had been ill-treated by the police on 24 May 2013, but also on other occasions during his detention in the police detention facility, and that the investigation of his complaints had not been effective. He relied on Articles 3 and 6 of the Convention. 56. The Court, being master of the characterisation to be given in law to the facts of the case, finds that these complaints cover the same ground and thus finds it appropriate to examine the applicant’s allegations solely under Article 3 of the Convention (see, for instance, Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015), which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
57. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 58. The applicant submitted that he had been subjected to ill-treatment and constant humiliation by the police officers upon his apprehension by State agents and while he had been detained in the police detention facility. He argued that the medical certificate had mentioned that the cause of his injuries all over his body had been active blows; the investigation into the incidents had not elucidated how those blows had been inflicted. Moreover, the Oradea Court of Appeal had based its final decision exclusively on statements given by State agents, who could not be considered objective or impartial. 59. The Government argued that the alleged ill-treatment suffered by the applicant had been a consequence of his own obstructive and recalcitrant behaviour vis-à-vis the police officers who had been trying to get him out of the car after he had already damaged three other cars. The evidence on file proved that there had been no ill-treatment committed by the police against the applicant; the bruises and wounds confirmed by the medical certificate had been the result of the immobilisation manoeuvres, which had been necessary and lawful measures in view of the particular circumstances of the incident in question. 60. Concerning the procedural aspect of the complaint, the Government submitted that the applicant had been actively involved throughout the criminal proceedings, which had been conducted speedily, as they had ended in less than one year. Moreover, the evidence he had proposed had been allowed by the courts; however, the alleged ill-treatment by the police had not been confirmed by the evidence on file, and in particular not even by the witnesses I.R., proposed by the applicant. The investigative bodies were impartial and had conducted an effective investigation. (a) General principles
61. The general principles in respect of the substantive and the procedural aspect of Article 3 of the Convention have been set out in Bouyid cited above, §§ 81-90 and 114-23). 62. Regarding the establishment of the facts, the Court pointed out in El‐Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 155, ECHR 2012) that, although it recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this was not rendered unavoidable by the circumstances of a particular case, it had to apply a “particularly thorough scrutiny” where allegations were made under Article 3 of the Convention, even if certain domestic proceedings and investigations had already taken place. In other words, in such a context the Court is prepared to conduct a thorough examination of the findings of the national courts. In examining them it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (see Mîţu v. the Republic of Moldova, no. 23524/14, § 29, 30 June 2020, and the cases cited therein). 63. The Court also reiterates that in respect of a person who is deprived of his or her liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, §§ 88 and 100-01, cited above). (b) Application of these principles to the present case
64. The Court observes that the applicant’s complaints concern both the substantive and the procedural aspects of Article 3 of the Convention. As regards the former aspect, the Court notes that the parties disagreed as to whether some of the applicant’s injuries had been caused during the immobilisation measures only or also while the applicant was in police custody, and, essentially, whether they had been the result of the necessary use of proportionate force. 65. Therefore, the Court considers it appropriate to firstly examine whether the applicant’s complaint of ill-treatment was adequately investigated by the authorities (see, for example, Dzhulay v. Ukraine, no. 24439/06, § 69, 3 April 2014; Chinez v. Romania, no. 2040/12, § 57, 17 March 2015; Chatzistavrou v. Greece, no. 49582/14, § 45, 1 March 2018; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 36, 8 October 2020). It will then turn to the question of whether the alleged ill‐treatment took place, bearing in mind the relevant domestic findings. (i) Adequacy of the investigation
66. The Court observes that, following the applicant’s complaint lodged on 6 June 2016, the domestic authorities started an inquiry into his allegations of ill-treatment on 22 June 2016 (see paragraph 29 above). 67. While noting that the investigation was initiated promptly once the complaint had been lodged, the Court also finds that the investigation was conducted speedily, as it was completed in less than one year, and, in accordance with statutory requirements, took place under the authority of a prosecutor, whose decision was subsequently contested before a criminal court (see paragraph 44 above). The Court concludes that a prompt and speedy investigation into the alleged events was conducted under the control of an independent authority. 68. Furthermore, throughout the investigation, the applicant was constantly and actively involved in the proceedings: he was allowed to propose and to refute evidence, to put forward arguments and to build his case as he considered appropriate (see paragraphs 29, 35-36, 43 and 44 above). 69. All those who had been involved in the incident were heard by the prosecutor (see paragraphs 30-38 above), including the main defence witnesses proposed by the applicant (see paragraph 36 above). The domestic authorities found that all evidence on file, including the findings of the medical certificate, corroborated in that the injuries inflicted on the applicant could have been the result of apprehension and immobilisation manoeuvres while he was putting up resistance (see paragraphs 40-43 and 46-47 above). 70. The Court therefore considers it noteworthy that no obvious omission to collect relevant evidence could be attributed to the authorities, in contrast with a number of cases where it has found a violation of Article 3 on the grounds that the authorities had made a series of crucial omissions during investigations into an applicant’s complaints of ill‐treatment by police officers (see, for instance, Vasile Victor Stanciu v. Romania, no. 70040/13, §§ 49-51, 9 January 2018). 71. In that connection, the Court also notes that, albeit for apparently objective reasons (see paragraph 20 above), the applicant delayed lodging his criminal complaint, thus rendering the ensuing investigation inquiry more difficult, especially in relation to the allegations of ill-treatment inflicted on him while he was in police custody (see, for instance, Zakharov and Varzhabetyan v. Russia, no. 35880/14 and 75926/17, § 53, 13 October 2020). 72. Indeed, concerning the above-mentioned allegations relating to the incidents of 29 May and of 1, 13 and 16 June 2013 (see paragraphs 23‐26 above), the evidence on file does not appear to substantiate their veracity in any way. The applicant himself did not indicate any further evidence to support his allegations, which were dismissed by the domestic authorities as lacking any factual basis. 73. Having regard to the above elements, the Court considers that the investigation into the applicant’s complaints can be considered to have been thorough and “effective”. It follows that there has been no violation of Article 3 of the Convention under its procedural limb. (ii) The use of force against the applicant
74. The Court notes at the outset that the applicant’s allegations that he was beaten on several occasions while in police custody (see paragraph 55 above) were not confirmed in the domestic investigation by the prosecution, or in the subsequent judicial review by the court (see paragraphs 40‐41, 46‐47 and 72 above). 75. Furthermore, the Court considers that no cogent evidence has been provided to lead it to depart from the domestic authorities’ findings that the only injuries proved to have been inflicted on the applicant – namely those which were confirmed by the medical documents referring to the incident of 24 May 2013 – had been inflicted upon his apprehension by the State agents; the Court therefore accepts the version of events established by the investigating authorities and confirmed by the domestic courts. 76. In the light of the above, it concludes that there is no substantiation as to the allegations of ill-treatment having been inflicted on the applicant on 29 May and on 1, 13 and 16 June 2013; moreover, in relation to the incident of 24 May 2013, the Court, having regard to its conclusion concerning the thoroughness of the domestic investigation (see paragraph 73 above) considers that these have sufficiently and convincingly shown that, in the particular circumstances of the present case, the recourse to physical force had been made strictly necessary by the applicant’s own conduct. While the applicant undoubtedly suffered as a result of his apprehension and subsequent arrest, the injuries and his associated suffering did not result from the use of excessive force against him. 77. Accordingly, the Court finds that there has been no violation of Article 3 of the Convention in respect of the alleged ill-treatment by the State agents against the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 2 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Gabriele Kucsko-StadlmayerDeputy Registrar President

FOURTH SECTION
CASE OF IVANOV v. ROMANIA
(Application no. 81315/17)

JUDGMENT
STRASBOURG
2 November 2021

This judgment is final but it may be subject to editorial revision. In the case of Ivanov v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President, Iulia Antoanella Motoc, Pere Pastor Vilanova, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 81315/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Constantin-Daniel Ivanov (“the applicant”), on 21 November 2017;
the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning ill-treatment by the police and the ineffective investigation thereto;
the parties’ observations;
the decision to dismiss the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns allegations raised under Article 3 of the Convention in relation to the excessive use of force by the police against the applicant and the ineffective investigation into the incident. THE FACTS
2. The applicant was born in 1973 and lives in Oradea. He was represented by Mr L. Negruțiu, a lawyer practising in Oradea. 3. The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In the evening of 24 May 2013 the applicant went to the home of his girlfriend, M.E.V., driving a car which did not have any number plates. Following an argument with her, the applicant got into his car and bumped it into his girlfriend’s car, damaging it. M.E.V. immediately called the police, asking for their help. 6. When the police came, the applicant locked himself in his car and refused to get out; consequently, a unit of gendarmes was called to the scene. 7. The applicant tried to escape, but because his car was blocked by two police cars both in front and behind, he intentionally drove into those two cars, damaging them in the process. 8. D.P., one of the gendarmes, broke the front left window of the applicant’s car and sprayed some teargas inside. With the assistance of his colleagues, C.S.P. and A.P., he dragged the applicant out of the car by the broken window. Once they got him out, they threw him on the ground and handcuffed him. Since he was putting up forceful resistance and was using violent language against the police officers, the officers took him by force and dragged him to the police car. 9. As the applicant, who appeared to be inebriated, refused to take a test to establish his blood alcohol level unless his lawyer was also present, the officers took him to the Oradea Forensic Medicine Department (hereinafter “the FMD”) so that he could give a biological sample in order to establish his blood alcohol level. There, the applicant repeatedly refused to comply, as witnessed by C.G.P. and A.V.S. (see paragraphs 33-34 below). 10. The applicant was subsequently taken to the police station for questioning; as he continued to insult the police officers and to display violent behaviour, he was handcuffed again. The applicant, in the presence of an officially appointed lawyer, C.A.R., refused to give any statements. 11. A report was drawn up by the police officers concerning the above‐mentioned incidents. Two witnesses, A.V.S. and B.C.P., who had been present when the applicant had been apprehended and when he was taken to the FMD, signed and confirmed the report; the applicant refused to sign it. 12. A second report relating to the incident in which the applicant had damaged his own car and three other cars (see paragraphs 5 and 7 above) was drawn up on the same occasion. 13. A third report relating to the use of force by the State agents had been issued on the same day. The report stated that teargas and handcuffs had been used against the applicant, who had been found by the gendarmes blocked in a car that did not have number plates, and who had attempted to escape by bumping his car against the two police cars which had surrounded him. The gendarmes had broken the applicant’s car window and pulled him out; the report noted that the applicant had been visibly inebriated. 14. The police further decided to remand the applicant in custody (reţinere) for twenty-four hours. Therefore, he was taken to the Bihor County Police detention facility; upon his admission there, he was medically checked by a doctor, M.M. (see paragraph 30 below). 15. On 25 May 2013 the Oradea First Instance Court decided to place the applicant in pre-trial detention at the police detention facility; he was charged with having refused to give blood samples to establish the alcohol level in his blood, with having damaged M.E.V.’s car and, lastly, with having disturbed public order and having verbally assaulted two State agents. 16. Before entering the detention facility, the applicant was examined by a doctor, C.C., who noted in the medical report that there were no signs of assault on his body. 17. On 29 May 2013 the applicant was taken to the FMD of the Oradea Emergency Hospital, where he was examined by a forensic doctor. The doctor drafted a medical report, which noted that he had purple bruises on both his legs, on his right foot, including in one toe, and on the left knee, and a larger purple bruise on his left forearm. He complained of feeling pain in his left elbow, left knee and leg, as well as in both his temporomandibular joints. The injuries could have been the consequence of being hit with, or by, a hard object followed by a fall on a rough surface, which could have dated from 24 May 2013; they had required three to four days of medical attention. 18. Based on a report drawn up on 30 May 2013 by a psychiatrist who had examined the applicant and noted that he had symptoms of unspecific psychotic behaviour, on 4 June 2013 the applicant was taken to the Bihor Forensic Medicine Department, where he was examined by a panel made up of forensic doctors and psychiatrists. The report drawn up on 14 June 2013 held that the applicant had a schizoaffective disorder; therefore, at the relevant time and most probably also during the incident of 24 May 2013, he had lacked the capacity to understand the consequences of his actions (discernǎmânt absent). The report concluded that the applicant should be admitted to a medical facility pending criminal investigations in respect of him, as provided by Article 114 of the Criminal Code (see paragraph 54 below). 19. On 30 October 2013 the applicant was re-examined by a similar panel. The final medical report drawn up on 25 November 2013 confirmed the conclusions of the previous report and held that the measure to place and keep the applicant in a specialised medical facility was justified. 20. In his criminal complaint lodged on 6 June 2016, as soon as he had been released from the medical institution in which he had been placed by the court (see paragraphs 50-51 below), the applicant alleged that he had been ill-treated by the police on several occasions while he had been placed in detention, as described below. 21. On 24 May 2013 he was brutally apprehended from his car. In the police car, the police officers kicked and punched him. At the FMD he was denied the right to a lawyer. At the police station, police officer F.C.F. hit him and tried to force him to give a statement; L.P., the chief of the police station, also came and kicked him. The officially appointed lawyer, C.A.R., signed all the papers the police gave her, in spite of the applicant’s request to call a lawyer of his own choosing. A doctor examined him and refused to mention all his wounds in the report, because “those were not of any concern to him”. 22. Consequently, on 26 May 2013 the applicant started a hunger strike. 23. On 29 May 2013 he was taken to the FMD in order to obtain a medical certificate for his wounds (see paragraph 17 above).When he was returned to his cell, he asked for a copy of the Bible, which he started to read out loudly. As a result, the guards went in and hit him, causing him to bruise; however, they were not able to take his Bible away. 24. On 1 June 2013, during his daily walk, he wrote on the wall that he was in the service of the Holy Cross and of the Romanian people; the guards went to kick and punch him until he bled. 25. On 13 June 2013 a mattress was removed from his bed and the guards hit him because he “was a troublemaker”. 26. On 16 June 2013, when he started spitting out blood, he asked to be taken to hospital. He was taken to the regional hospital, where several blood tests were carried out. In spite of his desperate pleas to be hospitalised, for fear of being taken back into detention, nobody paid attention to what he was saying; moreover, the guards hit him. The applicant mentioned that I.R., a neighbour of his, had been present and could confirm his allegations. 27. On 17 June 2013 he was taken to Ştei Psychiatric Hospital, where he was well looked after, and therefore “his nightmare ended”. 28. Throughout his complaint, the applicant alleged that, while in the detention facility, he had been placed in “cell no. 3 (the cell of death)”, where he had not had any water to drink, so he had drunk his urine, and he had spent twenty-four days on hunger strike there. He indicated that those who were responsible for his ill-treatment were the police officer F.C.F. and L.P., the chief of the police station. 29. On 22 June 2016 the prosecutor started criminal investigations in rem, in relation to charges of ill-treatment and abuse of authority by the police. During those investigations, several witnesses, as well as the applicant, were examined. 30. On 21 July 2016 M.M., the doctor who had checked the applicant’s physical state before he was placed in custody (see paragraph 14 above), was examined by the prosecutor. He stated that the applicant had had some scratches on his knees and arms, which had been noted in the report drawn up at the time. He had not seen any other injuries and the applicant had not complained that he had been assaulted by the police officers. 31. On 26 July 2016 the prosecutor questioned C.C., the doctor who had examined the applicant upon his arrival at the detention facility. He stated that he did not remember the details of the applicant’s medical examination, adding that, in principle, if a doctor found any signs of assault on a patient, he or she had the duty to report the matter to the prosecutor and to send the patient to a specialist. 32. On 2 September 2016 C.A.R., the lawyer appointed to represent the applicant on 24 May 2013 at the police station, stated that when she had seen the applicant there, he had been very agitated and had repeated that he wanted to be arrested. She had not seen any signs of assault on the applicant and he had not mentioned anything to her about having been ill-treated or threatened by the police. Moreover, he had not requested to be assisted by another lawyer. 33. On 7 September 2016 C.G.P., a taxi driver, stated that one day in 2013 he had been asked by a police officer to witness the applicant giving biological samples in the hospital. Inside a hospital room, he had seen the applicant, who was in a T-shirt and shorts, without any visible traces of having been assaulted. The applicant had repeatedly refused to cooperate with the doctor and the police officers and had not given any biological samples. Subsequently, at the police station, he had also refused to sign any statements. While the witness was present, he had not seen the applicant being ill-treated or assaulted in any way. 34. On 14 September 2016 a similar statement was given to the prosecutor by A.V.S., one of M.E.V.’s neighbours. He had also witnessed the applicant’s apprehension by the police, confirming that the applicant had initially refused to present his identification papers to the police officers, and had then refused to get out of his car, locking himself in; when a reinforcement team arrived, the applicant had tried to escape by smashing into a police car. 35. On 28 November 2016 the applicant reiterated his complaints before the prosecutor and requested that the witness I.R. (see paragraph 26 above) be examined. 36. On 6 December 2016 I.R. declared that sometime in 2013, in his capacity as a security guard at the Oradea Regional Hospital, he had seen several police officers coming to the hospital with the applicant, following the latter’s request to have a medical check-up. The applicant had been agitated and shouting “these [people] beat me up”, without indicating who had been beating him. The witness had not at any moment seen any act of aggression against the applicant. 37. The prosecutor examined all the police officers who had been involved or who had been nearby during the incidents mentioned in the criminal complaint. The officers who had accompanied the applicant when he was taken to the hospital for medical investigations (see paragraph 26 above) stated that they had never ill-treated him; however, they contended that once in the hospital, he had repeatedly demanded to be kept there and not sent back to the detention facility. 38. The officers who guarded the applicant during his stay in the police detention facility stated that they had not witnessed any act of aggression against him. The applicant, however, had caused trouble by shouting, hurling insults and sometimes mentioning biblical characters in his monologues. 39. Based on the evidence on file, on 15 December 2016 the prosecutor decided to terminate the criminal proceedings (clasare), in so far as there was no proof that any unlawful act had been committed against the applicant by F.C.F. or by L.P.
40. In relation to the incident of 24 May 2013, the prosecutor found that the injuries inflicted on the applicant and confirmed by the medical certificate (see paragraph 17 above) had been caused by the gendarmes in their attempts to pull him out of his car and take him to the police car. During those attempts, the applicant had been handcuffed and pulled by force by the police officers because of his very aggressive behaviour, having first tried to escape by smashing into two police cars and then having resisted the measures by throwing himself on the ground and using insulting language. In such circumstances, the prosecutor considered that the immobilisation measures applied by the gendarmes had been necessary and in compliance with the provisions of Law no. 550/2004 on the organisation and functioning of the Romanian Gendarmerie, in particular with Article 29 (c) (see paragraph 53 below). 41. Concerning the other incidents mentioned by the applicant, the prosecutor found evidence indicating that during the time he had spent in the police detention facility, the applicant had on several occasions been physically and verbally aggressive towards the police guards and L.P.; therefore, on 13 June 2013, the latter had come to the applicant’s cell to talk to him and see why he had urinated on his mattress and then watered it in the shower, at which point the applicant had started to insult him. 42. The prosecutor further noted that the criminal proceedings instituted against the applicant for the unlawful acts committed on 24 May 2013 had been terminated on 6 December 2016 in view of the fact that a medical expert report had established that the applicant did not have capacity to be held criminally accountable in so far as, at the relevant time, he had been in the middle of a psychotic phase (see also paragraph 52 below). Consequently, the prosecutor considered that the subjective and objective elements on file indicated that none of the unlawful acts complained of by the applicant had been committed. 43. On 3 February 2017 the Chief Prosecutor dismissed the applicant’s challenge against the decision of 15 December 2016, holding that it was well-founded and that the reasoning relied on a sufficiently established factual basis. 44. The applicant challenged the prosecutors’ decisions before the court. 45. On 20 April 2017 the Oradea Court of Appeal dismissed the applicant’s complaint and upheld the prosecutor’s decision to terminate the criminal investigations against the police officers. The court held that the authorities had thoroughly and efficiently conducted the investigation, by examining all the direct witnesses. 46. In relation to the incident of 24 May 2013, the court held that the testimonial evidence corroborated the conclusions of the medical certificate in the sense that the injuries inflicted on the applicant were due to the measures taken by the police officers to pull him out of his car in order to handcuff him and drag him to the police car. The use of force against the applicant had been necessary and lawful; it had also been proportionate to the applicant’s own aggressive behaviour. 47. Concerning all the other incidents referred to by the applicant, the court found that the witnesses who had been examined – namely ten police officers and the witness I.R. who had been proposed by the applicant – had denied having perpetrated or witnessed any act of ill‐treatment against the applicant. Moreover, those witnesses had stated that throughout his detention, the applicant’s behaviour had been aggressive and threatening towards the guards and L.P.
48. The court’s decision was notified to the applicant on 26 May 2017. 49. Meanwhile, on 25 May 2013 the prosecutor had instituted criminal proceedings against the applicant in relation to the incident of 24 May 2013. The applicant was investigated for having refused to give blood samples to establish the alcohol level in his blood, for having disturbed public order and having verbally assaulted two State agents, as well as for inflicting damage to property (see paragraph 15 above). 50. On the basis of the medical report drawn up on 14 June 2013 (see paragraph 18 above), the court set aside the pre-trial detention order against the applicant and from 17 June 2013 he was placed in a medical facility, namely Ştei Psychiatric Hospital (see paragraph 27 above), in accordance with Article 114 of the Criminal Code (see paragraph 54 below). 51. On 16 September 2013 the Oradea First Instance Court decided that the applicant should remain in the above-mentioned medical facility until his full recovery. 52. On the basis of the conclusions of the medical reports confirming that the applicant could not be held criminally accountable in so far as at the relevant time he had lacked the capacity to understand the consequences of his actions (see paragraphs 18 and 19 above), the prosecutor decided on 6 December 2013 to terminate the criminal proceedings against him. RELEVANT LEGAL FRAMEWORK
53. Article 29 (c) of Law no. 550/2004 on the organisation and functioning of the Romanian Gendarmerie essentially provided at the material time that the gendarmerie was entitled to use protective shields, helmets, rubber truncheons, handcuffs, teargas and water jets and other means of restraint in order to immobilise people whose actions, inter alia, disturbed public order, put in danger the physical integrity of others or endangered public or private property or who used aggressive behaviour or language towards State agents. 54. Article 114 of the Criminal Code, as in force at the relevant time, provided as follows:
Article 114 – Admission to a medical facility
“1. Where an offender is mentally ill or is a drug addict and is in a state that presents a danger to society, his or her admission to a specialist medical institution may be ordered until he or she returns to health. 2. This measure may also be taken temporarily during a criminal prosecution or trial.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
55. The applicant complained that he had been ill-treated by the police on 24 May 2013, but also on other occasions during his detention in the police detention facility, and that the investigation of his complaints had not been effective. He relied on Articles 3 and 6 of the Convention. 56. The Court, being master of the characterisation to be given in law to the facts of the case, finds that these complaints cover the same ground and thus finds it appropriate to examine the applicant’s allegations solely under Article 3 of the Convention (see, for instance, Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015), which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
57. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 58. The applicant submitted that he had been subjected to ill-treatment and constant humiliation by the police officers upon his apprehension by State agents and while he had been detained in the police detention facility. He argued that the medical certificate had mentioned that the cause of his injuries all over his body had been active blows; the investigation into the incidents had not elucidated how those blows had been inflicted. Moreover, the Oradea Court of Appeal had based its final decision exclusively on statements given by State agents, who could not be considered objective or impartial. 59. The Government argued that the alleged ill-treatment suffered by the applicant had been a consequence of his own obstructive and recalcitrant behaviour vis-à-vis the police officers who had been trying to get him out of the car after he had already damaged three other cars. The evidence on file proved that there had been no ill-treatment committed by the police against the applicant; the bruises and wounds confirmed by the medical certificate had been the result of the immobilisation manoeuvres, which had been necessary and lawful measures in view of the particular circumstances of the incident in question. 60. Concerning the procedural aspect of the complaint, the Government submitted that the applicant had been actively involved throughout the criminal proceedings, which had been conducted speedily, as they had ended in less than one year. Moreover, the evidence he had proposed had been allowed by the courts; however, the alleged ill-treatment by the police had not been confirmed by the evidence on file, and in particular not even by the witnesses I.R., proposed by the applicant. The investigative bodies were impartial and had conducted an effective investigation. (a) General principles
61. The general principles in respect of the substantive and the procedural aspect of Article 3 of the Convention have been set out in Bouyid cited above, §§ 81-90 and 114-23). 62. Regarding the establishment of the facts, the Court pointed out in El‐Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 155, ECHR 2012) that, although it recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this was not rendered unavoidable by the circumstances of a particular case, it had to apply a “particularly thorough scrutiny” where allegations were made under Article 3 of the Convention, even if certain domestic proceedings and investigations had already taken place. In other words, in such a context the Court is prepared to conduct a thorough examination of the findings of the national courts. In examining them it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (see Mîţu v. the Republic of Moldova, no. 23524/14, § 29, 30 June 2020, and the cases cited therein). 63. The Court also reiterates that in respect of a person who is deprived of his or her liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, §§ 88 and 100-01, cited above). (b) Application of these principles to the present case
64. The Court observes that the applicant’s complaints concern both the substantive and the procedural aspects of Article 3 of the Convention. As regards the former aspect, the Court notes that the parties disagreed as to whether some of the applicant’s injuries had been caused during the immobilisation measures only or also while the applicant was in police custody, and, essentially, whether they had been the result of the necessary use of proportionate force. 65. Therefore, the Court considers it appropriate to firstly examine whether the applicant’s complaint of ill-treatment was adequately investigated by the authorities (see, for example, Dzhulay v. Ukraine, no. 24439/06, § 69, 3 April 2014; Chinez v. Romania, no. 2040/12, § 57, 17 March 2015; Chatzistavrou v. Greece, no. 49582/14, § 45, 1 March 2018; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 36, 8 October 2020). It will then turn to the question of whether the alleged ill‐treatment took place, bearing in mind the relevant domestic findings. (i) Adequacy of the investigation
66. The Court observes that, following the applicant’s complaint lodged on 6 June 2016, the domestic authorities started an inquiry into his allegations of ill-treatment on 22 June 2016 (see paragraph 29 above). 67. While noting that the investigation was initiated promptly once the complaint had been lodged, the Court also finds that the investigation was conducted speedily, as it was completed in less than one year, and, in accordance with statutory requirements, took place under the authority of a prosecutor, whose decision was subsequently contested before a criminal court (see paragraph 44 above). The Court concludes that a prompt and speedy investigation into the alleged events was conducted under the control of an independent authority. 68. Furthermore, throughout the investigation, the applicant was constantly and actively involved in the proceedings: he was allowed to propose and to refute evidence, to put forward arguments and to build his case as he considered appropriate (see paragraphs 29, 35-36, 43 and 44 above). 69. All those who had been involved in the incident were heard by the prosecutor (see paragraphs 30-38 above), including the main defence witnesses proposed by the applicant (see paragraph 36 above). The domestic authorities found that all evidence on file, including the findings of the medical certificate, corroborated in that the injuries inflicted on the applicant could have been the result of apprehension and immobilisation manoeuvres while he was putting up resistance (see paragraphs 40-43 and 46-47 above). 70. The Court therefore considers it noteworthy that no obvious omission to collect relevant evidence could be attributed to the authorities, in contrast with a number of cases where it has found a violation of Article 3 on the grounds that the authorities had made a series of crucial omissions during investigations into an applicant’s complaints of ill‐treatment by police officers (see, for instance, Vasile Victor Stanciu v. Romania, no. 70040/13, §§ 49-51, 9 January 2018). 71. In that connection, the Court also notes that, albeit for apparently objective reasons (see paragraph 20 above), the applicant delayed lodging his criminal complaint, thus rendering the ensuing investigation inquiry more difficult, especially in relation to the allegations of ill-treatment inflicted on him while he was in police custody (see, for instance, Zakharov and Varzhabetyan v. Russia, no. 35880/14 and 75926/17, § 53, 13 October 2020). 72. Indeed, concerning the above-mentioned allegations relating to the incidents of 29 May and of 1, 13 and 16 June 2013 (see paragraphs 23‐26 above), the evidence on file does not appear to substantiate their veracity in any way. The applicant himself did not indicate any further evidence to support his allegations, which were dismissed by the domestic authorities as lacking any factual basis. 73. Having regard to the above elements, the Court considers that the investigation into the applicant’s complaints can be considered to have been thorough and “effective”. It follows that there has been no violation of Article 3 of the Convention under its procedural limb. (ii) The use of force against the applicant
74. The Court notes at the outset that the applicant’s allegations that he was beaten on several occasions while in police custody (see paragraph 55 above) were not confirmed in the domestic investigation by the prosecution, or in the subsequent judicial review by the court (see paragraphs 40‐41, 46‐47 and 72 above). 75. Furthermore, the Court considers that no cogent evidence has been provided to lead it to depart from the domestic authorities’ findings that the only injuries proved to have been inflicted on the applicant – namely those which were confirmed by the medical documents referring to the incident of 24 May 2013 – had been inflicted upon his apprehension by the State agents; the Court therefore accepts the version of events established by the investigating authorities and confirmed by the domestic courts. 76. In the light of the above, it concludes that there is no substantiation as to the allegations of ill-treatment having been inflicted on the applicant on 29 May and on 1, 13 and 16 June 2013; moreover, in relation to the incident of 24 May 2013, the Court, having regard to its conclusion concerning the thoroughness of the domestic investigation (see paragraph 73 above) considers that these have sufficiently and convincingly shown that, in the particular circumstances of the present case, the recourse to physical force had been made strictly necessary by the applicant’s own conduct. While the applicant undoubtedly suffered as a result of his apprehension and subsequent arrest, the injuries and his associated suffering did not result from the use of excessive force against him. 77. Accordingly, the Court finds that there has been no violation of Article 3 of the Convention in respect of the alleged ill-treatment by the State agents against the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 2 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Gabriele Kucsko-StadlmayerDeputy Registrar President