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THIRD
SECTION
DECISION
Application no.
33242/05
by Cristian CIUBOTARU and Others
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 10 January 2012 as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 26 August 2005,
Having
regard to the decision taken by the President of the Chamber
to appoint Mr Mihai Poalelungi to sit as ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1
of the Rules of Court), as Mr Corneliu Bîrsan, the judge
elected in respect of Romania, had withdrawn from the case (Rule 28
of the Rules of Court),
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru,
Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru, Ms
Ana Romaşcu, Ms Eva Ciubotaru, Mr Aurel Călin and Ms
Elena Avădanii, are Romanian nationals who were born on
15 December 1980, 1 March 1978, 27 January 1987,
3 November 1950, 18 March 1930 and on other
unspecified dates and who live in Buhuşi, Romania. Romani Criss
is a Romanian non governmental organisation located in
Bucharest. They were all represented before the Court
by Mr I. Lazăr, a lawyer practising in Bucharest. The
Romanian Government (“the Government”)
were represented by their Agent, Mr
Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1) The events of 5 December 2002
- On
3 December 2002 the Bacău and Neamţ Police
Departments set up an operation to capture six Roma people, including
Mr Cristian and Mr Ovidiu Ciubotaru and Mr Florin Călin,
who lived in the town of Buhuşi and were suspected of a number
of unlawful acts, including a robbery a few days earlier. The police
operation was set up on the basis of an order of 28 November 2002
issued by the Romanian General Police Department attached to the
Romanian Ministry of the Interior concerning the identification and
capture of, inter alia, the above mentioned individuals.
The police officers were divided into six teams and instructed to
surround the town in order to prevent the wanted individuals from
fleeing, to identify the homes of the suspects and to descend on the
suspects’ homes simultaneously.
- On
5 December 2002 forty five police officers from the
Bacău and Neamţ Special Intervention Units and other
regular police stations gathered and descended on the town of Buhuşi.
After searching the suspects’ homes, the police discovered that
some of them were hiding in an abandoned house in the town. The
police units surrounded the house. At this point other Roma people
started gathering in the street, some of them armed with stones,
wooden posts and axes, and started a violent demonstration against
the police officers. A further sixty police officers were called in
support as a result of the violent behaviour of the crowd.
- The
police asked the occupants of the house twice to give themselves up,
and when they failed to respond the police started using tear gas to
draw them out of the house. After tear gas had been used officer D.C.
negotiated with the occupants of the house for approximately ten
minutes, trying to persuade them to give themselves up, but one of
the suspects attacked him with an axe. More tear gas was used and
another attempt at negotiation was made by D.C., but the police
officer was attacked once more by the occupants of the house. The
police officers used tear gas for a third time and two of the
applicants, Mr Cristian Ciubotaru and Mr Ovidiu Ciubotaru, as well as
another suspect, Mr Florin Călin, came out of the house. Mr
Ovidiu Ciubotaru and Mr Florin Călin attacked police officer
D.C. with axes. Police officer D.C. and his colleague N.N. opened
fire in the direction of Mr Ovidiu Ciubotaru and Mr Florin
Călin. As a result, Mr Florin Călin was shot in the thorax
and stomach and died at the scene. Mr Ovidiu Ciubotaru was shot in
the back and taken to hospital.
- In
the course of this incident two people in the crowd were also shot.
The crowd became violent and some of the people in the crowd,
including Mr Gelu Ciubotaru, started attacking the police officers.
The officers launched verbal warnings and fired into the air to
disperse the crowd and stop the attackers. Mr Gelu Ciubotaru attacked
the police officers with a wooden post and grabbed police officer
C.V.S. by the neck and hit him. Consequently, officer N.N., who had
also been injured by the crowd, started firing at Mr Gelu Ciubotaru’s
feet and then at his upper body. Mr Gelu Ciubotaru was shot in the
thorax and died at the scene. Mr Vasile Vâtu, a minor at the
time of the events, was also shot in the right side of the thorax and
was taken to hospital. According to the forensic report, quoted by
the prosecutor at the conclusion of the criminal investigation which
followed the incident, some of the parties injured in the events
required the following number of days of medical care: eighteen days
for Mr Ovidiu Ciubotaru, twelve to fourteen days for Mr Vasile Vâtu,
twenty four to twenty six days for officer N.N., and
thirty five to forty days for officer C.V.S. Two other officers
who were part of the support group called in to help the police
officers who initiated the operation were also injured: E.I. had a
serious eye injury which almost caused him permanent blindness, while
D.C. received a leg injury.
2) The criminal investigation into the violent events
- On
5 December 2002 Mr Vasile Călin, Ms Ana Romaşcu,
Ms Eva Ciubotaru and Ms Ana Ciubotaru signed authorisations for
Romani Criss, a Romanian non governmental organisation whose
purpose is to defend the rights of the Roma community in Romania, to
represent them before the state institutions, including, inter
alia, the police, the prosecutors’ offices and the civilian
and military courts in respect of the events of 5 December 2002.
There is no evidence in the file that the remaining applicants signed
similar authorisations. The signatures of the four applicants on the
authorisations signed on 5 December 2002, on the criminal
complaints lodged against the police officers involved in the events
of 5 December 2002 and on the powers of attorney signed by
them on 16 August 2006 authorising their lawyer Mr I. Lazăr
to represent them before the Court, appear not to match.
- Romani
Criss also authorised legal representatives of its own choice to
assist and represent it throughout the entire proceedings.
- On
an unspecified date in December 2002 the applicant Ana Romaşcu
lodged a criminal complaint against the police officers who had shot
Mr Vasile Vâtu, her son, who was a minor. Her complaint
does not contain any indication that she would have liked to lodge a
complaint on her own behalf.
- On
unspecified dates the applicants Cristian and Ovidiu Ciubotaru also
lodged criminal complaints against the police officers involved in
the events of 5 December 2002. Mr Cristian Ciubotaru
argued that he had been hit several times on the head and body and
Mr Ovidiu Ciubotaru stated that he had been shot four times,
although neither of them was resisting arrest. The applicants’
signatures on the complaints lodged against the police officers
appear not to match their signatures on the powers of attorney of
16 August 2006 authorising Mr I. Lazăr to
represent them before the Court.
- On
an unspecified date Mr Vasile Călin also lodged a criminal
complaint against the police officers who had shot and killed
Mr Florin Călin, his son. His complaint does not contain
any indication that he would have liked to complain against the
police officers on his own behalf. A second power of attorney of
16 August 2006 available in the file on Mr Vasile
Călin’s name authorising Mr I. Lazăr to
represent him before the Court was signed by Ms Elena Avădanii.
Apart from her signature, Ms Elena Avădanii’s name
does not appear on any of the powers of attorney available to the
file authorising Mr I. Lazăr to represent the applicants
before the Court.
- On
an unspecified date Ms Eva Ciubotaru lodged a criminal complaint
against the police officers who had shot and killed Mr Gelu
Ciubotaru, her husband. Her complaint does not contain any indication
that she would have liked to make a complaint against the police
officers on her own behalf.
- On an unspecified date the applicant Ana Ciubotaru
lodged a criminal complaint against the police officers involved in
the events of 5 December 2002. She stated that while she
was trying to reach her dead son, Mr Gelu Ciubotaru, the police
officers hit her on the back and head and pushed her into a ditch.
She also stated that she was 75 years old at the time and could have
not been seen as a threat by the officers.
- Between 5 December 2002 and 28 February 2003
the domestic authorities heard victims of the events and their
relatives, people who had been in the crowd, and suspected offenders,
as well as other police officers who had taken part in the operation.
Approximately sixty five people were heard by the authorities.
- On 6 December 2002 the police officers
provided the Forensic Service of the Neamţ Police Department
with two axes, allegedly used by the applicants to attack them on
5 December 2002. The same axes were delivered on
13 December 2002 to the prosecutor investigating the case.
- On 6 December 2002 the Forensic Department
of the Bacău County Hospital produced a forensic expert report
on the bullet wounds sustained by Mr Vasile Vâtu and
Mr Ovidiu Ciubotaru and autopsy reports on the deceased, Gelu
Ciubotaru and Florin Călin. According to the reports Mr Vasile
Vâtu had been shot on 5 December 2002 from the right
with a firearm, using balls as ammunition. Mr Ovidiu Ciubotaru
had been shot twice, once in the left cheek and once in the left
thigh. The wounds were not life threatening to any of the
applicants. Furthermore, according to the autopsy reports Mr Gelu
Ciubotaru had been shot twice, first in the right thigh and then in
the thorax, the latter wound causing his death. Mr Florin Călin
had been shot five times, the first three times in the left thigh,
then once in the right thigh and lastly, once in the thorax. The
wounds to his thighs had been caused by metal bullets. The wound in
the thorax was the only one responsible for his death and had been
caused by a rubber bullet fired at close range from a distance equal
to the length of the barrel of the gun it had been fired from.
- On 9 December 2002 the Bacău
Prosecutor’s Office investigated the scene of the crime and
gathered the evidence found, including stones, wooden posts or
sticks, parts of the wall penetrated by bullets, traces of blood and
bullet shells for further examination.
- On 20 January 2003 the Bacău
Prosecutor’s Office ordered a ballistic expert report on the
weapons fired on the day of the events.
- On 25 March 2003 Romani Criss informed the
Bacău Prosecutor’s Office about the events of
5 December 2002 and complained that police officers had
shot and injured members of the Roma community. On the same date they
submitted testimonial evidence gathered from people who had witnessed
the events.
- The
investigation of the above mentioned incident was completed when
the criminal investigation was discontinued by a Bacău
prosecutor’s office order of 7 July 2003. The actions
of officers D.C. and N.N were investigated on accusations of the
crimes of murder and causing physical injuries, as were the actions
of Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu
Ciubotaru and Mr Cristian Ciubotaru for the crime of insulting
behaviour towards a State agent. The investigating prosecutor held
that the use of force by the two policemen against Mr Gelu
Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and
Mr Cristian Ciubotaru was justified because of the behaviour of
the victims, which resulted in the policemen having to resort to
legitimate self-defence. The investigating prosecutor, although he
referred to Mr Vasile Vâtu’s case, did not identify
the person responsible for shooting him and did not state whether or
not the proceedings would be discontinued in respect of his injury.
The investigation in respect of Mr Gelu Ciubotaru and Mr Florin
Călin was terminated because of their deaths, and that in
respect of the applicants Mr Cristian and Mr Ovidiu
Ciubotaru was terminated because it was held that their behaviour did
not constitute a crime. The prosecutor’s decision quotes the
results of the forensic reports conducted in respect of all the
victims of the incident but did not mention the evidence which led to
the non-indictment conclusion.
- On
24 July 2003 Mr Vasile Călin, the father of the
deceased Florin Călin, lodged a complaint with the Bacău
Prosecutor’s Office concerning unreasonable length of the
criminal investigation launched in respect of the events of
5 December 2002, and challenged the outcome of the
investigation.
- The
Bacău Prosecutor’s Office dismissed Mr Vasile Călin’s
complaint by an order of 23 September 2003. The
prosecutor’s office held that the proceedings had not been
excessively lengthy, given the number of ballistic and forensic
reports carried out and the large number of witnesses heard, and that
his son had been killed by the police officers in self defence.
- On
21 November 2003 Romani Criss challenged the Bacău
Prosecutor’s Office decision of 7 July 2003 in so far
as the decision regarding the investigated policemen was concerned on
behalf of Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru,
Mr Vasile Călin, Ms Ana Romaşcu, and Ms Eva
Ciubotaru.
- By
an order of 3 December 2003 the Bacău Prosecutor’s
Office dismissed the challenge on the ground that the police officers
had acted in legitimate self defence. Also, in respect of
Mr Vasile Vâtu the unlawful act lacked a physical injury
element. The Prosecutor’s Office acknowledged the challenge
lodged by Romani Criss, to be introduced only on behalf of Mr Vasile
Călin, Ms Ana Romaşcu and Ms Eva Ciubotaru. The
Prosecutor’s Office held that according to the available
evidence Mr Florin Călin and Mr Ovidiu Ciubotaru were
shot by C.D. and N.N. while they were preparing to hit C.D. with an
axe. At the same time, Mr Vasile Vâtu could not be seen by
the policemen because he was hidden behind a wall made of sawdust
when he was shot in the thorax. The wound did not endanger his life.
3) The domestic court proceedings and the application
lodged by the applicants before the Court
- On
19 December 2003 Romani Criss appealed against the Bacău
Prosecutor’s Order of 7 July 2003 before the domestic
courts. The appeal was also lodged on behalf of Cristian Ciubotaru,
Ovidiu Ciubotaru, Ana Romaşcu, Vasile Călin and Ana
Ciubotaru, but it had not been signed by those five individuals. The
applicant organisation argued that according to the witness
statements and the evidence available to the file the domestic
authorities tried to protect the police officers, who on
5 December 2002 acted in an uncoordinated manner, misused
their firearms and breached the applicable legal provisions in force
at the time protecting the applicants’ right to life and their
right not to be subject to inhuman and degrading treatment in a
discriminatory way.
- On
13 and 28 January 2004 respectively Ms Ana Ciubotaru
and Mr Vasile Călin died.
- By
a judgement of 20 February 2004 the Bacău Court of
Appeal allowed an appeal by the applicants against the prosecutor’s
orders. The court dismissed the preliminary objection raised by the
Prosecutor’s Office and the two accused, namely that Romani
Criss did not have standing to bring proceedings before the domestic
courts concerning the events of 5 December 2002. The court
held that because Romani Criss considered that Roma persons had been
victims of discrimination they decided to represent them before the
domestic courts in accordance with the authorisations signed by some
of the parties concerned on 5 December 2002. The
organisation also lodged a complaint before the domestic courts on
its own behalf. Taking into account the organisation’s object
of activity and the provisions of section 22 of Emergency
Ordinance no. 77/2003, the court considered that it could not
deny in principle the organisation’s legitimate interest and
its standing to bring proceedings against state bodies in order to
establish whether ethnic discrimination had occurred and whether the
rights of its citizens had been protected. In respect of the merits
of the case the court held, inter alia, that the operation of
5 December 2002 had been a work mission and all the police
officers involved had been ordered to take part in it. However, the
investigation into the events had not been carried out correctly. In
particular, the wounding of the police officers E.I. and D.C. was not
directly relevant to the claim of self defence, as the two
police officers previously mentioned had been wounded in the final
stages of the operation, when the police were retreating from the
town, while the firearms had been used by the policemen at an earlier
stage of the events. Moreover, the forensic expert report carried out
over the course of the investigation did not establish with certainty
if the rubber bullet Mr Florin Călin had been shot with by
officer D.C. could have been the only cause of death in the absence
of the rest of the shots. The court considered that this was an
important factor in determining the identity of the perpetrator of
the killing, considering that the same person had been shot almost
simultaneously by police officer N.N., using live ammunition.
Furthermore, the two axes allegedly used by Mr Florin Călin
and Mr Ovidiu Ciubotaru had not been forensically checked for
their fingerprints. The court held that such evidence was important
to determine whether the use of firearms by the officers had been
justified. In addition, the investigation failed to determine the
exact position of the other members of the police force and whether
they could have stopped Mr Florin Călin’s attack
against D.C. At the same time, the investigation had failed to
establish the distance and the angle from which Mr Ovidiu
Ciubotariu had been shot. The circumstances of Mr Vasile Vâtu’s
shooting had also not been clarified by the investigation in view of
the parties’ statements, in particular there was no lawful
explanation concerning why he had been shot through a wall or
precisely when he had been shot during the operation. Lastly, the
file did not contain sufficient evidence concerning the reasons for
the police operation to capture the applicants: in particular, the
court considered that the orders to seek and capture the applicants,
the documents containing the charges against them and the arrest
warrants issued in their names were missing from the file.
Consequently, the court decided to send the case back to the
prosecutor’s office in order to supplement the criminal
investigation.
- D.C.,
N.N. and the Bacău Prosecutor’s Office lodged an appeal on
points of law (recurs) against the judgment of 20 February 2004.
They argued, inter alia, that the complaints lodged by Romani Criss
before the domestic courts on behalf of the applicants contesting the
prosecutor’s office’s order to discontinue the criminal
investigation was not valid. In particular the authorisations signed
by some of the applicants allowing Romani Criss to represent them
before the courts did not comply with the formal requirements for
powers of attorney provided by the applicable rules of criminal
procedure. In addition, they submitted that the evidence in the file
proved that the police officers had acted in self defence.
- On
20 May 2004 the Forensic Department attached to the
Romanian Ministry of the Interior informed the investigating
authorities that the axes allegedly used by Mr Florin Călin
and Mr Ovidiu Ciubotaru to attack the police officers had wooden
handles which were uneven and pitted. Consequently, the Forensic
Department did not have substances or a method allowing them to
examine fingerprints on such surfaces.
- At
the hearings of 21 May, 24 September, 19 November and
17 December 2004 the Court of Cassation adjourned the
proceedings on account of procedural errors in summoning the parties
and in order to allow them to read the written submissions attached
to the file.
- At
the hearing of 11 February 2005 the Court of Cassation
heard oral submissions from the parties and, because it needed time
to deliberate, adjourned the proceedings to 25 February, 3 March
and to 8 April 2005.
- By
a final judgment of 8 April 2005 the Court of Cassation
allowed the appeals on points of law by C.D., N.N. and the
Prosecutor’s Office, quashed the judgment of 20 February 2004
and declared inadmissible the applicants’ and Romani Criss’s
complaints against the Prosecutor Office order of 7 July 2003.
It held that none of the natural persons had contested the
prosecutor’s office’s order to discontinue the criminal
investigation before the domestic courts. Only Mr Vasile Călin
lodged a complaint against the prosecutor’s office’s
order of 7 July 2003, which was dismissed on
23 September 2003. He did not challenge the latter decision
before the domestic courts. Moreover, none of the applicants had
personally signed the challenge lodged by Romani Criss on their
behalf. In addition, the appeal lodged by Romani Criss on behalf of
the applicants against the prosecutor’s office’s order
for the investigation to be discontinued was invalid. The
non governmental organisation had not been empowered by the
applicants to represent them before domestic courts on the form
required by the applicable rules of criminal procedure, in particular
Article 222 (3) of the Romanian Code of Criminal Procedure,
and therefore the organisation could not be considered to be the
applicants’ representative. The applicants had not provided
Romani Criss with a special and certified power of attorney as
required by law. In so far as Romani Criss’s argument was
concerned, that on the basis of section 22 of Emergency
Ordinance no. 137/2002 it had legal standing to bring
proceedings before domestic courts, the court noted that the
organisation had not sustained any prejudice as a result of the
incident complained of, and the police action of 5 December 2002
concerned the taking into custody of wanted individuals, and did not
represent acts of discrimination as required by section 22 of
Emergency Ordinance no. 137/2002. Consequently, it held that
Romani Criss did not have legal standing to bring proceedings before
the domestic courts.
- The
applicants lodged their application before the Court with a letter
dated 26 August 2005. The initial application form attached
to the letter contained the names of Mr Cristian and Mr Ovidiu
Ciubotaru, Ms Ana Romaşcu with the note that she was
representing Mr Vasile Vâtu, Mr Vasile Călin,
Ms Ana Ciubotaru and the organisation Romani Criss. The
application form was signed by Mr I. Lazăr, as the
applicants’ representative. No powers of attorney were attached
to the application. The applicants complained that some of them had
sustained bullet wounds and some of their relatives had been killed,
but none of them referred, either expressly or in substance, to any
other complaints as a result of other types of injury sustained.
- Following
the Court’s request on 16 September 2005 the
applicants’ representative submitted powers of attorney signed
on 16 August 2006 by all the initial applicants, including
Mr Vasile Călin and Ms Ana Ciubotaru. In respect of
Mr Vasile Călin, Mr I. Lazăr submitted two powers
of attorney bearing his name, one of them signed however by Ms Elena
Avădanii, whose name does not appear on any of the other powers
of attorney. Moreover, Mr Vasile Vâtu’s name and/or
signature were not present on any of the powers of attorney submitted
before the Court. In addition, one of the powers of attorney had been
filled in and signed by Ms Eva Ciubotaru.
- On
31 January 2007 the Court received six sets of application
forms which contained complaints identical to the ones mentioned in
the first application form submitted by the applicants. Each
application form bears the name of a different applicant, as follows:
Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Ms Ana
Romaşcu, Mr Vasile Călin, Ms Eva Ciubotaru and
the organisation Romani Criss.
- The
name of Mr Aurel Călin does not appear on any of the
application forms or the powers of attorney submitted by the
applicants at any stage of the proceedings before the Court.
B. Relevant domestic law
- Article 197 (2)
and (3) of the Romanian Code of Criminal Procedure provides, inter
alia, that the breach of the rules concerning the lodging of a
complaint before the court renders the complaint null and void. The
nullity cannot be corrected and can be examined at any stage of the
proceedings as well as by the court of its own motion.
- Article 222 (3)
of the Romanian Code of Criminal Procedure provides
that a complaint can be lodged by a person, either on their own
behalf or through a representative authorised by a certified mandate
attached to the complaint.
- The
relevant legal provisions, in particular a description of the
development of the law concerning complaints against decisions of the
prosecutor (Articles 278 and 2781 of the Romanian
Code of Criminal Procedure introduced by Law no. 281/2003
applicable from 1 January 2004), are set forth in the
judgment of Dumitru Popescu v. Romania ((no. 1),
no. 49234/99, §§ 43 45, 26 April 2007).
40. Section 22 (1)
and (2) of Emergency Ordinance no. 137/2000 on combating
discrimination provides that non governmental organisations
involved in the protection of human rights, or justifying a
legitimate interest in combating discrimination, have legal standing
to initiate proceedings if the discrimination occurs in their field
of activity and targets a community or a group of people. They also
have legal standing in cases where discrimination targets an
individual at the latter’s request.
COMPLAINTS
- The
applicants complained under Articles 2, 3,
5, 6, 8 and 14 of the Convention taken alone or in conjunction, of
disproportionate use of force by State agents which led to the death
of their relatives and also caused them, or might have caused them,
serious physical injury. They further argued a lack of an effective
investigation into the circumstances which led to the death of their
relatives, as well as to their own physical injuries. Lastly, they
submitted that the disproportionate use of force and the subsequent
lack of an effective investigation are due to the fact that they
belong to the Roma ethnic group and so their rights guaranteed by the
Convention are breached.
THE LAW
- The
Court reiterates that since it is master of the characterisation to
be given in law to the facts of the case, it does not consider itself
bound by the characterisation given by an applicant or a government.
By virtue of the jura novit curia principle, it has, for
example, considered of its own motion complaints under Articles or
paragraphs not relied on by those appearing before it. A complaint is
characterised by the matters alleged in it and not merely by the
legal grounds or arguments relied on (see, mutatis mutandis,
Powell and Rayner v. the United Kingdom,
judgment of 21 February 1990, Series A no. 172,
§ 29; Guerra and Others v. Italy,
judgment of 19 February 1998, Reports 1998 I,
§ 44; Berktay v. Turkey, no. 22493/93,
§ 167, 1 March 2001; and Eugenia Lazăr
v. Romania, no. 32146/05, § 60,
16 February 2010).
- Having
regard to the facts of the present case, the Court considers that the
present application, communicated to the respondent Government under
Articles 2, 3 and 14 of the Convention taken alone or in
conjunction, must be examined exclusively in the light of the
provisions of the said Articles.
The relevant provisions of Article 2 read as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
The relevant provisions of Article 3 read as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The relevant provisions of Article 14 read as follows:
“The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other statues.”
Submissions of the parties
(i) The Government
- Relying
on the case of Predescu v. Romania (no. 21447/03,
2 December 2008), the Government submitted that the Court
must declare the application inadmissible on account of the
applicants’ abuse of the right of application in breach of
Article 35 § 3 and 4 of the Convention. They argued
that the applicants have submitted incomplete and misleading
information to the Court. They noted that the application form lodged
with the Court on 26 August 2005 had been signed
exclusively by the lawyer representing the applicants and that there
was no evidence in the file to suggest that at the time the lawyer
had been authorised by the applicants to lodge the application on
their behalf. Moreover the applicants have not submitted before the
Court any document or legal representation contract which would prove
that the applicants have clearly expressed the intention to have the
application lodged before the Court within the six month
time limit following the final domestic court decision.
Consequently, such a document was essential, given that the
application forms received by the Court on 30 January 2007
had not been signed by the applicants, and therefore the only
documents signed by them were the powers of attorney of
16 August 2006. Furthermore, the Government submitted that
the powers of attorney allegedly signed by Ms Ana Ciubotaru and
Mr Vasile Călin were invalid on account of the fact that
the two alleged applicants were dead at the time when the authority
forms had been signed. Consequently, it was doubtful whether the
applicants intended to lodge their application before the Court,
considering that with the exception of Romani Criss none of the
applicants had contested the Bacău Prosecutor’s Office’s
order for the criminal investigation before the domestic courts to be
discontinued.
- The
Government also submitted that Romani Criss, Ms Ana Romaşcu,
Ms Eva Ciubotaru, Mr Aurel Călin, Ms Elena
Avădanii and Mr Cristian Ciubotaru cannot be considered
victims of a violation of the guarantees set out by the Convention.
In respect of Romani Criss they argued that the domestic authorities
did not acknowledge the organisation’s victim status or its
status of legal representative on behalf of the applicants. Moreover,
Romani Criss has not lodged a complaint before the domestic
authorities or before the Court on its own behalf alleging a
violation of the rights guaranteed by the Convention. It has merely
informed the authorities that violence was committed by the police
against members of the Roma ethnic group.
- They
submitted in respect of Ms Ana Romaşcu that according to
the application form of 26 August 2005, signed by her legal
representative, she has lodged the application before the Court on
behalf of her son Mr Vasile Vâtu, and did not argue on her
own behalf at any stage of the proceedings before the Court that she
had been a victim of a violation of the guarantees set out by the
Convention. Moreover, on 26 August 2005, the date the
application was lodged before the Court, Mr Vasile Vâtu
was eighteen years old and was able to lodge an application with the
Court himself, but failed to state either expressly or in substance
his wish to do so.
- They
submitted in respect of Ms Eva Ciubotaru and Ms Elena
Avădanii that they could not be considered relatives or heirs of
the deceased Ms Ana Ciubotaru and Mr Vasile Călin.
They argued that according to the initial application submitted
before the Court, Ms Ana Ciubotaru and Mr Vasile Călin
had lodged complaints on behalf of the deceased Gelu Ciubotaru and
Florin Călin. However, both Ms Ana Ciubotaru and Mr Vasile
Călin were deceased at the time their alleged applications were
introduced before the Court on 26 August 2005, and
consequently they did not have legal standing to continue the
proceedings before the Court. In addition, Mr Aurel Călin
failed to submit evidence that he was Mr Vasile Călin’s
son.
- The
Government argued further that Mr Cristian Ciubotaru was not a
victim of a violation of the rights guaranteed by the Convention,
because he had failed to raise any complaints in this respect either
before the domestic authorities or in his application before the
Court.
- Lastly,
the Government submitted that all the applicants, with the exception
of Romani Criss, have failed to appeal to domestic courts against the
Bacău Prosecutor Office’s Order to discontinue the
criminal investigation initiated against the police officers, as
required by the applicable rules on criminal procedure. The appeal
available to the applicants on the basis of Article 2781 of
the Romanian Code of Criminal Procedure against the prosecutor’s
office’s orders was an adequate, effective and accessible
remedy for the applicants. Although Romani Criss appealed against the
prosecutor’s office’s order before the domestic courts on
behalf of some of the applicants, the authorisation received from the
applicants to represent them did not meet the formal requirements
expressly stated by the applicable rules of criminal procedure, and
thus their appeal was rendered null and void. Moreover, if the Court
accepted the applicants’ arguments that the available domestic
remedy was clearly ineffective, the application should be dismissed
as outside the six-month limit.
(ii) The applicants
- The
applicants disagreed. They argued, inter alia, that even if
all the domestic remedies had not been exhausted the Court should
continue with the examination of the applicants’ complaints on
the merits, as the remedies referred to by the Government were merely
illusory and clearly ineffective.
The Court’s assessment
- The
Court finds that it is not necessary to examine all the reasons of
inadmissibility raised by the Government, because even assuming that
some of them would be dismissed by the Court, the complaints raised
are in any event inadmissible for the following reasons.
- In
respect of the organisation Romani Criss the Court reiterates that in
order for it to be able to lodge an application before the Court two
conditions have to be satisfied: it must fall into one of the
categories of applicants referred to in Article 34 and must be
able to claim to be the victim of a violation of the Convention.
- As
regards the first condition, the court notes that Romani Criss is a
Romanian non governmental organisation and clearly falls into
one of the categories of applicants referred to in Article 34 of
the Convention.
- As regards the second condition, the Court reiterates
that the concept of “victim” within the meaning of the
Convention must be interpreted autonomously and independently of
concepts of domestic law such as capacity to bring or to take part in
legal proceedings. For an applicant to be able to claim to be the
victim of a breach of one of the rights or freedoms protected by the
Convention a sufficiently direct connection must be established
between the applicant as such and the injury he maintains he suffered
as a result of the alleged breach. Accordingly, an applicant
organisation cannot claim to be itself a victim of measures alleged
to have interfered with the Convention rights of its individual
members (see, among many other authorities, Sygounis and Others,
application no. 18598/91, decision of the Commission of
18 May 1994, Decisions and Reports (DR) 78;
Association des amis de Saint-Raphaël et de Fréjus
v. France (Dec.), no. 45053/98,
29 February 2000; and Nikolaos Manios and Others
v. Greece (Dec.), no. 70626/01, 17 October 2002).
- In
the present case it is clear that it was not the functioning of the
organisation that has been called into question, nor was it the
organisation as such that was subjected to the violent events of
5 December 2002 complained of, but some of the remaining
applicants or their relatives, taken individually.
- Accordingly,
the part of the application lodged by Romani Criss is incompatible
ratione personae with the provisions of the Convention and
must be rejected in accordance with Article 35 § 4.
- In respect of the remaining applicants the Court
reiterates that, whereas the rule on exhaustion of domestic remedies
must be applied with some degree of flexibility and without excessive
formalism, it does not require merely that applications should be
made to the appropriate domestic courts and that use should be made
of effective remedies designed to challenge decisions already given.
It normally requires also that the complaints intended to be brought
subsequently before the Court should have been made to those same
courts, at least in substance and in compliance with the formal
requirements laid down in domestic law (see, among other authorities,
Cardot v. France, 19 March 1991,
§ 34, Series A no. 200; Fressoz and Roire
v. France [GC], no. 29183/95, § 37,
ECHR 1999 I; and Elçi and Others
v. Turkey, nos. 23145/93 and 25091/94,
§ 604, 13 November 2003). Consequently, domestic
remedies have not been exhausted when an appeal is not admitted for
hearing because of a procedural mistake by the applicant (see, inter
alia, Skałka v. Poland (Dec.),
no. 43425/98, 3 October 2002).
- The Court further reiterates that it is in the first
place for the national authorities, and notably the courts, to
interpret domestic law, and that the Court will not substitute its
own interpretation for theirs in the absence of arbitrariness (see,
mutatis mutandis, the Ravnsborg v. Sweden judgment
of 23 March 1994, Series A no. 283 B, § 33;
the Bulut v. Austria judgment of 22 February 1996,
Reports 1996 II, § 29; and Van der Leer
v. the Netherlands, judgment of 21 February 1990,
Series A no. 170 A, § 22). This applies in
particular to the interpretation by courts of rules of a procedural
nature such as time-limits governing the submission of documents or
the lodging of appeals. Time-limits and procedural rules governing
appeals must be adhered to as part of the concept of a fair procedure
and legal certainty, and it is for the national courts to police the
conduct of their own proceedings (see, inter alia,
Tejedor García c. Espagne, judgment of
16 December 1997, Reports 1997 VIII, § 31;
Fáber v. the Czech Republic,
no. 35883/02, §§ 55 56, 17 May 2005;
and Agbovi v. Germany (Dec.),
no. 71759/01, 25 September 2006). The applicants must
anticipate that these rules will be enforced (see Agbovi, cited
above).
- The
Court notes in the present case that the Romanian legal system
provides for an investigation to be carried out by the public
prosecutor, who takes the decision whether or not to initiate a
prosecution against the alleged perpetrators. In the event, as in
this case, a decision to discontinue the criminal investigation is
issued, there is the possibility under Article 2781
of the Code of Criminal Procedure of appealing to a court.
Consequently, if the applicants considered that the public
prosecutor’s decision could be argued as not being justified by
the available evidence, it was open to them to avail themselves of
this ordinary and accessible domestic remedy and to appeal to the
domestic courts which could, on examination of the provisions of the
domestic law and the evidence, including witness statements and
medical reports, have directed that a prosecution or other
investigatory measures be carried out. Moreover the Court notes that
it has already established that such a remedy was effective within
the meaning of the Convention (see Stoica v. Romania,
no. 42722/02, §§ 105 109, 4 March 2008,
and Chiriţă v. Romania, no. 37147/02,
§ 99, 29 September 2009).
- Furthermore,
according to the applicable rules of criminal procedure, the
applicants could have lodged a complaint against the public
prosecutor’s order to discontinue the criminal investigation
either on their own behalf or through a representative, authorised by
a certified mandate.
- The
Court notes in this context that none of the applicants appealed
against the final public prosecutor’s order for the
investigation to be discontinued on their own behalf. The public
prosecutor’s order was contested exclusively by Romani Criss on
the applicant’s behalf, although the authorisations allowing
Romani Criss to represent the applicants were not signed by all of
them and they did not meet the formal requirement for powers of
attorney expressly provided for by the law. Moreover, although the
applicants have been assisted over the entire course of the domestic
proceedings by Romani Criss, and the organisation was in its turn
assisted by legal representatives of their choice, the applicants
have failed to submit any arguments as to why the initial
authorisations had not been changed in order to comply with the
formal requirement for powers of attorney expressly provided for by
the Code of Criminal Procedure.
- Consequently,
the Court considers that the Court of Cassation’s assessment in
respect of the facts of the present case does not appear to be
arbitrary.
- Therefore,
the Court finds that the remaining applicants cannot be considered as
having complied with the exhaustion of domestic remedies rule. The
application must therefore be rejected for non exhaustion of
domestic remedies under Article 35 § 1 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall
Registrar President
