CASE OF MILENA FELICIA DUMITRESCU v. ROMANIA

THIRD SECTION

CASE OF MILENA FELICIA DUMITRESCU v. ROMANIA

(Application no. 28440/07)

JUDGMENT

STRASBOURG

24 March 2015

FINAL

24/06/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Milena Felicia Dumitrescu v. Romania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Dragoljub Popović,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,

and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 3 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 28440/07) 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, Ms Milena Felicia Dumitrescu (“the applicant”), on 14 June 2007.

2. The applicant was represented by Ms L. Rosu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs.

3. The applicant complained that the domestic authorities had not carried out a prompt and effective investigation into her allegations that she had been subjected to physical violence.

4. On 15 March 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1939 and lives in Bucharest.

6. On 16 March 1998 the applicant lodged a criminal complaint against a third party, I.L., accusing him of aggravated theft, rape and unlawful deprivation of liberty. She alleged that on the night between 14 and 15 March 1998, I.L. had entered her lodgings and repeatedly hit her, threatened to kill her if she did not give him the money she owed him and other assets, and raped her. She claimed that the violence and threats had started at about 7.30 p.m. on 14 March 1998 and lasted until 4 a.m. the next day. She also claimed that when he had left, I.L. had taken with him 250 German Marks and 100 American Dollars (USD), a travelling bag, two leather jackets, as well as the original documents of a building belonging to her.

7. As evidence of the physical violence to which she had been subjected, the applicant presented a medical certificate issued on 16 March 1998 by the Mina Minovici National Institute of Forensic Medicine. The certificate stated that she had traumatic lesions that could have been caused by blows with a hard object and that she would need at least eight to nine days of medical care to recover. The certificate made no mention of rape.

8. On 17 March 1998 the applicant gave a written statement. On 2 April 1998 she gave a supplementary statement by which she added a civil complaint to her initial criminal complaint.

9. On 8 April 1998 the prosecutor started a criminal investigation into the applicant’s allegations against I.L. concerning aggravated theft and unlawful deprivation of liberty.

10. On the same day I.L. was arrested and remanded in custody for thirty days. On 4 May 1998 the County Court extended his detention for another thirty days. On 6 June 1998 the court decided not to further extend I.L.’s detention and ordered his release from prison.

11. The investigators searched I.L’s home, but only found the documents of the building.

12. I.L. was questioned by the prosecutor on 8 and 9 April and 20 October 1998. He stated that the applicant had borrowed USD 17,000 from him on 25 August 1996 and that she had refused to return the money. He claimed that she had lodged the criminal complaint so that he would not ask for reimbursement of the loan. As regards the documents belonging to the applicant found at his home, he contended that they had been given to him by the applicant.

13. On 6 and 9 April 1998 the prosecuting authorities heard a witness, D.B., a common friend of I.L. and the applicant. D.B. stated that he had borrowed USD 12,000 from I.L. and had also been threatened and held against his will by the latter in 1997 in order to make him return the money.

14. On 2, 6, 28 and 29 April 1998 the prosecutor took statements from seven witnesses proposed by the applicant. Most of them had not been present at the events but had seen the traces of violence on the applicant.

15. On 28 May 1998 D.P.S., I.L.’s friend, gave a statement according to which I.L. had spent the whole evening of 14 March 1998 with her. Moreover, at about 8 p.m. R.C. had paid them a visit and at about 10.30 p.m. I.L. had had a telephone conversation with A.M.I.

16. R.C. and A.M.I. confirmed the visit and the telephone conversation with I.L. in their statements before the investigating authorities.

17. On 15 May, 9 June and 20 October 1998, the applicant was invited to take part in a confrontation with I.L. She refused, claiming that she was afraid of I.L.

18. The applicant gave a statement on 28 May 1998.

19. On 5 August 1999 the criminal investigation office of the Bucharest Police considered the criminal-investigation stage terminated. They proposed that I.L. be indicted on a charge of aggravated theft under Article 211 § 2 (f) of the Criminal Code (“the C.C.”) and that the investigation into the allegation of unlawful deprivation of liberty under Article 189 § 1 of the C.C. be discontinued. They noted that the applicant had added a civil complaint to the criminal proceedings.

20. On 24 April 2000 the prosecutor’s office attached to the Bucharest County Court rejected the proposal and remitted the case for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly. It considered that one witness should be re-heard and two new witnesses heard. It also pointed out that the minutes drafted by the investigating authorities on the occasion of the confrontations were too brief.

21. On 12 March 2001 the prosecutor’s office attached to the Bucharest County Court referred the case back to the investigating authorities because they had returned the file without following the instructions given in its decision of 24 April 2000.

22. On 7 February 2003 the investigating authorities sent the case back to the prosecutor’s office, proposing that the criminal investigation against I.L. be discontinued. They noted, inter alia, that the applicant had given a statement according to which she had been raped by I.L.

23. On 17 March 2003 the prosecutor’s office attached to the Bucharest County Court decided to discontinue the criminal proceedings against I.L. It concluded that I.L. had not committed the offences as the applicant’s allegations had not been supported by any evidence. It also noted that the applicant had claimed in her statement before the prosecutor that I.L. had raped her.

24. On 20 May 2003 the prosecutor’s office attached to the Bucharest Court of Appeal quashed that decision. It upheld the decision to discontinue the investigation in respect of the charges of unlawful deprivation of liberty under Article 189 of the C.C. and aggravated theft under Article 211 § 2 (f) of the C.C., but held that the legal basis for that decision was wrong. It observed that there was evidence in the file concerning the commission of the offence of “bodily injury” under Article 180 § 2 of the C.C. Therefore it referred the case back to the prosecutor’s office attached to the Bucharest County Court for it to continue the investigation in that connection.

25. Consequently, on 11 August 2003 the prosecutor’s office attached to the Bucharest County Court decided to discontinue the investigation into the allegation of aggravated theft. It decided to continue the investigation with respect to the allegation of physical violence, classifying the offence as bodily injury under Article 180 § 2 of the C.C., and to investigate the allegation of threatening behaviour under Article 193 of the C.C.

26. On an unspecified date in 2004 the file was transferred to the Bucharest District Court. It appears that a first hearing before that court was held on 16 April 2004. The applicant was assisted by a lawyer of her choice. The District Court adjourned the hearings several times because of the failure to duly notify I.L. of the hearings scheduled on 14 May, 4 and 25 June, 17 September, 8 and 29 October 2004. On 21 January 2005 the court became aware that I.L. had left the country for the United States of America (U.S.A.).

27. On 22 April 2005 the applicant reiterated her intention to seek compensation for pecuniary and non-pecuniary damage and submitted a written request indicating the amounts she sought to obtain from I.L.

28. On the same day the Bucharest District Court heard the applicant, who maintained her previous allegations. She also stated that I.L. had raped her and that he should therefore be charged with rape as well. The court also noted that the prosecutor’s office attached to the Bucharest County Court had delivered a decision on 11 August 2003 in which it had not examined the applicant’s allegations concerning the offence of unlawful deprivation of liberty under Article 189 of the C.C. Accordingly, the court referred the case back to the prosecutor’s office for the investigation of the applicant’s allegations concerning the offences of unlawful deprivation of liberty and rape.

29. On 31 January 2006 the prosecutor’s office attached to the Bucharest District Court decided to discontinue the investigation into the allegation of rape on the ground that the offence had not been proved. It sent the case to the Bucharest District Court for analysis of the criminal complaint of bodily injury. The prosecutor’s office also pointed out that the prosecutor’s office attached to the Bucharest County Court had in fact examined the applicant’s allegations of unlawful deprivation of liberty.

30. The District Court adjourned the hearings of 17 March, 14 April and 19 May 2006 for failure to properly summon the applicant.

31. On 15 August 2006 I.L.’s lawyer submitted a written statement from I.L. alleging a lack of impartiality on the part of the court because the judge, L.G., who had presided over the single-judge panel of the Bucharest District Court which had delivered the decision of 22 April 2005, was again in charge of his case. On 1 September 2006 the judge asked to be withdrawn from the case. On 7 September 2006 a new single-judge panel examined the request and decided that judge L.G. could examine the case, as in her prior decision she had not examined the merits of the case.

32. On 6 October 2006 the Bucharest District Court raised of its own motion the issue of the limitation period for criminal liability in respect of the offences of threatening behaviour and bodily injury, which had expired on 15 September 2002 and 15 September 2005 respectively. It therefore dismissed the applicant’s criminal complaint. The court did not examine her civil complaint, holding that she had not added a civil complaint to the criminal proceedings.

33. The applicant lodged an appeal against that decision, claiming that the limitation period had expired because of the ineffectiveness of the investigation. She argued that she had lodged a criminal complaint immediately after the offences had been committed, but that it had taken six years for the first court hearing to be held. After eleven hearings the file had been sent back to the prosecutor’s office. She also claimed that after her repeated requests for and complaints about the examination of her case, the file had been registered again with the Bucharest District Court in March 2006.

34. The appeal was dismissed as unfounded by the Bucharest County Court on 29 January 2007. The court confirmed that the limitation period had expired.

II. RELEVANT DOMESTIC LAW

35. The provisions of the Criminal Code, as in force on the date the offences were allegedly committed, defining bodily injury and threatening behaviour and setting out the method of calculating the periods of limitation for both offences, read as follows:

Art. 180

“(2) Violent actions that have caused injuries needing medical care of up to twenty days for recovery are punishable by imprisonment of between three months and two years, or by a fine”.

Art. 193

“Any threat against a person causing harm to that person, or the person’s husband/wife or close relative, if it has the effect of causing the person acute distress, is punishable by imprisonment of between three months and one year, or by a fine. The penalty applied shall not exceed the sanction provided by the law for the offence which was the object of the threat.”

Art. 122

“(1) Limitation periods for criminal responsibility are as follows:

...

d) five years, when the law provides for imprisonment of more than one year, but no more than five years, for the offence committed;

e) three years, when the law provides for a penalty of imprisonment of no longer than one year, or a fine as a penalty for the offence committed.

...

(2) The terms mentioned in the present article are calculated from the date on which the offence was committed”.

Art. 123

“(1) The limitation periods provided for in Article 122 shall be interrupted by any procedural action which has been initiated and must be communicated to the defendant during the criminal trial.

(2) The limitation periods shall be renewed following any interruption.”

Art. 124

“A criminal prosecution shall be statute-barred in any case after the expiry of the period provided for under Article 122 plus a half of that period.”

36. The relevant parts of Article 278(1) of the former Romanian Code of Criminal Procedure, concerning complaints against prosecutor’s office decisions, are set out in the judgment Dumitru Popescu v. Romania (no. 1) (no. 49234/99, §§ 43-45, 26 April 2007).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained that the authorities had failed to carry out an effective investigation into the circumstances of her ill-treatment. She relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. The parties’ submissions

38. The Government submitted that the applicant had not exhausted the domestic remedies. She had not used the opportunity to lodge an appeal, provided for by Article 278(1) of the Code of Criminal Procedure, against the decisions of the prosecutor’s office delivered on 20 May 2003, 11 August 2003 and 31 January 2006.

39. The applicant disagreed with the Government. Referring to the decisions delivered by the Bucharest County Court and the Bucharest Court of Appeal on 6 October 2006 and 29 January 2007 respectively, she submitted that she had exhausted the domestic remedies.

2. The Court’s assessment

40. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided for by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see McFarlane v. Ireland [GC], no. 31333/06, § 107 10 September 2010, and T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000).

41. The Court notes with regard to the present case that in March 1998 the applicant instituted criminal proceedings together with civil claims against I.L. in respect of aggravated theft, rape and unlawful deprivation of liberty. She complained that on the night between 14 and 15 March 1998, I.L. had entered her lodgings and repeatedly hit her and threatened to kill her, depriving her of her liberty for about seven hours.

42. According to the Government, the applicant did not lodge appeals on the basis of Article 278(1) of the Code of Criminal Procedure against the prosecutor’s decisions to discontinue the criminal investigation of the charges of aggravated theft (see paragraphs 23 and 24 above), unlawful deprivation of liberty (see paragraphs 23 and 28 above) and rape (see paragraph 28 above). However, on 11 August 2003 the prosecutor’s office attached to the Bucharest County Court decided to continue the investigation of the allegations of physical violence and threatening behaviour (see paragraph 24 above). The applicant’s complaint before the Court mainly concerns the failure of the domestic authorities to carry out an effective investigation into her allegations of physical violence perpetrated against her by I.L.

Consequently, the Court considers that the applicant did give the domestic authorities a sufficient and adequate opportunity to examine and provide an appropriate remedy for her complaint of physical violence and that she had no reason to appeal against the decisions of the prosecutor’s office delivered on 20 May 2003, 11 August 2003 and 31 January 2006.

43. In this context, it appears to be common ground that the criminal proceedings with civil claims could in principle, had they been pursued successfully, have led to the extent of the alleged perpetrator’s liability being established and eventually to the award of appropriate redress.

44. Accordingly, the Court considers that the applicant has exhausted the domestic remedies and that the Government’s objection must be dismissed. It further considers that the applicant’s complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

45. The applicant submitted that the investigation carried out by the domestic authorities into her allegations of ill-treatment had not been effective for the purposes of the Convention. The proceedings had lasted for an unreasonably long period of time and the case had ultimately been closed as time-barred.

46. The Government did not contest that the applicant had sustained the injuries mentioned in the medical certificate. However, they submitted that on the basis of the evidence adduced in the file, the authorities had been unable to establish that I.L. had been present at the applicant’s home during the night of 14 to 15 March 1998.

47. The Government further submitted that the authorities had acted promptly. They had arrested I.L. and instituted criminal proceedings against him. They had also carried out a search at his home in order to find the assets which had allegedly been stolen and had taken statements from I.L., the applicant and several witnesses.

48. The Government contended that the applicant’s statements had been contradictory. As she had not stated before the investigating authorities that she had been raped, no steps had been taken in that connection at the criminal investigation stage. It was only on 22 April 2005, before the Bucharest County Court, that the applicant had requested that I.L. be investigated also in connection with the offence of rape.

49. In the Government’s view, the investigation had been prompt, thorough and expeditious, and the mere fact that a conviction had not been secured did not render the investigation ineffective.

2. The Court’s assessment

(a) General principles

50. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998-VI; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002; and M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII).

51. Article 3 of the Convention may also give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, § 102, 28 October 1998, Reports 1998-VIII). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, no. 71156/01, §97, 3 May 2007).

52. Even though the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see C.A.S. and C.S. v. Romania, no. 26692/05, § 70, 20 March 2012).

53. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and the length of time taken for the initial investigation (see Stoica v. Romania, no. 42722/02, § 67, 4 March 2008, and Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009).

(b) Application to the present case

54. In the present case, the applicant’s life was threatened, she was beaten up and sustained severe bodily injuries. According to the medical certificate issued on 16 March 1998 by the Mina Minovici National Institute of Forensic Medicine, she presented traumatic lesions that could have been caused by blows with a hard object and she needed at least eight to nine days of medical care to recover. The Court considers that the acts of violence to which the applicant was subjected, which were not contested by the Government, were sufficiently serious to amount to ill-treatment within the scope of Article 3. The State’s positive obligations were thus called into action.

55. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007).

56. In this connection, it will be necessary to examine whether the domestic authorities’ compliance with the relevant procedural rules and the manner in which the criminal-law mechanisms were implemented in the instant case were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 3 of the Convention.

57. The Court notes with concern that despite the gravity of the allegations it took the prosecuting authorities more than six years to complete the investigation of the case. Thus, although the applicant lodged her complaint on 16 March 1998, the prosecutor’s office did not deliver a first decision until 17 March 2003 (see paragraph 23 above).

58. The delays appear to have resulted from the poor coordination between the prosecution and the investigating authorities. In particular, the prosecution referred the case back to the investigating authorities twice for additional investigation (see paragraphs 20 and 21 above).

59. There also appears to have been poor coordination between the various prosecuting bodies, as well as between the prosecuting bodies and the courts involved in the case, as evidenced by the fact that the charges against I.L. were repeatedly reformulated (see paragraphs 24 and 28 above).

60. As regards the proceedings before the Bucharest District Court, the hearings were repeatedly adjourned on account of the failure to duly notify the defendant, I.L. (see paragraph 26 above), and the applicant (see paragraph 30 above).

61. The domestic authorities generally failed to display a great deal of diligence in dealing with the case. Although the applicant had complained of rape from the beginning of the investigation (see paragraph 6 above), the authorities did not examine her allegation until 2005, seven years after the events (see paragraph 28 above).

62. At the end of the criminal proceedings, almost nine years after the date of the alleged offence, the case was discontinued as being time-barred and the accused was exonerated. Given that the case was not legally or factually complex, such a time‑span appears excessive.

63. Moreover, an effective investigation should be capable of leading to the punishment of the persons responsible for ill-treatment. In the instant case, the domestic courts did not analyze the applicant’s criminal complaint on the merits. Nor did they examine the civil complaint joined to the criminal proceedings, noting that the applicant had not lodged such a complaint (see paragraphs 32 above). However, the fact that she had lodged a civil complaint was mentioned in the investigating authorities’ proposal of 5 August 1999 (see paragraph 19 above). On 22 April 2005 she re-iterated her claim for compensation before the Bucharest District Court (see paragraph 27 above).

64. In the light of the serious shortcomings identified above, the Court concludes that the investigation into the assault on the applicant was ineffective as it was not prompt, expeditious or sufficiently thorough. The Court accordingly holds that there has been a violation of Article 3 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

66. The applicant claimed 500,000 euros (EUR) in respect of non‑pecuniary damage.

67. The Government considered the amount excessive.

68. The Court notes that in the present case it has found that the State failed to fulfil its positive obligations under Article 3 of the Convention in respect of the applicant. In these circumstances, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

69. The applicant did not lodge a claim for costs and expenses.

C. Default interest

70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

3. Holds

(a) that in respect of non-pecuniary damage the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

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