Cobzaru v. Romania

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 99

July 2007

Cobzaru v. Romania - 48254/99

Judgment 26.7.2007 [Section III]

Article 14

Discrimination

Law enforcement agents’ failure to investigate possible racial motives behind ill-treatment of Roma at police station, combined with their attitude during the investigation: violation

Article 3

Degrading treatment

Inhuman treatment

Treatment of Roma suspect in police custody and failure to carry out a proper investigation into his allegations: violation

Facts: According to the applicant, in the evening of 4 July 1997 he had gone to the flat where he had been living with his girlfriend Steluţa M. and had found the door locked. Fearing that she might have attempted to take her life, as she had already done in the past, he had forced open the door of the flat in the presence of his neighbour, Rita G, finding nobody inside. As he had been leaving, he had met Steluţa’s brother-in-law, Crinel M., accompanied by three men armed with knives, who had tried to attack him. A little later Crinel M. had lodged a complaint against the applicant for trying to break into the flat. Rita G. had stated that the applicant had broken into the flat in her presence. Between 8 and 9 p.m., the applicant had gone to the city police department, accompanied by his cousin Venuşa L and complained to the duty police officer that some individuals had attempted to beat him up as he had been leaving the flat. At around 10 p.m. two police officers, who had come back from the on-site investigation they had carried out at Steluţa’s flat, had punched and kicked him and had hit him with a wooden stick. Four plainclothes officers had observed the assault without intervening. He had then been forced to sign a document stating that he had been beaten up by Crinel M. and other individuals. Later that evening he had been admitted to an emergency ward with injuries diagnosed as craniocerebral trauma.

On 8 July 1997 a forensic medical expert concluded that the applicant’s injuries were the result of his having been hit “with painful and hard objects”. On the same day the applicant lodged a complaint against three police officers. In written statements given a few days later they denied having beaten the applicant. None of them mentioned having seen any bruises on his face on his arrival at the police station. On 6 October 1997 the three accused officers presented a new version of events, stating that the applicant had arrived at the police station after they had come back from the on-site investigation of 4 July 1997, and that he had had bruises on his body on his arrival.

In November 1997 a military prosecutor refused to open a criminal investigation in respect of the applicant’s complaints, on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as “antisocial elements prone to violence and theft”, in constant conflict with “fellow members of their ethnic group”. The prosecutor considered that the statement given by Venuşa L. could not be taken into consideration since she was also a “gypsy” – and, moreover, the applicant’s cousin – and therefore her testimony was insincere and subjective. A chief military prosecutor dismissed the applicant’s appeal as no evidence had been adduced that the police officers had beaten the applicant, “a 25-year-old gypsy”, “well known for causing scandals and always getting into fights”.

Law: Article 3 – The degree of bruising found by the doctors who had examined the applicant indicated that his injuries had been sufficiently serious to amount to ill-treatment within the scope of Article 3. It was undisputed that the applicant had been the victim of violence on 4 July 1997, either shortly before going to the police station or while he had been there. Having regard to the seriousness of his injuries, the Court found it inconceivable that, had the applicant arrived at the police station with bruises on his body, the police officers would not have noticed them. Moreover, had the police noticed any bruises, they should normally have questioned him as to their origin and either taken him to the hospital or called a doctor.

It was not until 6 October 1997 that the three accused police officers had presented a new version of events, stating that the applicant had bruises on his body on his arrival at the police station. None of the eyewitnesses to the altercation between the applicant and Crinel M. had confirmed that version of events (that Crinel M. had beaten up the applicant) and Crinel M. had consistently denied it. The findings of fact made by the prosecutors had been based entirely on the accounts of October 1997 given by the police officers accused of ill-treatment or their colleagues. Not only had the prosecutors accepted without reserve the submissions of those police officers, apparently they also had disregarded crucial statements from eyewitnesses, Rita G. and Venuşa L. The investigation carried out by the domestic authorities appeared to have had other shortcomings such as a failure to question certain key witnesses or to pursue obvious lines of questioning. Finally, the Court noted a number of contradictions in the investigation file, including the time when the applicant had arrived at the police station.

The Court concluded that the Government had not satisfactorily established that the applicant’s injuries had been caused otherwise than by treatment inflicted on him while he had been under police control on the evening of 4 July 1997 and that those injuries had been the result of inhuman and degrading treatment.

Conclusions: violations of Article 3 for ill-treatment and failure to conduct a proper investigation into the applicant’s allegations of such treatment (unanimous votes).

Article 13 – The authorities had been under an obligation to carry out an effective investigation into the applicant’s allegations against the police officers, but had failed to do so. Consequently, any other remedy available to the applicant, including a claim for damages, had stood limited chances of success. While the civil courts had the capacity to make an independent assessment of fact, in practice the weight attached to a preceding criminal inquiry was so important that even the most convincing evidence to the contrary would often be discarded and such a remedy would prove to be only theoretical and illusory. In the particular circumstances the applicant’s possibility of suing the police for damages had remained merely theoretical.

Conclusion: violation (unanimously).

Article 14 – Was the ill-treatment based on racial prejudice?The applicant had argued, without referring to any specific facts, that his allegation of discriminatory treatment should be evaluated within the context of documented and repeated failure by the Romanian authorities to remedy instances of anti-Roma violence and to provide redress for such discrimination. However, the expression of concern by various organisations about the numerous allegations of violence against Roma by Romanian law enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination did not suffice to allow the Court to find that it had been established that racist attitudes played a role in the applicant’s ill-treatment.

Were possible racist motives investigated?The numerous anti-Roma incidents which often had involved State agents following the fall of the communist regime in 1990, and other documented evidence of repeated failure by the authorities to remedy instances of such violence had been known to the public at large, as they had been covered regularly by the media. It appeared that all those incidents had been officially brought to the attention of the authorities and that, as a result, various programmes had been set up to eradicate such discrimination. Undoubtedly, such incidents, as well as the policies adopted by the highest Romanian authorities in order to fight discrimination against Roma had been known to the investigating authorities in the applicant’s case, or should have been known to them. Therefore special care should have been taken in investigating possible racist motives behind the violence against him. However, there had been no attempt on the part of the prosecutors to verify the behaviour of the police officers involved in the violence and to ascertain, for instance, whether they had been involved in the past in similar incidents or whether they had been accused of displaying anti-Roma sentiment.

Did the authorities racially discriminate against the applicant?Prosecutors had made tendentious remarks in relation to the applicant’s Roma origin throughout the investigation and no justification had been provided by the Government for those remarks. The Court had already found that similar remarks made by the Romanian judicial authorities regarding an applicant’s Roma origin had been purely discriminatory. In the applicant’s case, the prosecutors’ tendentious remarks as to his origin had disclosed a general discriminatory attitude on the part of the authorities, which had reinforced his belief that any remedy in his case had been purely illusory.

Conclusion: violation of Article 14 taken in conjunction with Articles 3 and 13 on account of the law enforcement agents’ failure to investigate possible racial motives behind the applicant’s ill-treatment, combined with their attitude during the investigation (unanimously).

Article 41 – EUR 8,000 for non-pecuniary damage.

For further details, see Press Release no. 534.

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