Communicated on 22 April 2015
THIRD SECTION
Application no. 48474/14
Aron LINGURAR and others
against Romania
lodged on 28 June 2014
STATEMENT OF FACTS
1. The applicants, Mr Aron Lingurar, Ms Ana Maria Lingurar, Mr Aron Lingurar and Ms Elena Lingurar, are Romanian nationals who were born respectively in 1949, 1994, 1985 and 1957 and live in Vâlcele. They are represented before the Court by Mrs M. Voinescu, a lawyer practicing in Braşov.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The incidents of 15 December 2011
3. In the morning of 15 December 2011 around 5 a.m., several police agents and gendarmes together with the local forest ranger – all wearing special intervention clothing – knocked on the applicants’ door. They told them they were their neighbours. As the applicants hesitated, they broke down the unlocked front door and entered by force. Upon entering the forest ranger placed a balaclava on his head. The police agents also wore balaclavas.
4. In the first room they found the fourth applicant, her daughter, the second applicant and her daughter‑in‑law with a seven-month-old baby in her arms. The police agents dragged the two applicants out of their beds and started hitting them. The fourth applicant was hit on her collar bone with the police truncheon. When the second applicant asked the police why they were beating her mother, she was hit on her mouth and then forced to wash her face to remove the traces of blood.
5. The police agents entered the next room where they found the third applicant with his wife. They dragged him on the ground, kicked him, and shouted abuse. The first applicant was also brought in that room. He appeared to have been beaten by police officers.
6. Without allowing them to put any clothes on, the police agents took the first and third applicants out to the yard, pushed them on the ground and hit them. They put the two applicants in the police car where the violence continued. The fourth applicant was not allowed to approach them or bring them clothes.
7. The first and third applicants were taken to the police station where they gave their statements. They were fined and sent back home.
B. The medical certificates
8. On 15 and 16 December 2011 the applicants were examined in the Emergency Hospital. Subsequently, they were also examined by a forensic doctor.
9. The forensic certificate delivered on 15 December 2011 describes that the second applicant had dried blood on her lips and left cheek, but no bruises or painful teeth. The reason for the bleeding could not be established. She refused further medical investigations. The conclusion of the report was that she did not present traumatic lesions but that a trauma caused by an aggression could not be excluded.
10. On 20 December 2011 a forensic medical certificate was established for the first applicant. It stated that he complained of chest pain and had two bruises on his chest. The x‑ray examination performed on the same day did not reveal any further damage. It was concluded that the trauma could have been caused by being hit with a hard object and that due to the injuries the applicant needed one to two days of medical care.
11. On 20 December 2011 a forensic medical certificate was established for the third applicant. Presence of bruises on the right eye, chest and right arm were recorded. The examiner concluded that the injuries could have been caused by a blow with a baseball bat and that the third applicant needed four to five days of medical care.
12. On 21 December 2011 a forensic medical report was established for the fourth applicant. She complained of abdominal and chest pains and had a bruise on her lower chest. It was concluded that her injuries could have been caused by being hit with a hard object and that she needed one to two days of medical care.
C. The criminal prosecution
1. Prosecutor’s decision of 11 March 2013
13. On 20 February 2012 the applicants lodged a criminal complaint against the forest ranger and the police agents on duty on 15 December 2011. They accused the officials of hitting them and other acts of violence. They described the events in detail as presented above.
14. The case was investigated by the prosecutor’s office attached to the Braşov Court of Appeal. Thirteen police agents and three gendarmes were put under investigation. The prosecutor interviewed the applicants and the police agents and gendarmes, as well as three witnesses. These witnesses were neighbours of the applicants’ present during the incidents. Their interrogation was proposed by the applicants.
15. The prosecutor established that the operation had been organised following an action plan made by Covasna Department Police Inspection (Inspectoratul de Politie Judetean Covasna; “I.P.J.”) and the Covasna Department Gendarmerie Inspection (Inspectoratul Judetean de Jandarmi Covasna; “I.J.J.”). There were fifty State agents present at the operation, namely: sixteen police agents and four agents from the Rapid Intervention Squad (Serviciul de Intervention Rapida; “S.I.R.”) participated from the I.P.J. and thirty gendarmes from the I.J.J. Their assignment was to bring to the Vâlcele police station several individuals who they needed to interrogate concerning several criminal complaints linked to various criminal investigations.
16. Relying on the statements given by the forest ranger and the police, the prosecutor established that the forest ranger had not participated in the events, which had started at 7 a.m. and not at 5 a.m. as indicated by the applicants and their neighbours.
17. The gendarmes denied having committed acts of violence or seen traces of injuries on the applicants. Police agent P.A. explained that the use of force and the handcuffing had been necessary because of the violent behaviour of the applicants, and in particular of the first applicant who had opposed the police intervention claiming that he was a local counsellor for Roma matters and shouted abuse and threats at the police.
18. On 6 July 2012 the investigators examined the applicants’ front door. They noted that some of its window panels had been broken and that the wood had been splintered and the paint was missing in its lower part; they could not establish how old those traces were.
19. On 11 March 2013 the prosecutor concluded, based on those findings, that there was not enough evidence to start prosecution against the police agents.
2. Prosecutor’s decision of 17 April 2013
20. The applicants objected to the prosecutor’s decision. They argued mainly that the prosecutor had given preference to the statements made by the police agents to the detriment of those made by the applicants without any justification. They also averred that the investigation had failed to provide an explanation to the violence perpetrated against them. They stressed that there was an established and frequent practice of the police in the area to attack members of the Roma community without any justification.
21. On 17 April 2013 the prosecutor-in-chief from the prosecutor’s office attached to the Braşov Court of Appeal dismissed the objection on the following grounds:
– the intervention had been lawful;
– the applicants’ immobilisation and the use of handcuffs had been lawful and made necessary by the applicants’ aggressive behaviour; they had therefore been taken to the police section, interviewed, and fined;
– the investigation had been complete;
– the prosecutor had clarified all aspects of the case and examined the evidence gathered;
– the decision had represented the prosecutor’s own conviction based on the evidence in the file and the reasons given had been adequate;
– the other assertions made by the applicants had not been sustained.
3. The court decision of 23 May 2013
22. The applicants complained against the prosecutors’ decisions. They reiterated the arguments put forward in their objection.
23. The Braşov Court of Appeal heard the case and delivered its decision on 23 May 2013. It mainly considered that the authorities had to provide justification for the injuries sustained by the first and third applicants who had been taken to the police station, as they have been for a few hours under their control. The court further noted that injuries sustained by the second and the fourth applicants could not be thus explained since they had not been immobilised and the prosecutors could not provide an explanation for their injuries either.
24. The court further noted that the prosecutor had not identified the person who had given the order to immobilise the two applicants and take them to the police station. The gendarmes involved denied having immobilised the applicants, whereas the police agents present at the incidents declared that the gendarmes had done it.
25. The court went on to question the lawfulness of the whole police intervention. On that matter it noted that as at that time the applicants had not been subject to ongoing criminal investigations, no order to appear before the police (mandate de aducere) or written invitation to the police station had been issued. It further noted that two of the applicants had not even been arrested.
26. The court concluded that the criminal investigation had not been exhaustive and therefore sent the case back to the prosecutor. It ordered the prosecutor:
– to hear evidence from witnesses (in particular from other persons who had been targeted by that police intervention, neighbours who could clarify whether the police agents entered the applicants’ home);
– to hear the police agents involved in the operation and those responsible for mounting the operation in order to know who gave the order to immobilise the applicants as well as to identify the persons who carried out that order;
– to establish how the immobilisation had happened;
– to establish, based on evidence, how the other two applicants, who had not been immobilised by police, had been injured;
– to establish who exactly had participated in the operation on behalf of the authorities, whether police, gendarmes or other individuals.
4. The new set of investigations
27. The new investigation was carried out by the same prosecutor from the prosecutor’s office attached to the Braşov Court of Appeal. In her decision of 5 August 2013 she decided not to prosecute. She took note of the investigation steps already taken in the case and considered that all the indications given by the court had been observed during the new investigation and that further clarifications concerning the case itself and the general situation in Vâlcele had been made.
28. She explained, in particular, that because of the problems with the Roma community in Vâlcele the police and gendarmes had to combine forces. She reiterated a case of a police agent who was in a critical state in hospital after having been attacked on 27 June 2013 during a police intervention aimed at appeasing a conflict between to rival Roma clans. She also noted that on 15 July 2013 another police agent had been obliged to open fire in self-defence against an individual who had broken the windscreen of the police car during a police intervention following an emergency telephone call. She explained that most of the inhabitants of Vâlcele, and in particular those from three neighbourhoods (Hetea, Vâlcele and Araci), were known for breaking the law and were aggressive towards the police. The applicants’ family members had been subject to investigations for theft of wood or for disturbing the public order.
29. She considered that the injuries sustained by the first and the third applicants were explained by the use of force during the immobilisation which was made necessary by the applicants’ violent behaviour. She further explained that the identities of the four gendarmes who had executed the immobilisation were known, but had to be kept secret for their protection. She also considered that, based on the evidence in the file, the second and the fourth applicants had been injured when they had attacked the police agents in order to prevent them from immobilising their family members. She then explained that the two women:
“had exhibited a behaviour specific to Roma in such circumstances: they had started pulling their own hair, slapping themselves on their faces, hitting the gate with their fists and shouting in order to intimidate the police agents.”
30. The applicants objected to this decision, arguing that the prosecutor had failed to investigate whether the use of force had been proportionate and justified. They also complained about the use of stereotypes about Roma in the prosecutor’s decision.
31. On 20 September 2013 the prosecutor-in-chief from the same prosecutor’s office upheld the decision on similar grounds to those given in the decision of 17 April 2013 and, in addition, on the ground that the prosecutor had complied with the requests made by the court.
5. The court decision of 16 January 2014
32. The applicants complained against the prosecutors’ decisions, reiterating their previous arguments.
33. On 16 January 2014 the Braşov Court of Appeal dismissed the applicants’ complaint as unfounded in an extensively reasoned decision. The decision was final.
34. The court considered that the prosecutor had respected the requirements set by the previous court decision. She had heard additional witnesses who did not belong to the police or gendarmerie. It also considered that the evidence adduced could not prove beyond any reasonable doubt that the police agents had injured the applicants. The applicants’ statements and the medical certificates, which remained the only elements supporting that theory, were not sufficient to change the conclusion. According to that decision, the explanations offered by the prosecutor as to the cause of injuries were plausible and the police agents had not used excessive force. The court also considered that the applicants had the obligation to identify the alleged perpetrators. Lastly, the court noted that the investigations had not been influenced by the fact that the applicants were Roma.
COMPLAINTS
35. The applicants complain under Articles 3 and 6 of the Convention that they were subject to inhuman and degrading treatment by the police and that the investigations were marred by severe judicial errors. They felt humiliated and their dignity, reputation, and health were damaged.
36. They also complain that the prosecutor justified the proportionality of the police intervention by using stereotypical arguments concerning what is perceived to be the attitude of Roma in general and by referring to other unrelated incidents involving members of the Roma community.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to ill-treatment in breach of Article 3 of the Convention? In particular:
– was the police operation necessary, regulated and organized in compliance with the requirements of Article 3; and
– was the use of force by police against the applicants justified and proportionate?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
3. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their race contrary to Article 14 of the Convention read in conjunction with Article 3 of the Convention under both its procedural and substantive heads?
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