Information Note on the Court’s case-law No. 98
June 2007
Macovei and Others v. Romania - 5048/02
Judgment 21.6.2007 [Section III]
Article 3
Degrading treatment
Inhuman treatment
Inability of victims of an alleged criminal offence to challenge in court a prosecutor's decision not to institute proceedings: violation
Facts: Two of the applicants were injured by their neighbours in a dispute. They filed a criminal complaint for attempted murder and grievous bodily harm inflicted by several blows with an axe. However, the Romanian authorities refused to prosecute the assailants on those charges and insisted, as a condition for taking court action, that the applicants file a new complaint alleging assault instead. The prosecution service failed to heed the applicants' express wish to bring an action for attempted murder, rather than for assault and battery. A law has since opened up the possibility for any party to appeal to the court of first instance against a decision by the prosecution service to end the proceedings.
Law: Article 3 – An investigation had been carried out following the complaints filed by the two applicants for attempted murder and grievous bodily harm as a result of the violence inflicted on them. Such measures necessitated the filing of a complaint with the authorities responsible for the criminal investigation, namely the police or the public prosecutor's office. For this type of offence the classification of the facts was essential as it determined whether court action would be taken: only the prosecution service could refer a matter to the criminal courts. In constantly refusing to prosecute the assailants on the charge of attempted murder and insisting, as a condition for prosecuting them, that the applicants file a new complaint alleging assault, the prosecution service had encouraged the applicants to abandon their initial complaint or to change it. However, the applicants' allegations of attempted murder and grievous bodily harm were defendable in the light of the undisputed reality of the injuries mentioned in the medical certificates. That alone was enough to place the attack on the applicants within the protective scope of Article 3. Their classification of the facts had been in accordance with domestic case-law. However, although the violence suffered by the first applicant had knocked out one of his teeth and broken another, which amounted to mutilation according to the balance of judicial opinion, and although he had filed a complaint on that charge, the authorities had failed to follow it up. Yet whether or not the applicants' attackers were brought to account depended on that. As to the existence at the material time of a remedy enabling the applicants to appeal to a higher authority against the decision to end the proceedings for attempted murder, it had been neither adequate nor effective. Having refused to file a complaint for the offence suggested by the prosecution service, the applicants had been deprived of the right to have their case heard by a court, although adversarial criminal proceedings before an independent and impartial court afforded the soundest guarantees of effectiveness when it came to establishing the facts and determining criminal liability. The reform of the Code of Criminal Procedure had clearly demonstrated Parliament's desire to end the prosecution service's monopoly on committals. It had adjusted the balance in favour of the victims, who could now appeal against decisions discontinuing the proceedings. Under the legislation in force at the time, the applicants had not enjoyed the benefit of these new provisions. The criminal justice system as applied in this case had proved incapable of punishing those responsible. That was likely to diminish the public's trust in the justice system and in its adherence to the rule of law: violation concerning the procedural aspect.
Article 41 – EUR 3,000 to one of the applicants in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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