SERBAN MARINESCU v. ROMANIA - 68842/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 1105 (15 December 2015)

In the case of Șerban Marinescu v. Romania,

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

          András Sajó, President,
          Boštjan M. Zupančič,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Antoanella Motoc, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 24 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 68842/13) 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, Mr Șerban Marinescu (“the applicant”), on 21 October 2013.

2. The applicant was represented by Ms N.T. Popescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3. The applicant complained under Articles 3 and 13 of the Convention that he had been subjected to inhuman and degrading treatment by police officers, that the ensuing criminal investigation into the incident had been ineffective and that he had lacked an effective domestic remedy in this regard.

4. On 17 April 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Bucharest.

A. The parties’ account of events

1. The applicant

6. On 2 June 2007 the applicant had an argument with a taxi driver because the driver had refused to return his change after he had paid for a taxi ride. Following their verbal argument, the taxi driver drove the applicant against his will to a police station.

7. When the applicant entered the police station and informed the police that he wished to lodge a complaint against the taxi driver he was insulted and beaten by three unidentified police officers. The police officers punched him in the face and kicked him in the ribs for ten minutes. Subsequently they handcuffed him to a metal rail for twenty minutes.

8. Immediately after the incident the applicant managed to call two friends and a lawyer on his mobile phone. They arrived shortly afterwards at the police station and took pictures of the applicant while he was still handcuffed and had blood on his face as a result of an open wound near his right eye.

9. The applicant attached to his initial letter to the Court several photographs allegedly taken in the police station which show him in handcuffs and chained to a rail and with a bleeding injury under his right eye.

10. On the same day the applicant was asked by a fourth police officer to give a statement with regard to the incident. At the same time, one of the police officers who had hit him informed the applicant that he had fined him 200 Romanian lei (RON) - approximately 55 euros (EUR) - because he had verbally abused the taxi driver and the police officers.

11. After he had left the police station, the applicant went to the Mina Minovici Forensic Institute in order to ask for an expert medical report in respect of his injuries.

2. The Government

12. On 2 June 2007 the applicant had an argument with a taxi driver because the driver had refused to allow him to get into his taxi with a bottle of beer. The applicant was drunk, aggressive and - according to eyewitnesses - had a bruise under the right eye by the time he arrived at the police station.

13. Inside the police station, the police officers handcuffed the applicant to a metal rail, but without hitting him. The police officers did not cause any injuries to the applicant, except around the area where the handcuffs were attached to his wrists. Moreover, the applicant was not subjected to a level of physical violence exceeding that required by the handcuffing procedure.

B. First round of criminal investigation proceedings

14. On 5 June 2007 the applicant brought criminal proceedings against the taxi driver for unlawful deprivation of liberty and insult, and against the three police officers who had hit him for abuse of office by restricting his rights, abusive behaviour and insult. In addition, he asked the investigating authorities to identify the three police officers and the taxi driver involved in the incident.

15. On 26 June 2007, pursuant to the applicant’s request of 2 June 2007, the Mina Minovici Forensic Institute produced an expert medical report. The report noted that the applicant had slightly swollen lesions around the mouth area; a swollen area (on the right side of his face) in the centre of which was an open wound covered with coagulated blood; superficial scrapes over his right clavicle and on his right forearm; and bruising on the right forearm and left arm. The expert medical report concluded that the injuries could have been caused on 2 June 2007 and that the applicant had suffered traumatic injuries which could have been caused by his having been struck with a solid object, scratching and finger compression. The injuries required seven to eight days of medical treatment. The report also noted that after a medical examination carried out at the thoracic surgery ward of Bucharest Emergency University Hospital, he was diagnosed with a simple thoracic contusion caused by physical violence and a bruised eyelid.

16. On 1 July 2009 the Bucharest Prosecutor’s Office, after it had identified the taxi driver and all the police officers on duty on the day of the incident (including the three police officers involved in the incident, namely, N.B., V.L.G. and C.P.), discontinued the criminal investigation opened at the request of the applicant for unlawful deprivation of liberty and abusive behaviour on the ground that no unlawful act had been committed. It noted that according to the police officers’ statements, the applicant had been drunk on the day of the incident. As soon as he had entered the police station he had started insulting the officers and had become increasingly violent.

17. The prosecutor’s office also noted that according to police officers C.V. and N.A.T., the applicant had already had an injury on his face, which had stopped bleeding by the time he had entered the police station. Police officers N.B., V.L.G. and C.P. had also confirmed that the applicant had been drunk and aggressive and that he had had an injury on his face which had already stopped bleeding. The taxi driver, R.D., had confirmed the police officers’ statements and had declared that the applicant had repeatedly refused to leave his car and that he had not seen the officers abuse the applicant either physically or verbally inside the police station. Two other witnesses - namely, D.A. and V.D.F., who were friends of the applicant - had confirmed that the applicant had attended a party and that afterwards he had asked them to go to the police station because he had been abused by police officers. When they had arrived at the station they had seen the applicant handcuffed to a metal rail and that he had a facial injury, but they had not seen the police officers abuse him.

18. The prosecutor’s office held that there was no evidence in the file that the police officers had physically or verbally abused the applicant or that the taxi driver had deprived him of his liberty. Moreover, the applicant had been lawfully immobilised because he had been aggressive. Furthermore, the officers had immobilised the applicant by using only the minimum level of force required. The applicant challenged the decision before the higher prosecutor.

19. On 12 March 2010 the higher prosecutor attached to the prosecutor’s office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decision before the domestic courts.

C. First round of court proceedings

20. On 1 June 2010 the Bucharest District Court dismissed the applicant’s appeal against the decisions of the prosecutor’s office as ill-founded. The applicant appealed on points of law (recurs) against the judgment.

21. On 29 June 2010 the Bucharest County Court allowed the applicant’s appeal on points of law and referred the case back to the first-instance court for re-examination. It held that the first-instance court had failed to summon the taxi driver during the court proceedings and to examine the applicant’s complaint in respect of the taxi driver.

22. On 22 September 2010 the Bucharest County Court allowed the applicant’s appeal against the decisions of the prosecutor’s office of 1 July 2009 and 12 March 2010 and ordered the prosecutor’s office to re-open the criminal investigation. It held that the prosecutor’s office had dismissed only some of the criminal complaints lodged by the applicant against the three police officers and the taxi driver and had omitted to examine the others. The police officers appealed on points of law against the judgment.

23. On 18 November 2010 the Bucharest County Court dismissed as ill-founded the police officers’ appeal on points of law.

D. Second round of criminal investigation proceedings

24. On 16 September 2011 the prosecutor’s office discontinued the criminal investigation against the taxi driver and the three police officers on the ground that according to the available evidence no unlawful acts had been committed. The applicant challenged the decision before the higher prosecutor attached to the prosecutor’s office.

25. On 2 December 2011 the higher prosecutor attached to the prosecutor’s office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decisions before the domestic courts.

E. Second round of court proceedings

26. On 14 March 2012 the District Court allowed in part the applicant’s appeal against the decision of the prosecutor’s office of 16 September 2011. The court ordered the prosecutor’s office to reopen the criminal investigation regarding the offences of abusive behaviour and abuse of office in respect of the three police officers and regarding the offence of unlawful deprivation of liberty in respect of the taxi driver.

27. The court held in respect of the offence of abusive behaviour that the preliminary investigation carried out had not met the requirements of Article 3 of the Convention. The court first noted that the investigation had not been independent, as most of the preliminary investigation (including the questioning of the four police officers and two of the applicant’s witnesses) had not been carried out by a prosecutor but by other police officers who belonged to another section of the Bucharest Police Department (and who therefore belonged to the same organisational structure and were subject to the same chain of command as the officers under investigation). Moreover, the decisions of the prosecutor’s office had relied on the statements collected by the police officers and not the prosecutor himself. Furthermore, the investigation had not been thorough and had failed to clarify the circumstances of the case.

28. In particular, the court found that the prosecutor’s office had relied only on corroborating evidence and had failed to provide reasons for dismissing the evidence supporting the applicant’s allegations. Moreover, given the conflicting evidence, the preliminary investigation had not clarified whether the origin of the applicant’s facial wound had pre-dated the incident or whether it had stopped bleeding by the time he had entered the police station. The origins of the facial wound had also not been investigated or explained. The circumstances of the applicant’s handcuffing, the level of force used and the time needed, and the exact identity of the officers who had handcuffed him had remained unclear. No reasonable explanation had been provided as to how the handcuffing of the applicant’s hands had resulted in the applicant’s face being injured, given that at least four police officers had initially acted against the applicant and that he had been only verbally and not physically violent.

29. Accordingly, the court instructed the prosecutor to personally hear the applicant, his witnesses and the police officers present at the police station on the day of the incident in order to establish: whether the applicant’s facial wound had pre-dated the time at which he had entered the police station; whether the applicant had fallen on the stairs at the police station (and, if so, the reason for his fall); whether the applicant had intentionally banged his head against the window of a door; whether the testimony that the applicant’s facial wound had been bleeding had also been supported by other witnesses; whether the police officers had initially approached the applicant outside or inside the station; the names of the police officers present when the applicant had entered the station and at the initial stage of the incident; the names of the officers who had arrived only after they had heard noises and what they had witnessed; the moment at which the applicant had been handcuffed, the reasons for his being handcuffed and the actual process of the handcuffing; the identity of the officers who had actually handcuffed the applicant; whether the applicant had been both verbally and physically aggressive prior to his being handcuffed; the length of time for which the applicant had remained handcuffed and the person who had removed the handcuffs; whether the testimony that the applicant had never been handcuffed had been confirmed by the other witnesses; whether the applicant had entered the police station twice and had been aggressive only the second time; and whether the applicant had been carrying a beer bottle when he had arrived at the station.

30. The court also instructed the prosecutor to arrange a confrontation between the witnesses, the applicant and the police officers in order to clarify any inconsistencies between their statements; to identify and question other individuals present at the party attended by the applicant on the day of the incident in order to establish whether the applicant had had a facial wound prior to his argument with the taxi driver; to obtain the transcripts of the telephone call between one of the applicant’s friends and the emergency services; and to gather any other relevant evidence needed for the investigation.

31. In respect of the offence of unlawful deprivation of liberty the court held that according to the available evidence, the applicant had indeed been deprived of his liberty. Accordingly, the court held that the prosecutor’s office had to continue the investigation in order to clarify the circumstances of the case and to establish whether the elements of an offence had been made out.

32. In respect of the offence of abuse of office, the court held that the prosecutor’s office had discontinued the criminal investigation without having actually carried out any investigation with regard to the applicant’s allegations and instructed the prosecutor’s office to hear the applicant and the police officers in that respect.

F. Third round of criminal investigation proceedings

33. On 11 May 2012 the prosecutor’s office opened a criminal investigation against N.B., V.L.G. and C.P. for abusive behaviour.

34. On 18 March 2014 the prosecutor’s office extended the criminal investigation against N.B., V.L.G. and C.P. to include abuse of office and unlawful deprivation of liberty.

35. On 10 April 2014 the prosecutor’s office heard the taxi driver.

36. On 14, 15 and 27 May 2014 the prosecutor’s office heard police officers S.E.C, C.V. and N.A.T.

37. On 16 June 2014 the prosecutor’s office heard the applicant.

38. On 23 June 2014 the prosecutor’s office confronted the applicant with the taxi driver and the three police officers who had allegedly assaulted him.

39. On 24 June 2014 the prosecutor’s office closed the proceedings (clasat cauza) in respect of the taxi driver for the offence of unlawful deprivation of liberty and in respect of the police officers for the offences of abuse of office and abusive behaviour. It held, inter alia, that according to the available evidence, the taxi driver’s actions had lacked all the elements of an offence. Moreover, it was clear that the applicant had been immobilised against his will by C.P., N.B. and V.L.G., and had been handcuffed to a metal rail. The injury on the applicant’s face could have been caused by a cut or a scratch and must have already existed by the time the applicant had arrived at the police station. The fact that it had started bleeding again during the time he had spent at the station was due to the removal of the dried blood during the forcible handcuffing procedure. The applicant’s allegation that he had been repeatedly hit and kicked by the three police officers had not been supported by any evidence. In fact, the absence of more severe injuries had made it difficult to prove, beyond any reasonable doubt, the officers’ aforementioned violent behaviour.

40. The applicant’s remaining lesions could have been caused during the forcible handcuffing and by the handcuffs themselves, given that the applicant had been struggling and had been resisting being handcuffed. The applicant’s statement that following his fall on the stairs he had injured both his arms and that his hand had been squeezed by officer C.P. had not been supported by the medical expert report. The bruises on the applicant’s right arm and in the clavicle area could have been caused by his immobilisation.

41. The applicant appealed against the decision of the prosecutor’s office before the domestic courts on the ground that it had complied only in part with the instructions received from the court on 14 March 2012. He also argued that the prosecutor’s office had failed to carry out a speedy and effective investigation.

G. Third round of court proceedings

42. On 16 February 2015 the Bucharest District Court allowed the applicant’s appeal in part. It closed the proceedings in respect of the offence of abusive behaviour on the ground that the prosecution of that offence had become time-barred. However, it referred the case back to the prosecutor’s office for criminal proceedings to be opened against the three police officers and the taxi driver for unlawful deprivation of liberty. Furthermore, it upheld the decision of the prosecutor’s office to close the proceedings with regard to the applicant’s allegation of abuse of office. Lastly, relying on Article 20 § 2 of the Romanian Constitution and Articles 13 and 3 of the Convention, it found that the prosecutor’s office had failed to carry out an effective investigation in respect of the applicant’s allegations of degrading treatment; accordingly, it asked the Prosecutor General attached to the Bucharest Court of Appeal to assess the need to take over the case in the light of the refusal of the prosecutor’s office to comply with the final judgments of the courts.

43. The parties provided the Court with only the operative part of the judgment of 16 February 2015 and failed to submit a full copy of the aforementioned judgment.

44. The proceedings are still pending before the domestic authorities.

II. RELEVANT DOMESTIC LAW

45. Excerpts from the relevant provisions of the former Criminal Code concerning the offence of violent behaviour, from the former Code of Criminal Procedure with regard to the complaints against the prosecutor’s decisions, and from section 31 of Law no. 218/2002 on the organisation and functioning of the police, can be found in Toma v. Romania, no. 42716/02, §§ 25-27, 24 February 2009, and Andrişcă v. Romania, no. 65804/09, § 51, 3 February 2015.

46. Article 20 of the Romanian Constitution stipulates, inter alia, that constitutional provisions concerning citizens’ rights and liberties must be interpreted and applied in accordance with the treaties to which Romania is a party. International treaties take precedence over domestic law.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

47. The applicant complained that on 2 June 2007 he had been subjected to inhuman and degrading treatment by State agents in that he had been beaten and wrongfully handcuffed. In addition, the subsequent criminal investigation had been lengthy and ineffective. He 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

(a) The Government

48. The Government noted that the domestic proceedings were still pending and asked the Court to postpone the examination of the case pending a final judgment by the domestic courts.

(b) The applicant

49. The applicant reiterated his complaints. He also contended that the physical force used by the police officers to restrain him had not been strictly necessary or proportionate, given his behaviour and the fact that he had not been physically violent. The Government had not put forward convincing arguments which could have justified the level of force employed by the police officers when they had handcuffed him. Moreover, up until then, neither the domestic authorities nor the Government had provided plausible explanations for his injuries.

2. The Court’s assessment

50. In so far as the Government’s argument may be construed to amount to an objection that the applicant’s complaint is premature and in so far as their argument concerns the substantive aspect of the complaint under Article 3 of the Convention, the Court notes that part of the criminal proceedings opened by the applicant against the taxi driver and the police officers are still pending before the domestic authorities and that the parties have not submitted a full copy of the judgment of 16 February 2015. Moreover, the parties disagreed about the origin of the applicant’s injuries and on whether the applicant’s facial wound had pre-dated the incident or not. The Government submitted that the applicant’s facial wound had pre-dated the incident and that only the wounds around the area where the handcuffs were attached to his wrists had been inflicted during his immobilisation as a result of his resistance, whereas the applicant argued that all his injuries had been sustained as a result of ill-treatment by the police during the time he had spent at the police station.

51. Furthermore, important aspects of the events that lead to the applicant’s injuries on 2 June 2007 have not been completely clarified yet by the authorities. Also, the parties’ submissions and the available testimonial evidence continue to remain contradictory as to the origin and exact time of the applicant’s serious injuries. The Government acknowledged that the area around the applicant’s wrists had been injured by the handcuffs, but according to the medical expert report produced in the case the injuries in those areas seem to consist only in superficial scrapes and bruises which do not appear incompatible or disproportionate to the handcuffing measure.

52. Under these circumstances, given that the Court has no facilities to determine the exact timing and circumstances of the applicant’s injuries, it is impossible for it to establish, on the basis of the evidence before it, whether or not the applicant suffered treatment at the hands of the authorities contrary to Article 3 of the Convention as he alleged.

53. It is to be recalled that in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the effectiveness of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 164, ECHR 2009, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 141, ECHR 2012).

54. Having regard to the foregoing, the Court concludes that the complaint under the substantive aspect of Article 3 of the Convention is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see mutatis mutandis Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, § 67, 16 July 2013; McCaughey and Others v. the United Kingdom, no. 43098/09, § 129, 16 July 2013; and Amine Güzel v. Turkey, no. 41844/09, § 35, 17 September 2013).

55. As regards the procedural aspect of the complaint, the Court notes that the Government’s argument is directly linked to the substance of the applicant’s complaint. It therefore joins the Government’s preliminary objection on this point to the merits (see, among others, Amine Güzel cited above, § 36).

56. The Court notes that the complaint under the procedural aspect of Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

57. The applicant argued that the criminal investigation opened in respect of his case had lacked promptness and - after more than seven years - was still pending before the domestic authorities. Moreover, the investigation had been initiated by him and not by the domestic authorities of their own motion. No internal disciplinary proceedings had been opened against the police officers in order to ascertain the exact circumstances and the lawfulness of the applicant’s immobilisation. Although the domestic courts had acknowledged the ineffectiveness of the investigation and had reopened it on two occasions, the prosecutor’s office had failed to comply with most of the court’s instructions. Consequently, the investigation had remained incomplete up until then and the Government had failed to provide a reasonable explanation for the authorities’ continued passivity.

(b) The Government

58. The Government submitted that the domestic authorities’ decision to discontinue the criminal proceedings brought by the applicant against the police officers had been based on a large amount of evidence, had been lawful and had been appropriate, given the circumstances of the case. The domestic authorities had been best placed to make an accurate assessment of the facts.

59. The Government contended that the criminal investigation opened in respect of the applicant’s case had been adequate and effective. During the first set of proceedings, the investigative authorities had heard the applicant and his witnesses, the taxi driver and the police officers who had been present at the police station on the day of the incident. According to most of the evidence (except for the testimonial evidence collected from the applicant and from one of his friends), it appeared that the applicant’s facial wound had pre-dated the incident. Following the judgment of 14 March 2012, the prosecutor had reheard the taxi driver, the applicant and the witnesses directly and had organised a confrontation between the applicant and the taxi driver and the officers who had allegedly assaulted him.

60. The Government argued that the outcome of the investigation had been based on a thorough assessment of the evidence after all the court’s instructions had been followed. The investigation carried out by the prosecutor’s office had aimed to clarify the facts of the case.

2. The Court’s assessment

(a) General principles

61. The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by the police or other such agents of the State, Article 3 - read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention” - requires by implication that there should be an effective official investigation. A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001; and N.D. v. Slovenia, no. 16605/09, § 60, 15 January 2015).

62. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts; rather, as a general rule, it is for those courts to assess the evidence before them (see Klaas, cited above, § 29, and Vladimir Romanov v. Russia, no. 41461/02, § 59, 24 July 2008). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006, and Sarigiannis, cited above, § 55). Where allegations are made under Article 3 of the Convention, however, the Court must apply “a particularly thorough scrutiny” (see Şercău v. Romania, no. 41775/06, § 83, 5 June 2012).

(b) The application of those principles in the instant case

63. The Court observes that after the applicant lodged his complaint against the police officers, the domestic authorities carried out an inquiry into his allegations of ill-treatment. The Court accepts that the authorities reacted to the applicant’s complaint; it is not, however, convinced that their response to his allegations was sufficiently expeditious and thorough to meet the requirements of Article 3.

64. The Court notes that part of the criminal proceedings initiated by the applicant appear to be still pending - more than seven years later - before the domestic authorities. Moreover, on 16 February 2015, seven years and eight months after they were initiated, the criminal proceedings for abusive behaviour brought by the applicant against the three police officers who had allegedly beaten him were closed by the domestic courts on the ground that the prosecution for the aforementioned offence had become time-barred. During this time the decisions of the prosecutor’s office to discontinue the investigation against the police officers were quashed three times and the domestic courts acknowledged on two occasions that the preliminary investigation carried out by the investigating authorities in respect of the applicant’s case had been ineffective.

65. In this connection the Court notes that the District Court, in its judgment of 14 March 2012, (i) pointed out the shortcomings of the investigation, such as the lack of independence on the part of the investigating authorities and the prosecutor’s failure to personally hear the applicant and the witnesses to the incident or to clarify the relevant circumstances of the case, and (ii) provided clear instructions for the prosecutor’s office in respect of the procedural acts that needed to be carried out and those circumstances of the case which needed clarification. In this context, the Court considers that the failure of the prosecutor’s office to undertake the relevant investigating measures for such a long period of time is incompatible with the requirement of promptness included in the procedural obligations under Article 3 of the Convention (see, for instance, Pădureţ v. Moldova, no. 33134/03, § 68, 5 January 2010).

66. Moreover, it appears that, in spite of the domestic courts’ clear instructions as to the measures that needed to be undertaken and those circumstances of the case which needed clarification (see paragraphs 29-31, above), the prosecutor’s office failed to fully comply with those instructions. Also, the contradiction between the parties’ version of events concerning the reason why the applicant got into an argument with the taxi driver and whether he had been drunk by the time he had reached the police station had remained unexplored. Consequently, the exact circumstances of the incident in which the applicant was involved on 2 June 2007 remain unclear to date. The applicant’s repeated appeals against the decisions of the prosecutor’s office and his allegations that the investigation had been ineffective and had lacked promptness had no apparent effect in respect of the investigating authorities’ approach to the investigation.

67. In view of the above findings, the Court concludes that the investigation cannot be said to have been prompt, thorough and “effective”. Therefore, the Court sees no merit in the Government’s objection for the Court to postpone its examination of the case pending the final outcome of the domestic proceedings.

68. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

69. The applicant also complained that he had no access to a domestic remedy for the alleged breaches of his rights, as protected by Article 3. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

70. The applicant submitted that the domestic law had not provided him with a mechanism capable of leading to the prosecution of the police officers who had subjected him to inhuman and degrading treatment. The mere possibility provided by the relevant criminal procedure rules to appeal before the domestic courts against the decisions of the prosecutor’s office had not been sufficient and had not met the requirements of the Convention.

71. The Government contended that, in so far as the applicant’s allegation could be considered to constitute an arguable claim, the Romanian legal system had offered an effective remedy within the meaning of Article 13 of the Convention. The applicant had been able to contest the decisions of the prosecutor’s office before independent and impartial courts and those courts had examined his complaints.

72. The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be declared admissible.

73. However, in view of its conclusion concerning the complaint under the procedural limb of Article 3 of the Convention, the Court holds that no separate issue arises under Article 13 of the Convention, taken in conjunction with Article 3 (see Gasanov v. Moldova, no. 39441/09, § 56, 18 December 2012).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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

75. The applicant claimed EUR 20,000 in respect of non-pecuniary damage for the mental and physical suffering he had incurred during the incident of 2 June 2007 and the subsequent criminal investigation.

76. The Government submitted that the applicant’s claim in respect of non-pecuniary damage was excessive and that the finding of a violation constituted in itself sufficient just satisfaction.

77. The Court considers that the applicant suffered some non-pecuniary damage as a result of the infringement of his rights, as guaranteed by Article 3 of the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the applicant EUR 7,500 under this head, plus any tax that may be chargeable.

B. Costs and expenses

78. The applicant also claimed EUR 6,920 for costs and expenses incurred before the Court, to be paid directly to his representative and to the Romanian Helsinki Committee. These included EUR 6,620 in lawyer’s fees (charged at between EUR 5 and EUR 120 per hour depending on the complexity of the tasks performed by the lawyer) and EUR 300 for secretarial and mailing expenses incurred by the Romanian Helsinki Committee. The applicant submitted a breakdown of the number of hours worked by the lawyer on the case before and after the case had been communicated to the respondent Government. He also argued that he could not provide copies of supporting documents for the costs and expenses claimed for the Romanian Helsinki Committee because those activities had not been itemised in the invoices paid by that organisation.

79. The Government submitted that the number of hours indicated as having been worked on the case by the lawyer had been to a certain extent excessive. They considered that given the subject matter of the case a diligent lawyer would have needed less time for working on the case.

80. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the complexity of the issues, the lawyer’s input from 2013 until today and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 4,000 in respect of lawyer’s fees, to be paid directly into the bank account indicated by the applicant’s representative.

C. Default interest

81. 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. Joins the Government’s preliminary objection concerning the premature nature of the applicant’s complaint in respect of the procedural aspect of Article 3 to the merits and dismisses it;

2. Declares the complaint concerning the procedural aspect of Article 3 of the Convention and the complaint under Article 13 of the Convention admissible, and the remainder of the application inadmissible;

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

4. Holds that there is no need to examine the complaint under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account indicated by the applicant’s representative;

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

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

Done in English, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SERBAN MARINESCU v. ROMANIA - 68842/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 1105 (15 December 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1105.html Cite as: [2015] ECHR 1105