PIU AND CIRSTENOIU v. ROMANIA - 59635/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2017] ECHR 43 (17 January 2017)

In the case of Piu and Cîrstenoiu v. Romania,

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

          Nona Tsotsoria, President,
          Iulia Motoc,
          Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 13 December 2016,

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

PROCEDURE

1. The case originated in an application (no. 59635/13) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mrs Constanța Piu (“the first applicant”) and Mr Marin Marian Cȋrstenoiu (“the second applicant”), on 6 September 2013.

2. The applicants were represented by Mr P. Antoni, the president of the Romanian non-governmental organisation The Justice League Against Abuses and Corruption in Romania (Liga dreptății ȋmpotriva abuzurilor şi corupției din România - hereafter “LDIACR”). The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

3. Relying on Article 2 of the Convention the first applicant alleged that the criminal investigation into the death of her husband was ineffective. Relying on Article 3 of the Convention, the second applicant alleged that on 30 June 2013 he was subjected to ill-treatment and that the criminal investigation in respect of this incident was ineffective.

4. On 18 December 2014 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant was born in 1980 and the second applicant was born in 1981. They live in Jdioara and Darova respectively.

A. The death of the first applicant’s husband

6. On 16 November 2012 the first applicant’s husband, Mr Ciprian Ionel Piu, went to the forest near Jdioara, accompanied by I.M.R. and L.D. The latter was the son of I.D.D., a local police officer

7. According to the applicants, they all took part in an illegal logging operation. The person who organised the aforementioned operation was L.D. He regularly recruited young men from the village to do this. He bought them alcohol and took them to the forest without providing them with the necessary protective equipment or with any essential safety information. His practices, known by the locals, had created two other victims previously. One of the victims had died and the other had suffered serious injuries. The investigations opened into the aforementioned two incidents had failed to identify and punish those responsible, because of the alleged involvement of local police officers.

8. According to the first applicant her husband’s death happened in suspicious circumstances and the perpetrators of the offence were police officers and others protected by them. She further stated that on the day her husband went to the forest she and her family were informed by a third party that her husband had met with an accident. They went looking for him and found him dead in the forest.

B. The investigation into the first applicant’s husband’s death

9. On 16 November 2012 the Gavojdia Police Department was informed about the incident by a third party.

10. On the same date, the aforementioned police department, in particular police officers C.S. and M.S., carried out an investigation at the scene of the accident (cercetare la fața locului) in the presence of two assistant witnesses, namely I.M. and V.A.

11. On the same date the Gavojdia Police Department, namely police officer C.S., opened of its own motion a preliminary investigation against I.M.R. for involuntary manslaughter (ucidere din culpă).

12. On the same date police officer C.S. asked the Timişoara Forensic Institute to produce a forensic necropsy report. He asked the aforementioned institute to establish the victim’s cause of death, whether the victim’s body had signs of violence, and if so what had caused them, as well as the alcohol level in the victim’s blood.

13. On 17 November 2012 and 3 October 2013 police officer C.S. took a statement from I.M.R. with regard to the circumstances of the accident.

14. On the same date the Timiş Forensic Department produced a medical certificate confirming the first applicant’s husband’s death. According to the aforementioned report, his death had been violent and had been caused, inter alia, by a closed angle cranium-cerebral trauma and by the resulting haemorrhage.

15. On 15 January 2013 the Timişoara Forensic Institute produced the forensic necropsy report (see paragraph 12 above). It concluded that the victim’s death had been violent and had been caused by an acute cardio-respiratory insufficiency following a cranial cerebral trauma and a resulting haemorrhage. Moreover, the signs of violence discovered on the victim’s body could have been caused by being hit with or striking against a hard object in the context of the impugned forest accident. Furthermore, the alcohol level in the victim’s blood was 1.05 grams for every thousand millilitres.

16. On 6 February, 26 February and 13 May 2013 police officer C.S. took statements from members of the victim’s family, including the victim’s mother and the first applicant, who had asked the authorities, inter alia, to punish those responsible for the death of their relative.

17. On 8 February 2013 police officer C.S. took a statement from L.D. with regard to the circumstances of the accident.

18. By a report (referat) of 19 March 2013 police officer C.S. noted that LDIACR and the victim’s family had made repeated requests for the investigated offence to be requalified from involuntary manslaughter to murder. Consequently, he proposed that the case be referred to the Timiş Prosecutor’s Office, which had the competence to investigate such allegations.

19. In March 2013 the victim’s mother also asked the Lugoj Prosecutor’s Office to open a criminal investigation against L.D., I.M.R. and I.D.D. for murder (omor).

20. On 26 March 2013 the Lugoj Prosecutor’s Office noted the victim’s family’s requests for a murder investigation and decided to refer the case to the Timiş Prosecutor’s Office, which had the competence to investigate the allegations.

21. On 8 April 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation (neȋceperea urmăririi penale) against L.D., I.M.R. and I.D.D. for murder. Moreover, he referred part of the case back to the Lugoj Prosecutor’s Office for the investigation against I.M.R. for involuntary manslaughter to be continued. The prosecutor held that according to the available evidence and the statements of I.M.R. and L.D., the victim’s death had been the result of an accident and had not been caused intentionally by any of the suspects. That decision was communicated to the victim’s mother.

22. On 22 and 23 May 2013 both the victim’s mother and the first applicant joined the criminal proceedings as civil parties and claimed pecuniary and non-pecuniary damages.

23. On 17 October 2013 police officer C.S. took the testimony of I.H., one of those familiar with the events which had resulted in the first applicant’s husband’s death.

24. By a report of 14 November 2013 police officer C.S. proposed not to open a criminal investigation (neȋceperea urmăririi penale) against L.D. and I.M.R. It established that on the day of the incident the first applicant’s husband had gone to the forest by tractor together with L.D. and I.M.R., the owner and operator of the tractor, to collect dried wood. While they had been using the tractor to tow a tree the aforementioned tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. Because the victim had not been an employee of a company at the time of the accident, what happened could not have been considered a work accident. The witness I.H. had testified that he did not know how many people had gone to the forest that day or any other details concerning the accident. Also, the witness R.S., another person familiar with the events which had resulted in the first applicant’s husband’s death, was unavailable for questioning because he had left the country.

25. The report held that the first applicant’s husband’s accident was caused by a flawed logging operation, which had not foreseen solutions that could have reduced or eliminated the risks of him suffering an accident. He had not kept a safe distance from the tree which was being towed with a flexible steel cable, so that the directions of its movement could not have been controlled. Also he did not have the appropriate equipment for working in the forest.

26. The report further held that L.D. had not been close to the area where the accident had happened, and therefore he could not have been responsible for an act of involuntary manslaughter. Furthermore, the impugned act had lacked one of the elements of an offence, namely guilt. An act which had occurred as a result of unforeseeable circumstances (caz fortuit) could not amount to an offence. The suspects had been unable to foresee that event, notably the fact that the tree had changed direction while it was moving, thus killing the victim.

27. On 26 November 2013 a prosecutor attached to the Lugoj Prosecutor’s Office examined the aforementioned proposal and decided not to open a criminal investigation against L.D. and I.M.R. The decision was communicated to the first applicant’s mother-in-law.

28. The first applicant’s mother-in-law challenged the decision before a superior prosecutor.

29. On 27 January 2014 a superior prosecutor attached to the Timiş Prosecutor’s Office allowed the victim’s mother’s challenge, quashed the decision of 26 November 2013 (see paragraph 27 above), and referred the case back to the Lugoj Prosecutor’s Office. It held that further evidence had to be adduced to the case file. In particular, a technical expert report had to be produced which could have established the cause and dynamics of the accident. Moreover, the norms that had been breached when the impugned event had happened had to be indicated. Furthermore, I.M.R., L.D. and I.D. had to be questioned again and the necessary arrangement had to be made for the questioning of R.S. (see paragraph 24 above). Lastly, any other evidence that could have clarified the circumstances of the case had to be adduced to the file.

30. In March 2014 the Lugoj Prosecutor’s Office ordered the Lugoj Police Department to reopen the investigation into the circumstances of the first applicant’s husband’s death.

31. On 11 March 2014 the Lugoj Police Department decided to open a criminal investigation against L.D. and I.M.R. for involuntary manslaughter.

32. On 19 March 2014 the victim’s mother lodged a challenge (cerere de recuzare) against the investigators of the case and asked for the investigation to be carried out by investigators outside Timiş County. She alleged that the inquiry had been delayed by the investigators and that they had been trying to unlawfully protect those responsible.

33. On an unspecified date the victim’s mother informed the Lugoj Prosecutor’s Office that her challenge had not concerned police officer C.A., who was investigating the case after the reopening of the proceedings, or the prosecutor who was supervising the aforementioned police officer.

34. On 7 April 2014 a prosecutor attached to the Lugoj Prosecutor’s Office dismissed as inadmissible the victim’s mother’s challenge (cerere de recuzare) against the investigators of the case and her request for the investigation to be carried out by investigators outside Timiş County. It held, inter alia, that the victim’s mother had failed to indicate any of the reasons provided by law for a challenge in order to support her application. Furthermore, there had been no evidence that police officer C.A., had lacked impartiality. The decision was communicated to the victim’s mother.

35. On 19 May, 23 and 24 June 2014 the Lugoj Police Department questioned I.M.R. and L.D. and took R.S.’s testimony in respect of the circumstances of the case.

36. On 20 May 2014 the Lugoj Police Department asked an appointed expert to produce a technical expert report by 10 June 2014 in order to clarify the circumstances of the victim’s death and to identify those responsible for the accident.

37. On 10 June 2014 the aforementioned expert produced his report.

38. On 24 June 2014 the Lugoj Police Department took the victim’s mother’s statement. In her statement she had acknowledged that she had been given a copy of the technical expert report produced in the case and that she had no objections in respect of the appointed expert or the content of the report.

39. By a report of 25 June 2014 the Lugoj Police Department proposed to close the criminal investigation against L.D. and I.M.R. It held, inter alia, that once L.D., I.M.R. and the first applicant’s husband were in the forest they had started moving trees from a difficult area to a more easily accessible one, using the tractor being operated by I.M.R. Before they had started moving a fourth tree, L.D. had been sent to collect some of their belongings which had been left in a different location. Meanwhile, the first applicant’s husband had attached the tree to the tractor and had signalled I.M.R. to start moving the tree. During the moving operation, the tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him.

40. The report also held that according to I.M.R.’s statement the time which had elapsed between the moment he had checked (s-a asigurat) that the first applicant’s husband was at a safe distance from the tree and the moment the victim was hit by the said tree was very short. Once he had realised what had happened he had stopped the tractor immediately and rushed to help the victim. When L.D. had returned with their belongings, I.M.R. had asked him to call the emergency services. As L.D. had not been able to make a phone call in the forest because of poor cellular network, he had decided to rush towards the village in search of a better location for a phone call. Eventually L.D. had reached the village of Jdioara and had managed to call the emergency services. At the same time he had met the victim’s brother and had informed him of the accident. Subsequently, L.D. had gone home in order to wait for the police and the ambulance in order to lead them to the location of the accident. Once L.D. had returned to the location of the accident accompanied by the police, he had been advised to leave again in order to avoid a potential conflict with the victim’s family.

41. The report further held that R.S., the witness proposed by the victim’s mother, had stated that he had been at work at the time of the accident and had been informed about the victim’s death by telephone.

42. The report noted that according to the technical expert report the main cause of the accident was the victim’s failure to position himself at a safe distance from the tree and to maintain permanent visual contact with I.M.R. in order to determine whether the moving tree had stopped or had become stuck. Therefore, he had breached the relevant safety and security norms for working in the forest and had not been wearing protective equipment, in particular a helmet. If the victim had been positioned correctly, the accident would not have happened even if the tree had started rolling. Another important cause of the accident was the fact that according to the toxicology report the victim had been working under the influence of alcohol.

43. Relying on the aforementioned considerations and the conclusions of the technical expert, the report concluded that the individuals responsible for causing the accident could not be identified. However, it was clear that the two suspects had not been at fault. Moreover, the relevant legislation concerning work safety had not been applicable because those involved in the incident were not employees.

44. On 30 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close (clasat) the criminal investigation opened against L.D. and I.M.R. The prosecutor held on the basis of the available evidence that none of the suspects had been responsible for the victim’s death. The incident had been the result of unforeseeable circumstances given that the tree had been towed with a flexible steel cable whose direction of movement would have been impossible to control, and there was no appropriate equipment for working in the forest. It would have been impossible for the suspects to foresee the event, as the tree had changed direction while it was moving and thus had killed the victim. Moreover, L.D. was not near the location of the accident at the time. Consequently, there was no connection between his conduct and the act of involuntary manslaughter.

45. On 3 July 2014 the aforementioned decision was communicated to the victim’s mother at her home address in Lugoj.

C. The incident of 30 June 2013 and the subsequent criminal investigation

46. The second applicant is the first applicant’s brother.

47. On 2 July 2013 the second applicant and two of his brothers lodged a criminal complaint with civil claims against L.D. and R.S. for assault, insult, slander and attempted murder. They also lodged a criminal complaint with civil claims against an unidentified gendarme for assault, abuse of office, and misconduct. The second applicant argued that on 30 June 2013 he had visited the first applicant in Jdioara and had taken part in a ceremony commemorating his brother-in-law. After the ceremony had ended he had been followed by L.D. and R.S.; the former had hit him, rendering him unconscious. Subsequently, both L.D. and R.S. had punched and kicked him. After a police officer and two unidentified gendarmes had arrived at the scene of the incident, he had been threatened, caught by the nose, slapped and cursed by one of the two unidentified gendarmes.

48. On 4 July 2013 the Timişoara Forensic Institute produced a forensic report concluding that the second applicant had suffered traumatic lesions which could have been sustained on 30 June 2013 and could have been the result of being hit by or against hard objects. Moreover, the lesions had required seven days of medical care, in the absence of complications.

49. The forensic report noted that the forensic examination had established that the second applicant had suffered a bruised left eye and injuries to the lower and upper lip and to his forehead. Moreover, it noted that according to the medical documents produced by the Lugoj Town Hospital on 1 July 2013 the second applicant had been taken to hospital by ambulance and had suffered, inter alia, an acute closed cranium cerebral trauma and contusions on the nasal pyramid, lower jaw and thorax.

50. On 27 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case on the grounds that there was no evidence that the suspects had committed the alleged offence.

51. The second applicant challenged the decision before a superior prosecutor.

52. On 6 October 2014 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of the lower prosecutor.

53. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts.

54. On 20 January 2015 the Lugoj District Court allowed the second applicant’s appeal, quashed the Lugoj Prosecutor’s Office’s decisions, and referred the case back to the aforementioned prosecutor’s office in order for a criminal investigation to be opened against L.D. It held that the prosecutor’s office had closed the investigation by relying on an incorrect finding. Consequently, in order to clarify the circumstances of the case it instructed the investigating bodies to question the second applicant, L.D., and the witnesses heard during the investigation again. Moreover, it held that others who were familiar with the investigated incident could also be heard.

55. On 23 June 2015 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case in respect of L.D. At the same time it disjoined part of the case and referred it back to the Gavojdia Police Department in order to continue the investigation and identify the perpetrators of the alleged offences. The prosecutor noted that even though the victims of the incident had been heard again and they had repeated their earlier statements as well as their request for those against whom they had complained to be punished, they had not asked for additional evidence to be adduced to the case file. Also, seven witnesses had been heard again in the case, but none of them had provided new information about the events of 30 June 2013. None of the said witnesses could have confirmed that L.D. or another person had hurt or threatened the second applicant. Only one of the witnesses had testified that he had seen the second applicant on the ground at the site of the incident and that the latter had told him that L.D. had hit him. However, the aforementioned witness had also stated that at the moment of his conversation with the second applicant he had not seen L.D. in the area and therefore he could not have confirmed the second applicant’s statement.

56. The prosecutor also noted that even though the victims of the incident had later declared that they knew the identity of the perpetrators, at the time of the incident and after the police had arrived they had been unable to identify the perpetrators and had stated that they did not know their identity.

57. The prosecutor further noted that one of the witnesses proposed by one of the second applicant’s brothers had not been heard because he had left the country and no substitute had been suggested. Also the applicant’s other brother, who had also been involved in the incident, was not interviewed after he had lodged his complaint against the alleged perpetrators, and there was no evidence that he had been threatened or coerced to remain silent.

58. The prosecutor held that even though the occurrence of the incident of 30 June 2013 had not been contested and had been proven by the available forensic report, it was not possible to establish clearly that L.D. or R.S. had committed the alleged offences, as they had not been seen at the site of the incident or in the company of the victim. Given the absence of direct and clear evidence which could have proven L.D.’s or R.S.’s guilt, there is doubt that they committed the alleged offences, which works to their advantage.

59. The second applicant challenged the decision before a hierarchical prosecutor.

60. On 21 July 2015 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of 23 June 2015.

61. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. He argued, inter alia, that the decisions of the prosecutor’s office had been unfair and unlawful and had both protected and failed to investigate the State agents involved in the incident.

62. By a final judgment of 6 October 2015 the Lugoj District Court dismissed the second applicant’s appeal and upheld the decisions of the prosecutor’s office. It held that the investigating authorities had heard evidence from the victims, the suspects and the witnesses in the case and had correctly established the facts of the case.

63. To the knowledge of the Court the investigation against other possible perpetrators of the incident of 30 June 2013 is still open.

D. Actions taken by LDIACR

64. On 14 January, 8 March, 2 July, and 10 December 2013 the applicants or their family informed LDIACR about the abuses that had allegedly been committed against them and against their family by L.D., R.S. and certain local police officers on 16 November 2012 and after that date. Moreover, they voiced their concern that the investigations initiated into the first applicant’s husband’s death and into the incident of 30 June 2013 had been suppressed and delayed because of the family relationships between one of the suspects and several local police officers. Consequently, they asked LDIACR for help in punishing those responsible.

1. Notifications sent to the domestic authorities

65. On 8 and 13 February 2013 LDIACR informed the Romanian Ministry of the Interior and the Timiş County Police Department about the applicants’ and their family’s allegations, including the alleged family relationships between one of the suspects and several local police officers, and asked them for an investigation.

66. On 17 April 2013 the Internal Affairs Department of the Timiş County Police Department informed LDIACR, inter alia, that the issues raised by the non-governmental organisation in its notifications could not be established as fact.

67. On 17 October 2013 the Internal Affairs Department of the Romanian Police notified LDIACR that its allegations did not refer to acts or circumstances which had clearly attested that certain police officers had willfully (cu vinovăție) breached the relevant ethical and deontological standards and/or those concerning the fulfilment of their professional duties.

2. The denunciation for abuse of office lodged against the police officers involved in the investigation concerning the death of the first applicant’s husband

68. On 8 February 2013 LDIACR initiated proceedings before the Timiş Prosecutor’s Office denouncing an abuse of office (abuz în serviciu) allegedly committed by the local police officers involved in the investigation of the first applicant’s husband’s death. It argued, inter alia, that police officer I.D.D., together with two other police officers who were his brother-in-law and son-in-law, had manipulated the investigation, had tried to protect their own interests, and had attempted to distort the truth about what had happened on the day the first applicant’s husband died.

69. On 2 October 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation against the aforementioned police officers. It held, inter alia, that the three police officers who were the object of the denunciation were identified as I.D.D., G.B. and C.S. Moreover, given the statements taken from the police officers and from the first applicant, there was no indication that I.D.D. and G.B. had committed any act of abuse of office, as they had not been involved in the investigation into the first applicant’s husband’s death. Also, the first applicant’s husband had been asked to take part in the logging operation by L.D., and therefore there had been no indication that I.D.D. had incited the victim to commit an offence. Furthermore, there was no sufficiently strong indication that police officer C.S. had knowingly failed to fulfil or had insufficiently fulfilled his lawful duties during the investigation into the first applicant’s husband’s death, or that he had affected the legal interest of the victim’s family.

70. The decision was communicated both to LDIACR and to the first applicant.

71. LDIACR challenged the decision before a superior prosecutor attached to the Timiş Prosecutor’s Office. It argued, inter alia, that its action had been based on statements made by the victim’s family and by villagers. Moreover, the investigators had ignored I.D.D.’s threats and aggressive behaviour towards the family of the victim, as well as the fact that two other similar incidents had happened in the area before 16 November 2012.

72. On 9 October 2013 a superior prosecutor attached to the Timiş Prosecutor’s Office dismissed LDIACR’s challenge and upheld the decision of the lower prosecutor. The decision was communicated to LDIACR.

II. RELEVANT DOMESTIC LAW

73. The relevant provisions of the Romanian Code of Criminal Procedure read as follows:

Article 316

“1. A copy of the decision to close the criminal investigation (ordonanța de clasare) is notified to the person who has initiated the proceedings (persoanei care a făcut sesizarea), the suspect, the defendant or, as the case may be, to other interested persons ...”

Article 340

“1. A person whose challenge to a decision to close a criminal investigation ... has been dismissed [by the superior prosecutor] may appeal ... before the preliminary chamber judge within 20 days of notification ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

74. The first applicant complained that the criminal investigation into the death of her husband was ineffective. In this regard, she argued that the suspects were relatives of certain police officers who were themselves behind the illegal logging operation which according to her was at the origin of the death of her husband and of other young men from the area. In addition, she had not been kept properly informed of the progress of the proceedings. She relied on Article 2 of the Convention, the relevant part of which reads as follows:

“1. Everyone’s right to life shall be protected by law...”

A. Admissibility

1. The parties’ submissions

(a) The Government

75. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that according to the relevant criminal procedure rules the first applicant would have been able to challenge the decision of the prosecutor of 30 June 2014 (see paragraph 44 above) before a superior prosecutor and subsequently before the domestic courts.

76. Relying on the Court’s case-law, in particular Stoica v. Romania (no. 42722/02, § 96, 4 March 2008); Neata v. Romania ((dec.), no. 17857/03, § 41, 18 November 2008); Oancea v. Romania ((dec.) no. 7291/09, § 28, 17 June 2014); and Ciubotaru and Others v. Romania ((dec.), 33242/05, § 59, 10 January 2012), the Government contended that the aforementioned remedies were adequate, sufficient, available and effective.

(b) The first applicant

77. The first applicant did not submit observations on this point.

2. The Court’s assessment

78. The Court notes that the Government’s preliminary objection is closely linked to the substance of the first applicant’s complaint. It therefore joins the aforementioned objection to the merits (see, mutatis mutandis, Şerban Marinescu v. Romania, no. 68842/13, § 55, 15 December 2015).

79. The Court notes that the first applicant’s complaint 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 first applicant

80. The first applicant maintained her application before the Court without submitting additional arguments.

(b) The Government

81. The Government submitted that the State had fulfilled its positive obligation to diligently and promptly investigate the circumstances of the first applicant’s husband’s death.

82. They argued that the domestic authorities had promptly initiated a criminal investigation into the events of 16 November 2012 on the same day. Moreover, the authorities had collected evidence and had clarified the circumstances of the first applicant’s husband’s death. Furthermore, the prosecutor office’s decision to close the investigation had been communicated to the first applicant on 3 July 2014. Consequently, the Government contended that the respondent State had provided the first applicant with an effective judicial response in respect of her husband’s death.

83. The Government further contended that the length of the criminal investigation had not been excessive, given that the first applicant’s husband had died in November 2012.

2. The Court’s assessment

84. The relevant principles concerning the State’s obligation inherent in Article 2 of the Convention to investigate cases of life-threatening injury or death, including in circumstances where the deaths had occurred as a result of actions of private individuals, are set out in Zubkova v. Ukraine (no. 36660/08, §§ 35-37, 17 October 2013), and Kagirov v. Russia (no. 36367/09, §§ 99-103, 23 April 2015).

85. Turning to the circumstances of the present case, the Court notes that both in their submissions before the domestic authorities and the Court the first applicant and her family seem to have hinted that the death of Mr Ciprian Ionel Piu had not been accidental (see paragraphs 8, 18 and 19 above). However, the Court does not consider it necessary to establish whether the first applicant’s husband’s death was caused intentionally or in such circumstances as to raise suspicions in that regard and if, therefore, Article 2 necessarily called for a criminal-law remedy. In this connection the Court notes that the Government did not contend that the first applicant could effectively pursue the matter outside the framework of the criminal investigation (see Zubkova, cited above, § 38). Moreover, given that the Romanian Code of Criminal Procedure afforded a joint examination of criminal responsibility and civil liability arising from the same culpable actions, the Court considers that in the circumstances of the present case the first applicant reasonably relied on the procedures provided for by that Code.

86. The Court will therefore confine itself to examining whether the criminal investigation into the death of the first applicant’s husband satisfied the criteria of effectiveness required by Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, §§ 56-62, 12 January 2012, and Prynda v. Ukraine, no. 10904/05, § 54, 31 July 2012).

87. In this regard, the Court notes that following the events of 16 November 2012 the authorities took a significant number of procedural measures aimed at discharging their positive obligation under Article 2 of the Convention. The fact that the authorities did not establish any criminal liability on the part of the private individuals who accompanied the first applicant’s husband to the forest does not, in itself, render the investigation ineffective.

88. At the same time, the Court notes that on 26 November 2013 the investigative authorities adopted a decision to discontinue the investigation (see paragraph 27 above). That decision was, however, quashed by the supervising authorities, who considered that further evidence, including a technical expert report and additional testimonial evidence, had to be adduced to the case file in order to clarify the circumstances of the case (see paragraph 29 above). The facts of the case therefore suggest that the investigating authorities did not promptly take all the necessary steps in order to carry out a thorough investigation which would be compatible with the Convention requirements.

89. The Court further notes that none of the decisions taken by the prosecutor’s office to discontinue or close the criminal investigation into her husband’s death appear to have been officially communicated to the first applicant by the relevant domestic authorities. Even though in February and March 2013 the first applicant had asked the investigating authorities to punish those responsible for the death of her husband and had claimed civil damages (see paragraph 16 above), she does not seem to have been regarded as a party to the proceedings or as a person interested in the outcome of the aforementioned proceedings. The Court also notes that according to the available evidence, contrary to the Government’s submissions, the Lugoj Prosecutor’s Office decision to close the criminal investigation into the first applicant’s husband’s death was not officially communicated to her on 3 July 2014 (see paragraph 45 above).

90. While the Court notes on the one hand that the first applicant was fully aware of the ongoing criminal investigation and that it does not appear from the available evidence that she had taken any steps to lodge any inquiry before the authorities as to the decisions rendered in the case, it also notes on the other that the Government have not provided any valid reason for the authorities’ failure to fulfil their procedural obligation to officially notify the first applicant about the prosecutor’s office’s decision of 30 June 2014. In this context, the Court considers that the authorities failed to discharge their obligation to involve the first applicant in the procedure to the extent necessary to safeguard her legitimate interests.

91. In view of the above findings (see jointly paragraphs 88-90, above), the Court considers that the Government’s preliminary objection of non-exhaustion of domestic remedies must be dismissed and concludes that the investigation into the first applicant’s husband’s death cannot be said to have been effective.

92. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

93. The second applicant complained that on 30 June 2013 he was subjected to ill-treatment in retaliation, according to him, for the steps he had taken in the criminal investigation concerning the first applicant’s husband’s death, and that the criminal investigation in respect of this incident was 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

94. Relying on the Court’s case-law mentioned above (see paragraph 76 above), the Government submitted that the second applicant’s complaints about the incident of 30 June 2013 were premature. They noted that the criminal investigation into the aforementioned incident was still pending before the domestic authorities (see paragraph 63 above).

95. The Government argued that the investigation had not been unreasonably lengthy. Referring to the case of Tender v. Romania ((dec.), no. 19806/06, §§ 22-23, 17 December 2013), they contended that the second applicant should have exhausted the remedies provided by the relevant criminal procedure rules, which were adequate, sufficient, available and effective.

(b) The second applicant

96. The second applicant did not submit observations on this point.

2. The Court’s assessment

97. The Court notes that the question whether the criminal proceedings initiated by the second applicant and which were still pending before the domestic authorities could be regarded as effective under the Convention is closely linked to the substance of the second applicant’s complaint. The Court therefore joins the Government’s objection on this point to the merits (see Firat Can v. Turkey, no. 6644/08, § 35, 24 May 2011).

98. The Court notes that the second applicant’s complaint 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 second applicant

99. The second applicant maintained his application to the Court without submitting additional arguments.

(b) The Government

100. The Government submitted that the domestic authorities had initiated a criminal investigation into the incident of 30 June 2013 immediately after the second applicant had lodged a criminal complaint against the alleged offenders. The domestic authorities had taken steps to investigate the incident and had collected important evidence after the Lugoj District Court had ordered the reopening of the criminal investigation, including new statements from seven witnesses. Also, the new evidence adduced to the file had been considered together with the entire body of probative material, including the victims’ contradictory statements claiming that they had known their attackers even though initially they had declared something else. Moreover, the domestic authorities have diligently corrected the initial shortcomings of the investigation. Furthermore, the length of the proceedings had not been excessive and the investigating authorities had complied with the instructions of the domestic court.

2. The Court’s assessment

101. The Court notes that it is not disputed by the parties that the second applicant suffered injuries on 30 June 2013 following a violent incident involving private parties and State agents. However, it remains unclear whether or not they were caused by the two private individuals or the unidentified gendarme against whom he had lodged a criminal complaint.

102. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see, amongst many other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII).

103. In the present case, the Court considers that the injuries suffered by the second applicant (see paragraph 49 above) were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.

104. The Court also reiterates that 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 Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002).

105. Article 3 of the Convention may also give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII).

106. The Court further reiterates that the scope of the above obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see Balázs v. Hungary, no. 15529/12, § 51, 20 October 2015). A requirement of promptness and reasonable expedition of the investigation 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 Şerban Marinescu, cited above, § 61).

107. Turning to the circumstances of the present case, the Court notes that since the event complained of took place the police have not brought charges against anyone, and part of the criminal proceedings appears to have now been pending in the preliminary investigation phase for three years.

108. The Court also notes that in 2014 the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case, on the grounds that there was no evidence that the suspects had committed the alleged offences (see paragraphs 50 and 52 above). Given the evidence submitted by the parties before it, the Court is unclear as to what material evidence other than witness statements prompted the investigating authorities’ decisions. However, it notes that following the second applicant’s appeal against the prosecutor office’s decision, the domestic court ordered the reopening of the investigation on the grounds that the prosecutor’s office had closed the investigation by relying on an incorrect finding and instructed the aforementioned authority to adduce additional evidence to the case file (see paragraph 54 above).

109. The Court further notes that the domestic court had ordered the investigating authorities to reopen the aforementioned investigation only in respect of one of the persons accused by the applicant, namely L.D. However, it had failed to provide any reasons as to why the investigation could have been discontinued in respect of the remaining two individuals.

110. The Court observes that the investigators limited themselves to exonerating the individuals against whom the second applicant had lodged his criminal complaint, but failed to identify those responsible for the second applicant’s injuries or provide a reasonable explanation in respect of how else the applicant’s injuries came about.

111. The Court also observes that from the available evidence it does not appear that the authorities have resorted to any other measures of investigation allowed for by the domestic law, other than interviewing the parties involved and some witnesses. In this connection the Court cannot but note that the last activity of the domestic authorities in the case seems to have taken place in October 2015 (see paragraph 62 above) and that no further steps seem to have been taken to identify those responsible for the second applicant’s injuries. Moreover, on 6 October 2015 the domestic court dismissed the applicant’s appeal against the prosecutor’s office’s decisions to close the criminal investigation in respect of L.D. without providing any reasons in respect of the applicant’s argument that the authorities had protected and had failed to investigate the State agents involved in the incident. Furthermore, the Court has not been informed of any development concerning the remaining investigation aimed at identifying other possible perpetrators (see paragraph 63 above).

112. In view of the above findings, the Court considers that the Government’s preliminary objection of non-exhaustion of domestic remedies must be dismissed and concludes that the investigation into the events of 30 June 2013 which resulted in the second applicant’s injuries cannot be said to have been effective.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

114. 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

115. The first applicant and the victim’s mother claimed 100,000 euros (EUR) in respect of pecuniary damage on their behalf and on behalf of their families for the expenses incurred following their relative’s death, including funeral expenses, expenses for transportation to and from the funeral home, medical tests, examination expenses and hospital expenses, as well as the loss stemming from losing the person who supported the family financially. They supported their claim by submitting two invoices, one to the amount of 382 Romanian lei (RON - approximately EUR 88) paid by the victim’s mother for the forensic necropsy report, and one for RON 5,400 (approximately EUR 1,255) paid by the first applicant for funeral arrangements. They also claimed EUR 1,000,000 each in respect of non-pecuniary damage on their behalf and on behalf of their families for their suffering following their relative’s death.

116. The second applicant and two other brothers of the first applicant claimed EUR 10,000 each in respect of pecuniary damage for all the expenses incurred since 2012 for their participation in the domestic proceedings, including the expenses incurred with their trips from abroad where they were working. They also claimed EUR 100,000 each in respect of non-pecuniary damage for the suffering incurred.

117. The Government submitted that there was no causal link between the alleged violation of the Convention and the pecuniary damage claimed by the first applicant and by the victim’s mother. Moreover, the claim was speculative, excessive and unsupported by sufficient evidence.

118. The Government argued that the second applicant and the remaining brothers of the first applicant failed to submit any evidence in support of their pecuniary damage claim. Moreover, there was no causal link between the alleged violation of the Convention and the said claim.

119. Lastly, the Government contended that the two applicants’ and their relatives’ non-pecuniary damage claims were either unsubstantiated or excessive.

120. The Court does not discern any causal link between the violations found and the pecuniary damage claimed by either the first or the second applicant. Consequently, it rejects this claim.

121. However, it considers that the first and the second applicant suffered some non-pecuniary damage as a result of the infringement of their rights, as guaranteed by the procedural limbs of Articles 2 and 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 first applicant EUR 12,000 and the second applicant EUR 7,500 under this head, plus any tax that may be chargeable.

122. Lastly, the Court notes that the case was communicated to the respondent Government only in respect of the first and the second applicant, and not with regard to any of their family members. Consequently, it rejects all the claims made by the said family members or on their behalf.

B. Costs and expenses

123. The first applicant as well as the second applicant and his brothers did not expressly claim costs and expenses.

124. The Government submitted that in so far as the second applicant’s and his brothers’ claim for pecuniary damage could be requalified as a claim for costs and expenses, no supporting documents had been provided.

125. 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, in so far as the claim was made by a person whose application before the Court was communicated to the Government and it could be interpreted as a claim for costs and expenses, the Court notes that it was not supported by any evidence. Therefore, it rejects this claim.

C. Default interest

126. 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 objections of non-exhaustion of domestic remedies in respect of the complaints under Articles 2 and 3 of the Convention to the merits and dismisses them;

2. Declares the application admissible;

3. Holds that there has been a violation of Articles 2 and 3 of the Convention under their procedural limbs;

4. Holds

a) that the respondent State is to pay the first and the second applicant, within three months, respectively EUR 12,000 (twelve thousand euros) and EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Nona Tsotsoria
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> PIU AND CIRSTENOIU v. ROMANIA - 59635/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2017] ECHR 43 (17 January 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/43.html Cite as: CE:ECHR:2017:0117JUD005963513, [2017] ECHR 43, ECLI:CE:ECHR:2017:0117JUD005963513