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Cite as: [2012] ECHR 150

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THIRD SECTION

DECISION

Application no. 33242/05
by Cristian CIUBOTARU and Others
against Romania

The European Court of Human Rights (Third Section), sitting on 10 January 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 26 August 2005,

Having regard to the decision taken by the President of the Chamber to appoint Mr Mihai Poalelungi to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru, Ms Ana Romaşcu, Ms Eva Ciubotaru, Mr Aurel Călin and Ms Elena Avădanii, are Romanian nationals who were born on 15 December 1980, 1 March 1978, 27 January 1987, 3 November 1950, 18 March 1930 and on other unspecified dates and who live in Buhuşi, Romania. Romani Criss is a Romanian non governmental organisation located in Bucharest. They were all represented before the Court by Mr I. Lazăr, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1) The events of 5 December 2002

On 3 December 2002 the Bacău and Neamţ Police Departments set up an operation to capture six Roma people, including Mr Cristian and Mr Ovidiu Ciubotaru and Mr Florin Călin, who lived in the town of Buhuşi and were suspected of a number of unlawful acts, including a robbery a few days earlier. The police operation was set up on the basis of an order of 28 November 2002 issued by the Romanian General Police Department attached to the Romanian Ministry of the Interior concerning the identification and capture of, inter alia, the above mentioned individuals. The police officers were divided into six teams and instructed to surround the town in order to prevent the wanted individuals from fleeing, to identify the homes of the suspects and to descend on the suspects’ homes simultaneously.

On 5 December 2002 forty five police officers from the Bacău and Neamţ Special Intervention Units and other regular police stations gathered and descended on the town of Buhuşi. After searching the suspects’ homes, the police discovered that some of them were hiding in an abandoned house in the town. The police units surrounded the house. At this point other Roma people started gathering in the street, some of them armed with stones, wooden posts and axes, and started a violent demonstration against the police officers. A further sixty police officers were called in support as a result of the violent behaviour of the crowd.

The police asked the occupants of the house twice to give themselves up, and when they failed to respond the police started using tear gas to draw them out of the house. After tear gas had been used officer D.C. negotiated with the occupants of the house for approximately ten minutes, trying to persuade them to give themselves up, but one of the suspects attacked him with an axe. More tear gas was used and another attempt at negotiation was made by D.C., but the police officer was attacked once more by the occupants of the house. The police officers used tear gas for a third time and two of the applicants, Mr Cristian Ciubotaru and Mr Ovidiu Ciubotaru, as well as another suspect, Mr Florin Călin, came out of the house. Mr Ovidiu Ciubotaru and Mr Florin Călin attacked police officer D.C. with axes. Police officer D.C. and his colleague N.N. opened fire in the direction of Mr Ovidiu Ciubotaru and Mr Florin Călin. As a result, Mr Florin Călin was shot in the thorax and stomach and died at the scene. Mr Ovidiu Ciubotaru was shot in the back and taken to hospital.

In the course of this incident two people in the crowd were also shot. The crowd became violent and some of the people in the crowd, including Mr Gelu Ciubotaru, started attacking the police officers. The officers launched verbal warnings and fired into the air to disperse the crowd and stop the attackers. Mr Gelu Ciubotaru attacked the police officers with a wooden post and grabbed police officer C.V.S. by the neck and hit him. Consequently, officer N.N., who had also been injured by the crowd, started firing at Mr Gelu Ciubotaru’s feet and then at his upper body. Mr Gelu Ciubotaru was shot in the thorax and died at the scene. Mr Vasile Vâtu, a minor at the time of the events, was also shot in the right side of the thorax and was taken to hospital. According to the forensic report, quoted by the prosecutor at the conclusion of the criminal investigation which followed the incident, some of the parties injured in the events required the following number of days of medical care: eighteen days for Mr Ovidiu Ciubotaru, twelve to fourteen days for Mr Vasile Vâtu, twenty four to twenty six days for officer N.N., and thirty five to forty days for officer C.V.S. Two other officers who were part of the support group called in to help the police officers who initiated the operation were also injured: E.I. had a serious eye injury which almost caused him permanent blindness, while D.C. received a leg injury.

2) The criminal investigation into the violent events

On 5 December 2002 Mr Vasile Călin, Ms Ana Romaşcu, Ms Eva Ciubotaru and Ms Ana Ciubotaru signed authorisations for Romani Criss, a Romanian non governmental organisation whose purpose is to defend the rights of the Roma community in Romania, to represent them before the state institutions, including, inter alia, the police, the prosecutors’ offices and the civilian and military courts in respect of the events of 5 December 2002. There is no evidence in the file that the remaining applicants signed similar authorisations. The signatures of the four applicants on the authorisations signed on 5 December 2002, on the criminal complaints lodged against the police officers involved in the events of 5 December 2002 and on the powers of attorney signed by them on 16 August 2006 authorising their lawyer Mr I. Lazăr to represent them before the Court, appear not to match.

Romani Criss also authorised legal representatives of its own choice to assist and represent it throughout the entire proceedings.

On an unspecified date in December 2002 the applicant Ana Romaşcu lodged a criminal complaint against the police officers who had shot Mr Vasile Vâtu, her son, who was a minor. Her complaint does not contain any indication that she would have liked to lodge a complaint on her own behalf.

On unspecified dates the applicants Cristian and Ovidiu Ciubotaru also lodged criminal complaints against the police officers involved in the events of 5 December 2002. Mr Cristian Ciubotaru argued that he had been hit several times on the head and body and Mr Ovidiu Ciubotaru stated that he had been shot four times, although neither of them was resisting arrest. The applicants’ signatures on the complaints lodged against the police officers appear not to match their signatures on the powers of attorney of 16 August 2006 authorising Mr I. Lazăr to represent them before the Court.

On an unspecified date Mr Vasile Călin also lodged a criminal complaint against the police officers who had shot and killed Mr Florin Călin, his son. His complaint does not contain any indication that he would have liked to complain against the police officers on his own behalf. A second power of attorney of 16 August 2006 available in the file on Mr Vasile Călin’s name authorising Mr I. Lazăr to represent him before the Court was signed by Ms Elena Avădanii. Apart from her signature, Ms Elena Avădanii’s name does not appear on any of the powers of attorney available to the file authorising Mr I. Lazăr to represent the applicants before the Court.

On an unspecified date Ms Eva Ciubotaru lodged a criminal complaint against the police officers who had shot and killed Mr Gelu Ciubotaru, her husband. Her complaint does not contain any indication that she would have liked to make a complaint against the police officers on her own behalf.

On an unspecified date the applicant Ana Ciubotaru lodged a criminal complaint against the police officers involved in the events of 5 December 2002. She stated that while she was trying to reach her dead son, Mr Gelu Ciubotaru, the police officers hit her on the back and head and pushed her into a ditch. She also stated that she was 75 years old at the time and could have not been seen as a threat by the officers.

Between 5 December 2002 and 28 February 2003 the domestic authorities heard victims of the events and their relatives, people who had been in the crowd, and suspected offenders, as well as other police officers who had taken part in the operation. Approximately sixty five people were heard by the authorities.

On 6 December 2002 the police officers provided the Forensic Service of the Neamţ Police Department with two axes, allegedly used by the applicants to attack them on 5 December 2002. The same axes were delivered on 13 December 2002 to the prosecutor investigating the case.

On 6 December 2002 the Forensic Department of the Bacău County Hospital produced a forensic expert report on the bullet wounds sustained by Mr Vasile Vâtu and Mr Ovidiu Ciubotaru and autopsy reports on the deceased, Gelu Ciubotaru and Florin Călin. According to the reports Mr Vasile Vâtu had been shot on 5 December 2002 from the right with a firearm, using balls as ammunition. Mr Ovidiu Ciubotaru had been shot twice, once in the left cheek and once in the left thigh. The wounds were not life threatening to any of the applicants. Furthermore, according to the autopsy reports Mr Gelu Ciubotaru had been shot twice, first in the right thigh and then in the thorax, the latter wound causing his death. Mr Florin Călin had been shot five times, the first three times in the left thigh, then once in the right thigh and lastly, once in the thorax. The wounds to his thighs had been caused by metal bullets. The wound in the thorax was the only one responsible for his death and had been caused by a rubber bullet fired at close range from a distance equal to the length of the barrel of the gun it had been fired from.

On 9 December 2002 the Bacău Prosecutor’s Office investigated the scene of the crime and gathered the evidence found, including stones, wooden posts or sticks, parts of the wall penetrated by bullets, traces of blood and bullet shells for further examination.

On 20 January 2003 the Bacău Prosecutor’s Office ordered a ballistic expert report on the weapons fired on the day of the events.

On 25 March 2003 Romani Criss informed the Bacău Prosecutor’s Office about the events of 5 December 2002 and complained that police officers had shot and injured members of the Roma community. On the same date they submitted testimonial evidence gathered from people who had witnessed the events.

The investigation of the above mentioned incident was completed when the criminal investigation was discontinued by a Bacău prosecutor’s office order of 7 July 2003. The actions of officers D.C. and N.N were investigated on accusations of the crimes of murder and causing physical injuries, as were the actions of Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru for the crime of insulting behaviour towards a State agent. The investigating prosecutor held that the use of force by the two policemen against Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru was justified because of the behaviour of the victims, which resulted in the policemen having to resort to legitimate self-defence. The investigating prosecutor, although he referred to Mr Vasile Vâtu’s case, did not identify the person responsible for shooting him and did not state whether or not the proceedings would be discontinued in respect of his injury. The investigation in respect of Mr Gelu Ciubotaru and Mr Florin Călin was terminated because of their deaths, and that in respect of the applicants Mr Cristian and Mr Ovidiu Ciubotaru was terminated because it was held that their behaviour did not constitute a crime. The prosecutor’s decision quotes the results of the forensic reports conducted in respect of all the victims of the incident but did not mention the evidence which led to the non-indictment conclusion.

On 24 July 2003 Mr Vasile Călin, the father of the deceased Florin Călin, lodged a complaint with the Bacău Prosecutor’s Office concerning unreasonable length of the criminal investigation launched in respect of the events of 5 December 2002, and challenged the outcome of the investigation.

The Bacău Prosecutor’s Office dismissed Mr Vasile Călin’s complaint by an order of 23 September 2003. The prosecutor’s office held that the proceedings had not been excessively lengthy, given the number of ballistic and forensic reports carried out and the large number of witnesses heard, and that his son had been killed by the police officers in self defence.

On 21 November 2003 Romani Criss challenged the Bacău Prosecutor’s Office decision of 7 July 2003 in so far as the decision regarding the investigated policemen was concerned on behalf of Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Călin, Ms Ana Romaşcu, and Ms Eva Ciubotaru.

By an order of 3 December 2003 the Bacău Prosecutor’s Office dismissed the challenge on the ground that the police officers had acted in legitimate self defence. Also, in respect of Mr Vasile Vâtu the unlawful act lacked a physical injury element. The Prosecutor’s Office acknowledged the challenge lodged by Romani Criss, to be introduced only on behalf of Mr Vasile Călin, Ms Ana Romaşcu and Ms Eva Ciubotaru. The Prosecutor’s Office held that according to the available evidence Mr Florin Călin and Mr Ovidiu Ciubotaru were shot by C.D. and N.N. while they were preparing to hit C.D. with an axe. At the same time, Mr Vasile Vâtu could not be seen by the policemen because he was hidden behind a wall made of sawdust when he was shot in the thorax. The wound did not endanger his life.

3) The domestic court proceedings and the application lodged by the applicants before the Court

On 19 December 2003 Romani Criss appealed against the Bacău Prosecutor’s Order of 7 July 2003 before the domestic courts. The appeal was also lodged on behalf of Cristian Ciubotaru, Ovidiu Ciubotaru, Ana Romaşcu, Vasile Călin and Ana Ciubotaru, but it had not been signed by those five individuals. The applicant organisation argued that according to the witness statements and the evidence available to the file the domestic authorities tried to protect the police officers, who on 5 December 2002 acted in an uncoordinated manner, misused their firearms and breached the applicable legal provisions in force at the time protecting the applicants’ right to life and their right not to be subject to inhuman and degrading treatment in a discriminatory way.

On 13 and 28 January 2004 respectively Ms Ana Ciubotaru and Mr Vasile Călin died.

By a judgement of 20 February 2004 the Bacău Court of Appeal allowed an appeal by the applicants against the prosecutor’s orders. The court dismissed the preliminary objection raised by the Prosecutor’s Office and the two accused, namely that Romani Criss did not have standing to bring proceedings before the domestic courts concerning the events of 5 December 2002. The court held that because Romani Criss considered that Roma persons had been victims of discrimination they decided to represent them before the domestic courts in accordance with the authorisations signed by some of the parties concerned on 5 December 2002. The organisation also lodged a complaint before the domestic courts on its own behalf. Taking into account the organisation’s object of activity and the provisions of section 22 of Emergency Ordinance no. 77/2003, the court considered that it could not deny in principle the organisation’s legitimate interest and its standing to bring proceedings against state bodies in order to establish whether ethnic discrimination had occurred and whether the rights of its citizens had been protected. In respect of the merits of the case the court held, inter alia, that the operation of 5 December 2002 had been a work mission and all the police officers involved had been ordered to take part in it. However, the investigation into the events had not been carried out correctly. In particular, the wounding of the police officers E.I. and D.C. was not directly relevant to the claim of self defence, as the two police officers previously mentioned had been wounded in the final stages of the operation, when the police were retreating from the town, while the firearms had been used by the policemen at an earlier stage of the events. Moreover, the forensic expert report carried out over the course of the investigation did not establish with certainty if the rubber bullet Mr Florin Călin had been shot with by officer D.C. could have been the only cause of death in the absence of the rest of the shots. The court considered that this was an important factor in determining the identity of the perpetrator of the killing, considering that the same person had been shot almost simultaneously by police officer N.N., using live ammunition. Furthermore, the two axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru had not been forensically checked for their fingerprints. The court held that such evidence was important to determine whether the use of firearms by the officers had been justified. In addition, the investigation failed to determine the exact position of the other members of the police force and whether they could have stopped Mr Florin Călin’s attack against D.C. At the same time, the investigation had failed to establish the distance and the angle from which Mr Ovidiu Ciubotariu had been shot. The circumstances of Mr Vasile Vâtu’s shooting had also not been clarified by the investigation in view of the parties’ statements, in particular there was no lawful explanation concerning why he had been shot through a wall or precisely when he had been shot during the operation. Lastly, the file did not contain sufficient evidence concerning the reasons for the police operation to capture the applicants: in particular, the court considered that the orders to seek and capture the applicants, the documents containing the charges against them and the arrest warrants issued in their names were missing from the file. Consequently, the court decided to send the case back to the prosecutor’s office in order to supplement the criminal investigation.

D.C., N.N. and the Bacău Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment of 20 February 2004. They argued, inter alia, that the complaints lodged by Romani Criss before the domestic courts on behalf of the applicants contesting the prosecutor’s office’s order to discontinue the criminal investigation was not valid. In particular the authorisations signed by some of the applicants allowing Romani Criss to represent them before the courts did not comply with the formal requirements for powers of attorney provided by the applicable rules of criminal procedure. In addition, they submitted that the evidence in the file proved that the police officers had acted in self defence.

On 20 May 2004 the Forensic Department attached to the Romanian Ministry of the Interior informed the investigating authorities that the axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru to attack the police officers had wooden handles which were uneven and pitted. Consequently, the Forensic Department did not have substances or a method allowing them to examine fingerprints on such surfaces.

At the hearings of 21 May, 24 September, 19 November and 17 December 2004 the Court of Cassation adjourned the proceedings on account of procedural errors in summoning the parties and in order to allow them to read the written submissions attached to the file.

At the hearing of 11 February 2005 the Court of Cassation heard oral submissions from the parties and, because it needed time to deliberate, adjourned the proceedings to 25 February, 3 March and to 8 April 2005.

By a final judgment of 8 April 2005 the Court of Cassation allowed the appeals on points of law by C.D., N.N. and the Prosecutor’s Office, quashed the judgment of 20 February 2004 and declared inadmissible the applicants’ and Romani Criss’s complaints against the Prosecutor Office order of 7 July 2003. It held that none of the natural persons had contested the prosecutor’s office’s order to discontinue the criminal investigation before the domestic courts. Only Mr Vasile Călin lodged a complaint against the prosecutor’s office’s order of 7 July 2003, which was dismissed on 23 September 2003. He did not challenge the latter decision before the domestic courts. Moreover, none of the applicants had personally signed the challenge lodged by Romani Criss on their behalf. In addition, the appeal lodged by Romani Criss on behalf of the applicants against the prosecutor’s office’s order for the investigation to be discontinued was invalid. The non governmental organisation had not been empowered by the applicants to represent them before domestic courts on the form required by the applicable rules of criminal procedure, in particular Article 222 (3) of the Romanian Code of Criminal Procedure, and therefore the organisation could not be considered to be the applicants’ representative. The applicants had not provided Romani Criss with a special and certified power of attorney as required by law. In so far as Romani Criss’s argument was concerned, that on the basis of section 22 of Emergency Ordinance no. 137/2002 it had legal standing to bring proceedings before domestic courts, the court noted that the organisation had not sustained any prejudice as a result of the incident complained of, and the police action of 5 December 2002 concerned the taking into custody of wanted individuals, and did not represent acts of discrimination as required by section 22 of Emergency Ordinance no. 137/2002. Consequently, it held that Romani Criss did not have legal standing to bring proceedings before the domestic courts.

The applicants lodged their application before the Court with a letter dated 26 August 2005. The initial application form attached to the letter contained the names of Mr Cristian and Mr Ovidiu Ciubotaru, Ms Ana Romaşcu with the note that she was representing Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru and the organisation Romani Criss. The application form was signed by Mr I. Lazăr, as the applicants’ representative. No powers of attorney were attached to the application. The applicants complained that some of them had sustained bullet wounds and some of their relatives had been killed, but none of them referred, either expressly or in substance, to any other complaints as a result of other types of injury sustained.

Following the Court’s request on 16 September 2005 the applicants’ representative submitted powers of attorney signed on 16 August 2006 by all the initial applicants, including Mr Vasile Călin and Ms Ana Ciubotaru. In respect of Mr Vasile Călin, Mr I. Lazăr submitted two powers of attorney bearing his name, one of them signed however by Ms Elena Avădanii, whose name does not appear on any of the other powers of attorney. Moreover, Mr Vasile Vâtu’s name and/or signature were not present on any of the powers of attorney submitted before the Court. In addition, one of the powers of attorney had been filled in and signed by Ms Eva Ciubotaru.

On 31 January 2007 the Court received six sets of application forms which contained complaints identical to the ones mentioned in the first application form submitted by the applicants. Each application form bears the name of a different applicant, as follows: Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Ms Ana Romaşcu, Mr Vasile Călin, Ms Eva Ciubotaru and the organisation Romani Criss.

The name of Mr Aurel Călin does not appear on any of the application forms or the powers of attorney submitted by the applicants at any stage of the proceedings before the Court.

B. Relevant domestic law

Article 197 (2) and (3) of the Romanian Code of Criminal Procedure provides, inter alia, that the breach of the rules concerning the lodging of a complaint before the court renders the complaint null and void. The nullity cannot be corrected and can be examined at any stage of the proceedings as well as by the court of its own motion.

Article 222 (3) of the Romanian Code of Criminal Procedure provides that a complaint can be lodged by a person, either on their own behalf or through a representative authorised by a certified mandate attached to the complaint.

The relevant legal provisions, in particular a description of the development of the law concerning complaints against decisions of the prosecutor (Articles 278 and 278¹ of the Romanian Code of Criminal Procedure introduced by Law no. 281/2003 applicable from 1 January 2004), are set forth in the judgment of Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43 45, 26 April 2007).

40. Section 22 (1) and (2) of Emergency Ordinance no. 137/2000 on combating discrimination provides that non governmental organisations involved in the protection of human rights, or justifying a legitimate interest in combating discrimination, have legal standing to initiate proceedings if the discrimination occurs in their field of activity and targets a community or a group of people. They also have legal standing in cases where discrimination targets an individual at the latter’s request.

COMPLAINTS

The applicants complained under Articles 2, 3, 5, 6, 8 and 14 of the Convention taken alone or in conjunction, of disproportionate use of force by State agents which led to the death of their relatives and also caused them, or might have caused them, serious physical injury. They further argued a lack of an effective investigation into the circumstances which led to the death of their relatives, as well as to their own physical injuries. Lastly, they submitted that the disproportionate use of force and the subsequent lack of an effective investigation are due to the fact that they belong to the Roma ethnic group and so their rights guaranteed by the Convention are breached.

THE LAW

The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it. A complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on (see, mutatis mutandis, Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 29; Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998 I, § 44; Berktay v. Turkey, no. 22493/93, § 167, 1 March 2001; and Eugenia Lazăr v. Romania, no. 32146/05, § 60, 16 February 2010).

Having regard to the facts of the present case, the Court considers that the present application, communicated to the respondent Government under Articles 2, 3 and 14 of the Convention taken alone or in conjunction, must be examined exclusively in the light of the provisions of the said Articles.

The relevant provisions of Article 2 read as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

The relevant provisions of Article 3 read as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The relevant provisions of Article 14 read as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other statues.”