issued by the Registrar of the Court no. 155 22.02.2011 Excessive use of police force against 19 year old Roma In today s Chamber judgment in the case Soare and Others v. Romania (application no. 24329/02), which is not final 1, the European Court of Human Rights held: Concerning the first applicant: Unanimously, that there had been two violations of Article 2 (risk to life and lack of an effective investigation) of the European Convention on Human Rights; Unanimously, that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 2; By four votes to three, that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 2 and Article 3 (prohibition of inhuman or degrading treatment); Concerning the second and the third applicants: Unanimously, that there had been a violation of Article 3 (prohibition of degrading treatment). The case concerned the circumstances surrounding the arrest of a 19-year-old man by the police and in particular the fact that he was shot in the head by a police officer, in circumstances on which the parties disagreed. The young man the first applicant survived but is semi-paralysed. The second and third applicants were present during the incident and complained of the conditions in which they had been questioned as witnesses. Principal facts The applicants, Mugurel Soare, Angela Vlasceanu and Dorel Baicu, are three Romanian nationals who were born in 1981, 1951 and 1969 respectively and live in Bucharest. On 19 May 2000, at around 7 p.m., while he and his brother were going to hospital to visit their mother, Mugurel Soare (who is of Roma ethnic origin) saw his former brother-in-law in the street. The two brothers began to chase after him. Some police officers on patrol apprehended them and one of the officers shot Mugurel Soare in the head, causing serious injuries. Angela Vlasceanu and Dorel Baicu witnessed the incident. Mr Soare and the Romanian Government gave differing versions of the facts. 1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution
According to Mugurel Soare, he and his brother had been chasing their former brother-in-law unarmed. A police officer had arrested him, pinned him against the hospital wall and struck him on the head before grabbing him by the shoulders and hitting him repeatedly against the wall. The pain had forced him to crouch down with his back to the wall. While he was in that position, the police officer had allegedly drawn his gun and shot him in the head. Angela Vlasceanu and Dorel Baicu, who did not know Mugurel Soare, had witnessed the scene. Ms Vlasceanu had allegedly tried to immobilise the police officer who had fired the shot. She claimed that he had not been injured or had any bloodstains on him. More police officers had arrived as reinforcements and Mugurel Soare and his brother had been taken to hospital. In the Government s submission, three police officers on patrol had been obliged to intervene after observing two individuals armed with knives chasing after a third person, who was calling for help. Two of the officers had pursued the person being chased, while the third had endeavoured to arrest Mugurel Soare and his brother after showing them his police identity card. Mugurel Soare had allegedly stabbed the police officer, whereupon the latter had taken out his gun in order to fire a warning shot. However, he had lost his balance and as a result the shot had hit Mugurel Soare directly in the head. The police officers had then confiscated the knives and put them in the car before driving Mugurel Soare, his brother and their former brother-in-law to hospital. Mugurel Soare was admitted to the accident and emergency department in a deep coma. He was operated on that evening and again the following month. On 1 September 2000 he was discharged from hospital, semi-paralysed. The police officer who had fired the shot also underwent a medical examination following the incident. He had superficial stomach wounds caused by a sharp object. An investigation was opened the same evening. The police officers who had arrived as reinforcements asked Angela Vlasceanu and Dorel Baicu to accompany them to the police station to give witness evidence. They arrived at the police station at about 7.30 p.m. and gave statements to the police at 9 p.m. They asked permission to return home because they were tired and their families did not know where they were, but the police officer in charge of questioning them refused. At around 10.25 p.m. a military prosecutor and three police officers went to the scene of the incident to take notes. In his report, the prosecutor observed that the police officer who had fired the shot claimed to have been attacked by a Gypsy. After midnight, the prosecutor returned to the police station and questioned Angela Vlasceanu and Dorel Baicu in turn. Both stated that the tragic events they had witnessed, the time spent in the police station and the lack of food and water had left them physically and mentally exhausted. They also alleged that they had been intimidated by the police, who had pressurised them into saying that Mugurel Soare and his brother had been carrying knives. Angela Vlasceanu claimed to have protested when the prosecutor stated that Mugurel Soare had injured the police officer, allegedly adding that if the policeman had really been injured his blood would have left stains on the white blouse she had been wearing when she had encircled his waist. The police officers had allegedly made the witnesses sign statements which they were unable to read. The Romanian Government, for their part, maintained that no pressure had been put on Angela Vlasceanu or Dorel Baicu. Subsequently, in June 2000, Angela Vlasceanu and Dorel Baicu requested their legal representative to lodge a complaint on their behalf concerning the conditions in which they had been questioned. No action was taken in response to the complaints lodged in that regard. On 19 and 21 May 2000 each of the three police officers implicated in the events was required to write a report on the incident. All three reports stated that the officer who had fired the shot had opened fire after being stabbed by Mugurel Soare. On 24 May 2000 Mugurel Soare s former brother-in-law gave evidence and confirmed this version of events. The hospital security guard, who had not witnessed the scene in person but was reporting what he had heard after the incident, did likewise. 2
On 15 September 2000 the National Forensic Medicine Institute (INML) in Bucharest issued a forensic medical report stating that the police officer had had two superficial stomach wounds which had been caused by a sharp object and could have been inflicted on 19 May 2000. It was not possible to conclude whether the wounds had been self-inflicted. On 31 October 2000 the INML submitted a further report finding, in particular, that the probability of the wounds being self-inflicted was slight. On 26 September 2000 the public prosecutor s office ordered a forensic report on Mugurel Soare s state of health. The INML submitted its report on 28 February 2001. The report found, among other things, that the bullet which had hit Mr Soare could have been fired at close range and had been fired in a downward direction. On 11 July 2001 the police officer who had fired the shot gave evidence to the public prosecutor and confirmed his version of events. On 24 July 2001 the military prosecutor discontinued the case against the police officer who had fired the shot, finding that he had acted in self-defence. Mugurel Soare and his representative were not at any point informed of the reasons for that decision. However, the military prosecutor s office at the Supreme Court of Justice decided to transfer the case to the public prosecutor s office at the Bucharest Military Court, on the grounds that the relevant witness evidence had been gathered by police officers rather than by the military prosecutor himself. On 10 December 2001 the prosecutor s office to which the case had been transferred set aside the order of 24 July 2001 discontinuing the proceedings, ordered the reopening of the investigation and specified the measures to be taken. On 15 May 2002 the supervisory board of the INML rectified the findings of the medical report of 28 February 2001 concerning Mugurel Soare. It stated that there had been a typing error and that the bullet which had wounded Mugurel Soare had been fired upwards and not downwards. On 13 June 2003, following legislative changes to the status of police officers, the case was transferred to a civilian prosecutor s office, namely the public prosecutor s office at the Bucharest County Court. The police officer who had fired the shot confirmed his version of events. On 23 July 2003 the public prosecutor s office discontinued the proceedings against the police officer, finding that he had acted in self-defence. It also decided to discontinue the case against Mugurel Soare and his brother for contempt of court. The incident at the origin of this case was covered in the newspapers, which stressed Mugurel Soare s ethnic origin and described the incident as an armed confrontation between police and Gypsies. Complaints, procedure and composition of the Court Relying on Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment), Mugurel Soare complained of the violence to which he had allegedly been subjected when he was arrested and of his shooting by the police officer, and maintained that the investigation into the incident had not been effective. Relying, in particular, on Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination), he also alleged that he had had no possibility of claiming compensation for the breaches of Articles 2 and 3 and that those breaches had been due to his Roma origin. Lastly, he made a complaint under Article 34 (right of individual application), which was declared inadmissible. 3
Relying on Article 3, Angela Vlasceanu and Dorel Baicu complained, in particular, that they had been held for questioning at the police station for several hours without food or water. Relying on Article 5 (right to liberty and security), they also made complaints concerning the lawfulness of their detention, which were declared inadmissible by the Court. The application was lodged with the European Court of Human Rights on 24 June 2002. Judgment was given by a Chamber of seven, composed as follows: Josep Casadevall (Andorra), President, Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Egbert Myjer (the Netherlands), Ineta Ziemele (Latvia), Luis López Guerra (Spain), Ann Power (Ireland), judges, and also Marialena Tsirli, Deputy Section Registrar. Decision of the Court Mugurel Soare s complaints Alleged risk to his life (Article 2) Under Article 2, the use of lethal force by police officers might be justified in certain circumstances. Nonetheless, Article 2 did not grant carte blanche, and policing operations had to be authorised and sufficiently regulated by domestic law. A legal and administrative framework had to define the limited circumstances in which law-enforcement officials could use force and firearms. The Court therefore examined first of all whether the Romanian legislation on the use of firearms provided an adequate legal and administrative framework, before considering whether the use of force against Mugurel Soare had been justified under Article 2. With regard to the legal and administrative framework, the Court noted that at the time of the events in this case, Romanian law had listed a series of situations in which police officers could make use of firearms without being held liable for their actions, provided that those actions had been absolutely necessary and no other means of restraint or immobilisation had been possible. However, there had been no other provisions governing the use of weapons during policing operations, apart from a requirement to fire a warning shot, nor had there been any guidelines on the planning and management of such operations. In the Court s view, the legal framework in question did not appear sufficient to afford the required level of protection by law of the right to life. The way in which the policing operation in question had been conducted confirmed that conclusion. Among other factors, the absence of clear rules might explain why only one police officer had tried to apprehend Mugurel Soare and his brother, who, according to the police, had been carrying knives, while the other two officers had sought to apprehend the person who was running away, calling for help, and who was visibly unarmed. The police officer in question had enjoyed considerable autonomy of action and had opportunities to take unconsidered initiatives, which would probably not have been the case had he had the benefit of proper training and instructions. As to whether the use by the police officer of potentially lethal force had been warranted, the Court noted first of all that the Government s assertion that the shot which wounded 4
Mugurel Soare had been fired unintentionally was incompatible with the investigation s finding that the officer had fired in self-defence. That being said, if the officer really had acted in self-defence, the firing of the shot could have been compatible with Article 2. However, the evidence before the Court was not sufficient to satisfy it that Mugurel Soare and his brother had been armed and that the officer who fired the shot had therefore acted in self-defence. The findings of the investigation were not very convincing in that regard, based as they were on the identical statements given by the police officers implicated in the events, by Mugurel Soare s former brother-in-law (who was involved in a dispute with him) and by a hospital security guard who had not witnessed the scene. Meanwhile, the witness statements made by Angela Vlasceanu and Dorel Baicu, who had been present, had not been taken into consideration. This was particularly surprising given that the former had apparently grabbed the police officer by the waist after he had fired the shot. In addition, there had been no investigation concerning the knife found in the police car, although the question whether the police officer might have inflicted the injuries on himself had not been resolved. The Court also identified a number of other omissions and contradictions in the investigation. It concluded that it had not been demonstrated that the force used against Mugurel Soare had been compatible with Article 2. There had therefore been a violation of Article 2. Alleged inadequacy of the investigation (Article 2) The obligation to protect the right to life required that an effective official investigation be carried out where individuals had been killed as a result of the use of force. An investigation had been carried out in the present case, mainly by the military prosecutor s office and subsequently, following a change in the legislation, by the civilian prosecutor s office. In seeking to ascertain whether the investigation had been effective, the Court pointed out first of all that where an investigation was carried out into killing or ill-treatment by agents of the State, it was necessary for the investigators to be independent from the persons implicated in the events. The Court s case-law clearly indicated that this was not the case with the military prosecutor, who at the relevant time had been a military official, as were the police officers being investigated. The intervention of the civilian prosecutor who had confined his actions to taking evidence once from the police officer who had fired the shot, before discontinuing the proceedings a month later had not been sufficient to overcome that deficiency. After examining in greater detail the conduct of the investigation by the military prosecutor s office, the Court also noted several shortcomings (the police officers had not given evidence in the course of a criminal investigation, there had been an excessive delay in producing the forensic medical report, etc.). Furthermore, the failure to inform Mugurel Soare or his lawyer of the reasons for the decision to discontinue the proceedings was unacceptable. Accordingly, there had been a further violation of Article 2. Alleged ill-treatment of the first applicant during his arrest (Article 3) In view of its finding that Article 2 had been breached, the Court did not consider it necessary to also examine the first applicant s complaint under Article 3. Alleged impossibility of claiming compensation through the courts (Article 13) On this point, the question was whether the civil action for compensation which Mr Soare could have brought against the police officer who fired the shot would have constituted an effective remedy, contrary to the applicant s assertion. The Court had already 5
answered this question in the negative in several other Romanian cases and it saw no reason to reach a different conclusion in this case. There had therefore been a violation of Article 13 in conjunction with Article 2. The Court did not consider it necessary to also examine the case under Article 13 in conjunction with Article 3. Alleged discrimination on account of Mugurel Soare s ethnic origin (Article 14) The Court first sought to establish whether racism had been a factor in the police officer s conduct. It took the view that, while the conduct of the officer in question was open to serious criticism, it did not in itself provide sufficient basis for concluding that the treatment to which Mugurel Soare had been subjected by the police had been racially motivated. There was no evidence to suggest, either, that the police officers implicated in the incident had made racist remarks during the events. As to whether the Romanian authorities ought to have conducted a specific investigation into the possibility of a racist motive which they did not do the Court replied in the negative. The fact that, on the evening of the incident, the police officer had stated that he had been attacked by a Gypsy was not sufficient in itself to require the authorities to ascertain whether the incident had been sparked by racist motives. There had therefore been no violation of Article 14 in conjunction with Articles 2 and 3. Complaints lodged by Angela Vlasceanu and Dorel Baicu Alleged degrading treatment during questioning at the police station (Article 3) The Court considered that the conditions in which Angela Vlasceanu and Dorel Baicu had been questioned by the police had caused them feelings of anxiety and inferiority. The Court made particular reference to the fact that they had been kept late into the night without food or water, in addition to having witnessed a tragedy. There had therefore been a violation of Article 3. Just satisfaction (Article 41) Under Article 41 (just satisfaction) of the Convention, the Court held that Romania was to pay Mugurel Soare 90,000 euros (EUR) in respect of pecuniary damage (for loss of earnings resulting from his injuries) and EUR 40,000 in respect of non-pecuniary damage. It was also to pay EUR 10,000 each to Angela Vlasceanu and Dorel Baicu in respect of non-pecuniary damage. Finally, the respondent State was to pay EUR 8,291 directly to the applicants lawyer for costs and expenses. The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site. To receive the Court s press releases, please subscribe to the Court s RSS feeds. Press contacts echrpress@echr.coe.int tel: +33 3 90 21 42 08 Frédéric Dolt (tel: + 33 3 90 21 53 39) 6
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