THIRD SECTION

DECISION

Application no . 27104/11 Gheorghe NICOLAE against Romania

The European Court of Human Rights ( Third Section ), sitting on 30 September 2014 a s a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Luis López Guerra , Valeriu Griţco , Iulia Antoanella Motoc , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 14 April 2011 ,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Gheorghe Nicolae , is a Romanian national, who was born in 1951 and lives in Dr ă ganu . He wa s represented before the Court by Mr G. Ionescu , a lawyer practising in Pite ş ti .

The Romanian Government (“the Government”) wer e represented by their Agent, M s C. Brumar , of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

1. Incident of 18 August 2008

3 . In the early hours of 18 August 2008 at around 1 a.m. the applicant, who had just returned home from a party, started arguing with his wife and twenty-one-year-old son. Fearing that the applicant might become physically violent, his wife, I.N., called the police.

4 . Officer C.V. from the local police, accompanied by C.A.C., the night guard at the local mayor ’ s office, arrived shortly afterwards at the applicant ’ s house and entered the yard after being invited in by I.N., who complained that the applicant, who was drunk, was swearing and throwing stones. They found the applicant outside, in his underwear, in an agitated state. C.V. tried to talk to him in order to settle the dispute. After the applicant calmed down, I.N. asked the policeman not to leave, so that she could collect some personal things in order to leave the house with her son. According to C.V., at that very moment the applicant became agitated again and tried to hit his son. When C.V. stepped between them, the applicant started swearing at him, hit him in the face and then appeared to lean over to pick something up from the ground. At that point C.V., with the help of C.A.C., pushed him to the ground and handcuffed him. The applicant ’ s glasses were broken in the incident.

5 . The applicant was then taken in the police car to Dr ă ganu police station, where he was held for thirty minutes, until his wife and son arrived. He was then told he was free to leave, and walked the two-kilometre journey back home in his underwear.

6 . In the meantime, officer C.V. had drafted an event report describing the incident (see paragraph 4 above). The applicant ’ s wife and son had signed the report as witnesses, stating in their own handwriting that “the facts mentioned in the present report are true”.

7 . In addition, C.V. had drafted an offence report, fining the applicant 1,000 lei for disturbing public order. The report stated that the applicant had shouted vulgar words and insults addressed to both his wife and the police officer, both at his house and once at the police station.

8 . Later that morning the applicant went to see a doctor and obtained a forensic medical certificate stating that he had a 2 x 2 cm excoriation on the left knee with swelling and functional immobility, three excoriations measuring 0.2 x 0.2 cm on the right knee , and a 2 x 2 cm and two smaller ecchymoses (bruises), with swelling, on the left hand. The doctor also mentioned that the applicant had complained of pain in the lumbar area , so he had recommended him an orthopaedic examination , which he had refused. His injuries were considered to require five to six days ’ medical care.

2. The applicant ’ s complaint concerning the offence report

9 . The applicant contested the offence report drafted by C.V. at the time of the incident. He alleged that there were personal reasons connected to his wife and son which had provoked his behaviour that night; C.V. had abused his authority by not taking them into consideration and by handcuffing him and taking him to the police station.

10 . On 12 January 2009 the Pite ş ti District Court held that the offence report drafted by C.V. was corroborated by the event report signed by the applicant ’ s wife and son. It was therefore in accordance with the law and presented the facts correctly. The court also took into account the fact that when asked to sign the offence report, the applicant, who refused to do so, did not make any objections concerning the facts as presented by C.V . ; however, in view of the personal circumstances referred to by him, the court decided to replace the fine with a warning.

11 . This judgment became final as the parties did not appeal.

3. The applicant ’ s complaint of abusive conduct

12 . On 20 August 2008 the applicant lodged a complaint concerning the incident with the prosecutor ’ s office of the Arge ş County Court. He alleged that on 18 August 2008 he had not at all been violent. He had just been upset because his wife and son were constantly taking advantage of him and spending his money. The applicant considered that the police officer had only intervened that night to help I.N. take things from the family home. He further complained that he had been pushed to the ground by the officer and night guard, in spite of the fact that he was old and suffering from diabetes. He also claimed that his glasses had been broken in the incident. Lastly, he requested that the truth be un covered.

13 . On 17 September 2008 statements from all the parties involved in the incident, including the applicant, were taken by the investigating authorities. I.N. declared that she had been inside the house to collect some personal things and had not seen what had happened in the moments before the applicant had been pushed to the ground and handcuffed. The applicant ’ s son also declared that he could not see the incident as he had been busy taking things to his car. He also stated that he had offered to take the applicant home in his car on their return from the police station that night, but he had refused. A witness statement was also taken from a night guard who had been patrolling the field across from the applicant ’ s house. He declared that he had heard an argument that night between the applicant and his family. When the police had arrived, he had heard the applicant swearing at the police officer and had subsequently seen him resisting getting into the police car.

14 . On 3 March 2009 the prosecutor ’ s office decided not to charge C.V. At first, the prosecutor classified the applicant ’ s complaint as a complaint of abusive conduct against C.V. Subsequently, the prosecutor held that C.V. had been invited into the applicant ’ s yard by his wife, who had requested protection, and that the officer had acted in conformity with Law no. 218/2002, which allows for anyone disturbing public order to be taken to a police station, and also allows the use of force in the event of any resistance on their part. In addition, the police officer acted in accordance with the same Law also when he requested support from C.A.C, who therefore was entitled to tak e part in the operation.

15 . The applicant ’ s complaint about this decision was rejected as ill-founded on 26 March 2009 by the deputy prosecutor of the same prosecutor ’ s office.

16 . The applicant contested the prosecutors ’ decisions before the Arge ş County Court. The applicant maintained to the court that there was no proof that he had been violent; the police officer had therefore acted unlawfully. He also highlighted the fact that he had been taken to the police station and then left to return home in his underwear. With respect to the investigation, he complained that he had neither been heard by the prosecutor no r confronted with the two alleged perpetrators, stressing that he had also lodged complaints against C.A.C., as well as both perpetrators, about the destruction of his glasses.

17 . On 17 December 2009 the Arge ş County Court decided to send the case back to the prosecutor ’ s office, because the applicant ’ s complaint about the prosecutor ’ s decision of 3 March 2009 had been solved by the deputy prosecutor and not the head prosecutor, as required by law.

18 . On 8 February 2010 the head prosecutor rejected the applicant ’ s complaint about the decision of 3 March 2009 as ill-founded.

19 . The applicant complained again to the Arge ş County Court about the prosecutors ’ decisions. He attached statements from his wife and son declaring that they did not know what they had signed at the Dr ă ganu po lice station on 18 August 2008.

20 . On 14 June 2010 the Arge ş County Court rejected the applicant ’ s complaint as ill-founded. The applicant ’ s wife and son made statements to the court that on 18 August 2008 “the applicant was drunk and had an uncontrolled outburst” but had not been aggressive towards the police officer, who had reacted in an unjustified manner. The court decided not to take these statements into consideration since the two of them had mentioned, at the time of the incident, in their own handwriting, that the facts as described in the event report were true. The court further held in reply to the applicant ’ s allegations concerning the investigation that the initial complaint he had lodged was not clearly formulated; the prosecutor had therefore correctly classified it as a complaint of abusive conduct against the police officer who had conducted the operation on 18 August 2008. Lastly, the court concluded that C.V. had acted in accordance with Article 31 of Law no. 218/2002 on the organisation and functioning of the police in order to restrain the applicant, who had been aggressive towards his fam ily and the police officer.

21 . On 21 October 2010 the Pite ÅŸ ti Court of Appeal rejected an appeal on points of law ( recurs ) brought by the applicant against this judgment as ill-founded.

22 . The applicant was represented by a lawyer of his own choosing throughout the entire proceedi ngs before the domestic courts.

B. Relevant domestic law

23 . The relevant provisions of the Romanian Criminal Code in force at the time with regard to ill-treatment and abusive behaviour are summarised in the case of Ghiur ă u v. Romania (no. 55421/10, §§ 43 and 44, 20 November 2012).

24 . The relevant provisions of Law no. 218/2002 on the organisation and functioning of the police, in force at the relevant time , are as follows:

Article 31

“1. In the exercise of their duties, police officers are trustees of public authority and have the following rights and obligations:

...

b) to accompany to the police station those who pose a danger to others, public order or other social values ... ; in cases of non-compliance with [their] orders, [the police] are authorised to use force ...

k) to request if needed, the help of citizens in order to track, catch, restrain and accompany to the police station those suspected of committing crimes ... ”

COMPLAINTS

25 . The applicant complained under Articles 3 and 6 § 1 of the Convention that he had been subjected to torture, inhuman and degrading treatment on 18 August 2008, and that the authorities had not carried out an effective investigation into th e events . He further complained that he had been denied a fair trial of the issues raised by his complaint concerning the incident.

26 . The applicant also complained under Article 8 of the Convention that the police officer and C.A.C. had refused to leave his yard when requested, hence breaching his right to respect for his home.

THE LAW

A. Complaint under Article 3 of the Convention

27 . Relying on Articles 3 and 6 § 1 of the Convention , the applicant complained that he had been subjected to ill-treatment on 18 August 2008 and that there had been no effective investigation into the incident. He further complained that he had been denied a fair trial of the issues raised by his complaint lodged with the domestic authorities .

28 . Having regard to the facts of the present application, the Court considers that the case, communicated to the respondent Government under Article 3 of the Convention, must be examined exclusively under that Article (see Ş erc ă u v. Romania , no. 41775/06, §§ 61 and 62, 5 June 2012 ) , which read s as follows:

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

29 . The Government firstly submitted that police officer C.V. had acted within the boundaries of the law in order to protect public order and the safety of others. Moreover, they contended that the treatment suffered by the applicant did not attain a minimum level of severity so as to fall within the ambit of Article 3 of the Convention. Lastly, they argued that the authorities had conducted an effective and prompt investigation into the applicant ’ s allegations.

30 . The applicant disagreed.

31 . The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation (see Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010).

32 . In assessing the evidence on which to base the decision as to whether there has been a violation of Article 3 , t he Court adopts the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey , no. 25656/94 , § 264, ECHR 2002). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Stoica v. Romania , no. 42722/02 , § 63, 4 March 2008).

33 . In the instant case, t he Court observes from the evidence in the file that the applicant ’ s wife asked for the protection of the police in the course of a domestic dispute, in the early hours of 18 August 2008 . She had called the emergency services telling them that her husband was drunk and she feared he might become aggressive. She reiterated her fears in front of police officer C.V. and guard C.A.C. upon their arrival at the applicant ’ s house. Moreover, she requested their presence and protection for the time it would take her and her son to take some personal belongings and leave the family home. From this moment on, the parties gave conflicting versions of the events . It is not contested between the parties that the applicant sustained certain injuries at the time of his restraint by the police officer and C.A.C. What is in dispute is whether this operation, together with the applicant ’ s handcuffing and taking to the police station, was necessary in the circumstances of the case. The applicant alleged that he had not been aggressive, and that the actions of the two men had only been directed at helping his wife take things from their family home. The Government, for their part, contended that the actions of the two men were rendered necessary by the applicant ’ s aggressive behaviour, and claimed that the authorities had carried out a thorough and prompt investigation of the applicant ’ s allegations.

34 . In this connection, the Court reiterates that w here allegations are made under Article 3 of the Convention , it must apply a particularly thorough scrutiny (see Matko v. Slovenia , no. 43393/98 , § 100, 2 November 2006 ). The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom ( dec . ), no. 28883/95 , 4 April 2000, and Stoica , cited above , § 64). Where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic authorities and, as a general rule, it is for those authorities to assess the evidence before them. Although the Court is not bound by the latter ’ s findings, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact they have reached ( see Gäfgen , cited above, § 93 ).

35 . The Court notes that a criminal investigation was promptly opened following the applicant ’ s complaint. Statements were taken from all the parties involved in the incident, as well as from an independent witness. Corroborating these statements with the documentary evidence collected, namely the offence report to which the applicant made no objections and the event report drafted on the day of the incident and signed by the applicant ’ s wife and son, the prosecutors concluded that the police intervention of 18 August 2008 had been rendered necessary by the applicant ’ s behaviour. It was hence concluded that the police officer had acted in accordance with the law in order to protect public order.

36 . Subsequently, the applicant ’ s complaint about the prosecutors ’ decisions was thoroughly examined by the domestic courts and was considered ill-founded. In this connection, the Court notes that the applicant was represented by a lawyer of his own choosing throughout the trial and that the domestic courts gave reasoned answers to his allegations (see paragraphs 20 and 22 above). In addition, it is to be observed that, in his complaint about the offence report drafted following the incident, the applicant did not contest the facts as described by the police officer (see paragraph 10 above). The Court therefore considers that the domestic authorities took appropriate steps with a view to establishing the relevant facts, with due regard to the argument s put forward by the applicant.

37 . Moreover, the Court observes that the applicant presented no evidence that would enable it to depart from the findings of the domestic authorities in this respect. The medical certificate of 18 August 2008 mentioned injuries consistent with the facts presented in the event report drafted by the police officer following the incident. No other evidence was presented to the Court to corrobora te the applicant ’ s submissions.

38 . The Court therefore cannot but concur with the domestic authorities ’ conclusion that the police operation of 18 August 2008 was necessary under the circumstances of the case and that the applicant ’ s allegations of ill-treatment are unsubstantiated. It also finds that the domestic authorities complied with their procedural obligation under Article 3 of the Convention to conduct an effective investigation into the allegations of ill-treatment.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Other complaints

39 . The applicant also complained that on 18 August 2008 the police officer and C.A.C. had refused to leave his yard, hence breaching his right to respect for his home under Article 8 of the Convention.

40 . In view of the facts of the case and its findings under Article 3 of the Convention (see paragraphs 33- 38 above), the Court considers that this complaint is also inadmissible and must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President