SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45661/99 by Viorel CARABULEA against Romania

The European Court of Human Rights ( Second Section) , sitting on 21 September 2004 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni, judges , and M rs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 2 September 1998 and registered on 25 January 1999 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having d eliberated, decides as follows:

THE FACTS

The applicant is a Romanian national of Roma origin, born in 1963 and living in Bucharest . The case concerns the death of the applicant ' s brother, Mr Gabriel Carabulea.

The applicant was represented before the Court by Ms M. Macovei, a lawyer practising in Bucharest , and by the European Roma Rights Centre, an association based in Budapest ( Hungary ). The respondent Government we re represented by their Agent, Mr s Roxana Rizoi u , 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. Gabriel Carabulea ' s arrest and subsequent death

On 21 March 1996 police station no. 9 in Bucharest sent a telegram to all police stations in Bucharest ordering the arrest of Mr Carabulea, the applicant ' s brother, for various robberies allegedly committed by him. At that time, no formal charge existed against him .

On 13 April 1996 Mr Carabulea was apprehended by three police officers from police station no. 14 in Bucharest . In a subsequent report, the police described the arrest as follows. While conducting a car patrol, the officers saw Mr Carabulea driving a car and followed him. A few minutes later, the officers witnessed an accident between Mr Carabulea ' s car and a car driven by I.I. As Mr Carabulea jumped out of his car and ran towards some nearby apartment buildings, the police followed him and caught him. They then took him to police station no. 14 . The report makes no reference to any injury which Mr Carabulea might have suffered in the car accident.

Two hours after the arrest, the applicant ' s brother was taken to police station no. 14 , where two counterfeit foreign banknotes were seized from him. According to a police report dated the day of the arrest, Mr Carabulea was informed that he was “guilty of aiding and abetting robbery and the possession of counterfeit foreign currency” and that he would be “ detained for the next 24 hours”. The report was signed by a police officer and an officially appointed lawyer, but not by Mr Carabulea.

The same day, the applicant ' s brother was charged with a robbery that had allegedly taken place during the night of 19 - 20 March 1996. He was not charged with possession of counterfeit currency. A n arrest warrant valid for a period of 24 hours was issued by police officer I.P . The warrant did not indicate t he time at which the 24-hour period commenced.

On entering the lock - up at police station no. 9 , the applicant ' s brother was subjected to a body search. No doctor examined him. The testimony and reports of all police officers who had contact with him during this period were in agreement that he was in good health on entering the police lock - up.

On 13 April 1996 Mr Carabulea was questioned on the charge of robbery and admitted the offence . On 14 April 1996 he was taken to the prosecutor , who questioned him and then issued an arrest warrant for five days on the robbery charge.

According to the testimony of one of Mr Carabulea ' s fellow detainees and of the police officer in charge of the lock-up, early in the morning of 16 April, while taking his shower with the other detainees , Mr Carabulea felt sick owing to the ste a m in the shower room . He was taken to the kitchen to breathe some fresh air and was given a massage. As the police officer thought he was feeling better, he took him back to t he cell. After half an hour, Mr Carabulea again complained that he was feeling unwell . He was taken to the police dispensary , where a medical assistant observed “an altered general health condition, pain in bre ath ing and physical weakness . ”

Mr Carabulea was taken to the Ministry of the Interior Hosp i tal , where a doctor found that his blood pressure was 5 and his pulse 100 , and concluded that he was suffering from a “respiratory viral infection with an altered general health condition . ” A lung X-ray showed a “ normal thora cic image . ”

The doctor ordered his admission to Jilava Penitentiary Hospital . Contrary to this recommendation, Mr Carabulea was taken back to the p olice lock-up. He was taken out of the lock-up on the same day at 1.20 p.m. and brought before the public prosecutor , who issued another warrant authorising his pre-trial detention for up to 25 days. Mr Carabulea was not questioned by the prosecutor.

It was only at 5 p.m. that he was admitted to Jilava Penitentiary Hospital , where h is condition was described as a “deteriorated general state, with sharp pain in the thorax, epigastri c pain, and dyspn oe a on minim al effort ”. As he was also found to have a paroxysmal tachycardia (increased heart rate) , it was decided to transfer him to St John ' s H ospital .

At 8 p.m. he was transferred to St John ' s Hospital , where the initial diagnosis was a massive digestive haemorrhag e . The doctors noted that Gabriel Carabulea was in a deep state of “shock”, his blood pressure was 5 and his pulse was 100. Taken to the Emergency Ward of the Cardiology Section, he was found to be in a state of shock, with cyanotic and cold extremities, repeated vomiting with drops of blood ( of the “coffee grounds” type), and intense pains in the epigastr i a region , which were deemed to require surgical consultation. The doctors described the history of the disease as follows : “after the examination of the patient, it appears that the shock occurred in the morning, but no potential cause was indicated: ingestion of toxic substances, drugs, foreign bodies or trauma” . Because of the “deep state of shock”, it was decided to put him in i ntensive c are with a view to restor ing his h a emodynamic condition. A f urther examination based on “clinic al and paraclinic al information supported by a cardiological examination” led to the conclusion that the diagnosis of massive digestive haemorrhage was to be ruled out . The victim was found to be suffer ing from pulmonary embolism and it was decided to transfer him to Fundeni Hospital , which sp ecialised in cardiology.

Later in the evening, he was admitted to Fundeni Hospital , where the initial diagnosis was syncope of undetermined cause , pulmonary embolism, paroxysmal tachycardia (right heart deficiency) and a perihepatic haematoma. Having regard to the seriousness of Mr Carabulea ' s condition , they recommended that his stay in hospital be prolonged . It was decided to keep him under permanent medical watch.

Mr Carabulea remained at that hospital, under permanent police surveillance , i n a ward in which he was the only patient. A police officer was placed in the ward. Therefore, all medical examinations took place in his presence.

From an unsigned examination note drawn up by one of the doctors on 16 or 17 April 1996 , it appears t hat the patient explained “ in a moment of lucidity ” that on 13 April 1996 he had had a car accident . This had result ed in a “cranial, thora cic and abdominal trauma which he [had] neglected , and since 14 April he [had] had slight pains in the upper area of the abdomen, a dry cough and dyspnoea . ”

On the medical consultation sheet drafted on 24 April 1996 at Fundeni Hospital , the surgeon ordered the discontinuation of the injections administered with a view to restoring the h a emod y namic condition ( d opamin e ), administered other drugs (Romergan (promethazine) , d iazepam, Xilina (lidocaine) and a tropine) and ordered heart catheteris ation . On the medical examination sheet there appears no indication as to the duration of the previous treatment or of the newly administered treatment.

While Gabriel Carabulea was in Fundeni H o spital , his wife, his brother ( the app licant ) , his cousin Constantin Gheorghe and his friend Dumitru Dinu tried to visit him every day . Each time the authorities refused to admit the visitors on the gr ound that he was under arrest. An account of the visits they made to the victim is summarised in part 4 below (Extrajudicia l statements).

Gabriel Carabulea died on the morning of 3 May 1996 at the age of 27. The hospital notified the Prosecutor ' s Office of his death , reporting that the patient had died of a “ recurrent pulmonary embolism (17 April, 24 April and 3 May) , severe pulmonary hypertension, thoracic and abdominal trauma due to the car accident of 13 April 1996 , a right heart insufficiency, phlebitis in the left leg and irreversible cardio-respiratory block age . ”

His family were not notified of his death, but learned of it when they came later that day to visit him. When they saw Mr Carabulea ' s body at the hospital ' s mor tuary , they observed large bruises around his abdomen and on his face, legs and genitalia. They were told to come back on 5 May.

In an o n-site report dated 3 May 1996 at 1 p.m. , the military prosecutor I.C. indicated that the death was the result of a car accident suffered on 13 April 1996 . He stated that the corpse showed no external signs of violence and no symptoms of any internal lesions and that , while in the hospital, the patient had not referred to any alleged assault by the police officers at the place of detention. The report also indicated that no relatives of the victim were present, and that no other data could therefore be obtained. No doctor signed the report.

The p rosecutor then ordered an autopsy, which was carried out on 4 May 1996 at the Forensic Medicine Institute in Bucharest . The deceased ' s family were not informed about the autopsy.

The death certificate , issued on 4 May 1996 by the same doctor who had performed the autopsy , indicated “acute cardio-respiratory insufficiency” as the immediate cause of death and “bronchopneumonia” as the initial and determinant cause of death.

On Monday 5 May 1996 the deceased ' s family returned to Fundeni H ospital , but they were told that the corpse had been transferred to the morgue of the Forensic Medicine Institute , where an autopsy had already been performed. Before the burial of the body, a photographer instructed by the family was allowed to take some pictures of the lower right side of the body. It appears from these pictures that the corpse had bruises on the right hand and right leg and in the genital area.

On 7 May 1996 the Bucharest Institute of P ath ology issued the deceased ' s wife with a medical certificate stating that Gabriel Carabulea had been examined at its clinic in 1995 and that , pathologically, there was nothing to be reported on his pulmonary condition.

A provisional report by a forensic doctor , P.P. , dated 10 May 1996 concluded that Gabriel Carabulea ' s death was “non-violent and was the result of acute cardio-respiratory insufficiency following pulmonary embolism , with wide spread areas of pulmonary infarction , against a background of pre-existing chronic diseases, myocardial sclerosis, and aggressive chronic hepatitis with progression towards cirrhosis. The ecchymosis observed is more than 3-4 days old and could have been produced by the impact of a hard object , but did not cause death . ”

On 30 July 1996 P.P. produced his final autopsy report. The conclusion was drafted in identical terms to those used in his provisional report of 10 May 1996 . The examination of the corpse indicated the existence of an ecchymosis on the right iliac crest, the fracture of two ribs “along the mid -clavic ular line” of the thorax , without indicating whether it was on the right side or on the left side , and 100 ml of serous-sanguineous fluid in the right pleural cavity, without indication of the source of bleeding . The forensic doctor lastly found that the genitalia and veins were “normal . ”

2 . The investigation into the death

On 8 May 1996 the widow, Nela Carabulea , filed a complaint with the Military Prosecutor ' s Office in Bucharest , claiming that her husband, who had been in sound physical condition when he had entered police custody, had died following the administration of beatings by police officers U. and B. at police station no. 9 . She requested that the two police officers be investigated for murder and attached to her complaint a medical certificate issued in May 1995 by the Clinical P atho logy Institute certifying that her husband ' s pulmonary and pleural condition had been good .

On 8 May 1996 Capt ain U . addressed a written report to his superiors indicating the circumstances of the arrest and detention of Gabriel Carabulea. He stated that when the detainee had undressed for the body search preceding entry to the lock - up, there had been no signs of violence on hi s body. He denied having used any physical pressure while interrogating him . He also mentioned that on 16 April 1996 Nela Carabulea had arrived at the police station with a pack age for her husband, but she had not been allowed to see him or give him the pack age , as pack age s could only be received on Thursdays.

On 8 May 1996 A.M., a lieutenant at police station no. 9 , addressed a written report to his superiors indicating that he had been on duty the day Gabriel Carabulea had been brought in to the station and that during Mr Carabulea ' s det ention at the lock - up he had not hear d any noises or screams coming from his cell.

On 9 May 1996 the family ' s lawyer filed another complaint with the Military Prosecutor ' s Office seeking, in particular, the investigation of Captain U. for the crime of physical assault resulting in death. The complaint alleged that the inhuman treatment to which the victim had been subjected had been intended to obtain a confession to the offence with which he was charged , and that during the victim ' s stay in hospital, both his family and the lawyer himself had been hindered in their contact s with him. The lawyer also complained that all medical documents concerning Mr Carabulea had been sealed and sent to the Forensic Medicine Institute , and that the family had not been allowed to see them.

The military prosecutor S.C. was placed in charge of the investigation.

On 9 May 1996 I.P., the officer in charge of the lock - up, addressed a written report to his superiors, in which he indicated that on 13 April 1996 Gabriel Carabulea had been brought to the lock-up at the police station and that when he had undressed for the body search , preceding entry to the lock - up, there had been no signs of violence on his body. According to him, o n 16 April 1996 Mr Carabulea and two other suspects had been examined by a medical assistant , who had recommended that an X-ray examination be carried out on Mr Carabulea. The X-ray had been taken at the Ministry of the Interior Hospital and the doctor who had attended to him had ordered that he be treated as an in-patient at Jilava Penitentiary Hospital .

On 9 May 1996 P olice O fficer G.B., serving under the orders of Captain U. , took statements from N.B. and E.B., who had been placed in the same police lock-up as Mr Carabulea and were in custody at the time when the statements were taken. They declared that neither during their time in the cell together nor on 16 April 1996 , when they had been transferred together to the doctor under police guard, had Mr Carabulea complain ed about police ill-treatment.

On 17 May 1996 the military prosecutor took statements from two police officers working at Jilava Penitentiary Hospital who had guarded the victim during his transfer to St John ' s Hospital and subsequently to Fundeni Hospital . They stated that , during the trans fer , Mr Carabulea had been lying down as he was not feeling well , and had not spoken to them. They had witnessed all his medical examinations but had not hear d him complain to the civilian doctors about an assault while in police custody.

On 14 August 1996 the military prosecutor questioned the police officers U. , I.P. and G.B.

Captain U. ' s statement largely corresponded to his reports of 8 May 1996 .

I.P. explained that , as Mr Carabulea had not felt well o n the morning of 16 April 1996 in the shower room, he had taken him to the medical assistant at the police station and then to the Ministry of the Interior Hospital, where he had been examined and sent to Jilava Penitentiary Hospital . Before taking him to Jilava Penitentiary Hospital , I.P. had gone to the prosecutor ' s office for the 2nd district , where a 30-day warrant had been issued.

G.B. explained that between 13 and 15 April 1996 he had been on leave.

On 15 August 1996 the military prosecutor questioned the duty officer in the police lock-up on 13 April 1996 , who reported having taken part in the body search of the victim. He declared that he had not see n any signs of violence on the victim ' s body.

On 20 August 1996 the military prosecutor decided not to open a criminal investigation in respect of the police officers I.P. and G.B., finding that the death of Gabriel Carabulea had been non-violent and due to organic diseases which had developed progressive ly and had led to a deterioration in his general state of health after the car accident of 13 April 1996, during which he had suffered thoracic, abdominal and cranial contusions.

On 21 January 1997 the Romanian Helsinki Committee sent a letter to the Military Section of the Procurator- General ' s Office requesting a new investigation. It pointed out, in particular, that the victim had never complained of any pain before being taken into police custody, that the bruising in the genital area could not have been cau sed by a car accident and that M.I., the victim ' s alleged co-defendant on the robbery charge , had not been questioned.

On 12 February 1997 the prosecutor D.V. from the Military Section of the Procurator- General ' s Office overturned the decision of 20 August 1996 and sent the case file back for further preliminary inquiries in respect of the alleged assault by the police officers, with the following instructions: that a statement be taken from the victim ' s wife; th at the report concerning the car accident on 13 April 1996 be examined ; that all the police officers who had arrested Gabriel Carabulea on 13 April 1996 be questioned , as well as all those present during the interrogation of Mr Carabulea, including the prosecutor and the officially appointed lawyer ; that the various pieces of information concerning the interrogation of both Mr Carabulea and I.M., the alleged co-defendant , be examined and assessed ; and that a supplementary forensic report be produced with a view to determin ing whether the fracture on the right mid -clavicular line and the bruise in the genital area were the result of the alleged assault .

On 19 February 1997 the case was registered at the Military Section of the Procurator- General ' s Office and a new prosecutor was assigned.

In a report dated 3 March 1997 , the military prosecut or indicated that , following an article published in the newspaper Cotidianul on 24 February 1997 , he had invited Mrs Nela Carabulea, the wi dow , to come to the prosecutor ' s office. During this meeting it had been agreed that she would return at a later date, with her lawyer, in order to consult the file relat ing to her husband ' s death and to have the opportunity t o submit her objections to the way in which the investigation had been carried out.

The Government claim ed that , after this meeting, Mrs Carabulea had refused to visit the prosecutor. They produce d two summonses dated 6 May 1997 and 30 June 1997 , informing Mrs Carabulea that her failure to appear before the prosecutor would lead to the discontinu ance of the proceedings, to which Mrs Carabulea allegedly failed to reply. They also submitted four acknowledgments of receipt of various summonses addressed to Mrs Carabulea, none of them signed by her .

The applicant submitted in reply that Mrs Carabulea had not receive d any of these summonses. Moreover, the prosecutor had spoke n to Mrs Carabulea on 3 March 1997 but had not ask ed her any questions.

On 25 August 1997 the prosecutor submitted a written request to the Bucharest Police Department for a copy of the file concerning the car accident on 13 April 1996 , and for information as to the rules governing arrest s and the transfer of persons in police custody .

On 5 September 1997 the Bucharest Police responded that the file on the car accident was at the p rosecutor ' s o ffice for the 4th district . They also indicated that, according to Instruction no. 410/1974 issued by the Ministry of the Interior, any sign of physical violence noted during the body search had to be notified to the doctor in charge of the lock-up, who would advise whether the detainee sh ould be admitted to the lock-up and would make preparations for a thorough medical examination. I n any event, all detainees had to be me d ically examined within 24 hours of incarceration.

On 12 September and 28 October 1997 , the military prosecutor requested the deceased ' s medical file from the Bucharest Police Department. According to this file, the first entries date from 16 April 1996 .

On 18 November 1997 the Marius Nasta Institute of Pulmonary Medicine informed the military prosecutor that Gabriel Carabulea had never been examined there.

In late 1997 the military prosecutor received the investigation file concerning the car accident on 13 April 199 6 . It appears from this file that the driver of the other car had given a short statement describ ing how Mr Carabulea had jumped out of the car and run away , followed by the police. Neither this statement nor the file contained any i nformation concerning the damage sustained by either vehicle or the person s involved .

On 7 January 1998 the military prosecutor ordered that a forensic medical examination be carried out by experts from the Bucharest Forensic Medicine Institute in order to assess the cause of the death, whether the measures taken by the medical staff who assisted Gabriel Carabulea had been correct and appropriate for his health problems and whether any signs of violence had been found in the genital area, what they consisted of and how many days of medical treatment would have been necessary to cure them. A colour photograph of the victim ' s genitalia submitted by the family was also attached to th e ord er .

On 17 February 1998 , at the request of the public prosecutor, Dr P.P. , who had performed the autopsy on 4 May 1996 , produced a n additional forensic medical report, in which he maintained his previous findings. In addition, he stated that the fracture of the mid- clavicular line could have been produced post mortem , during the cardiac resuscitation that had been appare ntly perform ed at Fundeni Hospital . Moreover, the changes of colour in the genital area appearing on the picture had also appeared post mortem , such changes being very common in medical practice .

On 4 March 1998 , on the basis of these new elements, the military prosecutor decided not to open criminal investigations into the allegations of physical assault resulting in the death of the victim or of an inadequate investigation by Captain U. and G.B. The prosecutor found that the death had been due to natural causes and had not constitute d a criminal act .

3. Other medical opinions concerning the applicant ' s death

The Government submitted an expert opinion by Dr D., a forensic pathologist, dated 20 June 2001 .

Dr D . concluded that Gabriel Carabulea had died of a pulmonary embolism caused by phlebitis of the left leg. D r D. also mentioned the applicant ' s child , who had died at the age of 20 months as a result of a congenital anomaly of the venous system , and concluded that i t was “ reasonabl e to believe that Carabulea had similar anomalies of the venous system which favoured the development of thrombosis . ” Dr D. stressed that “the traffic accident did not cause any internal or external injuries” and that “ there [was] no causal link whatsoever between the traffic accident and the appearance of pulmonary p hlebitis . ”

On 29 August 2001 the applicant submitted an expert opinion concerning the death of Gabriel Carabulea. The opinion was drafted by Dr S., a forensic pathologist practising at the Institute of Forensic Medicine at Semmelweis University in Budapest ( Hungary ) , who had specialised for six years in the United States . His opinion was based on documents in the prosecuti on file on Gabriel Carabulea , including all medical documents and some of the prosecutors ' decisions .

According to the expert, the medical documents submitted lacked proper medical information, such as laboratory data, ordinary daily medical data , especially for the victim ' s last day alive , how he had died, the drugs administered throughout his stay in hospital, and their dosage and application.

The expert noted a number of inconsistencies in the medical documents . In the fi r st place, he noted the alterations in diagnosis from a respiratory (pulmonary) viral infection made at Jilava Hospital , to an “ upper digestive haemorrhage” made at St John ' s Hospital , and later to a pulmonary embolism , although no explanations had been provided for these changes . Furthermore, the diagnosis of a pulmonary embolism made at St John ' s Hospital , at Fundeni Hospital , and later in the autopsy report contained no explanation of how th is diagnosis had been reached, since no blood clot (embolus) was ever mentioned as having been found . As to the “thrombo - phlebitis of the lower limbs” mentioned as one of the causes of death in the noti ce issued by Fundeni Hospital on 3 May 1996 , the expert stated that “thrombo - phlebitis of the lower limbs” was not a deadly disease and could not “at all” pred ispose to thrombo - embolism . Moreover, he found no numerical data available to quantify the severity of the pulmonary hypertension ment ioned in the medical not ification , and expressed the view that the “thora cic and abdominal trauma caused by the car crash” was an insufficient explanation , as no specific diagnosis had been made and there was no indication of the organ s affected and the kind of injuries sustained in the accident .

In reply to the statement by Dr D. that Gabriel Carabulea might have had anomalies of the venous system, he pointed out that the autopsy indicated that the venous system of the victim was normal . He further str e ssed that the isolated vena cava developmental anomaly which had caused the death of the Carabulea child was a very rare condition and that for such a disease the heredity rate was around 1-2% in the offspring . Moreover, no medical document, including the autopsy , had ever mentioned that the victim had thrombo - phlebitis.

In general, t he forensic autopsy report was described as “ basically professionally useless, loaded with scanty and inc omplete description s and medi cally erroneous conclusions ” . The expert concluded that crucial information was missing, preventing any genuine appraisal of the case, and pointed out that in similar cases he might have suggested a second autopsy, depending on the techniqu e of conservation of the body.

4. Extrajudicial statements

On 27 September 1998 the applicant, D. D., the victim ' s friend , and C.G., the victim ' s cousin , submitted written statements to the applicant ' s lawyer concerning the circumstances surround ing Gabriel Carabulea ' s death.

( a) The applicant ' s statement

The applicant stated that before his brother ' s arrest, he had been living with him and his family – his brother ' s wife Nela and their daughter, a baby of a couple of months. His brother (hereafter “Gabriel”) was a healthy man . His wife was suffering from tuberculosis, which caused Mr Carabulea to have an X- r ay, the results of which showed that he was in good health.

On 13 April 1996 , the Saturday before Easter, Nela received a tele phone call from police station no. 14 , telling her that her husband had been arrested and that she could bring him clothes and food. The applicant and Nela went to see Gabriel around lunchtime. He was in good health, he did not complain of any ill-treatment and his clothes were in good condition , being neither torn nor creased. He told them that he would be transferred to police station no. 9 and asked the applicant to take care of his wife and daughter. The applicant went home, while Nela stayed with Gabriel until around 4 p.m. , when he was transferred to police station no. 9 . On the following Monday, 15 April 1996 , Nela went to police station no. 9 to bring her husband food and, after she had bribed C aptain U. with some cigarettes, she was allowed to give Gabriel the food and talk to him for a few minutes in the presence of Captain U. Gabriel was taken to Captain U . ' s office with the help of two policem e n, as he had difficult y walking . After this short visit, Nela told the applicant that Gabriel “was looking bad” , but that she had not dared ask her husband what had happened, as Captain U. was present.

On the following day , at around 10 a.m. , the applicant, Constantin Gheorghe and Nela went to see Gabriel , but they were told that he was not there any longer, as he had been taken to Jilava Penitentiary Hospital . They went to Jilava, where they were told that Gabriel was not there. They then returned to police station no. 9 , where the police officer on duty did not give them any further information, so they went home. That evening, their neighbours Tudor and Mariana told them that their cousin Mara, a cleaning lady at Fundeni Hospital , had telephoned them because she had seen Gabriel in the Intensive Care Unit ( reanimare ) there . The applicant , Nela and Constantin Gheorghe went to Fundeni . At the hospital reception they were told that Gabriel was there but that it was not possible to see him, as he was being guarded by the police.

On the following day, 17 April 1996 , they made a further attempt to see Gabriel , but the policeman who was inside Gabriel ' s ward did not let them come in as he was under arrest . The officer warned them not to come any more. No doctor was available, but some medical assistants told them that Gabriel ' s condition was serious. It was not until the following day that Nela was allowed to see her husband for a few minutes, after long negotiation s with the police officer who was on guard . After the visit, Nela came out of the ward crying and told the applicant, Constantin Gheorghe and Dumitru Dinu that Gabriel was looking very bad, but she was unable to find out any more because of the police officer who was present. Some days later, Nela and Dinu again managed to enter Gabriel ' s ward for a few minutes. When they came out, they told the applicant and Constantin Gheorghe that Gabriel had complained that the police had suspended him from a cupboard for a while using handcuffs, and had then congratulated him for having beaten the world record for hanging. He had also been rolled up in a wet carpet and beaten. On another occasion, Dumitru Dinu managed to see Gabriel through the door to the ward, which was slightly open. The applicant and Constantin Gheorghe , who were a few met r es away, heard Gabriel shouting at Dinu : “ They ' ve killed me, I ' m a wreck!” ( “ M-au omorât, m-au nenorocit ” ). The applicant, Nela, Constantin and Dinu went to the hospital every day to try to see Gabriel . During all this time, the medical staff refused to talk to them. On one occasion, when asked about the diagnosis, a doctor told them that the doctors did not know.

On 3 May 1996 , a Saturday, when they came to the hospital, they were told at r eception that Gabriel had died and were sent to the hospital ' s mortuary. They saw Gabriel ' s body and noticed that he had bruise s on his front, in the area of the ribs and stomach, on one thigh and i n the genital area. They wanted to take his body home, but were told that it was not possible and that they should come back on Monday. When they returned to the hospital the following Monday, they learned that the body had been taken to the Forensic Medicine Institute, where an autopsy had been performed. The same day, they brought the bo dy home, took photographs and buried it .

( b) Dumitru Dinu ' s statement

Dumitru Dinu stated that he had managed on one occasion to persuade the police officer to enter the ward together with Nela in order to help Gabriel change his clothes. Whispering, Gabriel complained that he had been brutally mistreated by the police, who had suspended him from a locker with his hands tied behind his back and had beat en him while he was hanging there . When he refus ed to admit to the charge of robbery, he had been rolled in a carpet, swooped upon, and beaten with sticks. The victim identified Captain U. as the chief of the police officers who abused him. The police officer terminated the meeting when he realised that they were talking about Gabriel ' s detention. As Dumitru Dinu and Nela went out of the ward, a medical assistant told them that a doctor wanted to talk to them. They went to see the doctor, who told them that Gabriel had very little chance of surviv al and that he was living on a drip . She told them that Gabriel had blood in the lungs and liver , and a swollen heart and that his kidneys were blocked. He went to the hospital to see Gabriel a second time. As the police officer did not allow him to enter the room, he forced the door open and asked Gabriel whether he was all right. He heard him shouting back “They killed me! Don ' t leave me here, take me out of here otherwise I ' ll die!” The applicant, Nela and Constantin Gheorghe were also present and heard th is . Before the burial, Dumitru Dinu, who had brought the photographer who took the only pictures of Gabriel ' s body, saw various injuries on the corpse : bruises in the stomach area, and on the face, legs and genitals.

( c) Constantin Gheorghe ' s statement

I n his statement, Constantin Gheorghe confirm ed that Gabriel had been kept in a ward under permanent police surveillance. Although he never saw Gabriel during his stay in the hospital, he accompanied Nela and Dumitru Dinu and heard Gabriel shouting “They killed me!” He witnessed Nela and Dumitru Dinu coming out of Gabriel ' s ward and telling him how Gabriel had complained that he had been tortured by the police under the command of Captain U. He saw Gabriel ' s corpse afterwards ; there were bruises on the legs, face and genitals , and under the chin.

B. Relevant international reports

1. Report of 19 February 1998 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on Romania

I n its report, the CPT indicated that a considerable number of detainees , interviewed at the police lock-up cells and prisons visited by its delegation , alleged having been physically ill-treated by the police. The following types of ill-treatment were constantly mentioned : slaps, punches , kicks and blows with a truncheon (the victim sometimes being rolled up in a carpet or something similar). Some of the persons met complained of beatings of the soles of the feet (falaka) , which were apparently inflicted while the victim was on his knees on a chair or suspended from a solid bar in the position known as the “spit-roaster”. These allegations related exclusively to the moment when the suspects were apprehended and to later stages of the interrogation by the police. The CPT delegation noted that when a prosecutor was asked how he would act in the presence of a suspect alleging ill-treatment by the police, he gave the following answer : “The police are my colleagues. I would regard this allegation as a lie coming from a recidivist ... ”

2. The United Nations Model Autopsy Protocol

The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it note s that an abridged examination or report is never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report are required to prevent the omission or loss of important details:

“It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.”

In part 2(c), it state s that adequate photographs a re crucial for the thorough documentation of autopsy findings. Photographs should be comprehensive in scope and must confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report.

3. Report by Sir Nigel Rodley, Special Rapporteur on the Question of Torture, submitted pursuant to the United Nations Commission on Human Rights resolution 1999/32

The Special Rapporteur ' s report on Romania states, inter alia :

“ ... the system of investigation in which the military prosecutors have the ex clusive authority to investigate and prosecute is ineffective. At a minimum, there is a perception that the military prosecutors lack independence and impartiality ... [I]n most cases the investigations result in decisions not to prosecute. It is also of concern that the military prosecutors are assisted by the police in these investigations ... ”

COMPLAINTS

1. Relying on Article 2 of the Convention, the applicant complain ed that his brother had died as a result of intentional police mistreatment, that the failure of the police to provide adequate medical care for the victim following his arrest had resulted in his brother ' s death and that the authorities ha d failed to carry out a prompt, impartial and effective official investigation to determine the cause of the death.

2. The applicant complain ed under Article 3 of the Convention that his brother had been subjected to torture and inhuman and degrading treatment during his stay in police custody, from his arrest on 13 April 1996 until his admission to hospital on 16 April 1996, and that he had been subjected to inhuman and degrading treatment during his period in hospital from 16 April to 3 May 1996 , when , although he was in great pain and needed care and support, all contact with his family had been prohibited and police officers had been permanently in his ward. As his death had been caused by the most severe injuries, the treatment he had been subjected to amount ed to torture. The applicant claim ed that his brother had been tortured for the purpose of compelling him to admit to certain crimes.

He also complain ed that the Romanian authorities had failed to satisfy their obligation to carry out a prompt, impartial and effective investigation into the allegations that the victim had been subjected to torture and other forms of ill-treatment while in police custody.

3. The applicant claim ed that the decision of the prosecuting authorities not to open a criminal investigation in respect of the police officers responsible for the mistreatment of his brother ha d den ied him effective access to a court, in breach of Article 6 § 1 of the Convention. He complain ed that under Romanian law a victim could only in limited circumstances pursue a claim for civil damages in a separate lawsuit from the criminal trial and that in his case, in the absence of a decision ordering the opening of a criminal investigation or the indictment of the persons accused, he had had no possibility of bring ing his civil claim before a court.

4. The applicant also complain ed that the authorities ' failure to carry out a thorough and effective investigation into the violations of Articles 2 and 3 constitute d a violation of his right to an effective remedy before a national authority, in breach of Article 13 of the Convention.

5. Lastly , the applicant complain ed that his brother ' s death in custody, the ill-treatment to which he had been subjected and the refusal of the military prosecution authorities to open an investigation in respect of the police officers responsible had been partly due to his Roma ethnicity and had therefore been inconsistent with the requirement of non-discrimination set forth in Article 14 taken together with Articles 2, 3 and 13 of the Convention.

THE LAW

1. The ap plicant complain ed under Article 2 that his brother had died because of injuries intentionally inflicted by the police, who had failed to provide adequate medical treatment for these injuries which had ultimately led to his brother ' s death, and that the State authorities had failed to carry out a thorough and effective investigation.

Article 2 provides 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;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government submit ted that the applicant ' s brother had not been in perfect health when taken into police custody, as was clear from the notification of death addressed by the hospital to the prosecutor on 3 May 1996 . The cause of death had been non-violent and related to pre-existing diseases suffered by the applicant ' s brother .

They further contend ed that there was no medical evidence of any relationship between the pulmonary embolism and any possible trau m a caused by the car accident or by the alleged violence inflicted by the police. Moreover, thrombo - embolism could occur in the absence of any external cause or of any apparent symptoms , and sometimes sudden death could occur without any prior signs.

The Government contend ed that the fracture along the mid -clavic ular line had been caused by the resuscitation proce s s, that the bruise on the right iliac crest had most probably been caused by an accidental trauma occurr ing during the period spent in hospital , and that the scrotum lesions had been caused, as explained by the second forensic report, by the norm al post mortem drying process. As to the fact that both the provisional and the final autopsy reports had been produced by the same doctor, they point ed out that such a procedure had been required by the Forensic Medicine Institute. The Government agree d that the diagnosis of bronchopneumonia indicated in the death certificate issued on 4 May 1996 and the mention of the car accident of 13 April 1996 could have given rise to legitimate concerns about the real cause of death. While they found regrettable the contradiction between the various medical documents , they consider ed that the references in the death certificate issued on 4 May 1996 should not be regarded as established proof of the cause of death, since only the autopsy report determined the real cause of death.

The Government note d that the only evidence susta ining the thesis of police abus e were the extrajudicial testimonies of three persons, one of whom, the deceased ' s wi dow , Nela Carabulea, had constantly refused to give any information to the military prosecutor. The Government point ed out that there was no evidence of ill-treatment on the part of the police serious enough to lead to the thrombosis which had caused Mr Carabulea ' s death , and that in any event, the allegation that the death had resulted from trauma caused by police brutality had not been prove d beyond “ all reasonable doubt. ”

The Government also den ied that the authorities had failed to provide the applicant ' s br other with adequate medical care. During his stay in police custody , his health had gradually deteriorated , leading to the situation on 16 April 1996 , when he had been taken to a number of hospitals where he received adequate medical treatment, including a tomography and cardiac catheter isation , as was confirmed by the supplementary forensic report of 17 February 1998 .

The Government consider ed that the fact that Mr Carabulea had not been examined by a doctor within the first 24 hours of detention was not relevant, given that the cause of death, thrombo - embolism , had occurred on 16 April 1996 .

The Government submitted that there had been a prompt, impartial and effective investigation into the death. The investigation had lasted only three months and had ended on 20 August 1996 , when the prosecutor had iss u ed a decision of non-indictment. It was only because of the allegations by the applicant and a non-governmental organisation that the prosecutor had decided to reopen the proceedings. The new investigation had ended on 4 March 1998 with the prosecutor ' s renewed decision of non-indictment.

The Government further contend ed that the investigation had been eff e c t i v e and impartial. The prosecutor had relied entirely on the conclusions of the forensic expert. Since the applicant ha d not indicated any clear evidence to su pport the idea that the expert had had an interest in infringing the law and hiding the truth, this reliance on the conclusions of the forensic expert should not raise doubts concerning the effic ac y of the whole investigation. It was true that the relatives of the deceased had not been questioned, but the prosecutor had not been aware that they had seen Mr Carabulea while in hospital and that they therefore had relevant information. Moreover, the prosecutor had repeatedly asked the widow to come to his office, but she had refused to do so.

The applicant submitted in reply that the victim had shown no signs of physical violence at the time of his arrest and that he had been in good health . In particular, he had had no history of lung complaints , as stated by the P atho logy Institute that had examined him in 1995. Referring to the conclusions of the forensic expert S. from Semmelweis University, he point ed out that the autopsy reports referring to the presence of diseases were unreliable and that , in any event, those diseases (moderate myocardi al fibrosis, chronic c h olangitis and intersti tial nephritis) could not have led to Mr Carabulea ' s death under any circumstances. The disease of the victim ' s child , who had died at the age of 20 months , had no connection with the victim ' s purported diseases or with the injuries leading to his death, since the autopsy had found that the victim ' s veins were normal. The applicant further point ed out that , in the expert opinion submitted by the Government, the head of the Bucharest Forensic Medicine Institute had stated that the traffic accident had not cause d any external or internal lesions.

The applicant contend ed that the victim had suffered injuries during his stay in the police lock-up between 13 and 15 April 1996, as was clear from the objective findings of the doctors who had examined him : massive upper digestive haemorrhage, epigastri c pain, “coffee ground” vomiting, a deep state of shock , a “very recent trauma”, perihepatic haematoma , post-traumatic right heart disease , blood in the pleural cavity , etc . Even though some diagnos e s had later been changed to pulmonary embolism , they left completely unexplained certain findings like the “coffee ground” vomiting or perihepatic haematoma , which indicated a strong possibility of trauma . Some of the changes in diagnosis had resulted from “paraclinical information”, but no explanation had been given of what this expression meant. As the only witnesses who could have submitted information were the police officers who had been constantly guarding the victim, such information was not to be relied on.

The autopsy report s had observed three fractured ribs, which, according to the applicant, were consistent with the thora cic pain recorded in the medical documents, but had failed to provide any explanation or to describe the surrounding areas. The explanations provided later had been varied and contradictory: the car accident and the resuscitation proce s s, although the doctors had indicated clearly that the victim could not be resuscita ted , meaning that no such process had been attempted . The right iliac crest trauma had also been left unexplained , although, according to the forensic doctor, it had been more than 3-4 days old and could have been caused by the impact of a hard object. The scrotal lesion had been given a belated and unsatisfactory explanation, namely a post mortem lesion, despite the finding by the forensic doctor that the corpse had “no external signs of putrefaction. ”

The applicant stresse d that the medical file of the victim contain ed no indication of thrombo - embolism , as neither the doctors who examined the victim alive n or the forensic doctor found a blood clot which could have produced such a disorder .

The applicant consider ed that the autopsy had been defective in its fundamental aspects and had disregarded some basic requirements of the profession defined both at the international level ( United N ations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions , adopted by the United Nations in 1991 - see “Relevant international reports” above) , and at domestic level . For instance, the main organs of the corpse ( except the liver) had not been weighed, the full skelet al system had not been described, the ecchymos e s and fractures found had not been described, the diagnosis reached had been left unexplained and no toxicolog ical analyses had been carried out . Moreover, no photographs had been taken, although this was crucial for the thorough documentation of autopsy finding s .

The applicant conclude d that the Government had failed to provide any plausible or satisfactory explanation for the death of the victim , a healthy 27 - year - old, in police custody. He refer red in that connection to the Court ' s case-law ( Tanli v. Turkey , no. 26129/95, ECHR 2001-III , and Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII ) .

The applicant further contend ed that the whole range of traumatic lesions found on the victim ' s body had been consistent with his allegations – made when he had met members of his family in hospital – of torture and other physical violence during his time in police custody. He allege d that the beating techniques described by the victim , as well as the high frequency of ill-treatment in police custody , ha d been confirmed b y the findings of the Committee for the Prevention of Torture (CPT) in its report on Romania published on 19 February 1998 following a 1995 visit (see “Relevant international reports” above).

The applicant further claim ed that the authorities had failed to provide the victim with adequate medical care following his arrest , resulting in his death , in breach of Article 2 . He point ed out that the first medical examination had taken place 72 hours after the arrest, in violation of Romanian law, which require d all detainees to undergo a medical examination within the first 24 hours of detention, irrespective of their state of health or symptoms. By the time the victim was examined, he had been in a state of shock, with blood pressure of 5 and a pulse of 100. Despite the deteriorat ion in his condition , not only had he been taken to f ive different medical units on the same day (police dispensary, Ministry of Interior Hospital, Jilava Penitentiary Hospital, St. John ' s Hospital and Fundeni Hospital) , but also, prior to receiving medical treatment at 5 p.m. in Jilava Penitentiary Hospital , he had been taken to the public prosecutor, thus unduly delaying the medical treatment for more than three hours. The applicant state d that, contrary to the Government ' s allegations, there had been no need to take the victim to the prosecutor ' s office immediately after his medical examination at the Ministry of the Interior Hospital in Jilava, as an arrest warrant was not and could not have be en necessary in order to admit the victim to hospital . Despite his condition , on 16 April 1996 the victim had been transported between the various places in a police car lacking any medical assistance in terms of qualified personnel or medical equipment.

The applicant submitted that the differences between the diagnos e s issued at each of the medical unit s indicated their failure – whether intentional or not – to properly and completely identify the victim ' s illnesses and provide him with urgent and adequate treatment. The attendance by the police officers at all the medical examinations and at discussion s between the victim and the doctors , had definitely contributed to the incorrect and/or incomplete diagnos e s and had prevented the victim from freely revealing the causes of his symptoms . The applicant also complain ed that both the police officers and the medical staff had kept the victim ' s family away from him and that the medical staff had avoided any discussion and had refused to inform the family about the victim ' s state of health.

The applicant allege d that the domestic authorities had failed to carry out a n effective, prompt and impartial investigation. The prosecutor had had a duty to investigate of his own motion Gabriel Carabulea ' s death in custody , irrespective of the criminal complaint lodged by the victim ' s family.

The applicant submit ted that t he prosecutor had failed to check all the discrepancies in the medical documents, to examine why the victim had felt sick at the lock-up, to question the medical staff in the institutions where the victim had been taken, t o identify the reasons why the victim had had to be taken to f our different hospitals and – even more damaging for his state of health – to the police lock-up and to the prosecutor ' s office . I n his on-site report of 3 May 1996 , he had recorded false medical information about the lack of any external lesions ; he had not inform ed the family of the victim ' s death ; and he had failed to question important witnesses – all the police officers who had guarded the victim during his stay in the hospitals, the victim ' s family , the persons who had talked to him before his death , the driver of the vehicle with which the victim ' s car collided on 13 April 1996, and all persons with whom the victim had come into contact since his arrest, including police officers, prosecutors, lawyers , etc.

The applicant submitted that the investigation had not been prompt, as it had started in May 1996 and di d not end until March 1998.

He further allege d that the inv estigation had lacked impartiality . F orensic experts we re closely linked to the police , prosecutors and the executive branch in general. According to Decree no. 446/1966 , as in force at the time of events, it was for the local councils to bear the expenses and the transport costs of forensic doctors, and instructions issued by the Ministry of Health on forensic activities and services had to receive the prior approval of the Ministry of the Interior, Ministry of Justice and the Procurator- General ' s Office. P olice, prosecutors and forensic experts saw each other as St ate agents and colleagues. Generally speaking, investigators and the courts could only resort to the services of forensic experts belonging to forensic institutes.

Relying on the Hugh Jordan v. United Kingdom judgment (no. 24746/94, ECHR 2001-III, annex to the McKerr judgment), the applicant claim ed that military prosecutors lack ed independence. In the present case, not only had the investigating military prosecutor lack ed independence from the police officers owing to their institutional connection, but he had also failed to demonstrate his independence in practice . The applicant submit ted that , by virtue of Law no. 54/1993 on the Organisation of Military Courts and Prosecutor ' s Offices, military prosecutors ha d military grades and enjoy ed all the privileges of military officers, including promotion in accordance with the military system. Military prosecutors we re accountable for violation s of military disciplinary rules, and their salaries we re paid by the Ministry of Defence and we re higher than those paid to civilian prosecutors. As serving officers, they we re subject to promotion or demotion by the Ministry of Defence, which, in addition, was empowered to end the judicial career of a military prosecut or.

The police, at the time of the events, had also been a military body , and as members of the military “ family ” , military prosecutors often displayed solidarity to their “ brethren ” . Moreover, the police assist ed military prosecutors in investigations concerning the police. The applicant claim ed that such a system of investigation raise d doubt s as to the independence and impartiality of the prosecutors and refer red to the r eport by Sir Nigel Rodley, Special R apporteu r of the United Nations Commission on Human Rights on the Q uestion of Torture (see “Relevant international reports” above).

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complain ed under Article 3 of the Convention that his brother had been subjected to torture, inhuman and degrading treatment during his stay in police custody until 16 April 1996 , and that he had been subjected to inhuman and degrading treatment during his period in hospital from 16 April to 3 May 1996 . He also complain ed that the Romanian authorities had failed to satisfy their obligation to carry out a prompt, impartial and effective investigation into the allegations of ill-treatment (see “Relevant international reports” above).

Article 3 reads as follows :

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

The Government submit ted that the investigation to establish the cause of death had ruled out the possibility of any police violence. As for the allegation of a lack of eff e ct ive investigation, they point ed out that the reasoning developed above under Article 2 h e ld true for Article 3.

The Government den ied any wilful intention to separate the detainee from his family during his stay in hospital, and point ed out that , since he was under arrest, visits had had to be approved by the investigating authority and had to be recorded in the p rison file. No such request for a visit had been made in th is case. Therefore, the authorities had lawfully refused his family the right to visit him.

The applicant allege d that the whole range of traumatic lesions found on the victim ' s body and mentioned above under Article 2, as well as the Government ' s failure to provide a credible alternative explanation for the victim ' s death , prove d that he had been subjected to physical violence in police custody , and that some of the mistreatment had clearly attained the level of torture.

He further alle ge d that the permanent presence of the police in the victim ' s hospital ward, despite his great pain , and the absence of free contact with his family at a time when he had needed great care and support , amounted to inhuman and degrading treatment. The applicant disputed the Government ' s argument that no official request for a visit had been made and point ed out that the oral requests by the family members and friends who had gone to Fundeni Hospital to see the victim should have been treated as official requests .

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant claim ed that the decision of the prosecuting authorities not to open a criminal investigation in respect of the police officers responsible for the mistreatment of his brother had den ied him effective access to a court, in breach of Article 6 § 1 of the Convention, which in its relevant part provides :

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time b y an independent and impartial tribunal established by law ... ”

The Government raise d a preliminary exception of non-exhaustion of domestic remedies and contend ed that, despite the prosecutor ' s decision of non-indictment, the applicant could have br ought a civil action , under Articles 999 and 1000 of the Civil Code , against the police officers allegedly responsible for the ill-treatment of his brother if the police were shown to have caused damage for which they could be held liable . They also contend e d that Article 22 of the Code of Criminal Procedure was not an obstacle preventing the applicant from bringing such a n action. Moreover, the right of access to court did not include a right to bring criminal proceedings against a third person and rel ied in this respect on the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998 , Reports of Judgments and Decisions 1998-VIII).

The Government stress ed that Romanian law distinguishe d between criminal and civil liability and point ed out that , whereas carelessness or negligence could give rise to civil liability, liability under the criminal law concerned only the most serious forms of fault. In c ontra st , civil liability was incurred even in the case of the least significant fault. The Government submit ted some examples of domestic case law where, despite a n acquittal by a criminal court, the civil court s had examined civil liability having regard to the damage sustained , to the liability of the person who had caused it and to the causal link between these elements.

The applicant state d that filing a civil action in accordance with Articles 998-999 and 1000 § 3 of the Civil Code would have been neither accessible nor effective . The decision of non-indictment had been based on Article 10 ( a) (the facts do not exist) and ( b) (the facts are not punishable under the criminal law) of the Code of Criminal Procedure , and had stated explicitly that the victim ' s death had resulted from natural and non-violent causes , for which no one could be held responsible. As the police officers had been found innocent on the legal ground that the facts “did not exist”, there had been no facts capable of giving rise to civil damages.

The applicant allege d that the domestic case-law put forward by the Government was irrelevant . While in the instant case the prosecutor had considered that “the facts did not exist” , in the cases submitted by the Government the “facts” had been confirmed by the decisions of non-indictment and the responsible individuals had been identified.

The applicant stresse d that the Government had admitted in the ir observations in the case of Notar v. Romania (no. 42860/98 , decision of 13 November 2003) that the issue of civil liability could only be raised where the facts had been found to exist.

He indicate d that this was also the opinion of various specialists in criminal procedural law and referred to the “Treat ise on criminal procedural law” by N. Volonciu , professor at the Bucharest Faculty of Law.

Finally, the applicant submit ted that the Court ' s findings in the cases of Hamer v. France ( judgment of 7 August 1996 , Reports 1996-III) and Assenov v. Bulgaria ( cited above ) , invoked by the Government , did not apply in the instant case. On the one hand, Romanian law differ ed from French law , and in the instant case the applicant had had no opportunity to seek damages during a trial , as the decision of non-indictment had precluded that. On the other ha n d, contrary to the Bulgarian legal system , where a Law on State Responsibility for Damage provide d for the right to sue the police in the civil courts following alleged ill-treatment, the Romanian l egal system ha d no such legislation.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as in theory , failing which they will lack the requisite accessibility and effectiveness (see, amongst other authoritie s, Aksoy v. Turkey , judgment of 18 December 1996 , Reports 1996-VI, p. 2276, § 52) .

I n its approach to the application of th is rule, the Court must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights . Moreover, Article 35 must be applied with some degree of flexibility and without excessive formalism, the rule of exhaustion being neither absolute nor capable of being applied automatically. For the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court m u st take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned , but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Salman v. Turkey , cited above, p. 393, § 86).

The Court considers that the Government ' s preliminary objection raises issues concerning the effectiveness of the civil remedy to which they referred that are closely linked to the merits of the applicant ' s complaint . Consequently, it joins the preliminary objection to the merits.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicant also complain ed that the authorities ' failure to carry out a thorough and effective investigation of the violations of Articles 2 and 3 constitute d a violation of his right to an effective remedy before a national authority, in breach of Article 13 of the Convention , which reads as follows :

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

The Government submit ted that the prosecutor had conducted an effective investigation into the circumstances of Gabriel Carabulea ' s death and refer red to their reasoning above under Article 2. They al so refer red to the arguments submitted under Article 6 of the Convention and contend ed that the relatives of the victim had also had the possibility of initiat ing a civil claim for compensation before a civil court.

Invoking the Salman v. Turkey judgment cited above , t he applicant allege d that the Romanian authorities had failed to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life of his brother , and that he had thus been denied access to any other available remedies, including a claim for compensation.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. Lastly , the applicant complain ed that his brother ' s death in custody, the ill-treatment to which he had been subjected and the refusal of the military prosecution authorities to open an investigation in respect of the police officers responsible , had been partly due to his Roma ethnicity , and had therefore been inconsistent with the requirement of non-discrimination set forth in Article 14 , taken together with Articles 2, 3, and 13 of the Convention. Article 14 of the Convention provides :

“The enjoyment of the rights and freedoms set forth in [the] 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 status.”

The Government submit ted in the first place that the Court was not called upon to examine the general situation of the Roma minority in Romania . In the present case, they contend ed that the complaint was unsubstantiated and point ed out that the prosecution and police files contained no indication of the victim ' s ethnicity, which had become known to the Government only after the present application had been filed with the Court.

The applicant claim ed that the Court should consider the difficulty in prov ing a psychological attitude such as discrimination. Therefore, he submit ted that his claim should be assessed within the context of the well-documented (by Am n esty International, the European Roma Rights Centre and other non-governmental organisations ) and repeated failure by the Romanian authorities to remedy instances of anti-Roma violence and to provide redress for discrimination.

He allege d that there was deep - rooted intolerance towards Roma in Romania , and that the failure of the authorities to act where Roma we re victims of State agents ' misconduct wa s one particular area where such intolerance was obvious.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

S . Doll é J . -P . Costa Registrar President