FOURTH SECTION

DECISION

Application no. 20676/16 Gheorghe MATACHE against Romania

The European Court of Human Rights (Fourth Section), sitting on 17 December 2019 as a Committee composed of:

Faris Vehabović , President, Iulia Antoanella Motoc, Carlo Ranzoni, judges , and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 25 May 2016,

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 Matache , is a Romanian national, who was born in 1976 and lives in Bucharest. He was represented before the Court by Ms C.D. Tudor, a lawyer practising in Bucharest.

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms Simona-Maya Teodoroiu , from the Ministry of Foreign Affairs.

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

4 . On 15 August 2014 at 10.24 p.m. one of the applicant ’ s neighbours called the police to complain about the fact that the applicant had been listening to music very loudly in his room. The police arrived and verbally warned the applicant, without sanctioning him in any other manner.

5 . After midnight, the applicant went into his taxi, which was parked in the courtyard, and played the car stereo at a very high volume, while drinking alcohol.

6 . On 16 August 2014 at approximately 1.30 a.m. V.S., another neighbour of the applicant, came out of his apartment, disturbed by the noise. The discussions with the applicant escalated and the latter, who by that time was severely intoxicated, stabbed V. S. with a knife, which had penetrated 33 cm in the latter ’ s abdominal area.

7 . V. S. ’ s partner, D.D., who had witnessed the incident, had called out for help from the neighbours; at 1.54 a.m. she had also called the emergency line 112 to ask for a police intervention.

8 . Two police agents, V.F. and A.S., arrived at the scene shortly thereafter. They saw V.S. lying on the ground, visibly and severely wounded. He told the agents that he had been stabbed by the applicant, an intoxicated and dangerous person.

9 . While calling for an ambulance as well as for a back-up unit, the agents entered the building to search for the applicant. Initially he refused to come out, being verbally aggressive, following which he forced his way out and tried to block himself in the taxi car.

10 . In order to remove the applicant from the car and to immobilise and handcuff him, the police agents used force against him, namely they hit the applicant ’ s legs with their tonfas .

11 . By that time a second police unit, namely agents F.B. and V.G., arrived on the spot. While the applicant was escorted to the police car, the knife was found inside the building and collected as evidence; several witnesses, including D.D. were taken to the police station to be interrogated.

12 . Due to his severe state of intoxication, the applicant could not be heard immediately, nor involved in any other way in the proceedings. Such procedural acts were carried out starting with 12.15 p.m., in the presence of the applicant ’ s appointed lawyer.

13 . The applicant was placed in custody for 24 hours; before being sent to the police station detention facility, he was subjected to a medical check-up, which revealed that he had traces of violence on his lower parts of the body.

14 . By a final judgment of 23 September 2015 the Bucharest Court of Appeal convicted the applicant for attempted murder and sentenced him to six years of imprisonment. In its reasoning, the court held that the applicant acted with the intention of killing the victim V.S. and also that “the applicant ’ s violent behaviour determined the police agents to make use of force so as to be able to take him to the police station”.

15 . On 13 October 2014 the applicant filed a criminal complaint against the two police agents V.F. and A.S. (see paragraph 8 above), claiming that they had ill-treated him both upon apprehension, as well as while at the police station.

16 . The Government contended that force was used against the applicant only upon apprehension; once arrived at the police station, the applicant, severely intoxicated, laid down on the floor and fell asleep (see also paragraph 12 above). This version of facts is supported also by the statement of the witness D.D., who declared that while she was at the police station, namely until 7.30 a.m., she did not see or hear any signs of aggression against the applicant, who was sitting handcuffed in a hallway.

17 . On 23 January 2015 a medical report was issued, based on the medical examination of the applicant as well as the previous medical documents relating to his injuries dating from 16 August 2014 (see paragraph 13 above). The report concluded that the injuries were all on the legs and that they had been inflicted with a hard object. They needed twelve to fourteen days of medical care, without however being of such a nature as to put the victim ’ s life at risk, or to determine other severe consequences.

18 . The prosecutor heard the applicant, the two police agents V.F. and A.S., the victim V.S., his partner D.D. as well as the other two police officers, F.B. and V.G. (see paragraph 11 above).

19 . Based on the above-mentioned evidence, as well as on the domestic courts ’ findings in the criminal proceedings against the applicant (see paragraph 14 above), the prosecutor decided on 31 October 2016 to discontinue ( clasare ) the criminal proceedings against agents V.F. and A.S. based on Article 16 § 1 subparagraph (b) of the Criminal Code of Procedure (hereinafter “the CCP”, see paragraph 21 below), finding that the act committed was not proscribed by criminal law, but on the contrary, that the police intervention had been lawful.

20 . There is no indication in the file showing that the applicant has challenged this decision.

21 . Article 16 § 1 of the Criminal Code of Procedure provides that criminal proceedings cannot be instituted and, if instituted, cannot be continued if, inter alia , the act committed is not proscribed by criminal law or was not committed with the mens rea requ ired by law (sub ‑ paragraph (b)).

22 . The prosecutor ’ s decisions can be challenged by the victim first before the higher-ranking prosecutor under Article 399 of the CCP and then, if the latter dismisses the complaint, before the judge of the pre-trial chamber (Articles 340-42 of the CCP). Under Article 340 of the CCP an applicant can lodge an appeal against the decision of the higher-ranking prosecutor within twenty days of the date on which the decision was communicated to him.

COMPLAINTS

23 . The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment by police officers and that the ensuing criminal investigation into the incident had been ineffective.

THE LAW

24 . The applicant complained of the ill-treatment to which he had allegedly been subjected on 16 August 2014 and of the lack of an effective investigation. He relied on Article 3 of the Convention, which reads as follows:

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

25 . The Government submitted that the applicant had failed to exhaust effective domestic remedies as he had failed to challenge the prosecutor ’ s decision of 30 October 2016 deciding to discontinue the criminal investigation into the events of 16 August 2016. The applicant could have lodged an appeal against this before the higher-ranking prosecutor, and the latter ’ s decision could have also been challenged within twenty days of the date on which the prosecutor ’ s decision had been communicated to him on the basis of Article 340 of the CCP (see paragraph 22 above).

26 . Without indicating whether he ever challenged the prosecutor ’ s decision of 30 October 2016, and without relying on any specific reasons to justify why the decision was not challenged, the applicant merely indicated that while the use of force had been acknowledged by the Government, the investigation thereto was defective.

27 . The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged, first of all, to use the remedies provided by the national legal system (see Mocanu and Others v. Romania [GC] , nos. 10865/09 and 2 others, § 221, ECHR 2014 (extracts)).

28 . The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 85, 9 July 2015).

29 . Turning to the present case, the Court notes that the Government submitted that the applicant had failed to challenge the prosecutor ’ s decision of 30 October 2016 as allowed by Article 399 of the CCP, and that the applicant has neither rebutted the Government ’ s submission, nor proved it otherwise.

30 . Furthermore, the applicant has not argued that the said remedy was ineffective, inadequate or unavailable to him for any reason.

31 . Having regard to the above considerations, the Court sees no reason to justify the applicant ’ s failure to have recourse to the available remedies provided for by the domestic legal system (see Ali v. Romania , no. 20307/02, § 58, 9 November 2010; and conversely, Cobzaru v. Romania , no. 48254/99, § 55, 26 July 2007).

32 . The application must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 January 2020 .

Andrea Tamietti Faris Vehabović Deputy Registrar President