FOURTH SECTION

DECISION

Application no . 58616/13 Ioan CIOBAN and others against Romania

The European Court of Human Rights (Fourth Section), sitting on 25 April 2017 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Iulia Motoc, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 6 September 2013,

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

Having regard to the comments submitted by the European Roma Rights Centre which has been invited to submit written comments pursuant to Article 36 § 2 of the Convention,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They are all Romanian nationals and were represented before the Court by Mr A. Nastea, a lawyer practising in Oradea.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Background of the case

4. On 18 May 2009 the applicants, who are of Roma origin, were approached by officers of the Oradea local police outside a shopping centre in Oradea. The officers accused them of having parked their cars on a forbidden area and of having littered the public space. The applicants denied the facts and pointed out that there were many cars and people in the area who could have thrown the rubbish. The police officers told them that the complaint identified a group of Roma as the wrongdoers. The applicants denied again and retorted that several other Roma groups had been present in the area. Meanwhile, four more officers of the Oradea county police arrived.

5. According to the applicants ’ version of events, as they refused to sign the offence report ( procesul verbal de contravenţie ), the police officers threatened them and then physically and verbally aggressed them. The first applicant tried to film the scene with his mobile phone. When the police officers noticed him, they dragged him out of the car, hit him while handcuffing him and then took him to the police station where they forced him to sign the offence report. He was not allowed to read the report beforehand.

6. On 20 May 2009 the first applicant was examined by a forensic doctor who established that the injuries suffered needed five to six days of medical care.

2. Criminal proceedings into the incidents

7. On 1 April 2010 the applicants lodged a criminal complaint against the police officers. The prosecutor ’ s office attached to Oradea District Court was responsible for supervising the investigations. Evidence was heard from the applicants, the police officers and a witness who, according to the applicants, had not been present when the aggression had occurred. The statements made by the applicants ’ family members who had been present at the events had been allegedly ignored by the prosecutor, on the grounds that they had been biased and contradicted the police officers ’ description of the events.

8 . During the proceedings, the applicants chose as address for the purpose of notification of documents that of their lawyer and informed the authorities of their choice.

9 . After lodging their criminal complaint, the applicants did not receive information on the course of the investigation. Their lawyer filed several requests for information with the prosecutor ’ s office (on 11 May, 12 July and 3 November 2011 and 6 November 2012).

10. On 17 May 2011 the prosecutor ’ s office sent a letter to the applicants at their lawyer ’ s address, informing them that the investigation was ongoing.

11 . On 10 November 2011 the prosecutor ’ s office decided not to start criminal proceedings in the case ( neînceperea urm ă ririi penale ). On 23 November 2011 this decision was notified to the applicants ’ address. Each applicant received it personally. No communication was made to the lawyer ’ s address.

12 . Following a new request lodged by the applicants ’ representative, on 12 November 2012 the latter was informed of the content of the decision of 10 November 2011 and that the applicants had received it on 23 November 2011.

13 . On 29 November 2012 the applicants complained with the prosecutor-in-chief against the decision of 10 November 2011. They did not complain that the decision had been notified incorrectly.

14. On 10 December 2012 the prosecutor-in-chief dismissed their appeal as out of time. He noted that the complaint should have been lodged within 20 days from the date when the decision had been sent to the applicants. The prosecutor-in-chief sent his decision to the lawyer ’ s address on 19 December 2012.

15 . The applicants appealed before the Oradea District Court. They did not raise the matter of how the prosecutor ’ s decision of 10 November 2011 had been notified.

16. On 8 March 2013 the Oradea District Court upheld the prosecutors ’ decisions and found that the applicants ’ complaint of 29 November 2012 had been introduced out of time. Consequently it did not examine the merits of the complaint.

B. Relevant domestic law

17 . According to Article 177 of the Code of Criminal Procedure as it was applicable at the date when the facts of the present case occurred (“the CCP”), the procedural acts were notified at the address indicated by the interested party.

18. Under Article 246 of the CCP, the prosecutor ’ s decision not to prosecute was notified to the person having lodged the criminal complaint, to the accused and to any other interested party.

19 . Within twenty days after notification the interested party could object to the decision and the objection would be examined by the prosecutor-in-chief (Article 278 of the CCP). If the objection was dismissed, the interested party had twenty days from the notification of that decision to lodge a complaint with the courts (Article 278 1 of the CCP).

COMPLAINTS

20. The applicants complained under Articles 6 § 1 and 13 of the Convention that the investigation into their allegations of ill-treatment had not been effective. Under Articles 5 and 14 of the Convention, they contended that they had been aggressed by the police officers because of their Roma origin.

THE LAW

21. According to the applicants, the investigation into their allegations of ill-treatment had been superficial, leaving them without any means to seek justice for the violation of their rights. The applicants also alleged that they had been approached and subsequently aggressed by the police officers because of their Roma origin. Furthermore, the police officers ’ discriminatory attitude was condoned by the court which denied them any effective means to seek redress.

The applicants invoked Articles 5, 6 § 1, 13 and 14 of the Convention, which, in so far as relevant, read as follows:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(...)

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(...).”

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“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.”

Article 14

“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.”

A. The parties ’ submissions

22. The Government argued that if the applicants had considered that there were no effective remedies to complain about the alleged infringement of their rights, they should have lodged their application with the Court no later than 13 December 2011. The six-month time-limit ran from the date when the prosecutor ’ s decision of 10 November 2011 became final, twenty days after its notification to the applicants (see paragraph 11 above).

23. The Government further argued that the applicants should have challenged the prosecutor ’ s decision of 10 November 2011 within the twenty-day time-limit set by the domestic law (see paragraph 19 above). They pointed out that the applicants had become aware of the prosecutor ’ s decision at the latest by the end of 2011 when the decision had been communicated to their address (see paragraph 11 above).

24. Lastly, the Government argued that the applicants had not raised the issue of discrimination with the domestic authorities, namely the judicial organs or the National Council against Discrimination.

25. The applicants contested all the arguments raised by the Government in their observations.

26 . The third party intervener argued that their experience working with the Roma victims of hate crimes in Romania gave them reason to suspect that the notification of decisions not to prosecute directly to the victims instead of their lawyer was a prosecutorial practice designed to minimise the probability of an appeal being lodged. They contended that there was no remedy in the domestic law if notice of a decision did not reach the victim of a crime because it had not been sent, as requested, at the lawyer ’ s address.

B. The Court ’ s assessment

27. The Court makes reference to the general principles concerning the exhaustion of domestic remedies, at they have been articulated and reiterated in its recent case-law (see, for example, M.C. and A.C. v. Romania , no. 12060/12 , §§ 57-60, 12 April 2016).

28. Turning to the facts of the case, the Court notes that the prosecutor ’ s decision of 10 November 2011, refusing to prosecute the police officers involved in the incident of 18 May 2009, was communicated to the applicants ’ address on 23 November 2011. The applicants did not contest having received a copy of this decision, and from this point of view their situation differs from the one described by the third party intervener, namely that of a victim who was not reached by a notification in person (see paragraph 26 above). However, despite being aware of the content of the decision, the applicants waited until 29 November 2012 to complain with the prosecutor-in-chief against it (see paragraphs 11 and 13 above). Their complaint was therefore not lodged within the twenty-day time-limit set by the law in force at the relevant time (see paragraph 19 above).

29. The Court notes that according to the applicable law (see paragraph 17 above), the decision at issue should have been notified to the applicants ’ lawyer, as his address had been chosen for the correspondence (see paragraph 8 above). Notwithstanding the procedural shortcoming – that it had been notified to the applicants ’ address (see paragraph 11 above) –, the Court considers that such a notification made them aware of the content of the decision not to prosecute, thus enabling them to take further steps, either by consulting with their lawyer or by asking him to lodge an appeal. As the applicants failed to take these initiatives in a timely manner, they missed the opportunity to alert the authorities about their grievances.

30. Moreover, the Court notes that the applicants did not complain with the domestic authorities about the wrongful notification (see paragraphs 13 and 15 above). It was only in their application with the Court that they raised for the first time the matter of the notification. They have therefore effectively prevented the authorities from examining the impact of the notification on their procedural rights and, if need be, correcting a procedural fault. The Court has established that when properly conducted, the criminal investigation constituted an effective domestic remedy for complaints concerning ill-treatment and for the issue of discrimination (see, notably, M.C. and A.C. v. Romania , cited above, § 61). As the applicants did not bring any argument to the contrary, the Court sees no reasons to depart in the present case from the above finding.

31. It follows that in failing to meet the relevant time-limit and to complain with the domestic authorities about the manner in which the prosecutor ’ s decisions had been notified to them, the applicants had prevented those authorities from dealing with their grievance in the first place. They therefore failed to properly exhaust the domestic remedies which were available to them.

32. Accordingly, the application must 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 18 May 2017 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President

Appendix