FOURTH SECTION

DECISION

Application no . 24587/13 Florin URZICÄ‚ against Romania

The European Court of Human Rights (Fourth Section), sitting on 4 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 8 April 2013,

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 Florin Urzică, is a Romanian national, who was born in 1969 and is detained in Jilava Prison.

2 . He had been granted legal aid and was represented before the Court by Ms D. O. Hatneanu and Mr S. Grecu, lawyers practising in Bucharest.

3. 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

4. On 29 February 2012 the applicant was arrested on suspicion of theft and brought to Bucharest police station. He alleged that he had been beaten by police officers during his arrest and at the premises of the police station to force a confession to a few thefts.

5. On the same day, the applicant was taken to the prosecutor ’ s office attached to the Bucharest District Court to be questioned. As he complained of strong pain in the cervical area and his upper jaw, an ambulance took him to Bucharest Emergency Hospital.

6. According to the medical certificate produced upon his discharge from hospital on 1 March 2012, the applicant had facial injuries with severe black eyes and an injury on his right leg. He was also diagnosed with a cervical spine injury and it was recommended that he use a cervical collar for fourteen days.

7. The applicant brought criminal proceedings against the police officers involved in his arrest and questioning, complaining of ill-treatment.

8. On 11 March 2014 the prosecutor ’ s office attached to the Bucharest Court of Appeal decided to open a criminal investigation concerning the offences of abusive behaviour and torture.

9. On 21 March 2014 the prosecutor ’ s office decided not to institute criminal proceedings, finding that the violence to which the applicant had been subjected had not been committed by the defendants.

10 . The applicant challenged that decision before the chief prosecutor. By a decision of 14 April 2014 the chief prosecutor partly allowed the complaint. It changed the legal basis for the discontinuation of the investigation from Article 16 § 1 (c) into Article 16 § 1 (b) of the Code of Criminal Procedure (“the CCP”) . Thus, instead of dismissing the complaint on the grounds that the ill-treatment had been committed by other persons, it found that the police officers had caused the injuries but without intention. It noted that according to the evidence in the file the applicant ’ s injuries mentioned in the medical documents had been caused because he had resisted arrest when caught red-handed.

11 . The applicant was notified of the decision on the s ame day . In a letter accompanying the decision, it was mentioned that his co mplaint had been allowed and that he could challenge the decision before a more senior prosecutor under Article 399 of the CCP within twenty days. However, the applicant did not lodge an appeal against the chief prosecutor ’ s decision.

B. Relevant domestic law

12 . On 1 February 2014 a new CCP entered into force.

13. Article 16 § 1 of the CCP 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 required by law (sub-paragraph (b)) and/or if there is no evidence that the defendant committed the offence (sub-paragraph (c)).

14 . The prosecutor ’ s decisions can be challenged by the victim first before the chief prosecutor under Article 399 of the CCP and then, if the former 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 chief prosecutor within twenty days of the date on which the decision was communicated to him.

15 . The Constitutional Court held in its decision no. 599 of 21 October 2014 published in the Official Gazette no. 866 of 5 December 2014 that Article 341 § 5 of the CCP was unconstitutional. It considered that the procedure by which the pre-trial chamber judge decided on a complaint against decisions of non-prosecution or dismissal of charges “without the participation of the individual bringing the complaint , the prosecutor and the defendant” infringed the right to a fair trial in terms of the adversarial and oral arguments principles.

16 . Pursuant to Article 147 § 4 of the Romanian Constitution republished on 31 October 2003, “[d ]ecisions of the Constitutional Court shall be published in the Official Gazette of Romania. As of their publication, decisions shall be generally binding and effective only for the future”. Pursuant to Article 147 § 1 of the Constitution, the provisions of the laws, ordinances and regulations in force found to be unconstitutional cease to have legal force within forty-five days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring the said provisions into line with the provisions of the Constitution.

COMPLAINTS

17. 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

18. The applicant complained of the ill-treatment to which he had allegedly been subjected on 29 February 2012 and 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.”

A . The parties ’ submissions

19. The Government submitted that the applicant had failed to exhaust effective domestic remedies as he had failed to challenge the chief prosecutor ’ s decision of 14 April 2014 upholding the termination of the criminal investigation into the events of 29 February 2012. The applicant could have lodged an appeal against the decision 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 14 above).

20 . The applicant submitted that the pre-trial chamber procedure initiated by lodging a complaint against the prosecutor ’ s decision under Article 340 of the CCP could not be considered an effective remedy for the establishment of the facts and circumstances of his ill ‑ treatment as Article 341 § 5, which governs the pre-trial chamber procedure, had been declared unconstitutional by the Constitutional Court in a decision delivered on 21 October 2014 (see paragraph 15 above). In that decision the Constitutional Court had held that the new pre-trial chamber procedure had been non ‑ compliant with the principle of adversarial proceedings and equality of arms and that this had therefore exempted him from the obligation to pursue the remedy proposed by the Government.

21 . The applicant also claimed that the letter accompanying the chief prosecutor ’ s decision had provided him with partial, confusing and misleading information. Firstly, in the letter it had been stated that his challenge to the prosecutor ’ s decision of 21 March 2014 had been allowed. The applicant acknowledged that he had also received the chief prosecutor ’ s decision stating that the chief prosecutor had only changed the legal basis for dismissing his criminal complaint (see paragraph 10 above). However, the applicant, given his lack of education, had not been able to understand that his criminal complaint had in fact been dismissed. Moreover, the letter had contained misleading information concerning the possible challenges to the chief prosecutor ’ s decision of 14 April 2014. Thus, the letter had stated that the applicant could challenge the decision before a more senior prosecutor under Article 399 of the CCP (see paragraph 11 above), a remedy that the applicant had already exhausted, and had not mentioned at all lodging a challenge with the judge of the pre-trial chamber under Article 340 of the CCP. The applicant concluded by pointing out that he could not be held liable for not exhausting domestic remedies given the recent coming into force of the new CCP, his vulnerability due to his incarceration, and his lack of education and financial means to hire a lawyer.

B. The Court ’ s assessment

22. 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, 45886/07 and 32431/08 , § 221, ECHR 2014 (extracts) ).

23. 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).

24. On the contrary, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey , 16 September 1996, § 67, Reports of Judgments and Decisions 1996-IV ). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 et al. , § 74, 25 March 2014 ). On the contrary, it is in the applicant ’ s interests to apply to the appropriate court to give it the opportunity to develop existing rights through its power of interpretation (see Ciupercescu v. Romania , no. 3 5555/03, § 169, 15 June 2010).

25. In reviewing whether the rule on exhaustion has been observed, it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others , cited above, § 69, and Baumann v. France , no. 33592/96, § 40, ECHR 2001-V).

26. In response to the Government ’ s objection that the applicant failed to appeal to the pre-trial chamber judge against the chief prosecutor ’ s decision of 14 April 2014 under Article 340 of the CCP, the Court observes that the remedy in question entered into force on 1 February 2014 following the adoption of a new CCP (see paragraph 12 above).

27 . Under Article 340 of the new CCP the applicant could have lodged a complaint against the chief prosecutor ’ s decision not to institute criminal proceedings against his alleged aggressors within twenty days of the day on which that decision had been commun icated to him (see paragraph 14 above).

28. The Court notes that the applicant did not lodge a complaint against the chief prosecutor ’ s decision claiming that: (i) the domestic authorities had provided him with misleading information concerning the remedy he had had to pursue; (ii) he had lacked the level of education to understand that his complaint had been dismissed; and (iii) the procedure before the pre ‑ trial judge could not be considered as an effective remedy as the article of the CCP, which governs the pre-trial chamber procedure, had been declared unconstitutional by the Constitutional Court on 21 October 2014 (see paragraphs 20 and 21 above).

29. The lack of education or the claim that he had received misleading information about the domestic procedure he had to follow in order to challenge the chief prosecutor ’ s decision cannot, in the eyes of the Court, discharge the applicant – a person with full legal capacity – from the obligation to pursue the domestic proceedings for the following reasons. While it is true that by simple error the chief prosecutor had informed the applicant that he could lodge a complaint against his decision with “a more senior prosecutor” under Article 399 of the CCP (see paragraph 11 above), the Court notes that instead of trying to understand why the same legal avenue that he had already pursued had been indicated to him, the applicant preferred to remain passive and to later invoke that he was not aware of the applicable legal provisions concerning an appeal with the judge of the pre ‑ trial chamber. If he had really wished to challenge the decision he could have lodged a complaint against that decision with the chief prosecutor under Article 399 of the CCP, as indicated in the letter accompanying the decision. That undertaking would have made clear to the domestic authorities that he intended to challenge the chief prosecutor ’ s decision. Moreover, the chief prosecutor had a legal obligation to send the complaint to the competent authority, which in the present case was the judge of the pre-trial chamber. In addition, the Court notes that the applicant was not prevented from seeking the assistance of a lawyer, who could have advised him about the procedure to follow. In his situation he could have applied for legal aid as he had done in the proceedings before the Court (see paragraph 2 above).

30. As regards the applicant ’ s allegation that the procedure before the pre ‑ trial chamber was not an effective remedy, the Court notes that on 21 October 2014 the Consti tutional Court declared Article 345 § 1 of the CCP unconstitutional on account of the fact that the procedure by which the pre ‑ trial chamber judge decided on a complaint against decisions of non ‑ prosecution or dismissal of charges infringed the right to a fair trial in terms of the adversarial and oral arguments principles (see paragraph 15 above).

31. However, the Court further notes that according to the Romanian Constitution, the Constitutional Court ’ s decisions become binding and effective only after their publication in the Official Gazette and have effects only for the future (see paragraph 16 above). In the present case, the Constitutional Court ’ s decision concerning the unfairness of the pre-trial chamber procedure was published in the Official Gazette on 5 December 2014, a few months after the expiry of the applicant ’ s deadline for lodging an appeal with the pre-trial judge.

32. The Court therefore considers that at the time the applicant should have lodged an appeal with the judge of the pre-trial chamber in April or beginning of May 2014, he had no reason to doubt the effectiveness of the new procedure. Accordingly, he could not claim to be certain of the lack of prospect of success of a complaint raised under these circumstances. Moreover, t he Court cannot speculate as to what would have been the outcome of such an action.

33. For these reasons, the Court concludes that the arguments put forward by the applicant to justify not challenging the decision of the chief prosecutor are unconvincing. 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 4 May 2017 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President