Communicated on 17 April 2014

THIRD SECTION

Application no. 57467/10 Liviu SAMACHISÄ‚ against Romania lodged on 17 August 2010

STATEMENT OF FACTS

The applicant, Mr Liviu Samachisă , is an American and Romanian national, who was born in 1956 and lives in F ă lticeni .

A. The circumstances of the case

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

On 31 July 2008, the applicant was involved in a violent incident involving several police officers after he had been caught speeding and had failed to stop his car as indicated by the police. He was eventually taken to a police station in order for his identity to be established and in order to be fined for speeding. On the same day he had been allowed to leave the police station.

On 1 August 2008, following a request by the applicant, the Galați Forensic Medical Service produced an expert report concluding that the applicant had suffered traumatic lesions, which had damaged the dental prosthesis near his upper right canine as a result of him being struck with a solid object, possibly on the chin. In addition, the skin on his nose, neck, arms and collarbone was scraped, discoloured and bruised, which could have been caused by him being scratched with a sharp nail-like object, struck with a solid object or by finger pressure. The report concluded that the applicant ’ s injuries could have been sustained on 31 July 2008 and required one to five days ’ medical treatment, and that he would possibly have to undergo dental treatment to have the prosthesis near his upper right canine repaired. In addition, the forensic report noted that on 31 July 2008 the dental emergency unit attached to the Galați County Hospital had diagnosed the applicant as having bruising to his chin as a result of the same injury that had damaged the prosthesis near his upper right canine.

On 2 and 4 August 2008 the applicant brought criminal proceedings for violent behavior against four of the police officers who had been involved in the incident of 31 July 2008. He argued that on 31 July 2008 he had been ill-treated by the police officers and he had suffered injuries that required a substantial number of days of medical care.

On 18 August 2008, following the applicant ’ s request, the Suceava Forensic Medical Service produced a forensic expert report which concluded that the dental lesions suffered by the applicant on 31 July 2008 required twenty-eight to thirty days of medical care for repairs and healing.

On 3 February 2009 the Gala ț i Prosecutor ’ s Office attached to the Galați District Court discontinued the criminal proceedings opened by the applicant against the police officers. It held on the basis of the available forensic evidence, witness testimonies and the applicant ’ s and the police officers ’ statements that the applicant had repeatedly refused to show the police officers his identity papers although he had been warned that he would be taken to a police station if he failed to provide proof of his identity. The police officers had attempted to take the applicant to the police station. They then immobiliz ed him. When they attempted to place him in the police car, he continued to resist arrest, by physically struggling and by being verbally aggressive towards them. In addition, the thirty days referred to by the forensic expert report of 18 August 2008 could not be understood to lawfully concern days of medical care given that the aforementioned time-limit included also the time required for the repairs of the prosthetic work and did not refer only to the time required for the functional healing of the injury. Lastly, the use of force by the police officers had not been disproportionate and aimed solely at immobilizing him. The applicant challenged the decision before the hierarchical prosecutor attached to the Galați Prosecutor ’ s Office.

By a final decision of 19 March 2009 the hierarchical prosecutor attached to the Galați Prosecutor ’ s Office dismissed the applicant ’ s challenge. The applicant appealed against the decision before the domestic courts. He argued that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused.

By a judgment of 16 October 2009 the Galați District Court dismissed the applicant ’ s appeal and upheld the decision of 3 February 2009. It held inter alia that according to the available evidence the applicant had been handcuffed because he had had a violent attitude both prior and after he had been placed into the police car. His refusal to provide the police officers with his identity papers and his violent attitude had not been justified given that he had been informed that he had committed a contravention. Consequently, the use of force by the State agents did not appear disproportionate. The applicant appealed on points of law ( recurs ) against the judgment. He argued that the Galați Prosecutor ’ s Office attached to the Galați District Court had not been competent ratione materiae to carry out the criminal investigation in the case, that the investigation had been superficial because not all the police officers who had been involved or had knowledge about the incident had been identified and heard, that the authorities had refused to allow him to identify the individuals against whom the criminal investigation had been discontinued, that two of the witnesses had committed perjury, that at the time of the incident he had been denied the right to contact the American Embassy or a lawyer, that the testimonies of two of the defense witnesses had been incomplete, and that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused.

By a final judgment of 18 February 2010 the Galați District Court dismissed the applicant ’ s appeal on points of law. It held that according to the relevant criminal procedure rules the Galați Prosecutor ’ s Office attached to the Galați District Court had been competent ratione materiae to carry out the criminal investigation in the case. Also the investigation had not been superficial and the authorities have identified and heard all the police officers who had been familiar with the incident as well as relevant eye witnesses who were not police officers. In addition, the investigation had focused on all the offences alleged by the applicant and the authorities had heard the defense witnesses requested by him. The fact that the authorities have not administered all the data considered relevant by the applicant was not unlawful considering that the preliminary investigation could be limited both in respect of quality and quantity by its lawful purpose. Moreover, the applicant ’ s statement that two of the witnesses had committed perjury was refuted by the fact that their statements had been corroborated by the remaining evidence. The prosecutor ’ s office solution remained valid given that most of the witnesses had confirmed that the applicant had refused to go to the police station and had behaved aggressively, and that none of the witnesses confirmed that he had been hit before he had been placed in the police car. Consequently, the measures taken against him had not been excessive or unjustified given his behavior. The contradictions between the testimonies of the applicant ’ s friends and those of the remaining witnesses were a consequence of the friendly relations between the applicant and the said witnesses. The authorities had correctly interpreted the available medical documents. The scratches on the applicant ’ s neck and arms as well as the ecchymosis on his shoulder, collarbone and arms had been caused by the police officers when they had placed the applicant into the police car and had been proportionate given his strong opposition. It was clear that the handcuffing and the placing operation of a person in a police vehicle if that person physically opposed the measure caused injuries. The superficial nature of the injuries and the areas of the body where they had been produced confirmed the proportional nature of the police officers ’ actions. It was clear that the applicant had exaggerated the nature of his injuries in his complaint lodged against the officers, considering that there was no evidence to the file suggesting that he had been repeatedly hit on his legs. It appears that the dental injury suffered by the applicant had been caused by an impact to the chin possibly when he had been resisting handcuffing and placing into the car. The police officers could not be considered guilty as long as the applicant had continued to behave violently in the police vehicle and he had not suffered any external injuries in the chin area which had been caused by hitting with a solid object.

B. Relevant domestic law

Excerpts from the relevant provisions of the former Criminal Code concerning the offence of violent behaviour , and from the former Criminal Procedure Code with regard to the complaint against the prosecutor ’ s decisions, can be found in Toma v. Romania , no. 42716/02, §§ 25 ‑ 27, 24 February 2009.

COMPLAINT

Relying on Articles 5, 6 and 7 of the Convention the applicant complains that on 31 July 2008 he was unlawfully assaulted by police officers and that the authorities conducting the criminal investigation that followed were biased, breached his right of defence, misinterpreted the applicable legislation and investigated the case superficially.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, as a result of the alleged ill-treatment by the police on 31 July 2008?

2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?