Communicated on 2 April 2014

THIRD SECTION

Application no. 43583/10 Paul TATU against Romania lodged on 26 June 2010

STATEMENT OF FACTS

The applicant, Mr Paul Tatu, is a Rom anian national, who was born in 1979 and lives in Bra ÅŸ ov.

A. The circumstances of the case

1. Background to the case

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

On 28 July 2007 two undercover police officers attached to the Antidrug Unit of the Constan È› a Police Department tried to arrest the applicant following his alleged suspicious behaviour in a hotel lobby. After having physically fought with the applicant, the two police officers managed to arrest him.

On the same date the Antidrug Unit of the Constanța Police Department brought criminal proceedings against the applicant inter alia for holding high risk drugs for consumption and for insulting and violent behaviour ( ultraj ) towards the two police officers who had arrested him.

By a judgment of 24 November 2008 the Constan ț a County Court convicted the applicant for holding high risk drugs for consumption and sentenced him to a six months imprisonment, suspended, on the basis of the arrest report produced by the two police officers, the testimonies of the hotel ’ s employees where the applicant was arrested and of the applicant ’ s friends as well as the expert medical reports. At the same time, by relying on the same evidence, the court acquitted the applicant for insulting and violent behaviour towards the two police officers. It held that according to the applicant ’ s statements confirmed by the testimonies of the hotel ’ s employees the two police officers had not called on the applicant to surrender and had not informed him that they were police officers. Given that the police officers worked undercover, were dressed in civilian clothes and wore extravagant jewellery, the applicant could not have known that they were State agents. Consequently, he would have been free to imagine that he was being mugged by two strangers and that it was justified to resist immobilisation. The applicant became aware that the two individuals were in fact police officers only after he had been taken by them to the hotel ’ s parking lot and another police car arrived there to meet them. The applicant and the Constanța Prosecutor ’ s Office appealed against the judgement.

By a judgment of 3 April 2009 the Constanța Court of Appeal, sitting in a formation of two judges, including judge Z.F., dismissed the parties ’ appeal and upheld the reasoning of the first-instance court inter alia in respect of the applicant ’ s acquittal. The parties appealed on points of law ( recurs ) against the judgment.

By a final judgment 21 January 2010 the Court of Cassation dismissed the parties ’ appeals on points of law and up held the reasoning of the first ‑ instance court inter alia in respect of the applicant ’ s acquittal.

2. Criminal proceedings opened by the applicant against the police officers

On an unspecified date the applicant brought criminal proceedings against the two police officers who arrested him on 28 July 2007 inter alia for abusive behaviour. He argued inter alia that during the arrest the two police officers had beaten and used excessive force against him, although they had not informed him that they were in fact State agents and had not called on him to surrender. In addition, he requested that his chosen legal representative be present for every criminal investigation act carried out by the authorities.

On 28 July 2007 the applicant went to the Emergency Unit of the BraÅŸov County Hospital. According to the medical reports produced on the same date he had suffered serious injuries to his legs, face and shoulder after he had been assaulted.

On 30 July 2007 the Bra ş ov Forensic Medical Service produced a forensic report at the applicant ’ s request which concluded that the applicant had suffered traumatic injuries which could have been caused on 28 July 2007 by repeated and direct hitting with hard bodies and by falling on or hitting hard surfaces. The injuries sustained by the applicant required twenty-two to twenty-fours days of medical care.

On 24 July 2008 and 14 April 2009 the Constanța Prosecutor ’ s Office issued two notifications informing the applicant ’ s chosen legal representative about the hearing of witnesses in the case on 28 July 2008 and 16 April 2009, respectively. The notifications were delivered to the applicant ’ s chosen legal representative on 30 July 2008 and 16 April 2009, respectively.

By a decision of 11 June 2009 the Constanța Prosecutor ’ s Office dismissed the criminal proceedings opened by the applicant against the two police officers on the ground that no unlawful act had been committed. By relying on the arrest report produced by the two police officers who arrested the applicant, the testimonies of the police officers, the hotel personnel and the applicant ’ s friends, as well as the medical expert reports, the Prosecutor ’ s Office held that both the applicant and the police officers had been injured because he had opposed arrest although he had been warned not to resist arrest. Consequently, the use of force by the police officers had been justified given the applicant ’ s violent behaviour. The applicant challenged the decision before the hierarchical prosecutor attached to the Constanța Prosecutor ’ s Office. He argued inter alia that according to the testimonies of the hotel staff members the police officers had failed to notify him that they were police officers prior to engaging in a physical fight with him.

On 30 July 2009 the hierarchical prosecutor attached to the Constanța Prosecutor ’ s Office dismissed the applicant ’ s challenge and upheld the decision of 11 June 2009. The applicant appealed against the decision before the domestic courts.

By a judgment of 20 October 2009 the Constanța Court of Appeal, sitting as a single judge, in particular judge Z.F., dismissed the applicant ’ s appeal. It held that the applicant had suffered the injuries because he had violently opposed arrest although he had been aware that he had to obey the police officers ’ orders. The applicant appealed on points of law against the judgment.

By a final judgment of 3 February 2010, at the first hearing of the case, the Court of Cassation dismissed the applicant ’ s appeal on points of law as ill-founded.

B. Relevant domestic law

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

COMPLAINTS

Relying expressly on Article 6 and in substance on Article 3 of the Convention the applicant complains that he had been beaten by police officers on 28 July 2007 and that the investigation carried out in respect of his criminal complaint lodged against the said police officers was lengthy, superficial, lacked impartiality, breached the principle of res judicata , protected the police officers and was decided a t the first hearing by the last ‑ instance court.

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 28 July 2007?

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?