THIRD SECTION

Application no. 40374/11 Leon BOACÄ‚ and O thers against Romania lodged on 13 June 2011

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants are all Romanian nationals of Roma origin and heirs of Mr Ion Boac ă who initiated the domestic proceedings. Those proceedings were still pending when Mr Ion Boacă passed away on 1 April 2010.

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

A. The incidents with the police

In the night between 15 and 16 August 2008 Ms L.N. moved in with her boyfriend, Mr Costel Niculae , Mr Ion Boac ă ’ s son who lived in his father ’ s home. She was sixteen at that time.

The next morning, accompanied by Nicuşor and Cristian Boac ă , she went to Clejani Police and made a written statement before the chief police expressing her wish to live in her boyfriend ’ s home. She chose to make this statement because she belonged to a well-off non-Roma family.

In the same evening Mr V.M., the applicants ’ neighbour gave statement to the police, confirming that Ms L.N. had arrived and remained voluntarily in Mr Boac ă ’ s home.

On 21 August 2008 Mr Niculae and Ms L.N. were invited to the Clejani Mayor ’ s Office where they met with the deputy mayor, a representative of the Department for Social Assistance from the Mayor ’ s Office, the chief police from Clejani Police Office, and two police agents from the neighbouring commune of Bulbucata and the town Mihăileşti . Ms L.N. reiterated that she was willingly living with Mr Niculae and returned her jewellery and mobile phone to her mother.

On 27 August 2008, around noon, the Clejani chief police, together with the special intervention forces and two plain clothes police agents came by car to Mr Ion Boac ă ’ s house.

The plain clothes police descended and asked him if he was keeping a girl in his home against her will. He reiterated that L.N. was staying with them voluntarily as she herself had declared in front of the authorities. He called for Ms L.N. to show up. He asked the men if they had a search warrant, to which one of them reacted by hitting him in the face and telling him that his warrant were the fist and the gun. They told him that the warrant was left at the Mayor ’ s Office.

Meanwhile L.N. came out of the house and reiterated that she was living there of her own will. At the sight of Ms L.N. ’ s, the man who hit Mr Boac ă signalled to the masked police agents of the special intervention forces to enter the yard.

Several persons were present in the house at that time: the applicants Mr Costel Niculae , Mrs Nina Nicolae (Mr Boac ă ’ s wife) and Mr Marian Boac ă (Mr Boacă ’ s minor son) and Mrs C.I., Mr Boacă ’ s daughter-in-law and her minor children I.A.B. (three years and eight months) and G.M.B. (one year and eight months). At the police intervention, Mr Ion Boac ă also took refuge in the yard.

The police broke the gate and destroyed five windows. They dragged Ms L.N. out of the house.

In the course of the assault, the police fired rubber bullets, and one of them hit Mr Marian Boacă ’ s bottom. He fell on the ground and was helped up by two neighbours. The masked police continued to fire in the air and threw tear gas. I.A.B. and G.M.B. lost consciousness.

Mr Ion Boac ă , the applicants and some of their neighbours left for the Mayor ’ s Office to seek the search warrant. Shortly after, more police forces arrived, but the mayor asked them to leave as the situation was calm.

Mr Marian Boac ă was taken to hospital in Bolintin Deal. The medical report indicated the existence of a superficial wound. He was 15 years old at that time.

B. The criminal investigation concerning the police intervention

On 24 November 2008 Mr Ion Boac ă filed a criminal complaint against six police agents, with the Prosecutor ’ s Office attached to Giurgiu County Court.

On 7 May 2009 the Prosecutor ’ s Office decided not to prosecute. It considered that the police agents had had no intention to harm the applicants. The prosecutor noted that Ms L.N. ’ s father had complained to the police that his underage daughter had disappeared from her home. At the applicants ’ home, on 27 August 2008, Ms L.N. had told the police that she was voluntarily living there but that she wanted to return to her parents ’ home. At that moment, at Ms Nina Niculae ’ s order, the applicant family attacked the police. Therefore, the force used was only defensive, to allow the police agents to leave the premises with Ms L.N. The prosecutor also considered that the injury sustained by Mr Marian Boac ă was not consistent with a gunshot wound and had not necessitated medical care. He also noted that Mr Ion Boacă and Mr Costel Niculae refused to give statements.

On 12 June 2009, following a complaint by Mr Ion Boac ă , the decision was upheld by the prosecutor in chief of the Giurgiu County Prosecutor ’ s Office.

Mr Ion Boacă lodged a complaint against the two decisions before the Giurgiu County Court. He pointed out that the prosecutor failed to hear any witnesses and only took statements from the police agents involved. He indicated the names of eyewitnesses. He also averred that he had not received any summons to testify before the prosecutor.

The County Court gave its ruling on 11 November 2009. Based on the evidence in the file, it dismissed the complaint. It found that the police agents had acted within the lawful limits of their authority. Their purpose had not been to harm the applicants, but rather to protect themselves and Ms L.N. from the applicants ’ imminent attack. It also dismissed as unfounded Mr Ion Boac ă ’ s allegation of not having been invited to testify before the prosecutor.

Mr Ion Boac ă appealed against that decision. He died while the appeal proceedings were still pending. The applicants (except for Mrs Nina Niculae ) continued the proceedings on his behalf.

On 14 December 2010, based on the evidence in the file, the Bucharest Court of Appeal dismissed the appeal; the County Co urt decision became thus final.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention of inhuman and degrading treatment inflicted by the police. They state that Mr Ion Boac ă was hit by the police, and Mr Marian Boac ă , a minor at that time, was shot. They consider that they were not aggressive towards the police agents and did nothing that would justify the use of force.

2. Under Articles 3, 6 and 13 of the Convention, they complain that the investigation into the police abuse was not effective, as the investigators, colleagues of the accused agents, were not impartial. They further argue that the courts have not been independent and impartial as they did not properly establish the facts of the case, or hear evidence. The courts also failed to give reasons for their decisions. The investigation was aimed exclusively at exonerating the police agents and the access to court afforded to the applicants remained formal.

QUESTIONS TO THE PARTIES

1. Have Mr Ion Boac ă and the applicants been subjected to inhuman or degrading treatment at the hands of police, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities in breach of Article 3 of the Convention in the present case?

Appendix

N o

First name

LAST NAME

Birth year

Nationality

Place of residence

Representative

1.Leon BOACÄ‚

1979Romanian

Clejani

ROMANI CRISS

2.Cristian BOACÄ‚

1984Romanian

Clejani

ROMANI CRISS

3.NicuÅŸor BOACÄ‚

1988Romanian

Clejani

ROMANI CRISS

4.Tănţica BOACĂ

1986Romanian

Bucharest

ROMANI CRISS

5.Nina NICULAE

1956Romanian

Clejani

ROMANI CRISS

6.Marian BOACÄ‚

1993Romanian

Clejani

ROMANI CRISS

7.Costel NICULAE

1981Romanian

Clejani

ROMANI CRISS