THIRD SECTION

Application no. 33038/04 Vasile STOIAN against Romania lodged on 3 September 2004

STATEMENT OF FACTS

The applicant, Mr Vasile Stoian , is a Romanian national, who was born in 1961 and lives in Bucharest .

A. The circumstances of the case

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

1. The events of 19 September 1999

On 19 September 1999, at approximately 1 a.m., while the applicant was driving his car, a police patrol belonging to Ilfov Police Inspectorate stopped his car and asked him to produce an identity card. He replied that he did not have his identity card with him but his name was Vasile Stoian and he was a lawyer and a former police officer. The applicant was invited to get out from his car.

After a few minutes, he got back into his car and left abruptly the place. According to the police officers, their colleague, A.A., was hit by the applicant ’ s car while he was trying to stop him.

The applicant alleged that he had left because the police officers had insulted him.

The four police officers involved in the incident contested the applicant ’ s account of events. They stated that as the applicant had a strong smell of alcohol, he was invited to a forensic laboratory to determine his blood alcohol content. The applicant refused, got into his car and left the scene.

The police crew got into their car immediately and began chasing him. They also asked for help at the police station.

After about five kilometres the police car collided with the applicant ’ s car forcing him to stop.

The police officers immobilised and handcuffed the applicant.

As the applicant again refused to present an identity card, the police officers carried out a body search and a search of his car.

The applicant tried to escape running towards the field located on the left side of the road. Being handcuffed he moved with difficulty. After about twenty metres the police officers immobilised him again. The applicant claimed that he had been repeatedly kicked by the police officers.

One of the police officers had the idea to invite the reporters from “ Antena 1” television channel in order to f ilm the incident. Within thirty minutes a group of television reporters arrived on the spot and started taking images of the applicant handcuffed and full of blood.

The police officers continued their search, checking the contents of a bag found in the applicant ’ s vehicle. Inside the bag they found the applicant ’ s driving licence.

The applicant claimed that the police officers had carried out the search of his bag after breaking its lock despite the fact that he expressed his intent to open the bag and give them his identity documents. This allegation was confirmed by the witnesses ’ statements and images filmed by the television reporters.

In the end the applicant was taken to t he forensic laboratory where he took a test for the determination of his alcohol content in blood.

2. The medical certificate of 19 September 1999

The applicant underwent a medical exam at the National Forensic Institute. According to the medical certificate issued on 19 September 1999, he presented injuries that could have been produced through being hit with a hard object and estimated that the applicant needed twelve to fourteen days of medical treatment for recovery.

3. The police reports

( a) The incident report

A few hours after the incident, the four police officers drafted an incident report, presenting their version of the events. The report was signed by V.L. and C.G. who allegedly eye-witnessed the incident.

The police officers also drafted a search report describing the items found in the applicant ’ s bag and car. This report was signed by C.G. and B.F. who allegedly were present when the search was carried out.

( b) The on-spot investigation report

Other police officers, arrived at the scene of the incident, carried out an investigation and drafted an on-spot investigation report ( raport de constatare la fa È› a locului ). According to their report, the Ilfov Police Inspectorate asked for their intervention because their colleague, A.A., had been hit by a car driven by a person under the influence of alcohol. Their report was signed by V.L., who also signed the incident report. The report presented the same version of events as the incident report.

4. The witnesses ’ statements

( a) V.L. ’ s statements

V.L. gave a written statement immediately after the incident confirming the police officers ’ version. In his following statements of 7 July 2000, 19 September 2002 and 15 January 2004, he changed his initial version of events claiming that he had not been present at the incident. In this regard he admitted that on the night of 19 September 1999, he had been stopped by a police patrol and asked where he was going. After informing them that he was going to the nearby village, the police officers asked him to come back later. He alleged that he had not come back but in the following morning, at about 11 a.m., two of the police officers he had met in the previous night accompanied by three other police officers had visited him at home. They dictated a statement and asked him to sign it. They also asked him to sign an incident report and a search report in blank.

On 16 August 2004 the prosecutor ’ s office attached to Bucharest Court of Appeal initiated a criminal investigation against him for false testimony. It noted that after he had signed the incident and on the spot reports and had given a written statement which confirm ed the version presented by the police officers, later, he changed his position, stating that he had not been present at the incident.

On 25 January 2006 the criminal investigation was discontinued as other witnesses present at the incident stated tha t they had not seen V.L. on the night of 19 September 1999.

( b) C.G ’ s statements

On 21 February 2000, C.G., changed his initial statement claiming that it was dictated by police officers. According to his latest statement he was stopped by police officers only after most of the events had already occurred. He saw the applicant ’ s car in a ditch and three police officers coming with the applicant from a nearby field. He had noticed that the applicant was handcuffed and had blood on his face seeming to be hurt at his right temple. C.G. heard the applicant tel ling to the police officers his name and that he was a lawyer. He also heard the police officers insulting the applicant.

He was present when the police officers i nvited the reporters of “ Antena 1” channel to take images of the applicant.

C.G. stated that V.L had not been present at the events.

( c) B.F. ’ s statements

B.F. was in the same car with C.G. on the night of 19 September 1999.

On 22 June 2000 she stated that on the night of the events she had seen the applicant with blood on his face and obvious signs of violence. She also mentioned that she had heard the applicant asking the police officers not to force his bag because he would open the bag and give them the identity card. In her statement of 20 October 2003 she mentioned that her initial statement, given immediately after the events, was entirely dictated by the police officers.

( d) E.I. ’ s statement

In a statement given on 30 May 2000, E.I. contended that on the night of 19 September 1999 he saw a police car following a white Dacia . He also saw the police car forcing the other car to st op and enter into the ditch. He left his car and came closer to see what had happened. He claimed that he had seen the applicant on the ground and the police officers giving him kicks. He also claimed that he had heard the applicant crying of pain and asking them not to kill him because he had children at home. All the police officers were hitting and insulting him. Being afraid not to be surprised by the police officers while watching such a scene, he left the place taking the opposite direction in order to avoid a possible meeting with the police car.

The following day, he saw the footage taken by the Antena 1 ’ reporters and decided to give a statement before the prosecutor.

According to the chief prosecutor ’ s decision of 24 September 2004, on 30 June 2004 E.I. changed his initial statement admitting that he had not been present at the events of 19 September 1999 but had tried to help the applicant.

5. Television broadcast

On 20 September 1999 the television channel “ Antena 1” broadcasted its weekly programme called “the Mobile Squad” ( Brigada mobil ă ). Most of it concerned the applicant ’ s case.

The applicant claimed that the filmed images were broadcasted to a large audience and he was recognised by a large number of persons, especially because of his profession. He also complained that the footage was again broadcasted several times by the same television channel.

6. The criminal proceedings against the applicant

On 20 September 1999 a criminal investig ation was initiated against the applicant for driving a vehicle under the influence of alcohol, causing bodily harm and insulting behaviour.

On 2 August 2000 the prosecutor ’ s office attached to the Bucharest County Court discontinued the criminal investigation. It held that the offence of driving under the influence of alcohol had not been factually substantiated as according to a forensic report drafted on 19 September 1999, the applicant ’ s blood alcohol content had been 0.6 %. In connection with the body injury of police officer A.A. it noted that no medical certificate was submitted in the file and held that the applicant had no intent to harm him. In respect of the applicant ’ s insulting behaviour it held that the applicant had not committed any offence.

The prosecutor ’ s decision stated that the police officers “had beaten the applicant, forced his bag containing personal valuable items and invited the television channel “ Antena 1” to report on the incident”. It concluded that the applicant had not committed any offence but the police officers had breached their duties. It indicated as relevant for its fi ndings the witnesses ’ statements before the investigation bodies, which were completely different from their initial statem ents, allegedly dictated by the police officers.

7. The criminal proceedings against the police officers

( a) The applicant ’ s complaint

On 20 September 1999 the applicant lodged a criminal complaint against the four police officers involved in the incident. He claimed that they had beaten him and stolen USD 1,600 he had in his bag. He also claimed that he had been handcuffed and unlawfully kept in the police car for about two hours. He added that the police officers had carried out unlawful searches of his car and bag and invited the television reporters to film the incident.

On 19 February 2001 a criminal investigation was initiated agai nst the four police officers from Ilfov Police Inspectorate for abuse of authority, forge of official documents, use of forged documents and instigation to false testimony. The military prosecut or held that on the night of 19 September 1999, while on duty, the police officers subjected the applicant to ill ‑ treatment causing him injuries which needed between twelve and fourteen days of medical treatment for recovery. He also held that the police officers had tried to cover their criminal activity by drafting reports which had not reflected the reality of events and had forced the witnesses to make false statements.

On 28 March 2003 the military prosecutor discontinued his investigation in connection with the alleged theft. For the rest of the offences in the police officers ’ charge he relinquished jurisdiction in favour of the prosecutor ’ s office attached to the Bucharest Court of Appeal.

On 12 November 2003 the applicant asked for the extension of the criminal proceedings against the police officers for other offences. He claimed that they had destroyed his bag, mobile phone, the bracelet of his watch. He also claimed that his honour and reputation had been damaged by the remarks made by the police officers in front of the television camera.

The applicant also asked the prosecutor to start an investigation against the police officers who drafted the on the spot report, claiming that they had forced V.L. to sign their report despite the fact that he had not been present at the events.

( b) The prosecutor ’ s decision of 19 August 2004

On 19 August 2004 the prosecutor ’ s office attached to the Bucharest Court of Appeal decided to discontinue the i nvestigation on the ground that there was no evidence that the police officers subjected the applicant to ill­ treatment . Furthermore, he stated that t he applicant auto inflicted his injuries and destroyed the bracelet of his watch and his mobile phone. The applicant ’ s allegations in connection with the invitation of the television reporters at the scene of the incident were dismissed on the ground that his complaint had not been lodged within the legal term provided by Article 284 of the Code of Criminal Procedure (“the CCP”) . In respect of the insulting remarks addressed to the applicant by the police officers the prosecutor held that they were justified by the applicant ’ s attitude.

He also pointed out that the body search and the search of the applicant ’ s bag were necessary in order to establish his identity. In connection with the forgery and use of forged documents he held that the reports drafted by the defendants reflected the reality. He also held that V.L. had changed his initial statement on the influence exerted by the applicant.

The prosecutor decided to severe t he proceedings initiated by the applicant against the television reporters and to relinquish its jurisdiction in favour of the prosecutor ’ s office attached to the Bucharest County Court.

On 24 September 2004 the chief prosecutor confirmed this decision dismissing the applicant ’ s appeal.

( c) The criminal proceedings before the domestic courts

The applicant lodged a complaint with the Bucharest Court of Appeal on the basis of Article 278 1 of the CCP. On 31 May 2006 the first-instance court dismissed the complaint holding that the applicant ’ s injuries were not caused by the police officers but auto inflicted when he was trying to take off the handcuffs. It based its findings on the statements given by witnesses C.G. and B.D. It also held that the applicant ’ s handcuffing and his deprivation of liberty in the police car were caused by the applicant ’ s violent attitude.

The applicant appealed claiming that the first instance court had copied the prosecutor ’ s decision without providing its own reasons.

On 22 January 2008 the High Court of Cassation and Justice dismissed the applicant ’ s appeal upholding the judgment of the first instance court.

8. The applicant ’ s criminal complaint against “ Antena 1” channel

On 7 October 1999 the applicant lodged a criminal complaint against the reporters and the owners of “ Antena 1” television channel. He invoked the violation of Article 2 of Law 48/1992 (“the Audiovisual Law”). He claimed that the police officers had invited the reporters who had filmed him handcuffed, with his face full of blood and clothes torn and dirty. The images were broadcasted without his approval on the following day at an hour of maximum audience and again on 23 September 1999. He also claimed that the images were accompanied by insulting comments presenting him as an offender despite the fact that he had not committed any offence as proved by the discontinuance of the criminal proceedings against him. He joined a civil claim to the criminal complaint.

On 22 January 2001 the prosecutor decided not to open a criminal investigation.

On 4 February 2002 the prosecutor ’ s office attached to the Bucharest Court of Appeal upheld the decision not to initiate a criminal investigation.

The applicant ’ s appeal against the prosecutor ’ s decision was dismissed by the Bucharest District Court on 13 February 2004 on the ground that the applicant had not obtained the authorisation of the Telecommunications Ministry or of the Audiovisual Council. It held that such authorisation was mandatory for the initiation of a criminal investigation against a television channel according to the Audiovisual Law.

B. Relevant domestic law

According to Article 40 of the Audiovisual Law into force at the material time, only the National Audiovisual Council or the Telecommunications Minister could ask the competent bodies to initiate a criminal investigation in connection with an offence committed by a television channel.

COMPLAINTS

1. The applicant complains under Arti cle 3 of the Convention that he was subjected to inhuman and degrading treatment by police officers on the night of 19 September 1999 and that the authorities failed to carry out an adequate investigation into the incident.

2. Under Article 5 of the Convention he claims that he was unlawfully deprived of liberty in the police car for about two hours.

3. He claims under Article 6 of the Convention that he did not benefit from a fair trial and that the proceedings initiated by him lasted more than nine years.

4. Under the same article he claims that his access to a tribunal was denied. He alleges in this respect that his criminal complaint against the television channel which broadcasted images filmed on 19 September 1999 was dismissed on the ground that he did not obtain the authorisation requested by the Audiovisual law for commencing the proceedings.

5. Relying in substance on Article 8 and stressing that he is a lawyer, the applicant claims that his broadcasting in a television program in a degrading situation infringed his reputation and honour.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment by police officers in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment was the investigation of the present case by the domestic authorities in breach of Article 3 of the Convention?

3. In view of the Bucharest District Court ’ s ruling that the applicant ’ s action against the television channel was inadmissible in the absence of the authorisation of the Telecommunications Ministry or of the Audiovisual, did the applicant benefit from the right of access to a court within the meaning of Article 6 § 1 of the Convention?

4. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention, in so far as the police officers called the television reporters to film the applicant handcuffed and full of blood?

If so, was this interference necessary in terms of Article 8 § 2?