FOURTH SECTION

DECISION

Application no. 17421/19 Silviu CIOCOIU-COCÃŽNDÄ‚ against Romania

The European Court of Human Rights (Fourth Section), sitting on 9 May 2023 as a Committee composed of:

Faris Vehabović , President , Iulia Antoanella Motoc, Branko Lubarda , judges , and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 17421/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 March 2019 by a Romanian national, Mr Silviu Ciocoiu-Cocîndă, who was born in 1980 and lives in Botoșani (“the applicant”) who was represented by Ms C. Bicu, a lawyer practising in Iasi;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged ill-treatment and unlawful arrest to which the applicant was subjected by gendarmes in the night of 5-6 March 2017 as well as the authorities’ investigations into those allegations.

2. At the time the applicant, a military officer, was visiting his home town, Botoşani, on leave from his military base in Buzău.

3. In the night of 5-6 March 2017, he and A.F. were approached by a team of four gendarmes.

4 . According to the Government, the gendarmes found them drinking alcohol while sitting on the kerb, and warned them their behaviour was breaking the law on public peace. As the applicant was allegedly very inebriated, agitated and verbally aggressive, at 2.10 a.m. the gendarmes handcuffed him and took him to Botoşani gendarmerie station (“the station”) where they fined him. He refused to sign the contravention reports.

5 . He was then taken to Botoşani Emergency Hospital (“BEH”) because he had accused the gendarmes of ill-treatment. The medical report indicated that he was at the BEH from 3.33 a.m. to 3.38 a.m., suffering from psycho ‑ motor agitation, and that he refused examination.

6 . On 28 March 2017 the applicant obtained a forensic medical report from BotoÅŸani Forensic Institute, which noted the absence of any trace of violence on his body and indicated that the written medical evidence of 6 March 2017 did not lead to the conclusion that he had been subjected to physical violence on that day.

7 . On 7 April 2017 the applicant lodged a criminal complaint against the gendarmes with the military prosecutor’s office attached to the Iaşi Military Tribunal (“the prosecutor”). He explained that he and his friend A.F. had stopped at a kiosk to buy a bottle of beer and, while they were sitting on a nearby bench, the gendarmes had approached them, making insulting remarks. Upon request, he had shown them his identity card. He had also shown them that the bottle had not been opened and had told them that they had no reason to fine A.F. who did not even have alcohol on him. Because he complained, the gendarmes had restrained and handcuffed him, forced him into their van and beaten him while he laid on the van floor, defenceless. The abuse continued at the station. They had only stopped when they realised he was a military officer. They had threatened that if he did not give a statement, they would take him to the psychiatric hospital.

8 . The applicant further submitted that the gendarmes had taken him by force to the BEH where he had refused medical care offered by the doctor on duty, and had asked to be seen by a forensic doctor instead, as he alleged that he had been beaten by the gendarmes. The doctor on duty had told him to go the next morning to see the forensic doctor. At that point the gendarmes had let him go home.

9 . He further explained that he had been unable to obtain a proper forensic certificate, since the next morning he had to return to his base in Buzău. At an unspecified date he visited the Buzău Forensic Institute where he was refused an examination and told to go to the forensic institute in Botoşani, where he had his official residence. Because of work constraints he was unable to comply until two weeks later (see paragraph 6 above).

10 . A.F. was interviewed by the investigators as a witness. He declared that on the night of the incidents in question he had been sitting on a bench with the applicant when the gendarmes had approached them. They had both presented their identity papers, as requested by the gendarmes, and while their papers were being checked, the gendarmes had started insulting them. A.F. and the applicant had remained calm and civil and had denied the accusations of public consumption of alcohol. One of the gendarmes had then handed them each a report indicating that they had been sanctioned to a fine for public consumption of alcohol. The applicant had refused to sign his report and had informed the gendarmes that he would contest it in court. After further discussions, A.F. had told them that the applicant was a military officer, to which they had allegedly replied: “hey, officer, you will see how the commission officers will [expletive] you”. A.F. further declared that he had heard the gendarmes beating the applicant in their van, when the doors were closed, and shouting at him at the station. A.F. had run to the nearest police office but had been told to go to the gendarmery station. When he had arrived at the station, he had asked the office on duty about the reasons for the applicant’s arrest. At that time, he could hear the applicant and the gendarmes talking with raised voices in a nearby room. He had also been present at the BEH when the applicant had told the doctor on duty that he wanted to be seen by a forensic doctor and when that doctor on duty had advised him to go see the forensic doctor the next day. A.F. told that when the applicant had lifted his shirt in front of the doctor on duty, he had had traces of violence on his torso.

11 . The applicant’s superior officer, with whom the applicant had spoken on the telephone from the station, was also interviewed as a witness. He told the investigators that during that conversation the applicant had seemed frightened.

12 . The four gendarmes who participated in the mission gave witness statements. They said that the applicant had given them his identity papers when they had approached him on the street and that they had immediately written the report fining him for public consumption of alcohol. As the applicant had become verbally abusive, they had taken him to their station where he had been fined for abusive language towards the gendarmes. They denied ill ‑ treatment and denied A.F. and the applicant’s accounts of facts.

13 . The prosecutor also had at his disposal the medical certificate of 28 April 2017 and the following reports drafted by the gendarmes on 6 March 2016 and to which the applicant did not object:

a) report (drafted at 1.45 a.m.), whereby the applicant was fined 300 Romanian lei (RON) for public consumption of alcohol;

b) report on the corporal search (drafted at 2 a.m.) stating that the applicant had been found drinking alcohol on the street and had been recalcitrant towards the gendarmes, which rendered immobilisation necessary; it was mentioned that during the corporal search the gendarmes found his identity card in his pocket;

c) report (drafted at 2.10 a.m.) whereby the applicant was fined RON 500 for hostile and bad language towards the gendarmes; and

d) report on the use of force, placing the incident at 2 a.m. and stating that the applicant had been under the influence of alcohol and had become verbally abusive towards the gendarmes; the use of handcuffs at 2.10 a.m. was justified by the applicant’s aggressiveness; no traces of violence had been reported on the applicant.

14 . On 4 October 2017 the prosecutor decided to end the investigations. He found it established that the applicant had been immobilised by force, but there was no evidence supporting the allegations that the gendarmes had behaved abusively. It thus concluded that the gendarmes’ intervention had been lawful and justified and had not been intended to harm the applicant.

15 . The decision was upheld by the chief prosecutor from that office on 2 July 2018 and by a decision of 19 September 2019 of IaÅŸi Military Tribunal, for the same reasons as those presented by the prosecutor.

THE COURT’S ASSESSMENT

16. The applicant complained that he had been ill-treated by the gendarmes and that the investigation into those allegations had not been effective. Although he relied on Articles 3 and 6 of the Convention, the complaint falls under Article 3 (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018, and Ciorcan and Others v. Romania , nos. 29414/09 and 44841/09, §§ 128-29, 27 January 2015).

17. The Government denied the allegations of ill-treatment and posited that the investigation had been thorough and effective.

18. The relevant general principles have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015).

19 . Regard being had to the lack of medical or any other objective evidence indicating that the applicant might have been ill-treated on 6 March 2016 (see paragraphs 6 and 14 above), the Court finds it impossible to establish the veracity of his allegations (see, mutatis mutandis , Ciorcan and Others , cited above, § 145). The lack of medical evidence was not imputable to the authorities. The gendarmes took the applicant to the hospital, thus offering him the possibility to obtain a medical certificate. He did not provide a plausible explanation of why he had refused the medical examination on that night (see paragraph 8 above).

20. Assuming that the alleged ill-treatment occurred and attained the requisite minimum level of severity (see Muršić v. Croatia [GC], no. 7334/13, § 97, 20 October 2016), concerning the quality of the investigation, it is noted that the prosecutor relied on detailed and uncontested police reports (see paragraph 13 above) concluding that the use of force had been rendered necessary by, and proportionate to, the applicant’s own behaviour (see paragraphs 14 ‑ 15 above). Moreover, the investigators heard the alleged perpetrators as well as independent witnesses, and found that the applicant’s account of facts and allegations were not corroborated by these statements or by any other evidence (see paragraphs 10-12 above).

21 . Consequently, the investigation into the allegations of ill ‑ treatment, which was conducted timely, was thorough and effective.

22. This part of the application (see paragraphs 19 and 21 above) is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

23. Under Article 5 of the Convention, the applicant complained that he had been unlawfully taken into custody on 6 March 2017.

24. The general principles concerning deprivation of liberty have been summarised in Creangă v. Romania ([GC], no. 29226/03, §§ 91 ‑ 92, 23 February 2012).

25. In the night of 5-6 March 2017 the applicant was apprehended on the street at about 1.45 a.m. (see paragraph 13 above), taken to the station (see paragraphs 4 and 13 above) and eventually released from the BEH at 3.38 a.m. (see paragraphs 5 and 8 above). For about two hours he was unable to leave freely (see Aftanache v. Romania , no. 999/19, §§ 81-83, 26 May 2020), being thus deprived of liberty for the purpose of Article 5. Even such short detention will be unjustified if it exceeds what is strictly necessary for accomplishing certain formalities (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 77, 22 October 2018 and Foka v. Turkey , no. 28940/95, §§ 75-79, 24 June 2008).

26. It is uncontested that the applicant had been taken to the station because of his hostile and recalcitrant behaviour towards the gendarmes following the fine imposed on him for public consumption of alcohol, and in order to be sanctioned for that behaviour (see paragraphs 10, 12 and 13 above). He was then taken to the hospital because of his allegations of ill ‑ treatment (see paragraphs 5 and 8 above).

27. The investigation into the incidents, which were found to be Convention-compliant (see paragraph 21 above), concluded that the gendarmes’ actions had been lawful and justified (see paragraph 14 above).

28. Having regard to the above elements, the Court considers that the period of almost two hours during which the applicant was under the authorities’ control does not lack justification to such an extent as to be qualified as arbitrary (see, mutatis mutandis , Stănculeanu v. Romania , no. 26990/15, § 57, 9 January 2018).

29. Accordingly, this complaint is also manifestly ill-founded (see paragraphs 19 and 21 above) and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2023.

Crina Kaufman Faris Vehabović Acting Deputy Registrar President