FOURTH SECTION
\nCASE OF LINGURAR v. ROMANIA
\n(Application no. 48474\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 April 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Lingurar v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 13 November 2018 and 26 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that last mentioned date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 48474\/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Romanian nationals (\u201cthe applicants\u201d) on 28 June 2014. A list of the applicants is set out in the appendix.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Ms M. Voinescu, a lawyer practising in Bra\u015fov, and by Romano CRISS, a non-governmental organisation based in Romania. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, MsC.Brumar, from the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0On 22 April 2015 the application was communicated to the Government.<\/p>\n 4.\u00a0\u00a0On 24 August 2015, under Article 36 \u00a7 2 of the Convention and Rule\u00a044\u00a0\u00a7\u00a03 of the Rules of Court, the President of the Section granted the European Roma Rights Centre (\u201cthe ERRC\u201d) leave to intervene as a third party in the proceedings.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants are all Roma who live in V\u00e2lcele.<\/p>\n A.\u00a0\u00a0The police raid of 15 December 2011<\/strong><\/p>\n 1.\u00a0\u00a0The applicants\u2019 version<\/em><\/p>\n 6.\u00a0\u00a0At around 5 a.m. on the morning of 15 December 2011 several police officers and gendarmes, together with the local forest ranger \u2013 all wearing special intervention clothing \u2013 knocked on the applicants\u2019 door, claiming to be their neighbours. As the applicants hesitated, they broke down the unlocked front door and entered by force. Upon entering the applicants\u2019 home, the forest ranger placed a balaclava on his head. The police officers also wore balaclavas.<\/p>\n 7.\u00a0\u00a0In the first room the police found the fourth applicant (Ms\u00a0Elena\u00a0Lingurar), her daughter (the second applicant,Ms\u00a0Ana\u00a0Maria\u00a0Lingurar) and her daughter-in-law with a seven-month-old baby in her arms. The police dragged the two applicants out of their beds and started hitting them. The fourth applicant was hit on her collar bone with a police truncheon. When the second applicant asked the police why they were beating her mother, she was hit in the mouth and then forced to wash her face to remove the traces of blood.<\/p>\n 8.\u00a0\u00a0When the police entered the next room they found the third applicant (Mr\u00a0Aron\u00a0Lingurar, born in 1985) with his wife. They dragged him onto the ground, kicked him and shouted abuse. The first applicant (Mr\u00a0Aron\u00a0Lingurar, born in 1949) was also taken into that room. He had also been beaten by the police.<\/p>\n 9.\u00a0\u00a0Without allowing them to put any clothes on, the police took the first and third applicants out into the yard, pushed them onto the ground and hit them. They then put them in a police car, where the violence continued. The fourth applicant was not allowed to approach them or take them clothes.<\/p>\n 10.\u00a0\u00a0The first and third applicants were taken to a police station, where they gave their statements. They were fined and sent back home.<\/p>\n 2.\u00a0\u00a0The Government\u2019s version<\/em><\/p>\n 11.\u00a0\u00a0On 12 December 2011a forest ranger informed the Araci police that on 7 December 2011 the first applicant had taken home timber which had been illegally cut from the forest. When confronted by forest rangers, the first applicant had become aggressive. The forest ranger explained that the first applicant had exhibited a hostile attitude towards the forest rangers ever since his son, the third applicant, had been fined by the police, in spring 2011. He submitted that the first applicant had set a bad example for his community:<\/p>\n \u201cWe consider that Mr Lingurar Aron, who sees himself as being the leader of the Roma in V\u00e2lcele, by his attitude, instead of helping us solve the problems connected with the Roma community in V\u00e2lcele \u2013 which in fact is more peaceful and 12.\u00a0\u00a0In this context, and in order to reduce and prevent the criminal activity, to strengthen citizens\u2019 safety, to identify individuals without identity documents, to summon those suspected of having committed several crimes and to recover stolen goods, the police organised the raid of 15\u00a0December\u00a02011.<\/p>\n 13.\u00a0\u00a0On 14 December 2011the Covasna Inspectorate of Police (Inspectoratul de Poli\u021bie Jude\u021bean Covasna; hereinafter \u201cthe IPJ\u201d) drafted an intervention plan with a view to carrying out a raid in the villages in the municipality of V\u00e2lcele. Describing the population of the applicants\u2019 village,the plan stated that out of 4,311 inhabitants, 826 had been released on parole, 432 had a criminal record, and 600 had been found guilty of violent crimes. The general context was described as follows:<\/p>\n \u201cThe V\u00e2lcele municipality consists of the villages V\u00e2lcele, Araci, Hetea, and Ariu\u015fd. Out of a total population of 4,300 inhabitants, 2,902 are of Roma ethnicity. Most of the members of this ethnicity do not have a steady income and make ends meet from social benefits, the sale of timber stolen from the forest, seasonal and occasional work, and from crime \u2013 mostly thefts. …<\/p>\n Of the individuals having committed crimes in 2011, it appears that 80% are of Roma ethnicity, with a variety of offences. …<\/p>\n As a result of the preventive activity carried out by the [IPJ] in Araci village, six criminal groups have been identified, made up of members of Roma families R., B., C., G., L., and N. [nb: the applicants\u2019 family is not mentioned among them]\u201d<\/p>\n 14.\u00a0\u00a0Given the range of issues to be tackled and the goals of the raid, the intervention involved: fifty-three police officers (eleven from the department for public order, four from the department for criminal investigations, eighteen from the Sf\u00e2ntu Gheorghe police department, six from V\u00e2lcele police station, ten from the Rapid Intervention Squad (Serviciul de Interven\u021bie Rapid\u0103; \u201cSIR\u201d), and two from the department for criminal forensics) and thirty gendarmes from the Covasna Gendarmerie Inspectorate (Inspectoratul Jude\u021bean de Jandarmi Covasna;hereinafter\u201cthe IJJ\u201d). They had thirteen cars at their disposal.<\/p>\n 15.\u00a0\u00a0According to the police report of 15 December 2011, the police officers performed the following acts during the raid: they searched 140\u00a0cars and performed 190 identity checks; they issued eight administrative fines (sanc\u0163iuni contraven\u0163ionale); they confiscated fifteen cubic metres of timber; they took sixty-four individuals to the police headquarters for further criminalenquiries; they solved six criminal complaints and enforced two orders to appear (mandat de aducere); they identified ten individuals from police operational information; and they took fingerprints from and photographs of fourteen individuals.<\/p>\n 16.\u00a0\u00a0The police officers approached the applicants\u2019 home after 6 a.m. and knocked on the door. When two women (the second and fourth applicants) exited the house, the police asked them to call the third applicant, who was wanted for questioning regarding several criminal acts. The third applicant came out of the house, shouted abuse at the police officers and became physically violent. At that point the police immobilised and handcuffed him, and took him to one of the police cars. The first applicant then came out of the house shouting abuse at the police officers.For safety reasons, they handcuffed him and took him to the same police car where the third applicant was waiting. The second and fourth applicants were presumably injured in the process, as they tried to oppose the police actions. They pulled their own hair, slapped themselves on their faces, hit the gate with their fists and shouted, in order to intimidate the police officers.<\/p>\n B.\u00a0\u00a0Medical reports<\/strong><\/p>\n 17.\u00a0\u00a0On 15 and 16 December 2011 the applicants were examined in the emergency ward of the local hospital. Subsequently, they also underwent a forensic examination.<\/p>\n 18.\u00a0\u00a0The forensic report delivered on 15 December 2011 states that the second applicant had dried blood on her lips and left cheek, but no bruises or dental pain. The reason for the bleeding could not be established. She refused to undergo further medical examinations. The conclusion of the report was that she did not present any traumatic lesions but that a trauma caused by an act of aggression could not be excluded.<\/p>\n 19.\u00a0\u00a0On 20 December 2011 a forensic medical report was drawn up for the first applicant. It stated that he had complained of chest pain and had two bruises on his chest. An X\u2011ray examination performed on the same day had not revealed any further damage. It was concluded that the trauma could have been caused by being hit with a hard object and that on account of the injuries, the first applicant needed one to two days of medical care.<\/p>\n 20.\u00a0\u00a0On 20 December 2011 a forensic medical report was drawn up for the third applicant. The presence of bruises on the right eye, chest and right arm were recorded. The examiner concluded that the injuries could have been caused by a blow with a baseball bat and that the third applicant needed four to five days of medical care.<\/p>\n 21.\u00a0\u00a0On 21 December 2011 a forensic medical report was drawn up for the fourth applicant. She complained of abdominal and chest pains and had a bruise on her lower chest. It was concluded that her injuries could have been caused by being hit with a hard object and that she needed one to two days of medical care.<\/p>\n C.\u00a0\u00a0Criminal prosecution<\/strong><\/p>\n 1.\u00a0\u00a0Prosecutor\u2019s decision of 11 March 2013<\/em><\/p>\n 22.\u00a0\u00a0On 20 February 2012 the applicants lodged a criminal complaint against the forest ranger and the police officers on duty on 15\u00a0December\u00a02011. They accused the officials of beating them and committing other acts of violence.<\/p>\n 23.\u00a0\u00a0The case was investigated by the IPJ under the supervision of the prosecutor\u2019s office attached to the Bra\u015fov Court of Appeal. Thirteen police officers and three gendarmes were put under investigation. The prosecutor interviewed the applicants and the police officers and gendarmes, as well as three witnesses. The witnesses were the applicants\u2019 neighbours who had been present during the incidents. The applicants had proposed that they be questioned.<\/p>\n 24.\u00a0\u00a0The prosecutor established that the operation had been organised in accordance with the intervention plan drawn up by the IPJ and the IJJ. The assignment had been to take to the V\u00e2lcele police station several individuals needed for questioning concerning several criminal complaints linked to various criminal investigations.<\/p>\n 25.\u00a0\u00a0Relying on the statements given by the forest ranger and the police, the prosecutor established that the forest ranger had not participated in the events, and that the raid had started at 7 a.m. and not at 5 a.m. as indicated by the applicants and their neighbours.<\/p>\n 26.\u00a0\u00a0The gendarmes denied having committed acts of violence or having seen traces of injuries on the applicants. Police officer P.A. explained that the use of force and the handcuffing had been necessary because of the applicants\u2019 violent behaviour. Concretely, the first applicant had opposed the police intervention, claiming that he was a local counsellor for Roma matters, and had shouted abuse and threats at the police.<\/p>\n 27.\u00a0\u00a0On 6 July 2012 the investigators examined the applicants\u2019 front door. They noted that some of its window panels had been broken, the wood had been splintered, and the paint was missing from the bottom of the door; they were unable to establish when the door had been damaged.<\/p>\n 28.\u00a0\u00a0On 11 March 2013 the prosecutor concluded that there was not enough evidence to institute proceedings against the police officers.<\/p>\n 2.\u00a0\u00a0Prosecutor\u2019s decision of 17 April 2013<\/em><\/p>\n 29.\u00a0\u00a0The applicants objected to the prosecutor\u2019s decision. They argued mainly that the prosecutor,without justification, had given preference to the statements made by the police to the detriment of those made by the applicants. They also averred that the investigation had failed to provide an explanation for the violence perpetrated against them. They stressed that it was the established and frequent practice of the police in the area to attack members of the Roma community without any justification.<\/p>\n 30.\u00a0\u00a0On 17 April 2013 the prosecutor-in-chief from the prosecutor\u2019s office attached to the Bra\u015fov Court of Appeal dismissed the objection on the following grounds:<\/p>\n – the intervention had been lawful;<\/p>\n – the applicants\u2019 immobilisation and the use of handcuffs had been lawful and made necessary by their aggressive behaviour; they had therefore been taken to the police station, interviewed and fined;<\/p>\n – the investigation had been completed;<\/p>\n – the prosecutor had clarified all aspects of the case and examined the evidence gathered;<\/p>\n – the decision had represented the prosecutor\u2019s own conviction based on the evidence in the file, and the reasons given had been adequate;<\/p>\n – the other assertions made by the applicants had not been substantiated by evidence.<\/p>\n 3.\u00a0\u00a0Court\u2019s decision of 23 May 2013<\/em><\/p>\n 31.\u00a0\u00a0The applicants challenged the prosecutors\u2019 decisions, reiterating the arguments put forward in their objection (see paragraph 29 above).<\/p>\n 32.\u00a0\u00a0The Bra\u015fov Court of Appeal heard the case and in a decision of 23\u00a0May\u00a02013 it sent the case back to the prosecutor\u2019s office for further investigations. It mainly considered that the authorities had to provide justification for the injuries sustained by the applicants. The first and third applicants had been taken to the police station, and had thus been under police control for a few hours. The second and fourth applicants had sustained injuries which the prosecutor had failed to explain.<\/p>\n 33.\u00a0\u00a0The court further noted that the prosecutor had not identified the person who had given the order to immobilise the first and third applicants and take them to the police station. Both the gendarmes and the police officers involved had denied having immobilised the applicants.<\/p>\n 34.\u00a0\u00a0The court went on to question the lawfulness of the police intervention. It noted that at that time the applicants had not been the subject of any criminal investigation and that no order to appear before the police had been issued in their names. It further noted that the second and fourth applicants had not even been arrested.<\/p>\n 35.\u00a0\u00a0The court concluded that the criminal investigation had not been exhaustive.It therefore ordered the prosecutor:<\/p>\n – to hear evidence from witnesses, in particular from other persons who had been targeted by that police intervention and neighbours who could clarify whether the police officers had entered the applicants\u2019 home;<\/p>\n – to hear the police officers involved in the operation and those responsible for mounting the operation, in order to find out who had given the order to immobilise the first and third applicants and who had carried out that order;<\/p>\n – to establish how the immobilisation of the first and third applicants had happened;<\/p>\n – to establish how the second and fourth applicants, who had not been immobilised by the police, had been injured;<\/p>\n – to establish who had participated in the operation on behalf of the authorities, whether police officers, gendarmes or other individuals.<\/p>\n 4.\u00a0\u00a0New investigation<\/em><\/p>\n 36.\u00a0\u00a0A new investigation was carried out under the supervision of the same prosecutor from the prosecutor\u2019s office attached to the Bra\u015fov Court of Appeal.<\/p>\n 37.\u00a0\u00a0On 24 July 2013 the IPJ drafted a report on the investigation, confirming the previous findings concerning the use of force and the applicants\u2019 conduct. The injuries sustained by the second and fourth applicants were explained in the report as follows:<\/p>\n \u201c[The two women] had exhibited behaviour specific to Roma in such circumstances: they had started pulling their own hair, slapping themselves on their faces, hitting the gate with their fists and shouting in order to intimidate the police officers.\u201d<\/p>\n 38.\u00a0\u00a0On 5 August 2013 the prosecutor\u2019s office decided not to prosecute. It considered that all the indications given by the court had been observed during the new investigation and that further clarifications concerning the case and the general situation in V\u00e2lcele had been provided.<\/p>\n 39.\u00a0\u00a0The prosecutor explained, in particular, that because of the problems with the Roma community in V\u00e2lcele, the police and gendarmes had had to combine forces. He recalled that on 27 June 2013 a police officer had been injured and was currently in a critical state in hospital following a police intervention aimed at settling a conflict between two rival Roma clans. Likewise, on 15July 2013 another police officer had had to open fire in self-defence against an individual who had broken the windscreen of a police car during a police intervention triggered by a distress call. The prosecutor noted that most of the inhabitants of V\u00e2lcele, and in particular those from three villages (Hetea, V\u00e2lcele and Araci), were known for breaking the law and were aggressive towards the police. The applicants\u2019 family members had been subject to investigations for the theft of wood or for disturbing public order.<\/p>\n 40.\u00a0\u00a0The prosecutor held that the injuries sustained by the first and third applicants could be explained by the use of force during the immobilisation, which had been made necessary by the applicants\u2019 violent behaviour. The second and fourth applicants had been injured when they had attacked the police officers in order to prevent them from immobilising their family members. The prosecutor reiterated the explanation given in the police report about the behaviour allegedly exhibited by the second and fourth applicants. The identities of the four gendarmes who had executed the immobilisation were known, but had to be kept secret for their own protection.<\/p>\n 41.\u00a0\u00a0The applicants objected to that decision, arguing that the prosecutor had failed to investigate whether the use of force had been proportionate and justified. They also complained of the use of stereotypes in respect of Roma in the prosecutor\u2019s decision.<\/p>\n 42.\u00a0\u00a0On 20 September 2013 the prosecutor-in-chief from the same prosecutor\u2019s office upheld the decision on similar grounds to those given in the decision of 17 April 2013 (see paragraph 30 above) and, in addition, on the ground that the prosecutor had complied with the orders made by the court (see paragraph 35 above).<\/p>\n
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\nhard-working than the community in Araci \u2013 creates more problems with the example he sets for the others.\u201d<\/p>\n