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THIRD
SECTION
CASE OF ARCHIP v. ROMANIA
(Application
no. 49608/08)
JUDGMENT
STRASBOURG
27
September 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Archip v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49608/08) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Constantin Archip (“the
applicant”), on 8 October 2008.
- The
applicant was represented by Ms L. Bejenaru, a lawyer practising in
Piatra Neamţ. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu.
- The
applicant alleged that he had been subjected to ill-treatment in
violation of Article 3 of the Convention and that the authorities had
not carried out a prompt and effective investigation of that
incident.
- On
12 January 2010 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
- The
applicant was born in 1976 and lives in Podoleni.
I. THE CIRCUMSTANCES OF THE CASE
A. The incident of 7 November 2005
- On
7 November 2005, at about 12 noon, the applicant went to Podoleni
Town Hall to cash his monthly sickness benefit. Having noticed that
the sum cashed was smaller than the amount he had received in
previous months he expressed dissatisfaction to the mayor and the
deputy mayor.
- Unsatisfied
with the explanations received, the applicant started to insult the
civil servants working at the town hall. A few of the witnesses to
the incident stated that the applicant was under the influence of
alcohol. The applicant denied it.
- As
the applicant could not be calmed down, the mayor and the deputy
mayor took him to the police station, which was situated close to the
town hall.
- The
applicant alleged that the mayor had hit him at the police station.
He did not submit any medical certificate in this connection.
- On
the ground that the applicant continued to behave aggressively and to
address threats to those around him, the chief police officer, P.E.,
handcuffed him to a tree in the courtyard of the police station.
- According
to the applicant and several witnesses, he was kept handcuffed for
about two hours and forty-five minutes. The Government averred that
the handcuffing lasted one hour and forty-five minutes.
- As
the police station was located in the centre of the village, many
inhabitants of the village passed by and saw the applicant handcuffed
to the tree in the courtyard. One of them informed the press and the
local television station. Reporters arrived at the scene and took
pictures of the handcuffed applicant. The incident was covered
by an article on 10 November 2005 in the local newspaper
Realitatea called ‘The chief police officer of Podoleny
molests a fellow citizen’.
- Five
months before the events in question, the applicant had had surgery
on his left femur. According to the documents submitted by him, he
was hospitalised in the orthopaedics section of Neamţ Hospital
between 12 November and 2 December 2002 and between 30 May and
15 June 2005. At the time of the events he was suffering from
coxarthrose (arthritis of the hip) and was receiving sickness benefit
for that reason.
- According
to the applicant, being kept handcuffed outdoors for such a long time
on a cold and wet November day worsened his medical condition. On the
basis of a medical certificate issued on 16 January 2008 the
applicant had been designated disabled (at medium level) by a medical
board.
- On
the day the incident took place, police officer P.E. drafted a report
stating that he had had to use force and the handcuffs in order to
prevent the applicant from deliberately self-harming. He stated that
he had kept the applicant handcuffed for twenty to thirty minutes and
that he had stayed close to him all this time. However, his statement
was contradicted by the statement of M.D., the former deputy mayor of
the village, who testified that the applicant was alone and the
police station was closed when he passed by the front of the building
on 7 November 2005.
B. The criminal proceedings initiated by the applicant
- On
9 November 2005 the applicant lodged a criminal complaint with the
Piatra Neamţ District Court against police officer P.E. and the
mayor, accusing them of causing bodily harm and insulting behaviour.
- By
a judgment rendered on 20 January 2006, that court remitted the file
to the prosecutor’s office attached to the Neamţ County
Court for investigation of the incident. It gave a new legal
classification to the offences mentioned in the applicant’s
complaint, namely abuse of position and deprivation of liberty.
- On
24 October 2006 the prosecutor’s office attached to the Neamţ
County Court decided not to open a criminal investigation, on the
grounds that it was permissible to handcuff an aggressive person.
- On
21 November 2005 the applicant lodged another criminal complaint
against the chief police officer, the deputy chief police officer,
the mayor and the deputy mayor. He accused them of deprivation of
liberty (under Article 189 § 1 of the Criminal Code).
- On
17 March 2006 the applicant made a statement at the prosecutor’s
office. He stated that he had not been hit by any of the defendants,
as he had stated in his initial complaint. He added that he had been
persuaded to lodge a criminal complaint by the previous mayor, by a
member of the local council of the village, and by the president of
an organisation fighting against corruption and for the protection of
human rights (Asociaţia Naţională Impotriva
Corupţiei, Abuzurilor şi Pentru Drepturile Omului –
ANICADO). He also stated that he had been handcuffed for less than
ten minutes and that it was legitimate, taking into account his own
behaviour. He concluded by stating that he wanted to withdraw his
complaint. Afterwards, during the proceedings before the courts,
the applicant alleged that he had been forced to make that statement
and that nothing in it was true.
- By
a decision delivered on 23 March 2006, the prosecutor’s office
attached to the Neamţ County Court decided not to open a
criminal investigation. It held that police officer P.E. had taken
the necessary measures in order to calm down the applicant, who was
using coarse language and insulting the civil servants working at the
town hall, and was behaving in an especially insulting way towards
the mayor of the village. It also held that handcuffing the
applicant was in accordance with the provisions of Law no. 218/2002
regarding the organisation and functioning of the Romanian police
(“the Police (Organisation and Functions) Act 2002”),
and Order no. 130 of 10 September 2004 regarding the
General Inspectorate of Police. It stated that the applicant had
not been hit by any police officers.
- Relying
on Article 2781 of the Code of Criminal Procedure,
the applicant lodged complaints against the decisions of 23
March and 24 October 2006. The two complaints were joined by the
chief prosecutor. On 11 June 2007 the chief prosecutor dismissed the
complaints and upheld the previous decisions.
- The
applicant’s complaint against the last prosecutor’s
decision was dismissed by the Neamţ County Court on 21 February
2008. It held that the immobilising of the applicant with
handcuffs in the courtyard of the police station had been done in
accordance with the applicable legislation, and had been necessary,
taking into account the applicant’s attitude.
- An
appeal on points of law lodged by the applicant was dismissed by the
Bacău Court of Appeal on 17 April 2008, upholding the judgment
of the Neamţ County Court.
C Criminal proceedings instituted against the applicant
with regard to the events of 7 November 2005
- On
22 February 2006 the prosecutor’s office attached to
Piatra Neamţ District Court indicted the applicant for
outrage against public morals and disturbance of public order
under Article 321 § 1 of the Criminal Code.
- By
a judgement of 20 June 2006, the Piatra Neamţ District Court
convicted the applicant as charged and sentenced him to one month’s
imprisonment, suspended. The judgment remained final, as the
applicant did not lodge an appeal on points of law.
II. RELEVANT DOMESTIC LAW
- The
definition of the offence of outrage against public morals and
disturbance of public order was, at the material time, provided for
by Article 321 of the Criminal Code and read as follows:
Article 321
“Actions by a person who publicly acts or makes
gestures, uses words or expressions, or behaves in any other way
which is against public morals or which leads to public scandal, are
punishable by imprisonment of between three months and two years or
by a fine.
If the actions stipulated in paragraph 1 seriously
disturb public order, the applicable penalty shall be imprisonment of
between six months and five years.”
- The
conditions regarding the use of handcuffs by police officers are
provided for by the Police (Organisation and Functions) Act 2002.
The relevant articles read as follows:
Article 34
(1) “In
order to deter, prevent and neutralise aggressive behaviour by people
who disturb public order and which cannot be brought to an end by
other means, police can use protective shields, helmets, rubber
truncheons (...) rubber bullet guns and handcuffs, dogs and other
means of restraint which do not endanger life or cause serious bodily
harm.
(2) The
means referred to in the above paragraph may be used against people
who:
a) behave
in such a way as to threaten the physical integrity, health or
property of others;
b) try
to enter, enter or refuse to leave the premises of public
authorities, political parties, institutions and public or private
organisations, jeopardise in any way their integrity or security or
prevent them from carrying out their normal activity;
c) Insult
or attack those who are exercising public functions;
d) Offer
resistance or fail to comply, in any way, with the orders of a police
officer, but only if there is a legitimate fear that by their actions
they could jeopardise the physical integrity or the life of that
police officer.
(3) The use of the means described under the
first paragraph must not exceed the level necessary to prevent or
neutralise the aggressive behaviour.”
Article 36
“The use of the means provided by Articles 34 and
35 is prohibited against women with visible signs of pregnancy,
against persons with visible evidence of disability and against
children, except in cases when they engage in armed attack or in a
group, which poses a threat to the life or the integrity of one or
more people.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been ill-treated on 7 November 2005 and that the investigation of his
complaint had not been effective. The Court considers that the
applicant’s complaint should be examined under the substantive
and procedural limbs of Article 3 of the Convention. This provision
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Submissions of the parties
- The
Government argued that the applicant had not exhausted domestic
remedies, since he had failed to take every legal action available
under Romanian law in order to complain about his ill-treatment. In
this respect, they averred that the applicant could have lodged a
civil action for damages on the basis of Articles 998-99 of the Civil
Code. They submitted that such a remedy was not only sufficiently
certain in theory and practice but was also effective and accessible.
- The
applicant did not submit any observation in this respect.
2. The Court’s assessment
- The Court reiterates that in cases where an individual
has an arguable claim under Article 3 of the Convention, the notion
of an effective remedy entails, on the part of the State, a thorough
and effective investigation capable of leading to the identification
and punishment of those responsible (see Selmouni v.
France [GC], no. 25803/94, § 79, ECHR 1999-V, and
Egmez v. Cyprus, no. 30873/96, § 65,
ECHR 2000 XII).
- The Court has held on many occasions that this
requirement cannot be satisfied solely by instituting civil
proceedings (see, among others, Krastanov v. Bulgaria,
no. 50222/99, § 60, 30 September 2004). It has also held that
for complaints about treatment suffered in police custody, criminal
proceedings are one of the means of obtaining redress (see, for
example, Parlak and Others v. Turkey (dec.), nos. 24942/94,
24943/94 and 25125/94, 9 January 2001).
- In
the present case the Court notes that the applicant lodged a criminal
complaint but it did not lead to the conviction of those who had
allegedly subjected him to ill-treatment. In this respect, the Court
reiterates that where several remedies are available the applicant is
not required to pursue more than one and it is normally that
individual’s choice as to which (see, mutatis mutandis,
Hilal v. the United Kingdom, no. 45276/99, ECHR 2001 II,
and Airey v. Ireland, 9 October 1979, § 23, Series A no.
32). Consequently, the Court considers that the applicant cannot be
required to avail himself of an additional legal avenue in the form
of a civil action. It is satisfied that the applicant has thus
exhausted domestic remedies. Consequently, the Government’s
objection must be dismissed and the complaint declared admissible.
B. Merits
1. Submissions of the parties
- The
Government denied any ill-treatment of the applicant on 7 November
2005. They stated that it had been necessary to immobilise the
applicant with handcuffs because of his aggressive behaviour. In this
respect, they maintained that it was for such behaviour that the
Bacău Court of Appeal had convicted the applicant of outrage
against public morals and disturbance of public order, by a final
decision rendered on 17 April 2007.
- The
Government further submitted that the applicant had been immobilised
in accordance with the applicable law. They averred that the domestic
courts considered that the police’s reaction was proportional
to the applicant’s violent behaviour and that there were no
elements that might cast any doubt on their assessment of facts and
evidence before it. They also submitted that the present case is
similar to Berliński v. Poland (nos. 27715/95 and
30209/96, 20 June 2002), where the Court found that the use of force
against the applicant was not excessive, given the circumstances.
- They
maintained that the immobilisation of the applicant had not lasted
two hours and forty-five minutes but one hour and forty-five minutes.
They added that all this time police officer P.E. had been present
and had stayed close to the applicant.
- The
Government also averred that the applicant did not submit any medical
certificate or report proving that he had been subjected to
illtreatment. Therefore, they concluded that the applicant had
not substantiated his allegations of ill-treatment.
- They
pointed out that the applicant’s medical history revealed that
he had been suffering from several health problems before the
incident of 7 November 2005. They concluded that the applicant
had not proved “beyond reasonable doubt” that he had been
ill-treated, taking into account that no medical record pointed out
any causal link between the medical problems he suffered and the
incident of 7 November 2005.
- Finally,
the Government pointed out that the Romanian authorities had carried
out a thorough and effective investigation, which had revealed that
the applicant’s allegations were totally unsubstantiated.
- The
applicant submitted that his medical condition had worsened as a
direct consequence of the incident of 7 November 2005. Thus, he
contended that after the incident he was qualified as disabled by a
medical board.
- In
respect of the criminal proceedings initiated against him for outrage
against public standards of behaviour, he contended that he had never
been summoned and that he had only received the final decision,
without having known of the existence of the trial.
- He
stressed that the statements of police officer P.E. during
the proceedings were variable: thus, while in his first
statement he had stated that he had handcuffed the applicant for ten
minutes, in his next statement he had stated that it had been
for one hour and finally he had admitted that it had lasted for more
than two and a half hours.
- The
applicant submitted that being handcuffed in the courtyard of the
police station for two hours and forty-five minutes in November had
caused him not only physical but also mental suffering. He also
alleged that handcuffing him had been an excessive and unnecessary
measure in view of the actual circumstances.
2. The Court’s assessment
(a) Concerning the alleged ill-treatment
- The
Court reiterates that Article 3 enshrines one of the fundamental
values of a democratic society. Even in the most difficult of
circumstances, such as the fight against terrorism or organised
crime, the Convention prohibits, in absolute terms, torture or
inhuman or degrading treatment or punishment, irrespective of the
victim’s conduct (see Chahal v. the United Kingdom,
15 November 1996, § 79, Reports of Judgments and Decisions
1996 V, and Assenov and Others v. Bulgaria, 28 October
1998, § 93, Reports of Judgments and Decisions
1998 VIII).
- Allegations
of ill-treatment must be supported by appropriate evidence. To assess
this evidence, the Court adopts the standard of proof “beyond
reasonable doubt” –, but adds that such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Labita
v. Italy [GC], no. 26772/95, § 121, ECHR 2000 IV).
- In
the present case, the Court observes that the applicant’s
statement that he was kept handcuffed in the courtyard of the police
station was not contested by the Government. All that was contested
was the duration of the handcuffing; thus, while the Government
maintained that the handcuffing lasted one hour and forty-five
minutes, the applicant and several witnesses alleged that it lasted
two hours and forty-five minutes.
- The Court reiterates in that connection that where
domestic proceedings have taken place, as in the present case, it is
not the Court’s task to substitute its own assessment of the
facts for that of the domestic courts, and, as a general rule, it is
for those courts to assess the evidence before them (see Klaas v.
Germany, 22 September 1993, § 29, Series A no.269).
Although the Court is not bound by the findings of domestic courts,
in normal circumstances it requires cogent elements to lead it to
depart from the findings of fact reached by those courts (see
Matko v. Slovenia, no. 43393/98, § 100, 2
November 2006).
Where allegations are made under Article 3 of the Convention,
however, the Court must apply a particularly thorough scrutiny.
- The
Court observes, and it is not in dispute between the parties, that
the applicant had a recalcitrant attitude and addressed insults and
threats to the mayor and the deputy mayor. The Court further observes
that the Government’s submissions indicate that, in the face of
the applicant’s refusal to calm down, the chief police officer
and his deputy ordered the applicant to stop his unruly behaviour,
but the applicant again refused to comply. The Court observes that,
as has been established at the national level, the applicant’s
resistance to the order to calm down and go home consisted of threats
and coarse language directed at the officers and the civil servants
working at the town hall.
- The
Court accepts that in these circumstances the officer may have needed
to take measures to prevent further disruption and calm the applicant
down. The question before the Court is whether the use of force was
in compliance with the requirements of Article 3 of the Convention.
- The
Court notes that the applicant centred his grievance on what
he described as the gratuitous and humiliating use of handcuffs
on him.
- Therefore, it does not lose sight of the fact that for
at least an hour and forty-five minutes the applicant remained
handcuffed to a tree in the courtyard of the police station. It is
apparent from the Government’s submissions that the handcuffing
was intended to help the police officer to calm the applicant down
and restore order. The Court reiterates that the use of handcuffs or
other instruments of restraint does not normally give rise to an
issue under Article 3 of the Convention where the measure has been
imposed in connection with lawful detention and does not entail the
use of force or public exposure exceeding what is reasonably
considered necessary. In this regard, it is important to consider,
for instance, the danger of the person’s absconding or causing
injury or damage (see Raninen v. Finland,
16 December 1997, § 56, Reports of Judgments and
Decisions 1997 VIII, and Mathew v. the Netherlands,
no. 24919/03, § 180, ECHR 2005). However, the manner in which
the applicant is subjected to the measure in issue should not go
beyond the threshold of a minimum level of severity envisaged by the
Court’s case-law under Article 3 of the Convention (see,
mutatis mutandis, Nevmerzhitsky v. Ukraine,
no. 54825/00, § 94, ECHR 2005–II).
- The
Court notes that the public nature of the treatment or the mere fact
that the victim is humiliated in his own eyes may be a relevant
consideration (see Tyrer v. the United Kingdom, 25 April 1978,
§ 32, Series A no. 26, and Raninen, cited above, §
56).
- In
the instant case, the Court considers that the manner in which
the applicant was handcuffed to a tree in the courtyard of the
police station located in the centre of the village, and thus visible
to the public, was liable to arouse in him feelings of anguish and
inferiority that were capable of humiliating and debasing him beyond
what is reasonable. Moreover, the press and local television,
informed about the incident by an inhabitant who had seen the
applicant handcuffed, were present and taking pictures of him,
aggravating the applicant’s feeling of humiliation.
- The
Court observes that the applicant contended that the handcuffing had
not only humiliated him but had also caused him severe physical pain.
In this regard, the Court considers that handcuffing a person
outdoors on a cold and wet day in November could cause intense
physical pain, not only to a person suffering from coxarthrose, but
also to a person in good health.
- In
addition, the Court also notes that according to Article 36 of
the Police (Organisation and Functions) Act 2002, handcuffs may
not be used against persons with visible evidence of disability. The
disability of the applicant was obvious and was known to the
police officers, the mayor and the deputy mayor, who were present at
the police station when the applicant was handcuffed to the
tree.
- Therefore,
it is questionable for the Court whether handcuffing him in such a
place, exposed to the gaze of all the inhabitants of the village
passing by, on a cold and wet day in late autumn, without taking into
account his precarious state of health, and for such a long time, was
conducive to the desired result, and whether the possibility of using
other means was considered.
- Even
accepting that the applicant refused to comply with the police orders
to calm down, the Court, having regard to the above considerations,
cannot see on what basis the domestic authorities satisfied
themselves that the force used against the applicant had not been
excessive.
- The
Court therefore concludes that the State is responsible for
a violation of Article 3 under its substantive limb on account
of the inhuman and degrading treatment to which the applicant was
subjected.
(b) Concerning the alleged inadequacy of
the investigation
- The
Court reiterates that where an individual raises an arguable claim
that he has been ill-treated by agents of the State in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to secure to everyone
within their jurisdiction the rights and freedoms defined in the
Convention, requires by implication that there should be an effective
investigation (see, among others, Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports of Judgments and Decisions
1998-VIII).
- An
obligation to investigate is an obligation of means; not every
investigation should necessarily come to a conclusion which coincides
with the claimant’s account of events. However, it should in
principle be capable of leading to the establishment of the facts of
the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, § 124,
ECHR 2000-III).
- Any
investigation into “arguable” allegations of
ill-treatment must be thorough. That means that the authorities must
make a serious attempt to find out what happened and should not rely
on hasty or ill-founded conclusions to close their investigation or
as the basis for their decisions (see Assenov, cited above, §
103 et seq.).
- On
the basis of the evidence in the present case, the Court has found
that the respondent State is responsible under Article 3 for the
illtreatment of the applicant. The applicant’s complaint
in this regard is therefore “arguable”. The authorities
thus had an obligation to carry out an effective investigation into
the circumstances in which the applicant was illtreated (see
Krastanov v. Bulgaria, cited above, § 58).
- In
this respect, the Court notes that the prosecuting authorities, who
had been made aware that the applicant had been handcuffed, carried
out a preliminary investigation which did not result in criminal
proceedings against the perpetrators. The applicant’s
complaints against the refusal of the prosecutors to institute
criminal proceedings were also examined by the domestic courts
at two levels of jurisdiction. They confirmed the prosecutor’s
decisions, that the measures taken against the applicant were lawful.
- In
the Court’s opinion, the issue is consequently not so much
whether there was an investigation, since the parties did not dispute
that there had been one, but whether it was conducted diligently,
whether the authorities were determined to identify and take adequate
action and if considered necessary to prosecute those responsible
and, accordingly, whether the investigation was “effective”.
- Without
providing many details about the actual circumstances and apparently
without careful consideration of the facts and
circumstances of the incident,
the judicial authorities concluded that the applicant’s
handcuffing was lawful and necessary. They did not try to obtain
explanations as to why the police officer did not pursue other means
of calming down the applicant, who did not pose enough of a threat to
the police officers and civil servants at the town hall to
justify such extreme measures.
- The
Court notes some discrepancies capable of undermining the reliability
and effectiveness of the investigation. Firstly, a thorough
evaluation was not carried out with respect to the period of time
the applicant spent handcuffed in the courtyard of the police
station. Thus, while the chief police officer mentioned twenty to
thirty minutes in his report, the applicant and several witnesses
stated that he had been handcuffed for two hours and forty-five
minutes. The Government acknowledged that he had been handcuffed for
one hour and forty-five minutes.
- Furthermore,
it was not made clear whether the chief police officer was present
near the applicant while he was handcuffed or whether the applicant
was alone and the police station was closed.
- Although
the chief police officer mentioned in his report of 7 November
2005 that the main reason for handcuffing the applicant was to
prevent him from self-harming, no evidence was produced in this
respect.
- Moreover,
the Court observes a selective and somewhat inconsistent approach to
the assessment of evidence by the investigating authorities. It is
apparent from the decisions submitted to the Court that the judicial
authorities based their conclusions mainly on the report drafted by
the chief police officer immediately after the incident and the
statements given by the police officers and the mayor involved
in the incident.
- Having
regard to the above-mentioned failings on the part of the Romanian
authorities, the Court finds that the investigation into
the applicant’s allegations of ill-treatment was not
thorough, adequate or effective. There has accordingly been a
violation of Article 3 of the Convention under its procedural limb.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary damage
and 700,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government contended that the applicant did not submit any conclusive
evidence regarding the merits of the case. Therefore, they concluded
that he had not proved the alleged pecuniary and non-pecuniary
damage.
- The
Court rejects the claim in respect of pecuniary damage, as
the applicant did not submit any documents to justify it. On the
other hand, having regard to its findings concerning the applicant’s
complaint under Article 3 of the Convention, the Court considers that
the applicant suffered damage of a non-pecuniary nature which is not
sufficiently redressed by the finding of a violation of his
rights under the Convention.
- For
the foregoing reasons, having regard to the specific circumstances of
the present case and its case-law in similar cases and deciding on an
equitable basis, the Court awards EUR 10,000 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim the reimbursement of any costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention in respect of the handcuffing of the applicant in
the courtyard of the police station;
- Holds that there has been a violation of Article
3 of the Convention in respect of the absence of a thorough, adequate
and effective investigation;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Romanian lei at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
