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THIRD
SECTION
DECISION
Application no.
27945/07
by Ioan Nicolet POTCOAVĂ
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 3 November 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 20 June 2007,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Ioan Nicolet Potcoavă, is a Romanian
national who was born in 1969 and lives in Ungheni.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
1. Criminal proceedings against the applicant
- In
the evening of 4 July 2002, at approximately 11 p.m., the applicant
was apprehended by two police officers, R.C. and O.F., who were
searching for the perpetrator of several rapes committed in that area
over the previous few months. As the applicant fitted the description
given by the victims, he was body-searched and arrested by the police
officers.
- The
applicant claimed that he had been beaten up both on the way to the
police headquarters and then all through the night, and forced to
confess to crimes he had not committed.
- On
5 July 2002 he gave three handwritten statements at the police
headquarters. He was not assisted by counsel.
In
the first statement, given in the presence of officer R.C., he denied
having committed the crimes. In the second and third statements he
confessed to having committed three rapes, on 8 November 2001, in
February 2002 and in April 2002, and two attempted rapes in May and
June 2002, and that he had been planning similar deeds on 4 July
2002. He gave details of how he had approached, immobilised and
abused the victims on each occasion.
On
the same day he was taken to the Prosecutor’s Office attached
to the Mureş County Court where, in the presence of counsel, he
reiterated his confession. According to the applicant, the police
officers who accompanied him to the Prosecutor’s Office
threatened him with violence if he changed his statements before the
prosecutor. A police officer was present during the questioning of
the applicant in the prosecutor’s office.
- The
applicant was examined by a commission of psychiatrists and forensic
doctors who concluded that, at the time of the offences he was
accused of, the applicant had been aware that what he was doing was
wrong. They also concluded that he had a personality disorder with
antisocial behaviour, being unable to control his instinctual
impulses. On 5 August 2002 they submitted their report to the
prosecutor.
- On
18 December 2002 the prosecutor lodged the indictment with the Târgu
Mureş District Court. Before the court, the applicant was
represented by counsel. He retracted his previous confessions and
reiterated that he had been beaten and threatened by police during
the early questioning sessions. On 11 August 2003 the court
convicted the applicant.
However,
in a final decision of 17 October 2003 the Târgu Mureş
Court of Appeal quashed the applicant’s conviction and sent the
case back to the Prosecutor’s Office for further investigation.
The court noted that the rights of the defence had been breached in
that the applicant had not been assisted by counsel during the first
questioning sessions and that the prosecutor had not ordered an
expert examination of the material evidence.
- On
29 January 2004 the applicant was released from detention pending
trial under an order by the prosecutor not to leave town.
- On
16 March 2004 the prosecutor indicted the applicant again.
- On
9 October 2006 the Târgu Mureş District Court acquitted
the applicant, as it considered that the evidence in the file was not
sufficient to allow a conclusion beyond doubt that he had committed
the crimes of which he was accused. It noted that some of the
material evidence gathered had turned out to be inconclusive and that
the applicant had presented an alibi for the time when two of the
rapes had occurred.
- In
a final decision of 27 September 2007 the Mureş County Court
reversed the judgment and convicted the applicant of three counts of
rape and one attempted rape and sentenced him to one year, six months
and twenty-six days in prison. The court considered that the
applicant’s confessions were consistent with the evidence in
the file, in particular the victims’ statements, the expert
medical report and the statements made by witnesses who had attended
the reconstruction of the events in the first set of investigations.
The court attached weight to the fact that the confessions had been
handwritten by the applicant himself and offered a detailed
description of his modus operandi; it also argued that more
often than not the first declarations made in a case reflected the
truth, as the person had not yet had the time to think over and
prepare a defence. The court also pointed out that the applicant had
repeated his confession before the prosecutor in the presence of a
lawyer and that at that time he had made no mention of abuse by the
investigators. It noted that the applicant had refused to provide
biological samples for testing and that the polygraph test he had
taken had showed “simulated behaviour”. Lastly, the court
noted that no other similar rapes had been reported in the area after
the applicant’s arrest.
2. Criminal complaints against the investigators
- On
14 August 2002 the applicant complained to the Military Prosecutor’s
Office attached to the Târgu Mureş Court that police
officers R.C. and O.F. had punched him in the face and broken one of
his teeth when they had apprehended him and that later at the police
headquarters they had coerced him into a confession.
On 4
February 2003 the Bucharest Military Prosecutor dismissed the
complaint as ill-founded and that decision was upheld on 31 May 2004
by the Military Prosecutor attached to the High Court of Cassation
and Justice.
- On
30 June 2004 the applicant lodged a new criminal complaint against
the two police officers, R.C. and O.F., alleging that they had hit
him and used abusive investigation methods and torture. He averred
that his previous attempts to complain about the investigations had
not been recorded or responded to by the authorities.
- Following
the demilitarisation of the police, the complaint was examined by the
prosecutor attached to the Târgu Mureş Court of Appeal,
who, in a decision issued on 8 June 2005, dismissed the complaint. He
noted that when taken into police custody the applicant had not been
recorded as having any traces of violence on his body. His medical
examination however, had revealed traces of a fractured rib that
could have dated from that time, but the prosecutor considered that
that fact alone was not enough to prove the abuse, particularly as
the rest of the evidence in the file did not support the applicant’s
allegations.
- On
5 July 2005 the chief prosecutor of the Prosecutor’s Office
attached to the Court of Appeal dismissed the applicant’s
objection and upheld that decision.
- On
18 October 2006 the Târgu Mureş Court of Appeal dismissed
another objection by the applicant and upheld the prosecutors’
decisions. It considered that the evidence in the file, in particular
the witness statements and the medical record of his detention,
invalidated the applicant’s allegations. Moreover, the court
noted that the applicant had only accused the investigators of
violence after the medical expert report had concluded that he had
been aware that his deeds were wrong and thus he could be held
criminally responsible for them. Based on an interpretation of the
applicant’s various statements, the court concluded that he had
been trying initially to use the defence of diminished capacity, but
when the expert report had ruled that defence out, he had alleged
violence by police in order to have his confessions discarded for
being made under duress. It also noted that the applicant had given
conflicting descriptions of the alleged beating and that he had not
shown any sign of suffering while in detention, and nothing had come
up during the several medical investigations that he had had. It
lastly noted that nobody had seen or heard the applicant being beaten
up when he had been apprehended or later, during the investigations.
- The
applicant appealed, and on 30 January 2007 the High Court of
Cassation and Justice dismissed his appeal. The decision thus became
final.
B. Relevant domestic law
- The
relevant provisions of the Code of Criminal Procedure concerning the
demilitarisation of the police are described in Begu v. Romania,
no. 20448/02, § 62, 15 March 2011.
COMPLAINTS
- Under
Article 3 of the Convention, the applicant complained that he had
been ill-treated by police during the investigations and that the
investigations into the incident had not been effective, as it had
taken the authorities two years to start interviewing witnesses.
-
The applicant complained under Article 6 of the
Convention that the criminal proceedings against him had not been
fair and that his defence rights had been breached. In particular, he
complained that he had not been afforded access to a lawyer during
police questioning, that he had not been allowed time to prepare his
defence but had been questioned immediately upon his arrest, and that
he had not been given an expert examination as he and his family had
requested. He also complained that he had been unable to contact his
family for a month after the arrest.
THE LAW
A. Article 3 of the Convention
- The
applicant complained of ill-treatment by police and ineffectiveness
in the ensuing investigations. He relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- In
particular, the Court notes that both the prosecutor (decision of
8 June 2005 of the prosecutor attached to the Târgu Mureş
Court of Appeal) and the courts (ruling of 18 October 2006 by the
Târgu Mureş Court of Appeal) examined the applicant’s
allegations on the basis of the evidence in the file and gave
exhaustively reasoned decisions. Nothing in the file indicates
arbitrariness or protraction in the way the authorities examined the
allegations. The Court also notes that as the police was
demilitarised, there are no doubts about the prosecutor’s
independence and impartiality as far as the second complaint lodged
by the applicant is concerned (contrast Barbu Anghelescu v.
Romania, no. 46430/99, §§ 64-70, 5 October 2004).
In
addition, the applicant failed to present any evidence of
ill-treatment both before the domestic authorities and before the
Court.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
B. Article 6 of the Convention
- The
applicant considered that the criminal proceedings against him had
not been fair and that the authorities had breached the rights of the
defence.
- The
Court considers that this complaint falls to be examined under
Article 6 §§ 1 and 3 (b) and (c) of the Convention, which
reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
- The
Court considers that it cannot determine the admissibility of this
complaint on the basis of the case file and that it is therefore
necessary, in accordance with Rule 54 § 2 (b) of the Rules of
Court, to give notice of this part of the application to the
respondent Government.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaint concerning Article 6 §§ 1 and 3;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall Deputy Registrar President
