Police brutality
II. RELEVANT DOMESTIC LAW 46. A detailed presentation of the relevant legal provisions can be found in Ciorcan and Others v. Romania (nos. 29414/09 and 44841/09, §§ 71-74, 27 January 2015). III. RELEVANT INTERNATIONAL MATERIAL 47. The relevant international material concerning the situation of Roma in Romania is described in Boacă and Others v. Romania (no. 40355/11, §§ 35- 40, 12 January 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION 48. The applicants complained, under Articles 3, 6 and 14 of the Convention, that police officers had ill-treated them during a raid on 15 December 2011 and that the investigation into those events had not been effective. They further complained that the authorities had used stereotypical arguments to justify the police intervention, which had been accepted by the courts. 49. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), the Court considers that the applicant ’ s complaints should be examined only from the standpoint of Articles 3 and 14 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 51. The applicants contended that the evidence in the file, namely medical reports and witness statements, contradicted the Government ’ s version of facts (see paragraphs 11-16 above). They further argued that the domestic courts had ignored the conclusions of the forensic reports, as well as the witness statements, and had turned a blind eye to the racist overtones of the abuse and to the abuse itself. There was no evidence that the applicants had been violent or provocative during the incidents, and remarks to that effect by the police were mere excuses to cover up their own abusive and violent conduct against the applicants. There was also no evidence to sustain the Government ’ s position that the injuries had been self-inflicted. They lastly pointed out that the allegations that they had attempted to intimidate the police officers were unfounded. They reiterated that when the incident had occurred they had been aged 62, 17, 55 and 26 and had been unarmed; they had been tackled by eighty-three law - enforcement officers, all of whom had been carrying lethal weapons. 52. The applicants further contended that the investigation had been neither independent nor effective. They pointed out that the police investigators had been part of the same police unit as the police officers accused of ill- treatment, and that therefore an institutional and hierarchical relationship existed between them. They relied on Anton v. Romania ( no. 57365/12, 19 May 2015 ). They reiterated that the Commissioner for Human Rights had urged the Romanian authorities to set up an independent and effective mechanism for investigating complaints against the police. 53. The applicants further claimed that the investigation had failed to examine the necessity and proportionality of the use of force. Moreover, the conclusion of the investigation had been based solely on the statements by the police officers, thus failing to reconcile the conflicting versions presented by the parties involved. The applicants concluded that the investigation had been conducted in a superficial and subjective manner. 54. The applicants complained that the prosecutor had justified the proportionality of the police intervention by using stereotypical arguments concerning what was perceived to be the attitude of Roma in general and by referring to other unrelated incidents involving members of the Roma community. 55. The applicants maintained that the Roma communities faced an institutional racist bias, manifested throughout police policies and procedures aimed at their communities. They argued that the police intervention plan of 15 December 2011 had clearly shown that the raid had been intended against the Roma community, which had been portrayed as a criminal community. The very essence of the police intervention had been, in their view, racist. Moreover, they averred that the statistical data provided in the intervention plan did not coincide with the figures available from the official census. In their view, this proved that the police had conducted their own census of the Vâlcele population and collected data on criminality based on the ethnic appurtenance of the suspects. Therefore the police portrayed the whole Roma community as being a criminal community and made generalisations which were incompatible with the requirements of Article 14 of the Convention. 56. The applicants denied the so - called “Roma behaviour” allegedly exhibited by the second and fourth applicants, which the authorities had used to justify the injuries suffered by those applicants (see paragraphs 37 and 40 above). 57. Lastly, the applicants argued that the prosecutor had failed to react to the evidence that the police action had been planned and justified in a purely racist manner. (b) The Government 58. The Government accepted that the applicants had suffered physical harm at the hands of the police, but argued that the injuries had not reached a level of severity sufficient to bring them within the scope of Article 3 of the Convention. Moreover, they pointed out that the use of force had been justified and appropriate in the circumstances of the case, bearing in mind the breadth of the criminal activity in the area where the police intervention had occurred, and the applicants ’ provocative conduct. They considered that there was no reason for the Court to depart from the assessment made by the domestic courts in this respect. 59. The Government further pointed out that the police officers had not used firearms and that the police operation had been set up in order to tackle issues in the whole neighbourhood, so it had not been directly aimed at the applicants ’ family. Lastly, they reiterated that the State had a monopoly on the use of lawful violence and that anomy and disrespectful conduct towards the law -enforcement authorities should not be tolerated. 60. The Government noted that the prosecutor had initiated a very complex inquiry into the conduct of the police officers and that the decisions taken had been based on a significant amount of evidence, including statements from the applicants and from all the police officers involved, witness statements, medical reports and material evidence gathered at the scene of the incident. The decisions that the use of force had been legitimate had been supported by compelling evidence. The Government stressed that the Court ’ s assessment must remain subsidiary to that of the domestic authorities. 61. The Government contended that the applicants had failed to substantiate in any manner the allegations of racial motives behind the police officers ’ actions. They further argued that the expression of concern by the Council of Europe ’ s Advisory Committee on the Framework Convention for the Protection of National Minorities about allegations of violence against Roma by Romanian law - enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination did not suffice to consider it established that racist attitudes had played a role in the current case. They contended that the police raid had been linked not to the applicants ’ ethnicity but rather to the need to curb the criminality in the area. 62. The authorities ’ conduct had not been provocative, but strictly defensive. The Government pointed out that the forest ranger had shown no bias against the Roma community, which he had commended for being peaceful and hardworking ( see paragraph 11 above). As for the expression in the prosecutor ’ s decision of 5 August 2013, they argued that it was no more than a description taken from the police report ( see paragraphs 37 and 40 above), and was merely a case of linguistic negligence. The details given in the police reports were a sign of thoroughness in the preparation of their mission, rather than of bias against the applicants ’ ethnicity. (c) The third party 63. The ERRC referred to various international reports and surveys (by the OSCE, Amnesty International, European Union Fundamental Rights Agency – “the FRA”) concerning the increase, in recent years, of anti-Gypsy attitudes in Europe, evidenced in part by an increase in violence against Roma and by violent police raids apparently motivated by stereotypical views on Roma criminality. Various international bodies had shown their concern about reports of racial stereotyping and racist hate crimes against Roma in Romania: the UN Committee on the Elimination of Racial Discrimination (“the CERD”), the UN Committee against Torture, and the Council of Europe ’ s European Commission against Racism and Intolerance (“ECRI”). In addition, surveys conducted between 2005 and 2015 by the National Council for Combating Discrimination and the National Institute for the Study of the Holocaust in Romania had indicated that between 41% and 68% of respondents would prefer not to have a Roma work colleague, neighbour, friend or family member; 21% considered Roma to be a threat; 61% thought that Roma were a source of shame for Romania; and 52% said that Roma should not be allowed to travel outside the country. 64. The ERRC further pointed out that, according to research done by the FRA and the UN Special Rapporteur on extreme poverty, Phillip Alston, Romania did not keep any record of racially-motivated crimes, lacking a comprehensive data-collection system. In the ERRC ’ s view, the Romanian authorities ’ failure to compile data on racially motivated crimes was a symptom of institutional racism, which also undermined the ability to identify patterns of racist violence (they relied in this respect on Milanović v. Serbia, no. 44614/07, § 89, 14 December 2010). They pointed out that, according to information gathered from the mass media, the applicants ’ village belonged to an area with a significant Roma population and with a recent history of serious violence perpetrated against Roma, such as allegations of repeated police abuse, ethnic tensions, and alleged lynching. 65. The ERRC urged the Court to pay particular attention to (1) the lack of appropriate institutional arrangements for protecting Roma (such as lack of training or appropriate records and data); and (2) the evidence of negative stereotypes in respect of the behaviour of Roma or the credibility of complaints brought by Roma. They argued that the racial stereotyping of Roma was likely to corrupt the assessment of the facts by the domestic authorities, particularly in the context of widespread anti-Roma sentiment. They contended that the police might be motivated by stereotypical views of “Roma criminality” in their choice of investigative priorities and by notions of “Roma violence” in choosing the means to intervene in a Roma neighbourhood, just as those stereotypes could affect the opinion of a judge reviewing a complaint concerning police intervention. 66. Lastly, the ERRC submitted that vulnerable victims – such as Roma – alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. They asserted that the authorities ’ failure to implement appropriate legal measures and policies disclosed the existence of institutional racism. 2. The Court ’ s assessment (a) General principles 67. The Court refers to the general principles set out in its case-law concerning the prohibition of ill-treatment and the requirement of an effective investigation into such allegations, as enshrined in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114 - 23, ECHR 2015; Boacă and Others v. Romania, no. 40355/11, §§ 66 - 67, 74-75 and 81-84, 12 January 2016; and Samachișă v. Romania, no. 57467/10, §§ 59-64, 16 July 2015). 68. The Court makes further reference to the principles it established under Article 14 of the Convention taken together with Article 3. In particular, it reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 196, ECHR 2007 ‑ IV). Moreover, when investigating violent incidents, State authorities have an additional duty to take all reasonable steps to unmask any racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events (see Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, §§ 156-59, 27 January 2015). (b) Application of those principles to the present case (i) Alleged ill-treatment 69. The Court notes that on the morning of 15 December 2011 the applicants received a visit from eighty-five armed law-enforcement officers (see paragraphs 6, 14 and 16 above). The applicants were unarmed and were not sought by the police for any violent crimes (see, mutatis mutandis, Petruş Iacob v. Romania, no. 13524/05, § 36, 4 December 2012). In the aftermath of that intervention, they were left with injuries that needed medical care. The Court considers that in the circumstances of the case, the injuries alleged by the victims, as established in the forensic medical reports described in paragraphs 18-21 above, attained the minimum level of severity required by Article 3 of the Convention (see, mutatis mutandis, Boacă and Others v. Romania [Committee], no. 40374/11, § 51, 17 January 2017). 70. The Court notes that in their submissions the Government argued that the use of force had been necessary and proportionate and that the applicants had been provocative and disrespectful towards the law - enforcement authorities (see paragraphs 58 and 59 above). However, no action, be it criminal, administrative or civil, was taken against the applicants for alleged abusive behaviour. Moreover, it is to be noted that the applicants were faced with highly-trained officers specialised in rapid intervention, in a relatively confined space (their home). Nothing suggests that the four gendarmes who had immobilised the applicants and who were part of a police force of eighty-five officers present at the scene were overwhelmed by the applicants. 71. As to the authorities ’ hypothesis that the injuries suffered by the second and fourth applicants had been self-inflicted (see paragraphs 37 and 40 above), the Court notes that, other than the statements of the police officers present on the scene, there is no evidence to corroborate it (see, mutatis mutandis, Bouyid, cited above, § 97). 72. In the light of the above findings, the Court considers that neither the domestic courts nor the Government have convincingly shown that, in the particular circumstances of the present case, the force employed by the law- enforcement officers during the events of 15 December 2011 was proportionate (see, mutatis mutandis, Boacă [Committee], cited above, § 55). 73. Accordingly, there has been a breach of Article 3 of the Convention under its substantive limb. (ii) Alleged racial motives for the organisation of the police raid 74. As for the allegations of discrimination, the Court must establish whether or not racial prejudice was a causal factor behind the police intervention (see, mutatis mutandis, Ciorcan, cited above, § 160). 75. In this connection, the Court notes that in the police intervention plan, drafted prior to the police raid of 15 December 2011, the authorities identified the ethnic composition of the targeted community and referred to the alleged anti-social behaviour of ethnic Roma and the alleged high criminality among Roma (see paragraph 13 above). The same assertions were made by the investigators, who explained the applicants ’ alleged aggressiveness by their ethnic traits or by habits “specific to Roma” (see paragraph 37 above). The prosecutor also considered that the police raid had been rendered necessary by the problems experienced with the Roma community and their criminal behaviour (see paragraph 39 above). The Court observes that the authorities extended to the whole community the criminal behaviour of a few of their members on the sole ground of their common ethnic origin (see paragraph 40 above). 76. Turning to the facts of the current case, the Court considers that the manner in which the authorities justified and executed the police raid shows that the police had exercised their powers in a discriminatory manner, expecting the applicants to be criminals because of their ethnic origin. The applicants ’ own behaviour was extrapolated from a stereotypical perception that the authorities had of the Roma community as a whole. The Court considers that the applicants were targeted because they were Roma and because the authorities perceived the Roma community as anti-social and criminal. This conclusion, also supported by the general reports of racial stereotyping of Roma presented by the third party (see paragraph 63 above), goes beyond a simple expression of concern about ethnic discrimination in Romania (see paragraph 61 above and, conversely, Ciorcan, cited above, § 160 ). It shows concretely that the decisions to organise the police raid and to use force against the applicants were made on considerations based on the applicants ’ ethnic origin. The authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory. 77. Reiterating its findings that the police response was disproportionate to the applicants ’ behaviour (see paragraph 72 above), the Court considers that in the case at hand, the Government failed to prove that considerations other than the applicants ’ ethnicity played an important role in the manner in which the police raid of 15 December 2011 had been organised and carried out. 78. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention under its substantive limb. (iii) Alleged lack of an effective investigation 79. The Court observes that the applicants complained to the authorities about what they perceived to be frequent and unwarranted acts of violence by police officers against the Roma community (see paragraphs 29, 31, 41 and 43 above). Nonetheless, the authorities accepted as justification for the use of force an assessment made by the police in which negative inference seemed to have been drawn from the ethnic composition of the community (see paragraphs 13 and 39 above). In accepting that justification, the domestic courts did not censure what seems to be a discriminatory use of ethnic profiling by the authorities. Moreover, the authorities fell back on references to cases in which members of the Roma community had been violent towards law - enforcement officials, without explaining how those examples were of any relevance to the case in issue, in so far as they bore no resemblance to the applicants ’ situation and had no direct link to the present case. 80. In the Court ’ s view, in situations where there is evidence of patterns of violence and intolerance against an ethnic minority, the positive obligations incumbent on member States require a higher standard of response to alleged bias-motivated incidents (see the case-law quoted in paragraph 68 above). The Court is mindful of the evidence produced by the parties and the available material which show that, in the respondent State, the Roma communities are often confronted with institutionalised racism and are prone to excessive use of force by the law- enforcement authorities (see the references in paragraph 47 above). In this context, the mere fact that in the present case stereotypes about “Roma behaviour” feature in the authorities ’ assessment of the situation (see paragraph 37 and 40 above), may give rise to suspicions of discrimination based on ethnic grounds. Such suspicions, coupled with the modalities of the intervention of 15 December 2011, should have prompted the authorities to take all possible steps to investigate whether or not discrimination may have played a role in the events. However, the applicants ’ allegations of discrimination against and criminalization of the Roma community have been dismissed by the domestic authorities and courts without any in-depth analysis of all the relevant circumstances of the case (see paragraphs 30 and 45 above). 81. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention in its procedural aspect. 82. Lastly, the Court notes that the applicants complained under the procedural limb of Article 3, that the criminal investigation had been ineffective (see paragraph 48 above). In particular, they argued that the investigation had been conducted in a superficial and subjective manner (see paragraph 53 above). Therefore this complaint is related to the one already examined under Article 14 of the Convention taken in conjunction with Article 3. Having found a violation of Articles 3 and 14 together (see paragraph 81 above), the Court considers that no separate issue arises under Article 3 of the Convention (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § 87, 6 October 2005). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. 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 84. The applicants claimed the following amounts in respect of non ‑ pecuniary damage : (a) 25,000 euros (EUR) each for the first, second and fourth applicants; and (b) EUR 30,000 for the third applicant. They also asked that the State adopt a plan of measures of general interest aimed at preventing similar cases from arising in the future. 85. The Government argued that the claim was excessive and made reference to the awards granted by the Court in similar cases. 86. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards each applicant EUR 11,700 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B. Costs and expenses 87. The applicants also claimed EUR 2,251 for the costs and expenses incurred before the domestic courts and before the Court, to be paid directly into the bank account of Romano CRISS. 88. The Government contested the reality and the necessity of those costs. 89. Regard being had to the documents in its possession and to its case- law, the Court considers it reasonable to award the sum of EUR 2,251 covering costs under all heads, to be paid directly into the bank account of Romano CRISS (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)). C. Default interest 90. 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.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as concerned the ill-treatment of the applicant family during the raid and two violations of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 3 because the raid had been racially motivated and the related investigation had been ineffective. It found in particular that there had been no justification for the disproportionate use of force during the raid on the applicant family’s home, which had left them with injuries requiring treatment in hospital. It also noted that the applicants had been unarmed and had never been accused of any violent crime, while the four gendarmes who had raided their home had been highly trained in rapid intervention. The Court further considered that the applicants had been targeted because the authorities had perceived the Roma community in general as criminal. That had amounted to ethnic profiling and had been discriminatory.