The investigation into the injury of a woman by a police officer that lasted more than nine years and the lack of legislation on the use of weapons violated the right to life

JUDGMENT

Andreea-Marusi Dumitru v. Romania 31.03.2020 (app. no. 9637/16)

see here

SUMMARY

The case concerned the effectiveness and length of the investigation conducted after the applicant
sustained gunshot wounds during a police operation at a goods train depot in November 2005.

The Court observed that more than nine years and three months had elapsed between the events of
8 November 2005 and the final judgment of 25 February 2015.

Firstly, the investigation in the context of the proceedings concerning the police operation of
8 November 2005 could not be considered prompt and effective. Secondly, in a context of a lack of
detailed regulations on the use of firearms and shortcomings in the planning of the police operation,
the police officer in question had not taken adequate precautions to protect human life

PROVISION

Article 2

Article 6

PRINCIPAL FACTS

The applicant, Andreea-Marusia Dumitru, is a Romanian national who was born in 1990 and lives in
Bujoru (Romania).

On 8 November 2005 Ms Dumitru – who was aged fifteen at the time – was returning home with her
mother through a goods train depot. While she was climbing over a flat wagon Ms Dumitru was shot
and wounded. According to the Government, the police had been called to disperse a group of
around 90 people of Roma origin who were preparing to steal some scrap metal stored in a goods
train. The Government maintained that Ms Dumitru and her mother had been part of the group.
Members of Ms Dumitru’s family took her to an accident and emergency department, where she
had surgery to remove part of her liver. In 2006 and 2007 she was admitted to hospital several times
to be treated for the effects of her injuries.

On 8 December 2005 the transport police opened an investigation into Ms Dumitru’s alleged
involvement in the theft of the scrap metal. On 3 July 2012 the public prosecutor set aside the
indictment on the grounds that there was no evidence in the case file to substantiate the charges.

On 1 August 2006 the applicant lodged a criminal complaint for attempted murder. On 4 August
2009 the public prosecutor at Bucharest County Court discontinued the proceedings, finding that the
police officer in question had acted in self-defence. On 28 June 2010 the Bucharest Court of Appeal
allowed an appeal by the applicant and ordered the reopening of the investigation. In an order of
31 July 2014 the public prosecutor at the High Court of Cassation and Justice closed the investigation
and dismissed the complaint. The prosecutor took the view that the police officer in question had
used a firearm in self-defence in the context of an operation to restore public order. On 25 February 2015 the Bucharest District Court dismissed an appeal by Ms Dumitru against the public prosecutor’s order.

THE DECISION OF THE COURT…

Article 2

Substantive aspect

It was not disputed that the police officer in question had made use of a firearm, resulting in
life-threatening injuries to the applicant. The Court accepted that the police officer and his
colleague, who had been called to deal with an attempted theft at the goods depot, had been
confronted with a group of individuals whose behaviour was unpredictable. The Court considered it
unnecessary to address the reasons for the applicant’s presence at the scene. For the purposes of
assessing the use of a firearm from the standpoint of Article 2 it was sufficient to note that the
applicant had sustained life-threatening injuries.

The Court observed that it had previously found that the legislative framework in Romania
regulating the use of firearms and ammunition was insufficient to afford the level of protection of
the right to life that was required in present-day democratic societies in Europe (Soare and Others,
22 February 2011, and Gheorghe Cobzaru, 25 June 2013). It noted that those domestic-law
provisions had still been in force at the time of the events in the present case and that the laws
governing the organisation and operation of the police force and the use of weapons and
ammunition had not made any changes to the existing legislative framework. The Court therefore
concluded that at the relevant time the national legislation had not contained any provisions
regulating the use of firearms in the context of police operations, apart from a requirement to issue
a warning, nor had it included any recommendations concerning the supervision and planning of the
operations in question.

Accordingly, with regard to the planning of the police operation of 8 November 2005, the Court
noted that the situation at the goods depot had been known at the most senior level of the police.
Thefts, in some cases by children, had been a daily occurrence. The Court considered that the police
authority had had sufficient time to take the necessary steps to tackle the problem. Accordingly, the
Court held that the Romanian authorities had not done all that could be expected of them to
minimise the use of lethal force and possible loss of life.

Moreover, apart from the proceedings brought against the applicant, no other investigation had
been opened into the case. No precautions had been taken to ensure that certain items of evidence
were gathered and preserved. The technical and medical expert reports had not been produced until
several years after the events, thus preventing the investigating authorities from making conclusive
findings.

The Court therefore considered that the authorities could not be said to have made genuine efforts
to establish exactly what had happened during the police operation of 8 November 2005. Given the
authorities’ omissions, the Court dismissed the Government’s argument that the applicant’s injuries
had been caused accidentally by the police officer in question acting in self-defence.

In view of these considerations the Court found that the police officer had not taken adequate
precautions to protect human life, in a context of a lack of detailed rules on the use of firearms by
the law-enforcement agencies and shortcomings in the planning of the police operation.

There had therefore been a violation of the substantive aspect of Article 2.

Procedural aspect

The Court observed that the investigation had been opened in response to a complaint by the
applicant but that it had been beset by numerous shortcomings from the outset. In its judgment of
28 June 2010 the Bucharest Court of Appeal had itself noted some of these failings. The first forensic
medical report had not been produced until 3 March 2009, over three years and three months after
the events, and had not addressed the aspects linked to the circumstances and characteristics of the
shot that had been fired. Shortcomings in the taking of evidence, as borne out by the loss of key
items of evidence, had thus undermined the adequacy of the investigation.

As to the independence and impartiality of the investigators, the Court noted that the investigation
had been entrusted initially to the police authority to which the officer in question was attached.
Nevertheless, no steps had been taken by that authority. In the interests of the impartiality of the
investigation the chief public prosecutor had ordered that the case be transferred to the public
prosecutor’s office at the High Court of Cassation and Justice. That office had ordered several expert
reports, organised a reconstruction of the events and conducted fresh questioning of the
protagonists and witnesses. Hence, the investigations carried out under the auspices of the public
prosecutor’s office at the High Court did not raise any issue of compatibility with the Convention
with regard to the independence and impartiality required.

However, the Court observed that more than nine years and three months had elapsed between the
events of 8 November 2005 and the final judgment of the Bucharest District Court of 25 February
2015.

The investigation in the context of the proceedings concerning the police operation of 8 November
2005 could not be considered prompt and effective. Therefore, there had also been a violation of
the procedural aspect of Article 2.

Article 6 § 1

In view of the reasons for its finding of a violation of the procedural aspect of Article 2, the Court
considered that no separate issue arose under Article 6 § 1 of the Convention.

Just satisfaction (Article 41)

The Court held that Romania was to pay the applicant 25,000 euros (EUR) in respect of
non-pecuniary damage and EUR 3,270 in respect of costs and expenses.


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