In the present article, the author analyses, in the human rights context, the use of force by the police officers and points out the cases in which this becomes inhuman treatment. Paying particular attention to the Romanian system (by summarizing the Court’s judgment in the case of Ghiţă v. Romania, 2012), the author criticizes the lack of measures needed to change these frequent situations contrary to the Convention and tries to explain some of the implications.
Case of Ghiţă v. Romania
The applicant, who has both Romanian and Canadian nationality, was arrested in May 2006 by two police officers who suspected him of having sexual intercourse with a prostitute in his car. In the applicant’s version of the events, the police agents checked his identity but then refused to return his papers, claiming that he was drunk. When he stepped out of his car, in order to prove that he was not drunk, one of the police officers pushed him and he fell to the ground. Then, the two agents became violent, hitting him in the stomach and his kidneys. The applicant was taken to the police station and after a phone conversation between his lawyer and one of the officers, the police allowed him to leave the station, asking him not to press any charges.
The Government sustained that the applicant was under the influence of alcohol and refused to present his identification papers, threatening the police officers. He got out of the car and handed his identity papers to one of the officers, but started shouting that he was being abused by the police, then lost his balance, fell to the ground and injured himself. He became aggressive and the other police agent had to use handcuffs to restrain him.
On May 2006 the applicant lodged a criminal complaint against the two police officers. The police sent the file to the Prosecutor’s Office of the Bucharest District Court for further investigation of the accusation of abusive behavior, and to the District Court regarding the applicant’s allegations that he had been hit and had suffered other forms of violence. As the Prosecutor’s Office decided not to prosecute, the applicant complained, without success, to the District Court about this decision. The District Court established that the applicant behaved aggressively that night, that he was under the influence of alcohol, thus disturbing public order, and that he had deliberately tried to hurt himself. Moreover, it reiterated that according to the law, the police were not to be held responsible for minor injuries caused to a person during the lawful exercise of their attributions. The applicant appealed, but the Bucharest County Court upheld the District Court’s judgment.
Relying on Article 3 of the Convention (prohibition of torture and of inhuman or degrading treatment) the applicant alleged in particular that he had been subjected to ill-treatment when arrested by two police officers and that the investigations carried out had not been effective.
Firstly, the Court reiterated the principle that when a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment. It is incumbent on the State to provide a plausible explanation of how the injuries were caused; the failure to do so leads to a serious suspicion that article 3 has been breached. The Court also noted that the national authorities failed to explain how, in falling to the ground, or ‘deliberately hitting his head on the ground and on the van doors’ the applicant could have bruised both his eyelids and temporal bone but completely spared his nose and mouth. Even accepting the possibility that the applicant’s conduct might have necessitated the use of physical force to restrain him, the Court considered that there are no sufficiently convincing elements in the file to justify such a strong use of force as to necessitate eight to nine days of medical care. Therefore, the applicant’s injuries were caused by police actions and amounted to treatment contrary to Article 3 of the Convention.
As to the effectiveness of the investigation required by Article 3 of the Convention, the Court observed that there were discrepancies between the official versions of the events, the one offered by the police officers, and the information contained by the medial certificates regarding the injuries of the applicant. . The investigators and courts took the police officers’ description of events as a proven fact and placed the burden on the applicant to prove otherwise. As his chances of doing so were practically non-existent, the Court held that there had been a violation of the substantive and procedural branches of Article 3 of the Convention.
Note
The above-summarized judgment focuses on a recurrent topic nowadays, namely police brutality. The Court’s decision of condemning Romania for violating the substantive and procedural provisions of Article 3 of the Convention, does not represent a ‘milestone’ in its case-law, as the Court had already established, through a range of other cases, that when an individual is under the control of the authorities and is injured, strong factual presumptions will indicate the guilt of the authorities. Moreover, the burden of proof rests on the authorities to provide a satisfactory and convincing explanation as to the cause of the injuries (see Boicenco v. Moldova, 2008). Furthermore, the Court mentioned more than once that if a person raises an arguable claim that he/she has been seriously ill-treated by police or other such agents of the State, in breach of Article 3, then there should be an effective official investigation capable of leading to the identification and punishment of those responsible (see Selmouni v. France 1999; Assenov and Others v. Bulgaria 1998, Velikova v. Bulgaria, 2000).
At the outset, it is important to point out that the Court rulled against the Romanian State in cases of inhuman and degrading treatment by the police multiple times (see Barbu Anghelescu v. Romania, 2004, Bursuc v. Romania,2004, Roşioru v. Romania, 2012, Ianoş v. Romania, 2011). This leads to the conclusion that the Romanian authorities had not taken the appropriate means of ensuring compliance with the Convention, perpetuating and encouraging abusive behavior.
In the context of this analysis I want to focus on the concept of ‘police brutality’. In my opinion, generally, people qualify certain acts of a police officer as being aggressive, not taking into consideration that the difference between brutality, on the one hand, and the legitimate use of force, on the other is delicate and unfixed (Babovic´, 2000). Neither in law nor in police science is there a definition of police brutality accepted on a large scale. It has been suggested that its establishment remains in the realm of police discretion, which appears to be the most important source of police brutality (Babovic´, 2000).
In its case-law, the Court has offered numerous examples of police brutality, qualified as inhuman and degrading treatment. However, one could say that police agents are sometimes authorized to be aggressive: they are given the right to use force in some situations, but this legal authorization is limited by the concept of proportionality. And this is the criterion used by the Court when establishing if an act is contrary to Article 3 of the Convention: unjustified and excessive force used by policemen. This conception has also been sustained in specialty articles, most of them referring to the fact that brutal police behavior during an arrest is measured by the degree of force or violence, as well as the illegality of a police response - in particular by the use of ‘unnecessary’, ‘excessive’ and therefore ‘unlawful’ force in subduing a suspect (Bouza, 1990).
In an attempt to explain the origins of police brutality, it has been outlined that police work in itself is brutal and dehumanizing, coupled with frustration, phobia and tension and the uncertainty about the outcome of an action or a conflict. Stress is common in dangerous situations and it makes the self-defensive reaction of the police officer stronger and intensifies its brutality (Babovic´, 2000). I strongly believe these factors do not apply in the case of Ghiţă v. Romania and it remains to be seen what will be the reaction of the Romanian State to the Court’s judgment, if there will be any.brutal police
I conclude by noting that in 2011 alone Romania was found guilty 11 times for the violation of Article 3 of the ECHR, which leads me to the conclusion that “public order authorities are placed in a state of impunity” (Popescu, 2012).