Failure to adequately investigate claim of excessive police force a violation of ECHR

Gramada v Romania (European Court of Human Rights, Chamber, Application No 1497/09, 11 February 2014)

Summary

The European Court of Human Rights has found that the failure by Romanian authorities to adequately investigate whether a police officer who shot Mr Gramada in the thigh had used excessive force was violation of the prohibition on torture, inhuman or degrading treatment (article 3, European Convention on Human Rights).

The Romanian authorities and courts had concluded that the police officer was justified in using force in the circumstances, even though his actions were disproportionate to the threat he faced, because he thought he was being threatened by armed men, and was scared and confused. However, the ECtHR noted that this conclusion was based on acceptance of the police officer’s testimony despite its inconsistency with other evidence, and highlighted serious flaws in the investigation, including the failure to obtain a ballistics report, and the failure to reconstruct the events on-site, which was normally standard procedure in these kind of cases. In these circumstances, the criminal investigation that had been conducted did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3. 

Facts

Late one night in May 2005, a Romanian police officer had stopped a car and attempted to breathalyse the driver, who ran away and took refuge in the nearby house of Mr Gramada, the complainant. Roused by the noise, both Mr Gramada and his father went out to meet the police officer in the courtyard of the house, where the police officer sprayed Mr Gramada’s father with tear gas, fired some warning shots into the air, and shot Mr Gramada in the thigh, causing him serious injury.

Though an investigation revealed conflicting versions of events from different witnesses, the prosecutor decided not to pursue charges against the police officer, finding that he had acted in legitimate self-defence as two armed men had threatened him. The prosecutor found that the police officer had reacted disproportionately to the threat. However, his conduct was excused under a Romanian law that allowed disproportionate actions in self-defence where caused by fear or confusion. 

Mr Gramada challenged the prosecutor’s decision in the domestic courts, citing the lack of evidence produced and the failure to obtain ballistics expert evidence about how many shots had been fired by the police officer, and which of those had hit Mr Gramada. He also complained about the failure to conduct an on-site inspection, and to reconstruct events.

Ultimately, the domestic courts acquitted the police officer of criminal charges, but partially upheld Mr Gramada’s civil claim for damages. The county court noted that the officer had only recently joined the police force, and when threatened, had discharged his gun in accordance with domestic law. Though he had used excessive force, the court considered that he was not criminally responsible by virtue of the Romanian self-defence law.

Mr Gramada appealed against this decision to the ECtHR, arguing that his treatment by the police officer, and the absence of an effective investigation, amounted to a violation of his right to fair trial under article 6 of the European Convention on Human Rights.

Decision

Though Mr Gramada invoked article 6, the ECtHR instead considered that the facts raised issues under the prohibition against torture and inhuman or degrading treatment or punishment in article 3 of the Convention.

Romania argued that the police officer had not intended to injure Mr Gramada, and that he had been hurt by the police officer’s actions in self-defence. The majority decision of the ECtHR held that it was incumbent upon the Government of Romania to prove that the use of force was “proportionate and necessary”, though it noted that the concept of justified excessive force was not unknown in European criminal law. 

However, the ECtHR agreed with Mr Gramada’s criticism of the Romanian courts’ decision to excuse the police officer’s excessive use of force. The ECtHR noted that the police officer made use of his weapons at the slightest hint of resistance, though it appeared unlikely that Mr Gramada had actually been armed given this possibility was based only on evidence of the police officer and the other official present. The ECtHR pointed to a domestic appellate court’s criticism of the lower courts for unreservedly accepting the self-defence argument on the basis of the police officer and the official’s testimony alone, despite the fact that it contradicted other evidence. The ECtHR went on to conclude that the police officer acted autonomously and recklessly, which probably would not have been the case if he had received adequate instructions from his superiors.

Importantly, the ECtHR considered that there were glaring omissions in the investigation undertaken by the Romanian authorities, including:

• the failure to seize the knives from Mr Gramada and his father (had they been armed);
• the refusal to carry out a reconstruction of the facts, even though this was an essential measure for this type of case and most of the information had come directly from the police officer;
• the failure to establish, by way of a ballistics report, how many shots had been fired, how many of those were fired by the police officer, and the distance and the direction of the shots. This was particularly pertinent given most of the witnesses had heard at least four shots.

The domestic courts had denied Mr Gramada’s request for a ballistics report partly on the basis that the gun had since been used by the police officer. However, the ECtHR emphasised that it was incumbent upon the authorities to take all necessary measures to ensure the availability and collection of evidence in these kinds of cases.

In these circumstances, the ECtHR considered that the Romanian authorities could not be considered to have genuinely sought to establish whether the forced used by the police officer was excessive. The lack of evidence led the ECtHR to reject Romania’s argument that Mr Gramada’s injury was caused by police officer acting in legitimate self-defence. The Court considered that the domestic courts’ exemption of the police officer from criminal prosecution was an attempt to minimise the effect of an extremely serious unlawful act, rather than an appropriate punishment.

The ECtHR concluded that in these circumstances, and given the significant flaws identified, the criminal investigation that had been undertaken did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3. The civil redress by way of damages was insufficient to remedy the breach. The ECtHR therefore concluded that article 3 of the Convention had been breached.

Following this declaration of a violation, the ECtHR considered Mr Gramada’s claim for 100,000 EUR in damages. Romania argued that Mr Gramada has already been awarded 5,000 EUR damages in relation to his civil claim by the domestic courts, and that the amount he demanded was excessive. The ECtHR considered its previous jurisprudence and found that the amount was insufficient, and awarded Mr Gramada a further 4,000 EUR in damages.

Commentary

This case highlights the importance of a thorough and independent investigation when police actions result in harm. Where use of force by police results in the death of a person, a proper investigation is also integral to ensuring that the person’s right to life is upheld.

The adequacy and independence of investigations following allegations of excessive police force are issues that arise regularly in Australia, where police officers are usually charged with the investigation of fellow officers, rather than an independent body.

The case of 15 year old Tyler Cassidy, who was shot by police, is a tragic example of an insufficient police investigation where police officers were not treated as suspects and their interviews were not recorded. Echoing the Gramada case, media statements made by Victoria Police indicated that police had reached a view that force was justified even before an investigation had taken place. Tyler’s mother Shani Cassidy filed a complaint with the UN Human Rights Committee with the help of the HRLC. Details about the complaint and more information about the case can be found here.

The decision can be found in French at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140776, and an English press release can be found at: http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4665767-5654323

Louise Brown is a Lawyer at King & Wood Mallesons currently on secondment with the Human Rights Law Centre.