European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
CREANGA v. ROMANIA - 29226/03 [2012] ECHR 329 (23 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/329.html
Cite as:
(2013) 56 EHRR 11,
[2012] ECHR 329,
56 EHRR 11
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
GRAND
CHAMBER
CASE OF CREANGĂ v. ROMANIA
(Application
no. 29226/03)
JUDGMENT
STRASBOURG
23 February 2012
This judgment is final
but may be subject to editorial revision.
In the case of Creangă
v. Romania,
The
European Court of Human Rights, sitting as a Grand
Chamber composed of:
Nicolas Bratza,
President,
Jean-Paul Costa,
Françoise
Tulkens,
Nina Vajić,
Dean Spielmann,
Lech
Garlicki,
Peer Lorenzen,
Alvina
Gyulumyan,
Egbert Myjer,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Päivi
Hirvelä,
Giorgio Malinverni,
Mirjana
Lazarova Trajkovska,
Nebojša Vučinić,
Guido
Raimondi,
Ganna Yudkivska, judges,
and Vincent
Berger, Jurisconsult,
Having
deliberated in private on 30 March 2011 and 18 January 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 29226/03)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian
national, Mr Sorin Creangă (“the applicant”), on
4 September 2003.
The
applicant was represented by Mr S. Cus, a lawyer practising in
Bucharest. The Romanian Government (“the Government”)
were represented by their acting Agent, Ms C. Ciută, of the
Ministry of Foreign Affairs.
3. The
applicant alleged, in particular, that his deprivation of liberty
from 9 a.m. to 10 p.m. on 16 July 2003 had been unlawful, as had his
subsequent placement in pre-trial detention. He relied in particular
on Article 5 § 1 of the Convention.
4. The
application was allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules of Court). On 1
November 2004 the Court changed the composition of its Sections (Rule
25 § 1). The case was assigned to the newly composed Third
Section (Rule 52 § 1). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1. On
19 February 2009 the President of the Third Section decided
to communicate the application to the Government.
5. On
15 June 2010 the Chamber, composed of Josep Casadevall, Elisabet
Fura, Corneliu Bîrsan, Boštjan M. Zupančič,
Ineta Ziemele, Luis López Guerra and Ann Power, judges, and
Santiago Quesada, Section Registrar, delivered its judgment. It
unanimously declared the application admissible as to the complaints
under Article 5 § 1 of the Convention and inadmissible as to the
remainder. The Chamber also found, unanimously, that there had been a
violation of Article 5 § 1 of the Convention as regards the
applicant’s deprivation of liberty from 10 a.m. to 10 p.m. on
16 July 2003 and his placement in detention on 25 July 2003
following the application to have the judgment of 21 July 2003
quashed. Lastly, the Chamber found that there had been no violation
of Article 5 § 1 of the Convention as regards the insufficient
reasons given for the applicant’s placement in temporary
detention from 16 to 18 July 2003. The Chamber also decided that the
respondent State was to pay the applicant EUR 8,000 (eight
thousand euros) in respect of non-pecuniary damage and EUR 500
(five hundred euros) in respect of costs and expenses.
6. On
3 September 2010 the Government requested that the case be referred
to the Grand Chamber (Article 43 of the Convention).
7. On
22 November 2010 a panel of the Grand Chamber decided to accept that
request (Rule 73).
8. The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24. On 3 November 2011 Jean-Paul
Costa’s term as President of the Court came to an end. Nicolas
Bratza succeeded him in that capacity and took over the presidency of
the Grand Chamber in the present case (Rule 9 § 2).
Jean Paul Costa continued to sit following the expiry of
his term of office, in accordance with Article 23 § 3 of the
Convention and Rule 24 § 4. Following the withdrawal of Mr
Corneliu Bîrsan (Rule 28), the judge elected in respect of
Romania, the President of the Grand Chamber appointed Mr Guido
Raimondi to sit as ad hoc
judge (Article 26 § 4 of the Convention and Rule 29 § 1).
The
applicant and the Government each filed
additional written observations (Rule 59 § 1).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 30 March 2011 (Rule 59 § 3).
There
appeared before the Court:
(a) for the Government
Ms C. Ciuta, acting Agent;
Ms
M. Morariu, Counsel;
(b) for the applicant
Mr S. Cus, of the Bucharest
Bar, Counsel.
The
applicant was also present.
The
Court heard addresses by Mr Cus, Ms Ciută and Ms Morariu and
their answers to questions put by judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1956 and lives in
Bucharest.
In
1985 the applicant joined the Bucharest police force. In 1995 he
became an officer in the criminal investigation department of
Bucharest police section no. 5.
A. The circumstances surrounding the applicant’s
first period of pre-trial detention
1. The applicant’s version
On
his application form, the applicant stated that on 16 July 2003 he
was informed by his hierarchical superior that he was required to go
to the National Anti-Corruption Prosecution Service headquarters
(“the NAP”) for questioning.
In
his written observations to the Grand Chamber of 10 February 2011
the applicant stated that at about 5 p.m. on 15 July 2003, while he
was on leave, a colleague from Bucharest police section no. 5
informed him by telephone that he was required to attend the NAP on
the following day; he was not given any additional information.
At
about 8.45 a.m. on 16 July 2003 the applicant met twenty-five
colleagues in the courtyard of the NAP headquarters. They were then
asked to enter the building at about 9 a.m. At the entrance, a police
officer entered the particulars of the applicant and his colleagues
in a logbook.
The
applicant and his colleagues were taken to a meeting room on the
ground floor of the building. Shortly afterwards V.D., a military
prosecutor, entered and asked them to make written statements on the
circumstances in which they had met three individuals: I.D., S.B. and
M.I. The prosecutor then left the room and returned at approximately
9.30 to 9.40 a.m. to collect the statements. After reading them,
the prosecutor allegedly began to threaten the applicant and his
colleagues with pre-trial detention. The prosecutor left the room
again. Four or five masked and armed gendarmes burst in. One of the
gendarmes asked the applicant and his colleagues to take out their
mobile phones and to put them on a table next to another gendarme.
They were also informed that they were allowed to leave the room to
go to the toilet or smoke a cigarette only individually and if
accompanied by an armed gendarme.
At
about 3 p.m. the applicant and his colleagues asked for permission to
leave the room to purchase water and food. After obtaining the
prosecutor’s permission, a gendarme collected money from the
police officers and went to buy the requested groceries.
Throughout
this time, the applicant was not assisted by either a lawyer of his
own choosing or an officially appointed lawyer. He was unable to
contact anyone outside the building.
On
the application form, the applicant stated that he had managed to
contact a lawyer at around 8 p.m.
In
his written observations to the Grand Chamber, the applicant alleged
that towards 11 p.m., he and one of his colleagues had been taken to
the prosecutor’s office on the first floor. The prosecutor,
another man and two women were present in the office. The prosecutor
allegedly suggested to the applicant that he state that the
commanding officers at Bucharest police section no. 5 were guilty of
corruption. He added that in exchange, the applicant would not be
placed in pre-trial detention and would be able to see his family
again soon. The applicant asked for assistance from a lawyer of his
choosing. The prosecutor replied that the two women present were
officially appointed lawyers and asked him to select one of them to
assist him. The applicant refused. He claimed that the prosecutor
began to “insult him” and to threaten that if he did not
cooperate, he would be placed in detention and would be forbidden
family visits. He was taken out of the office by a gendarme, who was
instructed to prevent him from speaking to anyone and from going to
the toilet without the prosecutor’s permission.
At
the public hearing on 30 March 2011 the applicant stated that at an
unspecified time his family, who knew that he was to go that day to
the NAP and who had not seen him come home, had contacted the lawyer
C.N., who asked his colleague, Mr Cus, to assist the applicant at the
prosecution service premises. Mr Cus arrived at 10 p.m. and was
allowed to meet with the applicant.
At
about 1.15 to 1.30 a.m. on 17 July 2003 the applicant was again taken
into the prosecutor’s office. The prosecutor filled in a
pre-printed form setting out the charges against the applicant and
read it to him. In response, the applicant stated that he did not
acknowledge the acts of which he was accused and that he stood by his
initial statement. The applicant signed the form in the presence of
an officially appointed lawyer, Ms M.S. The prosecutor also
served on him a warrant for his pre-trial detention, issued on 16
July 2003, which mentioned that his detention had been ordered for
three days, namely from 16 to 18 July 2003.
At about 1.40 a.m., in the presence of Mr Cus, the
lawyer chosen by the applicant, the prosecutor informed him of the
order for his pre-trial detention. He also outlined to the applicant
the evidence against him in support of his detention, namely
statements by his colleagues. The order was based on Article 148 §
1 (h) of the Code of Criminal Procedure (“the CCP”).
Referring to the relevant legal texts, the prosecutor indicated that
the acts of which the applicant was accused amounted to the offences
of criminal conspiracy, accepting bribes and aiding and abetting
aggravated theft. The relevant part of the order was worded as
follows:
“On an unspecified date in 1999 or 2000, a date
that will be determined precisely [at a later stage], [the
applicant], along with several colleagues from police section no. 5,
caught several persons in the Bucureştii Noi district in the act
of transporting in a Dacia van more than two tons of petrol that had
been siphoned from pipelines. They then asked for and received the
sum of 20,000,000 lei from S.B. and M.I. in exchange for not opening
a criminal investigation against them and allowing them to continue
their unlawful activity.
The fact that the suspect/accused committed these
criminal acts is proved by the following evidence:
- witness statements;
- records of confrontations;
- statements by the accused persons;
- audio recordings;
- photographs;
- records of photo-based identification procedures.
Given that the conditions laid down in Article 148 §
1 (h) CCP have been met, namely that the offence committed is
punishable by between four and eighteen years’ imprisonment and
that the accused’s release would pose a threat to public order
and to the conduct of the investigation in this case, since the
accused is a police officer and could use this fact to influence the
persons who are to be questioned;
On the basis of Article 136 § 5, Article 146 §
1, Article 148 § 1 (h), Article 1491 and Article 151
CCP [the prosecutor] decides that:
The suspect/accused is to be held in temporary pre-trial
detention ... for a period of three days;
Pursuant to Article 146 § 3 and Article 1491 §
3 CCP, the detention referred to above shall commence at 10 p.m. on
16 July 2003 and end at 10 p.m. on 18 July 2003.
A warrant for temporary pre-trial detention will be
issued ... from 16 July 2003 ...”
At
about 2.30 a.m. the applicant was taken to a room in the basement of
the building where thirteen other colleagues were present. Shortly
afterwards he was transferred to Rahova Prison.
2. The Government’s version
During
the autumn of 2002 the NAP was informed of thefts of petroleum
products from Petrotrans S.A. pipelines on the outskirts of
Bucharest, committed in close collaboration with gendarmes and police
officers. The questioning of several individuals on 9 and 11 July
2003 and photographic identification revealed the applicant’s
involvement in the operation. The prosecutor responsible for the
case, V.D., decided to summon around fifty people to give evidence on
16 July 2003.
On
15 July 2003 the applicant and sixteen police colleagues were
summoned at their workplace (Bucharest police section no. 5) to
appear before the NAP in order to make statements for the purpose of
a criminal investigation. The head of police of the 1st District of
Bucharest was also informed so that he would be aware of the police
officers’ absence from work on the following day and in order
to ensure their presence at the NAP.
At
9 o’clock the following morning the applicant and his
colleagues went to the NAP premises. The military prosecutor V.D.
greeted them in a room on the ground floor of the building and
informed them that they were to be questioned in the context of a
preliminary investigation (acte premergătoare) into their
suspected involvement in the fraudulent removal of petroleum products
from oil pipelines. All of the police officers verbally denied any
involvement in such activity, but agreed to make a written statement
on the subject. As a result, they received a ten-point questionnaire
which they answered on a plain sheet of paper. During this period the
prosecutor left the room and went to his office, on the first floor
of the building, to continue procedural formalities with regard to
other individuals involved in the case.
Towards
12 noon, when all of the officers had finished writing their
statements, the prosecutor returned to the room and informed them
that, by a decision of the same day, a criminal investigation had
been opened in the case against ten of the police officers, including
the applicant, for accepting bribes, aiding and abetting aggravated
theft and criminal conspiracy. The other seven police officers were
free to leave the NAP premises.
The
prosecutor asked the ten police officers concerned to make new
statements and to take part in confrontations with other persons. He
also informed them that they were entitled to be assisted by counsel
of their own choosing. Some of the police officers contacted lawyers,
while the prosecution service asked the Bucharest Bar to ensure that
lawyers could be officially appointed for the others, including the
applicant.
The
applicant waited voluntarily in the NAP premises in order to have his
legal situation clarified. He was not obliged to stay there, and was
free to leave the premises at any point in order, for example, to
purchase water or cigarettes; indeed, two police officers, A.A. and
G.C., left that day and did not return.
The
applicant was at no time supervised or guarded. Gendarmes were
present in the NAP premises on that day purely for the purpose of
maintaining order. Furthermore, there was no separate entrance or
special room for persons placed in police custody or in pre-trial
detention.
At
about 1 or 2 p.m., after their chosen lawyers (for five of the police
officers) or officially appointed lawyers had arrived at the NAP
headquarters, the prosecutor began questioning each of the officers
in turn. This process lasted three to four hours.
At
an unspecified time while being questioned, the applicant, assisted
by M.S., an officially appointed lawyer, added to his initial
statement made on a plain sheet of paper, confirming that he was a
colleague of officers C.D. and M.G.M. and that he had a normal
relationship with them. On that occasion, the prosecutor noted on the
sheet that the initial statement had been made at 10 a.m.
At
an unspecified time the applicant made a new statement in the
presence of the same officially appointed lawyer, this time on a
pre-printed form bearing the words “suspect/accused”. The
form indicated that the applicant had been informed of the acts of
which he was accused and their legal classification, and of his
procedural rights. A record was accordingly drawn up and signed by
the prosecutor, the applicant and the officially appointed lawyer.
The
prosecutor subsequently carried out several confrontations between
suspects, accused persons and witnesses.
At
10 p.m., by an order, the prosecutor decided to charge several police
officers, including the applicant, with accepting bribes, aiding and
abetting aggravated theft and criminal conspiracy.
At
the same time, the prosecutor decided, by an order, to place the
applicant in temporary pre-trial detention. A warrant for pre-trial
detention was issued and served on him at an unspecified time. During
the night of 16 to 17 July 2003 the applicant was transferred to
Rahova Prison.
The
Government observed that the logbooks recording persons entering and
leaving the NAP premises in 2003 had been destroyed well before the
present case had been communicated on 19 February 2009, the retention
period being three to five years, in accordance with the legal
provisions in force.
B. The applicant’s release
On 17 July 2003, on the basis of Article 148 § 1
(c), (d) and (h) CCP, the NAP asked the Bucharest Military Court to
extend by twenty seven days the pre-trial detention of the
applicant and his thirteen co-accused, starting on 19 July 2003.
At
10 a.m. on 18 July 2003 the applicant was taken to court. He alleged
that his lawyer was given access to the case file only while the
prosecution was presenting its request for an extension of the
pre-trial detention. The Military Court ordered that the case be
referred to the Military Court of Appeal, which, in view of the
military rank of one of the co-accused, had jurisdiction.
By
a judgment delivered in private on the same date, the Military Court
of Appeal, sitting as a single judge, granted the prosecution’s
request and extended the pre-trial detention of the applicant and the
other co-accused by twenty-seven days.
The
Military Court of Appeal held, having regard to the case file, that
there was evidence that the accused had committed the offences of
criminal conspiracy, taking bribes, aiding and abetting aggravated
theft and inciting others to give false evidence. It held that it was
necessary to place the accused in pre-trial detention on grounds of
public order, noting that they could influence witnesses and that
they had taken steps to evade criminal proceedings and execution of
the sentence. Lastly, it noted that the complexity of the case, the
large number of accused and the difficulty in obtaining evidence were
also to be taken into account.
On
the same day, a warrant for pre-trial detention identical to that of
16 July 2003 was issued in respect of the applicant.
The
applicant and his co-accused lodged an appeal against the judgment,
arguing that the court which had delivered it had not been legally
constituted. The prosecution likewise submitted that the court had
been incorrectly constituted.
By
a final judgment of 21 July 2003 the Supreme Court of Justice upheld
the appeal, set aside the judgment and ordered the release of the
applicant and his co-accused. It held that, in order to ensure
greater transparency in the fight against corruption, Law no. 161 of
21 April 2003 had amended, with immediate effect, the
procedural provisions set out in Law no. 78/2000 on the prevention,
discovery and punishment of acts of corruption (“Law no.
78/2000”). Thus, Article 29 §§ 1 and 2 of Law
no. 78/2000 provided that a court ruling at first instance on
the offences set out in that Law had to be composed of two judges.
The
applicant was not informed of the reasoning of that judgment.
The
applicant was released on the same day.
C. Procurator General’s application for quashing
of the decision ordering the release of the accused
On
an unspecified date, the Procurator General of Romania lodged an
application with the Supreme Court of Justice to have the final
judgment of 21 July 2003 quashed. He submitted that the Supreme Court
had committed serious errors of law in its interpretation of the
domestic legislation, resulting in an unsatisfactory solution to the
matter.
The
applicant stated that he had learned only on 24 July 2003,
through the media, of the existence of the application to have the
judgment quashed, and of the fact that the hearing had been scheduled
for 25 July 2003.
At
9.30 a.m. on 25 July 2003 the applicant attended the hearing,
accompanied by two lawyers who requested that the case be adjourned
on the ground that neither the reasoning of the judgment of 21 July
2003 nor the application to have that judgment quashed had been
communicated to the applicant. The Supreme Court of Justice granted
this request and, referring to the urgent nature of the case,
adjourned the hearing until 12.30 p.m.
When
the proceedings resumed the applicant submitted that the final
judgment of 21 July 2003 could only be challenged by means of an
appeal in the interests of the law and not by an application to have
it quashed, and that there were no plausible reasons to justify his
pre-trial detention.
By
a final judgment of 25 July 2003 the Supreme Court of Justice,
sitting as a bench of nine judges, upheld the application, quashed
the judgment of 21 July 2003 and, on the merits, dismissed the
applicant’s appeal on the ground that the aforementioned
judgment had incorrectly interpreted Article 29 §§ 1 and 2
of Law no. 78/2000. It considered that the application of the
amendments to Law no. 78/2000 and to the CCP led to the conclusion
that the legislature’s intention had been to ensure a single
set of rules concerning pre-trial detention, namely that it was to be
ordered by a single-judge bench sitting in private, whatever the
nature of the offence.
Having
regard to the case file, which contained sufficient information to
suggest that each of the persons under criminal investigation could
have committed the offences with which they had been charged, the
Supreme Court of Justice also held that their pre-trial detention was
justified.
On
25 July 2003 the applicant was placed in pre-trial detention.
By
an interlocutory judgment of 29 June 2004, upheld on 2 July 2004
by the Military Court of Appeal, the territorial Military Court
ordered that the applicant be released and replaced his pre-trial
detention by an order prohibiting him from leaving the country.
By
a judgment of 22 July 2010 the Bucharest Court of Appeal sentenced
the applicant to three years’ imprisonment, suspended, for
taking bribes (Article 254 § 2 of the Criminal Code taken
together with Article 7 of Law no. 78/2000) and harbouring a criminal
(Article 264 of the Criminal Code). By the same judgment, M.T. and
G.S., whose statements had been produced by the applicant, were
sentenced to two years’ and five years’ imprisonment
respectively for taking bribes and criminal conspiracy, and taking
bribes and harbouring a criminal.
D. Written statements produced by the applicant
At the request of the Court, on 8 March 2011 the applicant produced
the statements of two of his police colleagues, M.T. and G.S., who
had also been present in the NAP premises on 16 July 2003. Their
statements had been taken by the applicant’s lawyer on 3 March
2011.
M.T.’s
statement read as follows:
“At around 9.30 p.m. on 15 July 2003 the duty
officer of police section no. 5 informed me by telephone that I was
to attend the NAP at 9 a.m. on 16 July 2003, but I was given no
additional information. At 8.45 a.m. on 16 July 2003, outside the NAP
premises, I met several colleagues including Sorin Creangă.
Shortly afterwards, we were invited to enter the building. At the
entrance, a gendarme asked us for our identity documents so as to
note down our particulars in the logbook. I was taken with my
colleagues to a room on the ground floor of the building. Shortly
afterwards, a person entered the room and introduced himself as V.D.,
the military prosecutor. He gave us sheets of paper and pens and
asked us to state whether and in what circumstances we had met three
people: I.D., S.B. and M.I. He left the room, leaving us alone.
After approximately forty minutes, V.D., the prosecutor,
came back into the room and gathered up the statements. [After having
read the statements] and noted that some [of us] had responded
negatively, he became angry and very tense and threatened to place us
in detention with our colleagues who had already been arrested. He
then left the room. Four or five armed gendarmes (masked and armed
with machine guns and wearing bulletproof vests) burst into the room.
One of the gendarmes, who had the rank of officer, asked us to get
out our mobile phones and place them on a table next to another
gendarme; we were also told that we were authorised to leave the room
only if accompanied by a gendarme. That situation lasted until 5
p.m., when we asked for permission to leave the room to purchase food
and water. We were asked to collect the money so that a gendarme
could go and buy the groceries we had requested.
We were forbidden from contacting our families or anyone
on the outside. Until 10 p.m. we were authorised to leave the
room to use the toilet only individually and accompanied by an armed
gendarme. We were not assisted by lawyers of our own choosing or
officially appointed lawyers. At about 10.30 p.m. to 11 p.m., a
gendarme took me with Sorin Creangă to an office on the first
floor. Present in the office were the prosecutor V.D., the person who
had taken us to the NAP premises, another man and two women. The
prosecutor suggested to me and to Sorin Creangă that we state
that the officers in charge of police section no. 5 were guilty of
corruption and were accepting bribes from thieves ... and assured us
that if we were to make such a statement no action would be taken
against us. Otherwise, we would be arrested. That being so, my
colleague Sorin Creangă asked to be assisted by a lawyer of his
choosing. The prosecutor replied that the two women present, who were
officially appointed lawyers, would assist them. Sorin Creangă
refused their assistance and said that he would not make a statement.
The prosecutor started to insult him, calling him a peasant, and told
him that he would be arrested even if he didn’t make a
statement and that he would never see his family again if he didn’t
cooperate. Sorin Creangă was then taken from the office.
Approximately forty minutes later, when I was taken to a
room in the basement of the building, I saw Sorin Creangă in the
corridor, near the door of the prosecutor’s office, being
guarded by an armed gendarme. At around 2.30 a.m. on 17 July 2003
Sorin Creangă was taken to the basement room. Shortly
afterwards, we got into a windowless vehicle and were taken to Rahova
Prison in Bucharest, escorted by gendarmes.
I would point out that I was not allowed any contact
with my family and was not allowed to be assisted by a lawyer of my
choosing.”
In
his statement, S.G. confirmed the truth of M.T.’s statement and
described the course of events after 16 July 2003.
E. Statement of the prosecutor, V.D., produced by the
Government
At
the request of the Court, on 7 March 2011 the Government produced the
statement of the prosecutor V.D., responsible for the proceedings
brought against the applicant. Dated 17 January 2011, the relevant
parts read as follows:
“After having consulted ‘the records’
of the file on the criminal investigation, I wish to clarify the
following:
- The following ‘făptuitori’
[‘alleged perpetrators’ or ‘suspects’, at a
stage prior to the opening of proceedings against them], officers of
police section no. 5, were summoned on the aforementioned date [16
July 2003] by a written request sent to the head of police of the 1st
District of Bucharest: G.S., D.M., Sorin Creangă, M.T., C.M.,
C.O., L.S., S.T., D.A., M.G., S.T., C.B., N.T., C.S., G.R., L.C. and
G.D.
- The aforementioned persons were informed that they
were to be questioned as ‘făptuitori’ (in the
context of the preliminary investigation) in connection with their
involvement in the fraudulent extraction of petroleum products from
oil pipelines. From the outset, all the police officers summoned
verbally denied any involvement in this activity but agreed to make a
statement in that regard. Consequently, they were given a ten-point
questionnaire to which they responded in writing.
After having obtained their agreement and in the
interests of the efficiency of the investigation, I decided that the
statements would be made simultaneously in the NAP meeting room
because it would have taken several hours to question them
individually. I left the room while the statements were being drawn
up because, as I was the only prosecutor working on the case, I had
other investigative formalities to complete in my office.
- At around 12 noon, when all the officers had finished
writing their statements, I re-entered the room and informed them
that a criminal investigation had been opened in the case against
G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A.
and M.G. I asked those persons to make new statements and to take
part in confrontations. I explained to them that they were entitled
to be assisted by lawyers of their own choosing and that, for those
who did not have lawyers, officially appointed lawyers would be
requested from the Bucharest Bar.
Accordingly, the persons wishing to be assisted by a
lawyer of their own choosing were permitted to contact their lawyers,
and officially appointed lawyers were requested from the Bucharest
Bar for the others. The first lawyers arrived at the prosecution
headquarters one hour after having been contacted and they were
allowed to meet with their clients in the corridors of the building
before the hearings and confrontations.
The police officers in respect of whom no criminal
investigation had been opened were free to leave the NAP and return
to their place of work.
In addition to the above-mentioned ‘făptuitori’,
police officers D.M., C.M.E., I.E. and D.C.B were summoned to appear
as ‘făptuitori’ at the prosecutor’s
office on the same day. The same procedure was followed in respect of
those police officers, since they were also the subject of a criminal
investigation.
- Before the lawyers for the fourteen police officers
under investigation arrived (that is, before 1 p.m.), I completed
other investigative formalities in my office such as questioning,
re-examination or confrontation, in respect of other persons, for
example M.I., S.B., D.C., G.M.M. and G.A., some of whom were already
in pre-trial detention.
- A series of witnesses, including M.P., M.B. and
D.A.I., were summoned on the same day in the same case.
- At around 1 or 2 p.m. I started questioning the
fourteen police officers, as suspects, in the presence of their
lawyers. Each suspect made two separate statements (one written on a
plain sheet of paper and another on the form designed for suspects),
signed by their lawyers.
I recall that none of the fourteen suspects admitted any
involvement in the criminal activities at issue, even though their
involvement had been established on the basis of evidence gathered
earlier.
The fourteen suspects were questioned for at least three
to four hours.
- Because several confrontations were needed, the
fourteen suspects, assisted by lawyers of their choosing or
officially appointed lawyers, participated voluntarily in at least
twenty confrontations, during which they were presented with extracts
of transcripts of their telephone conversations which had been
intercepted and recorded.
The confrontations went on for several hours, until 10
p.m., when a prosecution was brought against the fourteen suspects
and an order for their detention was made.
Note: The special nature of the criminal investigation
in this case required that repeated questioning and confrontations be
carried out on the day in question, that being the only way in which
the truth could be established.
Another reason for carrying out all those measures on
the same day was the need to ensure the confidentiality of the
results of the investigation, given that there was already sound
evidence that the suspects and the accused were transmitting
information about the investigation with a view to concealing the
truth and obstructing the criminal investigation.
- ... as far as I recall, in 2003, just as now, the
identity cards of people summoned to attend the prosecutor’s
office were not retained at the entrance since the prosecutor had to
identify each person before every interview.
- ... the accused Sorin Creangă completed the
formalities described above. ... Thus, until 11 a.m. or 12 noon,
alongside his colleagues, he drew up his first statement without the
prosecutor being present in the room; the room was on the ground
floor of the building. Later, Sorin Creangă waited for his
lawyer to arrive; after that, he took part in two sets of questioning
and various confrontations (the gendarmes were indeed present, but
their purpose was to keep order, and no one was guarded individually;
anyone could, without being guarded and without having to advise
anyone, leave the prosecution service headquarters because no
permission was required at the exit).
Personally, as the prosecutor, I do not remember the
names of the two police officers who left the prosecution service
headquarters during that period without advising anyone but I do
remember that they disappeared and could not be found, which is why a
general search warrant covering the whole country was issued in
respect of them. They were found several days later and brought to
the prosecution service, which detained them. They were then brought
before the court, which ordered that they be placed in pre-trial
detention.
- ... there was not in 2003, nor is there now, a
separate entrance for persons under investigation or arrest, nor is
there any special room in which such persons could wait to be called
into the prosecutor’s office in connection with activities
forming part of criminal investigations.
- ... the accused, Sorin Creangă, was summoned on
16 July 2003 by a letter sent by the NAP to the head of police of the
1st District of Bucharest (a copy is attached to this report), that
being a legal form of service of a summons under the Code of Criminal
Procedure.
Once charged, Sorin Creangă was provided with legal
assistance, in accordance with the procedural requirements, given
that before a criminal investigation is opened, the law does not
require the presence of a lawyer and he did not request the
assistance of a lawyer. Furthermore, neither did the other police
officers request assistance from a lawyer when drawing up their
initial statements.
Sorin Creangă did not specifically ask for
permission to leave the NAP headquarters as he was under no
obligation to do so and there were no checks on anyone wishing to
leave the building without informing the investigating prosecutor.
Sorin Creangă was therefore never specifically told
that he could leave the NAP headquarters but he was asked, along with
other police officers, to participate in the activities forming part
of the criminal investigation and he agreed to do so.
... Sorin Creangă was provided with information and
legal assistance as was his entitlement in law; he agreed to
participate in activities forming part of the criminal investigation.
Before Sorin Creangă was charged, several other
accused, for example S.B., M.I., G.F.P., V.B.D., D.C., G.M.M.,
G.A.A., F.C., A.G.B., C.U., M.L., M.V., N.B., L.S. and I.D., had
admitted committing the offences with which they had been charged and
confirmed the offences committed by Sorin Creangă.
- ... I worked alone on this case file on 16 July 2003
and was not assisted by other prosecutors or police officers.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant provisions of the CCP, in force at the material time, read
as follows:
A. Commencement of the criminal proceedings, the
parties and other participants in the criminal proceedings
Article 23
The accused
“The person against whom a prosecution is brought
is a party to the criminal proceedings and is referred to as the
accused.”
Article 78
The witness
“Any person who has knowledge of a fact or
circumstance that might be useful in establishing the truth in the
criminal proceedings may be heard as a witness.”
Article 224 §§ 1 and 3
The preliminary
investigation
“1. The criminal investigation authorities may
conduct any preliminary investigation measures.
...
3. The record of execution of any preliminary
investigation measure shall constitute evidence.”
Article 228 § 1
Opening of the criminal
investigation
“The criminal investigation authority to which an
application is made in accordance with any of the arrangements set
forth in Article 221 shall order, by decision (rezoluţie),
the opening of a criminal investigation where the content of that
application or the preliminary investigation do not disclose any of
the grounds not to prosecute, as provided for in Article 10, with the
exception of the ground set out under letter (b)1.”
Article 229
The suspect (învinuitul)
“The suspect is a person who is the subject of a
criminal investigation, until such time as a prosecution is brought.”
Article 235 §§ 1 and 2
Prosecution
“1. The prosecutor shall decide to prosecute [on a
proposal by the criminal investigation authority] after having
examined the case file.
2. If the prosecutor agrees with the proposal, he or she
shall bring the prosecution by means of an order (ordonanţă).”
B. The appearance of witnesses, suspects or accused
Article 83
Obligation [on witnesses] to appear
“A person who is called upon to testify as a
witness must appear at the place, on the date and at the time
indicated in the summons. He or she is bound to reveal everything
that he or she knows about the facts of the case.”
Article 176 § 1 (b)
Content of the summons
“1. The summons ... contains the following
wording:
...
(b) the first name and surname of the person summoned,
the capacity in which that person is being summoned and the subject
matter of the case.”
Article 183
The warrant to appear
“Any person who, despite having been summoned to
appear, has not done so and whose testimony is deemed to be necessary
may be brought before the criminal investigation authorities or
before a court by virtue of a warrant to appear drawn up in
accordance with the provisions of Article 176 CCP.
The suspect or accused may be the subject of a warrant
to appear even before a summons has been issued if the criminal
investigation authority or the court finds, by a reasoned decision,
that such a measure is required.
[Provision inserted by Law no. 281/2003, which entered
into force on 1 January 2004] Any person appearing by
virtue of the warrant referred to in paragraphs 1 and 2 of this
Article shall be available to the judicial authorities only for such
time as is required to question them, save where an order has been
made for them to be placed in police custody or pre-trial detention.”
C. Police custody and pre-trial detention
Article 136 §§ 1, 3, 5 and 8
Purpose
and categories of preventive measures
“1. In cases concerning offences which are
punishable by life imprisonment or an prison sentence, in order to
ensure the proper conduct of the criminal proceedings and to prevent
the suspect or accused from evading the criminal investigation, trial
or execution of the sentence, one of the following preventive
measures may be taken:
(a) police custody;
(b) prohibition on leaving the district;
(c) prohibition on leaving the country;
(d) detention.
...
3. The measure provided for in paragraph 1 (a) of this
Article may be imposed by the criminal investigation authority or by
the prosecutor.
...
5. The measure provided for in paragraph 1 (d) of this
Article may be imposed by the court or, in the cases provided for by
law, as a temporary measure, by the prosecutor within the framework
of a criminal investigation.
...
8. In selecting the measure to be imposed, the
authorities in question shall take account of its purpose, the danger
to society posed by the offence, and of the health, age and previous
record of the person involved and any other relevant circumstances.”
Article 137
Content of the decision by which a
preventive measure is adopted
“The decision by which a preventive measure is
adopted must list the facts which gave rise to the charges, their
legal basis, the sentence provided for in the legislation governing
the offence in question and the specific reasons for adoption of the
preventive measure.”
Article 1371 § 1
Communication of
the reasons for preventive measures and of the suspicions
“Any person held in police custody or pre-trial
detention shall be informed immediately of the reasons justifying
such a measure. That person shall be informed at the earliest
opportunity, in the presence of a lawyer, of the suspicions against
him or her.”
Article 143
Police custody
“1. The criminal investigation authority may place
a person in police custody if there are reasonable indications or
evidence that he or she has committed an offence prohibited by the
criminal law.
2. Police custody must be ordered in the cases provided
for in Article 148, irrespective of the length of the applicable
sentence for the alleged offence.
3. Reasonable evidence exists where, having regard to
the existing information on a given case, the person under
investigation may be suspected of having committed the alleged
offence.”
Article 144
Duration of police custody
“1. Police custody may last for a maximum of
twenty-four hours. The period during which the person was deprived of
liberty as a result of the administrative measure of being taken to
the police premises must be deducted from the duration of the police
custody, as provided for by Law no. 218/2002 on the organisation and
functioning of the Romanian police.
2. The order for placement in police custody must state
the date and time at which police custody began and the order for
release must state the date and time at which police custody ended.
3. Where the criminal investigation authority considers
pre-trial detention necessary, it shall make a reasoned request to
the prosecutor within the first ten hours of police custody ... If
the prosecutor considers that the statutory requirements have been
met, he or she shall order the pre-trial detention within the
time-limit set out in the first paragraph of Article 146.
4. Where the prosecutor has ordered police custody and
considers that pre-trial detention is required, he or she must make
the relevant order within ten hours of the commencement of the police
custody, in accordance with Article 146.”
Article 146 §§ 1, 2, 3 and 11
Detention
of the suspect during the criminal investigation
“1. Where the requirements of Article 143 are met,
where any of the cases provided for in Article 148 is shown to exist,
and where it is considered necessary for the purpose of the criminal
investigation, the prosecutor, acting of his or her own motion or at
the request of the criminal investigation authority, may, by a
reasoned order setting out the grounds for and the duration of the
measure and after having questioned the suspect in the presence of
his or her lawyer, order that the party concerned be placed in
temporary pre-trial detention for a maximum period of three days.
2. The prosecutor shall also draw up a warrant for the
temporary pre-trial detention of the suspect. ...
3. If the suspect is already in police custody, the
three days shall be calculated from the date of the police custody
warrant.
4. Within twenty-four hours of issuing the warrant for
temporary pre-trial detention, the prosecutor shall submit the case
file to the court ..., with a reasoned proposal as to pre-trial
detention ...
11. If the conditions set out in the first paragraph of
this Article are met, the court shall make an interlocutory order for
the pre-trial detention of the suspect before expiry of the period of
detention ordered by the prosecutor, indicating the specific reasons
for that measure and its duration, which may not exceed ten days.”
Article 148 § 1
Conditions to be met and
situations in which detention of the accused may be ordered
“1. Detention of the accused may be ordered where
the conditions set out in Article 143 are met and in any of the
following cases:
...
(d) sufficient evidence exists to conclude that the
accused has attempted to impede the discovery of the truth by
exerting pressure on a witness or an expert, by destroying or
tampering with evidence or by taking other similar action;
(e) the accused has committed another offence or there
is sufficient evidence to fear that he or she will commit another
offence;
...
(h) the accused has committed an offence for which the
law prescribes a prison sentence of more than four years, where there
is clear evidence that his or her continued liberty would constitute
a threat to public order.”
Article 149 § 1
Duration of detention of an
accused
“The duration of the detention of an accused may
not exceed thirty days, except where it is extended in accordance
with a procedure prescribed by law ...”
Article 1491 – 1
Detention of the
accused in the course of a criminal investigation
“1. Where the requirements of Article 143 are met,
where any of the cases provided for in Article 148 is shown to exist,
and where it is considered necessary for the purpose of the criminal
investigation, the prosecutor, acting of his or her own motion or at
the request of the criminal investigation authority, may, by a
reasoned order setting out the grounds for and the duration of the
measure and after having questioned the accused in the presence of
his or her lawyer, order that the party concerned be placed in
temporary pre-trial detention for a maximum period of three days.”
Article 150 § 1
The questioning of the
accused
“The detention of the accused may only be ordered
after he or she has been questioned by the prosecutor and by the
court, save where the accused has disappeared, is abroad or is
evading the investigation or the trial ...”
D. Assistance by a lawyer
Article 6
Guarantee of the rights of the defence
“1. The suspect, the accused and the other parties
to the criminal proceedings are guaranteed the rights of the defence.
2. During the criminal proceedings, the judicial
authorities shall ensure that the parties are fully able to exercise
their procedural rights in the conditions laid down by law, and shall
take the evidence necessary for their defence.
3. The judicial authorities shall inform the suspect or
accused [at the earliest opportunity and before they are questioned –
provision inserted by Law no. 281/2003, which came into force on
1 January 2004] of the charges against them and of their
classification in law and shall afford them the opportunity to
prepare and conduct their defence.
4. All parties are entitled to be assisted by counsel
during the criminal proceedings.
5. The judicial authorities shall inform the suspect or
the accused, before they make their initial statement, of their right
to be assisted by counsel and shall take due note in the record of
the hearing. In the conditions and in the cases provided for by law,
the judicial authorities shall take all measures to ensure that the
suspect or accused are provided with legal assistance where they have
no counsel of their own choosing.”
Article 171 §§ 1, 2 and 4
Legal
assistance for the suspect or accused
“1. The suspect or accused is entitled to be
assisted by defence counsel during the criminal investigation and
before the court and the judicial authorities are required to inform
him or her of that right.
2. Legal assistance is mandatory where the suspect or
accused is a minor, is carrying out military service, is a called-up
reservist, is a pupil in a military institution, is held in a
rehabilitation centre or a medical and educational institution or is
being detained, even in connection with a different case.
...
4. Where legal assistance is mandatory and the suspect
or accused has not taken the necessary steps to choose his or her
defence counsel, measures shall be taken to designate an officially
appointed lawyer.”
Article 172 §§ 2, 4 and 8
Rights of
counsel for the defence
“2. Where legal assistance is mandatory, the
criminal investigation authority shall ensure that defence counsel is
present while the accused is being questioned.
...
4. An accused who has been placed in pre-trial detention
is entitled to contact his or her lawyer. Exceptionally, and in the
interests of the investigation, the prosecutor, of his or her own
motion or at the request of the investigation authority may, by a
reasoned order, prohibit any contact with his or her lawyer, on a
single occasion and for a maximum period of five days.
...
8. The lawyer chosen by the suspect or accused or the
officially appointed lawyer is required to provide that person with
legal assistance. The criminal investigation authority or the court
may bring to the attention of the relevant bar association any
failure to fulfil that obligation in order that measures may be
taken.”
E. Action to have a decision quashed
Article 409
Action to have a decision quashed
“The Procurator General at the Supreme Court of
Justice may, of his own motion or on an application by the Minister
of Justice, apply for any final decision to be quashed.”
Article 410 § 2
Cases in which an action to
have a decision quashed may be brought
“Final decisions other than those referred to in
the first paragraph [the first paragraph concerns decisions to
convict, to acquit or to discontinue proceedings] may only be
contested by an application to have them quashed if they are
inconsistent with the law.”
The
Articles of the CCP governing applications to have decisions quashed
were repealed by Law no. 576 of 14 December 2004, which was published
in the Official Gazette of 20 December 2004 and entered into force on
23 December 2004.
As
regards the preliminary investigation (acte premergătoare),
the criminal investigation authority is under no obligation to
provide the party concerned, who at that stage has the status of
“făptuitor”, with the assistance of a lawyer
in respect of the measures taken during that period. That obligation
arises only once the criminal proceedings during which the party
concerned acquires the status of suspect or accused have been opened
(judgments no. 2501 of 14 April 2005 and no. 3637 of 7 June 2006 of
the High Court of Cassation and Justice, Criminal Division). At the
preliminary investigation stage, the authorities are not authorised
to carry out prosecution activities, but merely to take measures that
do not require a legal decision strictly speaking (judgment no. 5532
of 26 September 2006 of the High Court of Cassation and
Justice, Criminal Division). If evidence is taken at that stage, such
as, for example, witness statements, the questioning of the accused,
or court-ordered expert reports, the proceedings will be null and
void (judgment no. 806/2006 of the High Court of Cassation and
Justice, Criminal Division).
The
Constitutional Court has confirmed on several occasions that the
criminal investigation authority is not obliged to provide legal
assistance when measures are taken at the preliminary investigation
stage, on the ground that no evidence capable of being used during
the subsequent criminal proceedings may be taken at this stage
(judgments no. 141/1999, 210/2000 and 582/2005). It has
refrained, on the other hand, from making any comment on the
authorities’ practice of conducting prosecution activities
during the preliminary investigation phase, considering that that was
an issue concerning the application of the criminal law and not a
question of constitutionality (judgment no. 113/2006).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
In
their written submissions to the Grand Chamber and at the hearing of
30 March 2011, the Government, for the first time in these
proceedings, objected that domestic remedies had not been exhausted
with regard to the complaint under Article 5 § 1 of the
Convention concerning the applicant’s deprivation of liberty
before 10 p.m. on 16 July 2003. They argued that the applicant had
not complained, at least in substance, that he had been deprived of
his liberty, either in the statements made on the same day or
subsequently before the prosecution service or the domestic courts.
The
Court points out that a preliminary objection of non-exhaustion of
domestic remedies should in principle be raised before the
admissibility of the application is examined (see Brumărescu
v. Romania [GC], no. 28342/95, §§ 52 and 53, ECHR
1999-VII, and Hasan and Chaush v. Bulgaria [GC], no.
30985/96, §§ 53 and 54, ECHR 2000-XI). However, because the
Government raised that objection for the first time on
10 February 2011, after the application had been declared
admissible on 15 June 2010, they are estopped from raising
it at this stage of the proceedings. The objection must therefore be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1
OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S DEPRIVATION OF
LIBERTY FROM 9 A.M. TO 10 P.M. ON 16 JULY 2003
63. The
applicant complained that there had been no legal basis for his
detention on 16 July 2003. He relied on Article 5 § 1 of the
Convention, the relevant parts of which provide:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
A. The Chamber judgment
In
its judgment of 15 June 2010 the Chamber noted, having regard to the
particular vulnerability of persons under the exclusive control of
State agents, that Convention proceedings did not in all cases lend
themselves to a rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that
allegation).
On
the basis of the evidence produced by the parties at the material
time, the Chamber noted that the applicant had gone to the NAP
headquarters on 16 July 2003 and that he had made statements at about
10 a.m. and again at about 8 p.m. The Chamber observed that
while the first statement did not mention whether the applicant had
been questioned as a person under criminal investigation, he had been
informed when he made his second statement that he was suspected of
having committed various offences. The Chamber also noted that the
Government had submitted no tangible information on the authorities’
attitude with regard to the applicant’s status during the day
of 16 July 2003. They had provided no document enabling the Chamber
to determine whether or not the applicant had left the prosecution
service headquarters, for example information recorded in logbooks
regarding persons entering or leaving the NAP, or any steps taken by
the authorities to inform the applicant that he was entitled to leave
the building. The Chamber further noted that during that same day,
the prosecution service had opened a criminal investigation in
respect of the applicant and that, in the evening, it had ordered
that he be placed in pre-trial detention. The sequence of the day’s
events as they appeared in the case file – interview, opening
of the investigation, a second interview as an accused, placement in
pre-trial detention – led the Chamber to conclude that the
applicant had remained in the prosecution service headquarters all
day and had not been free to leave. In the light of all the
foregoing, the Chamber concluded that the applicant had been deprived
of his liberty from 10 a.m. to 10 p.m. on 16 July 2003.
Turning
to whether or not that deprivation of liberty was compatible with
Article 5 § 1 of the Convention, the Chamber noted that at the
material time, Romanian law had provided for two temporary measures
depriving a person of his or her liberty, namely police custody for a
period of twenty-four hours and pre-trial detention. In the instant
case, no warrant had been issued for the applicant’s placement
in police custody. The Chamber also pointed out that by the order of
16 July 2003, the prosecutor had instructed that the applicant was to
be placed in pre-trial detention for three days. However, the period
specifically indicated in that order, namely from 10 p.m. on 16
July 2003 to 10 p.m. on 18 July 2003, corresponded in reality to only
two days of pre-trial detention. The Chamber noted in that regard
that, having been issued on the basis of a prosecutor’s order
in accordance with domestic law, the warrant for pre-trial detention
could cover only the same period as that specified in the order. In
the instant case, although it did not indicate the time from which
the measure took effect, that warrant could not constitute a legal
basis for the preceding period, which was not mentioned in the order.
Consequently,
the Chamber considered that the applicant’s deprivation of
liberty from 10 a.m. to 10 p.m. on 16 July 2003 had had no basis in
domestic law and that accordingly, there had been a breach of
Article 5 § 1 of the Convention.
B. The parties’ submissions
1. The applicant
In
his written observations to the Grand Chamber, the applicant claimed
that after he had entered the NAP premises at 9 a.m., he had made an
initial written statement which had been forwarded to the prosecutor
at around 9.40 a.m. He had remained in a room guarded by armed
gendarmes from 9.40 a.m. to 11 p.m. and had not been permitted to
leave that room. Moreover, it had not been possible for him to
contact his family or his lawyer as he had been asked to leave his
mobile telephone on a table guarded by a gendarme. He had been
authorised to use the toilet or to go out for a cigarette, but only
if accompanied by a gendarme. Lastly, he claimed that threats had
been made that he would not see his family again as he was to be
placed in pre-trial detention. He had not been informed until around
1.15 to 1.30 a.m. on 17 July 2003 that a warrant for his pre-trial
detention had been issued.
Lastly,
the applicant alleged that the Government had adduced no evidence of
the destruction of the logbooks recording access to the NAP premises.
2. The Government
The
Government submitted that the Chamber’s conclusion that the
applicant had been deprived of his liberty at the NAP headquarters
before 10 p.m. on 16 July 2003 was inconsistent with the facts.
They pointed to a contradiction in the applicant’s account. On
his application form, the applicant had stated that he had been
informed by his superior on the morning of 16 July 2003, while he was
at his place of work, that he was to report to the NAP. However, in
his written observations to the Grand Chamber, he had stated that he
had received the information from a colleague at around 5 p.m. on 15
July 2003, while he was on leave. The Government added that although
the applicant had initially stated that he had reported to the NAP at
around 9 a.m., he had indicated the time with pinpoint accuracy in
his aforementioned written observations, that is, 8.45 a.m. The
Government conceded, however, that the applicant had entered the NAP
premises at 9 a.m.
Turning
to the burden of proof, the Government pointed out that for an
applicant to be able to claim victim status under Article 34 of the
Convention, he or she must be able to produce reasonable and
convincing evidence of a violation concerning him or her personally,
mere suspicions or conjecture being insufficient in that respect.
However, in his application, the applicant had merely made confused
and vague assertions which were not supported by any significant
details or evidence, and which, in the Government’s view, had
simply been intended to back up his other complaints. Furthermore,
those assertions were contradicted by the documents in the case file
and the applicant had produced no plausible explanation in that
regard. The Government also argued that they had challenged those
assertions before the Chamber and had duly drawn attention to the
fact that they were neither credible nor supported by any document in
the case file. They added that the applicant had submitted no written
observations in the proceedings before the Chamber. In the
Government’s view, those factors suggested that not only did
the applicant not intend to press his complaint, but that he had
tacitly dropped it.
The
Government submitted that the reasoning by which the Chamber had
established that the applicant had been under the control of State
agents was inconsistent since that issue was the same as the issue of
the existence of a deprivation of liberty. They argued that in its
judgment of 15 June 2010 the Chamber had made a serious
error by reversing the burden of proof and thus establishing a
presumption of deprivation of liberty against the State, a
presumption which in the Government’s view constituted an
extremely dangerous precedent. The Government pointed out that it had
not been established in the instant case that the applicant had been
deprived of his liberty; that was precisely what had to be
determined.
The
Government further complained that they had been obliged to prove a
negative before the Chamber, since they had been supposed to prove
that the applicant had not been deprived of his liberty between
certain hours. They argued that they had been required to prove that
fact seven years after the events and by means of information
(evidence of whether or not the applicant had left the prosecution
service headquarters or steps taken by the authorities to inform him
that he was able to leave the premises) and documents (the logbooks
containing information on persons entering and leaving the NAP
headquarters) which had not previously been requested by the Court.
Lastly,
the Government submitted that there could be an exception to the
principle of affirmanti incumbit probatio only if concordant
inferences in support of the applicant’s allegations or
sufficiently strong, clear, concordant and unrebutted presumptions
existed, which was not the case in this instance. Therefore, there
were no exceptional circumstances or reasons that could lead to the
application of an exception to the principle that the burden of proof
had to fall on the applicant.
The
Government pointed out that the exact events of 16 July 2003
could not be established, given that seven years had elapsed since
the events had taken place. They confirmed, however, that logbooks
containing information on persons entering and leaving the NAP
premises had existed in 2003, but stated that it was not possible to
produce them before the Court as they had been destroyed well before
this case had been communicated on 19 February 2009; the
retention period for such logbooks, in accordance with the rules in
force, was three to five years. The Government added that no specific
internal instructions had been issued by the NAP management regarding
access to and movement inside the prosecution service premises, the
applicable rules being those covering all public institutions. They
stated that there had not been in 2003 – nor was there now –
a separate entrance or a special room for persons in police custody
or in pre-trial detention.
According
to the Government, the applicant, like all those summoned on 16 July
2003, had waited voluntarily in the NAP premises in order to clarify
his legal situation. Indeed, he had not objected to being questioned
in the context of the preliminary investigation, responding to a
questionnaire on arrival at the NAP, and had not asked to be assisted
by a lawyer. At around 12 noon, once the criminal investigation had
been opened, he had remained in the premises of the NAP at the
request of the prosecutor, who had asked him to make a further
statement and to take part in confrontations.
In
the Government’s view, the applicant had not been obliged to
remain at the prosecution service premises and had been free to leave
the NAP at any time. In fact, there was nothing to indicate that he
had actually remained there until 10 p.m. or that he had been held
against his will; furthermore, two police officers had left the NAP
premises on the same day. Moreover, he had been neither supervised
nor guarded at any time. The gendarmes present in the NAP premises
had merely been there to maintain order.
The
Government also submitted that criminal investigations in general,
and the circumstances of the instant case in particular, required a
summons, repeated questioning and the confrontation of the persons
under investigation and the witnesses in a single day. In the
Government’s view, the confidentiality of the information
obtained during the investigation also had to be ensured so as to
avoid any obstruction to the proper conduct of the investigation.
Lastly, the investigation of 16 July 2003 had been conducted by a
single prosecutor so as to ensure a consistent approach to the
operation.
The
Government stressed that the applicant had at no time asked to leave
the NAP. No document recording any such request or any refusal on the
part of the authorities had been included in the case file. They
pointed out, further, that the applicant had not been informed that
he was able to leave the NAP since that fact had been self-evident
and any such indication would have been illogical. There was no legal
obligation for the prosecutor to inform a person that he or she could
leave the prosecution service premises if no measure had been taken
to deprive the person of his or her liberty.
The
Government also argued that the applicant had not complained of any
deprivation of liberty either to the prosecutor or, subsequently, in
the proceedings challenging his placement in pre-trial detention or
before the courts that had examined the merits of the charges against
him, even though he had been represented by lawyers throughout the
criminal proceedings.
Turning
to the applicant’s written evidence, the Government pointed out
that it consisted of extrajudicial statements, certified by the
applicant’s lawyer and made for the purposes of the case
(declaraţii pro causa) by two individuals who had been
convicted at first instance in the same domestic proceedings as the
applicant. They pointed out, furthermore, that in his statement the
witness M.T. had used expressions similar to those used by the
applicant.
On
the subject of the legal system applicable to people called upon to
give evidence in various capacities before the prosecution service
for the purposes of a criminal investigation, the Government
submitted that, with regard to the procedural guarantees provided to
individuals under a preliminary investigation, which took place
before the commencement of the criminal investigation, it was
impossible to identify any European or universal norm. In the absence
of a consensus among States, the Court could not impose guiding
principles. Accordingly, States had to enjoy a wide margin of
appreciation with regard to the regulations applicable at that stage
of the proceedings, in accordance with their own criminal policies.
Furthermore, the Government pointed out that the State’s
criminal legislation should not spell out such rules in detail
because the investigation authorities needed to be afforded effective
means of uncovering the truth. They argued that detailed regulations,
affording various guarantees to individuals summoned before the
prosecution service before any criminal proceedings had been opened
against them, could impede the activities of the investigation
authorities and would be likely to deprive the criminal proceedings
of their purpose. Romanian law set out procedural guarantees for the
parties to criminal proceedings, in particular after they had
commenced. In the instant case, in the framework of the preliminary
investigation, the applicant had been informed of the purpose of the
inquiries and had been invited to make a statement in that respect.
Once the criminal investigation had been opened in respect of him, he
had been fully able to enjoy his rights, having been duly informed of
the nature of the proceedings and having had the opportunity to be
assisted by a lawyer of his choosing when making his statements. The
Government rejected the applicant’s allegations concerning
threats and insults made by the prosecutor, which they considered to
be mere unsubstantiated assertions, made for the first time seven
years after the events.
Lastly,
the Government pointed out that the applicant had been placed in
pre-trial detention from 10 p.m. on 16 July 2003 to 10 p.m. on
18 July 2003. The fact that the order of 16 July 2003 for his
placement in pre-trial detention indicated that it covered a period
of three days resulted from application of Article 188 of the CCP, in
accordance with which pre-trial detention was counted on the basis of
entire days. That benefited the parties concerned since whole days
were deducted from any prison sentence that might subsequently be
imposed by a court.
Having
regard to the foregoing, the Government concluded that the applicant
had not been deprived of his liberty from 9 a.m. to 10 p.m. on
16 July 2003.
C. The Court’s assessment
1. General principles
The
Court reiterates that Article 5 of the Convention enshrines a
fundamental right, namely the protection of the individual against
arbitrary interference by the State with his or her right to liberty.
In proclaiming the “right to liberty”, paragraph 1 of
Article 5 contemplates the physical liberty of the person; its aim is
to ensure that no one should be deprived of that liberty in an
arbitrary fashion. It is not concerned with mere restrictions on the
liberty of movement; such restrictions are governed by Article 2 of
Protocol No. 4. The Court also points out that paragraph 1 of
Article 5 makes it clear that the guarantees it contains apply
to “everyone”. Sub paragraphs (a) to (f) of
Article 5 § 1 contain an exhaustive list of permissible grounds
on which persons may be deprived of their liberty and no deprivation
of liberty will be lawful unless it falls within one of those
grounds. Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law”
has been followed, the Convention refers essentially to national law
and lays down the obligation to conform to the substantive and
procedural rules of national law. Compliance with national law is
not, however, sufficient: Article 5 § 1 requires
in addition that any deprivation of liberty should be in keeping with
the purpose of protecting the individual from arbitrariness. It is a
fundamental principle that no detention which is arbitrary can be
compatible with Article 5 § 1 and the notion of “arbitrariness”
in Article 5 § 1 extends beyond lack of conformity with national
law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the Convention
(see, among other judgments, Guzzardi v. Italy,
6 November 1980, § 92, Series A no. 39, and A. and
Others v. the United Kingdom [GC], no. 3455/05, §§
162-164, 19 February 2009).
2. Application in the instant case
(a) The period to be taken into
consideration
Firstly,
the Court considers it necessary to establish the period to be taken
into consideration. In this regard, two separate issues must be
examined: the starting-point and the end of that period.
With
regard to the starting-point, it must be noted that the Chamber
concluded that the applicant had been deprived of his liberty without
any legal basis from 10 a.m., when he was questioned by a prosecutor
(see paragraph 43 of the Chamber judgment). The Court observes,
however, that although the parties’ respective versions of the
facts contained a different sequence of events, the fact remains that
they were in agreement that the applicant had entered the prosecution
service premises at 9 a.m. to make a statement for the purpose of a
criminal investigation.
The
Court therefore considers that the starting-point for the period to
be taken into consideration was 9 a.m. on 16 July 2003.
As
to the end of that period, the Court notes that the order for the
applicant’s pre-trial detention on 16 July 2003 indicated that
the measure took effect from 10 p.m. The Court considers that the
point at which the applicant was notified of the warrant for
pre-trial detention issued pursuant to the above-mentioned order –
between 1.15 and 1.30 a.m. on 17 July 2003 according to the
applicant – has no bearing on the lawfulness of his detention
after 10 p.m.
The
Court therefore considers that the period to be taken into
consideration ended at 10 p.m. on 16 July 2003.
(b) The burden of proof with regard to the
alleged deprivation of liberty
The
Court reiterates that, in assessing evidence, it has adopted the
standard of proof “beyond reasonable doubt”. However, it
has never been its purpose to borrow the approach of the national
legal systems that use that standard. Its role is not to rule on
criminal guilt or civil liability but on Contracting States’
responsibility under the Convention. The specificity of its task
under Article 19 of the Convention – to ensure the observance
by the Contracting States of their engagement to secure the
fundamental rights enshrined in the Convention – conditions its
approach to the issues of evidence and proof. In the proceedings
before the Court, there are no procedural barriers to the
admissibility of evidence or pre-determined formulae for its
assessment. It adopts the conclusions that are, in its view,
supported by the free evaluation of all evidence, including such
inferences as may flow from the facts and the parties’
submissions. According to its established case-law, proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Moreover,
the level of persuasion necessary for reaching a particular
conclusion and, in this connection, the distribution of the burden of
proof, are intrinsically linked to the specificity of the facts, the
nature of the allegation made and the Convention right at stake. The
Court is also attentive to the seriousness that attaches to a ruling
that a Contracting State has violated fundamental rights (see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §
147, ECHR 2005-VII).
Furthermore,
the Court agrees with the Chamber’s reasoning that Convention
proceedings do not in all cases lend themselves to a strict
application of the principle affirmanti incumbit probatio. It
reiterates its case-law under Articles 2 and 3 of the Convention to
the effect that where the events in issue lie within the exclusive
knowledge of the authorities, as in the case of persons under their
control in custody, strong presumptions of fact will arise in respect
of injuries and death occurring during that detention. The burden of
proof in such a case may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; and
Rupa v. Romania (no. 1), no. 58478/00, § 97, 16
December 2008). The Court has already found that these considerations
apply also to disappearances examined under Article 5 of the
Convention, where, although it has not been proved that a person has
been taken into custody by the authorities, it is possible to
establish that he or she was officially summoned by the authorities,
entered a place under their control and has not been seen since. In
such circumstances, the onus is on the Government to provide a
plausible and satisfactory explanation as to what happened on the
premises and to show that the person concerned was not detained by
the authorities, but left the premises without subsequently being
deprived of his or her liberty (see Tanış and Others v.
Turkey, no. 65899/01, § 160, ECHR 2005-VIII, and Yusupova
and Zaurbekov v. Russia, no. 22057/02, § 52,
9 October 2008). Furthermore, the Court reiterates that,
again in the context of a complaint under Article 5 § 1 of the
Convention, it has required proof in the form of concordant
inferences before the burden of proof is shifted to the respondent
Government (see Öcalan v. Turkey [GC], no. 46221/99, §
90, ECHR 2005 IV).
The
Court considers that these principles also apply in the instant case,
on condition that the applicant provides prima facie concordant
evidence capable of showing that he was indeed under the exclusive
control of the authorities on the day of the events, that is to say,
that he was officially summoned by the authorities and entered
premises which were under their control. If that condition is
satisfied, the Court will be able to consider that he was not free to
leave, particularly when investigative measures were under way. It
could therefore require the Government to provide a detailed
hour-by-hour report on what happened in the premises in question and
to account for the time spent there by the applicant. The Government
would then have to provide satisfactory and convincing written
evidence to support their version of the facts. Failure to provide
such evidence would enable conclusions to be drawn as to the merits
of the applicant’s allegations.
(c) The deprivation of liberty
The
Court reiterates that in order to determine whether someone has been
“deprived of his liberty” within the meaning of Article
5, the starting-point must be his concrete situation, and account
must be taken of a whole range of criteria such as the type,
duration, effects and manner of implementation of the measure in
question (see Guzzardi, cited above, § 92, and Mogoş
v. Romania (dec.), no. 20420/02, 6 May 2004). Admittedly, in
determining whether or not there has been a violation of Convention
rights it is often necessary to look beyond the appearances and the
language used and concentrate on the realities of the situation (see,
for example, in relation to Article 5 § 1, Van
Droogenbroeck v. Belgium, 24 June 1982, § 38,
Series A no. 50).
The
Court would add that the characterisation or lack of characterisation
given by a State to a factual situation cannot decisively affect the
Court’s conclusion as to the existence of a deprivation of
liberty.
The
Court notes that in cases examined by the Commission, the purpose of
the presence of individuals at police stations, or the fact that the
parties concerned had not asked to be able to leave, were considered
to be decisive factors. Thus, children who had spent two hours at a
police station in order to be questioned without being locked up were
not found to have been deprived of their liberty (see X v.
Germany, no. 8819/79, Commission decision of 19 March 1981);
nor was an applicant who had been taken to a police station for
humanitarian reasons, but who was free to walk about on the premises
and did not ask to leave (see Guenat v. Switzerland (dec.),
no. 24722/94, Commission decision of 10 April 1995). Likewise,
the Commission attached decisive weight to the fact that an applicant
had never intended to leave the courtroom where he was taking part in
a hearing (see E.G. v. Austria, no. 22715/93, Commission
decision of 15 May 1996). The case-law has evolved since then as the
purpose of measures by the authorities depriving applicants of their
liberty no longer appears decisive for the Court’s assessment
of whether there has in fact been a deprivation of liberty. To date,
the Court has taken this into account only at a later stage of its
analysis, when examining the compatibility of the measure with
Article 5 § 1 of the Convention (see Osypenko
v. Ukraine, no. 4634/04, §§ 51-65, 9 November
2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42,
9 November 2010; Iliya Stefanov v. Bulgaria, no.
65755/01, § 71, 22 May 2008; and Soare and
Others v. Romania, no. 24329/02, § 234,
22 February 2011).
Furthermore,
the Court reiterates its established case-law to the effect that
Article 5 § 1 may also apply to deprivations of liberty of a
very short length (see Foka v. Turkey, no. 28940/95, §
75, 24 June 2008).
The
Court notes that in the instant case, it is not disputed that the
applicant was summoned to appear before the NAP and that he entered
the premises of the prosecution service at 9 a.m. to make a statement
for the purpose of a criminal investigation. In accordance with the
principles stated above (see paragraph 89) and despite the fact that
the applicant was not brought there under duress, which does not
constitute a decisive factor in establishing the existence of a
deprivation of liberty (see I.I. v. Bulgaria, no. 44082/98,
§ 87, 9 June 2005, and Osypenko, cited above, § 32),
it must be acknowledged that the applicant was indeed under the
control of the authorities from that moment. That argument is,
moreover, confirmed by the witness evidence produced by the applicant
(see paragraphs 55-56 above). Consequently, the Government must
provide an explanation as to what happened at the premises of the NAP
after that moment.
The
Government stated that they were unable to produce the logbooks
recording the entry and exit of persons at the NAP premises since
those logbooks had been destroyed well before this case was
communicated on 19 February 2009, the retention period being three to
five years in accordance with the legal provisions in force (see
paragraph 35 above).
The
Government did, however, submit a statement from the prosecutor V.D.,
who was responsible for the investigation at the material time (see
paragraph 57 above), although they did not make any specific
reference to it in their observations. The statement revealed that
the applicant had not asked for permission to leave the NAP premises,
but that he had been free to do so, since anyone was free to leave
without completing any formalities or obtaining the consent of the
prosecutor. In the statement the prosecutor V.D. acknowledged that
the applicant had not been advised that he was able to leave the NAP
headquarters, but argued that the applicant had remained there
voluntarily in order to take part in other hearings and
confrontations. However, the Court notes that that statement was
contradicted not only by the statements of the applicant but also by
the concordant written statements of two witnesses (see paragraphs
55-56 above).
The
Court notes further that the applicant was not only summoned but also
received a verbal order from his hierarchical superior to report to
the NAP. In this connection, it must be noted that the Government
acknowledged that the head of police of the 1st District had also
been informed that several police officers had been summoned on
16 July 2003 so as to ensure their presence at the
prosecution service premises. At the material time, police officers
were bound by military discipline and it would have been extremely
difficult for them not to carry out the orders of their superiors.
While it cannot be concluded that the applicant was deprived of his
liberty on that basis alone, it should be noted that in addition,
there were other significant factors pointing to the existence of a
deprivation of liberty in his case, at least once he had been given
verbal notification of the decision to open the investigation at
12 noon: the prosecutor’s request to the applicant to
remain on site in order to make further statements and participate in
multiple confrontations, the applicant’s placement under
investigation during the course of the day, the fact that seven
police officers not placed under investigation had been informed that
they were free to leave the NAP headquarters since their presence and
questioning was no longer necessary, the presence of the gendarmes at
the NAP premises and the need to be assisted by a lawyer.
In
view of their chronological sequence, these events clearly formed
part of a large-scale criminal investigation, requiring multiple
investigative measures and hearings, some of which had already been
conducted over previous days. That procedure was intended to
dismantle a petroleum-trafficking network that involved police
officers and gendarmes. The opening of proceedings against the
applicant and his colleagues fits into this procedural context, and
the need to carry out the various criminal investigation procedures
concerning them on the same day tends to indicate that the applicant
was indeed obliged to comply.
The
Court therefore notes that the Government were not able to produce
any documents establishing that the applicant had left the NAP
headquarters and, furthermore, failed to demonstrate that he could
have left the prosecution service premises of his own free will after
his initial statement (see I.I. v. Bulgaria, cited above, §
87; Osypenko, cited above, § 32; and Salayev,
cited above, §§ 42-43).
To
conclude, having regard to the Government’s failure to provide
convincing and relevant information in support of their version of
the facts and to the coherent and plausible nature of the applicant’s
account, the Court considers that the applicant did indeed remain in
the prosecution service premises and was deprived of his liberty, at
least from 12 noon to 10 p.m.
(d) Whether the applicant’s
deprivation of liberty was compatible with Article 5 § 1
of the Convention
The Court must now determine whether the applicant
was deprived of his liberty “in accordance with a procedure
prescribed by law” within the meaning of Article 5 § 1 of
the Convention. The words “in accordance with a procedure
prescribed by law” in Article 5 § 1 essentially refer back
to national law and state the obligation to conform to the
substantive and procedural rules thereof. While it is normally in the
first place for the national authorities, notably the courts, to
interpret and apply domestic law, the position is different in
relation to cases where failure to comply with such law entails a
breach of the Convention. This applies, in particular, to cases in
which Article 5 § 1 of the Convention is at stake and the Court
must then exercise a certain power to review whether national law has
been observed (see Baranowski v. Poland, no. 28358/95, §
50, ECHR 2000-III). In particular, it is essential, in matters
of deprivation of liberty, that the domestic law define clearly the
conditions for detention and that the law be foreseeable in its
application (see Zervudacki v. France, no. 73947/01, § 43,
27 July 2006).
The
Court notes firstly that the applicant was summoned to appear at the
NAP to make a statement in the context of a criminal investigation,
and was not given any additional information as to the purpose of
that statement. Domestic law on the subject required the summons to
indicate the capacity in which a person was being summoned and the
subject matter of the case (see Article 176 CCP, paragraph 58 above).
It follows that the applicant was unaware whether he had been
summoned as a witness or a suspect, or even in his capacity as a
police officer carrying out investigations himself. In this
connection, the Court reiterates that although the authorities are by
no means precluded from legitimately using stratagems in order, for
instance, to counter criminal activities more effectively, acts
whereby the authorities seek to gain the trust of individuals with a
view to arresting them may be found to contravene the general
principles stated or implicit in the Convention (see Čonka v.
Belgium, no. 51564, § 41, ECHR 2002-I).
The
Court observes further that the Government argued that the applicant
had been kept in the prosecution service premises in order to ensure
the proper administration of justice, since the questioning or
confrontation of various persons present could have been necessary at
any moment, given the circumstances of the case. They relied in that
regard on the prosecutor V.D.’s statement of 17 January 2011,
according to which the applicant and his colleagues had been summoned
to appear before the prosecution service as “făptuitori”
(“alleged perpetrators” or “suspects”, at a
stage prior to the opening of proceedings against them).
The
Court notes that the applicant was not formally classified as a
suspect when he was asked to make his initial statement on a plain
sheet of paper on entering the NAP premises. Furthermore, the
information available to the Court does not enable it to conclude
with any certainty that from the time of his arrival at the
prosecution service headquarters, the applicant was treated as a
person called to give evidence or as a witness.
In
any event, the Court notes that, according to the Government’s
version of the facts, at around 12 noon, when all the police officers
were completing their statements, the prosecutor came back into the
room and informed them that a criminal investigation had been opened
in the case in respect of ten of the police officers present,
including the applicant, and that they were entitled to choose a
lawyer or would otherwise be assigned an officially appointed lawyer.
The other police officers were permitted to leave as no charges had
been filed against them.
The
Court observes that, when making his first statement, the applicant
was unaware of his legal status and the guarantees arising therefrom.
Even though, in such conditions, the Court has doubts about the
compatibility with Article 5 § 1 of the Convention of the
applicant’s situation during the first three hours that he
spent at the NAP premises, it does not intend to examine that issue
since it is clear that at least from 12 noon, the applicant’s
criminal status was clarified as a result of the opening of the
criminal investigation. From that moment, the applicant was
undeniably considered to be a suspect, so that the lawfulness of his
deprivation of liberty must be examined, from that point, under
Article 5 § 1 (c).
Under
Romanian law, there are only two preventive measures entailing a
deprivation of liberty: police custody and pre-trial detention. For
either of these measures to be ordered there must be reasonable
indications or evidence that the prohibited offence has been
committed (see Article 143 § 1 CCP, paragraph 58
above), that is, information leading to the legitimate suspicion that
the person who is under criminal investigation could have committed
the alleged offence (see Article 143 § 3 CCP,
paragraph 58 above). However, neither of those measures was
applied to the applicant before 10 p.m. on 16 July 2003.
The
Court is conscious of the constraints arising in a criminal
investigation and does not deny the complexity of the proceedings
instituted in the instant case, requiring a unified strategy to be
implemented by a single prosecutor carrying out a series of measures
on the same day, in a large-scale case involving a significant number
of people. Likewise, it does not dispute the fact that corruption is
an endemic scourge which undermines citizens’ trust in their
institutions, and it understands that the national authorities must
take a firm stance against those responsible. However, with regard to
liberty, the fight against that scourge cannot justify recourse to
arbitrariness and areas of lawlessness in places where people are
deprived of their liberty.
Having
regard to the foregoing, the Court considers that, at least from 12
noon, the prosecutor had sufficiently strong suspicions to justify
the applicant’s deprivation of liberty for the purpose of the
investigation and that Romanian law provided for the measures to be
taken in that regard, namely placement in police custody or pre-trial
detention. However, the prosecutor decided only at a very late stage
to take the second measure, towards 10 p.m.
Accordingly,
the Court considers that the applicant’s deprivation of liberty
on 16 July 2003, at least from 12 noon to 10 p.m., had no basis in
domestic law and that there has therefore been a violation of Article
5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1
OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S PRE-TRIAL
DETENTION FROM 10 P.M. ON 16 JULY 2003 TO 10 P.M. ON 18 JULY
2003
111. In
his application the applicant complained that no specific reason had
been given for the order for his pre-trial detention issued on
16 July 2003, particularly with regard to the threat that
his release would have posed to public order. He argued that there
was no reasonable suspicion that he had committed the offences in
question to justify his pre-trial detention. He relied on Article 5 §
1 of the Convention.
A. The Chamber judgment
In
its judgment of 15 June 2010 the Chamber considered that, with regard
to the applicant’s placement in pre-trial detention at 10 p.m.
on 16 July 2003, the suspicions against him had been based
on a set of concrete facts and evidence produced in the case file and
communicated to him, suggesting that he could have committed the
offences at issue; they had therefore reached the required level of
reasonableness. As regards the specific reasoning in the order, the
Chamber noted that the prosecution service had indicated that, as a
police officer, the applicant might have exerted an influence on
certain individuals who were due to be questioned during the
investigation. In the Chamber’s opinion, this was a relevant
and sufficient reason to justify the applicant’s placement in
pre-trial detention at the outset of the investigation. Accordingly,
the Chamber considered that the applicant’s deprivation of
liberty was justified under paragraph 1 (c) of Article 5 and
that there had been no violation of that Article during the period at
issue.
B. The parties’ submissions
In his written observations to the Grand Chamber, the
applicant again submitted that there was no reasonable
suspicion that he had committed the offences in question to justify
his pre-trial detention, which in his view had had no basis in
law. While acknowledging that the prosecutor had presented him with
statements made by his colleagues indicating his participation in the
alleged offences, he claimed that there was no telephonic evidence
against him which would have justified his being placed in pre-trial
detention, as had been the case for some of his colleagues. He did
not make any further reference to the alleged lack of tangible
reasoning for the order for his pre-trial detention made on
16 July 2003, and more particularly, to the threat that his
release would have posed to public order.
The
Government likewise repeated the arguments they had submitted before
the Chamber.
C. The Court’s assessment
For
the reasons given by the Chamber and set out above, the Court
considers that the applicant’s deprivation of liberty from 10
p.m. on 16 July 2003 to 10 p.m. on 18 July 2003 was
justified under paragraph 1 (c) of Article 5 of the
Convention and that, accordingly, there has been no violation of that
Article.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1
OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S
PLACEMENT IN PRE-TRIAL DETENTION ON 25 JULY 2003
The
applicant submitted that his placement in pre-trial detention
following the Procurator General’s intervention in the
proceedings on 25 July 2003, through the extraordinary
remedy of an application to have the final judgment of 21 July 2003
ordering his release quashed, had been unlawful. He also alleged that
there had been a breach of the principles of equality of arms and
adversarial proceedings. He relied in this regard on Article 6 § 3
of the Convention.
Finding
that the proceedings complained of concerned the lawfulness of the
pre-trial detention, the Chamber considered that this complaint fell
to be examined under Article 5 § 1 of the Convention.
The parties did not challenge that conclusion and the Grand Chamber
sees no reason to adopt a different point of view.
A. The Chamber judgment
In
its judgment of 15 June 2010 the Chamber considered that the method
used by the authorities to correct a possible error in interpretation
of the domestic law, namely an application to have a decision
quashed, had been neither accessible nor foreseeable for the
applicant. Firstly, the remedy in question was not directly open to
the parties, since only the Procurator General could make use of it.
However, the latter was the hierarchical superior of the prosecutor
who had ordered that the applicant be placed in detention and who had
requested the courts to extend that measure. The prosecutor had had
an opportunity to present his arguments on this matter during the
ordinary proceedings, but had failed to do so. Secondly, the Chamber
noted that Article 410 of the CCP, by which an application to have a
final judicial decision quashed could be lodged where the decision
was “contrary to the law”, was too vague to make
intervention in the proceedings through an extraordinary remedy of
this kind foreseeable. Consequently, the Chamber considered that the
applicant’s deprivation of liberty on 25 July 2003 had not
had a sufficient basis in domestic law, in so far as it had not been
prescribed by “a law” satisfying the requirements of
Article 5 § 1 of the Convention, and that there had therefore
been a breach of that provision.
B. The parties’ submissions
The
parties repeated the arguments submitted to the Chamber. However, the
Government pointed out, for the first time, that in the instant case,
by allowing the Procurator General’s application to have the
judgment quashed, the Supreme Court of Justice had not examined the
merits of the criminal charge against the applicant but had ruled
exclusively on the issue of pre-trial detention. It was therefore
necessary to distinguish between the instant case and cases in which
the issue of observance of the principle of legal certainty had been
examined under Article 6 of the Convention.
C. The Court’s assessment
As
regards the Government’s new submission, the Court reiterates
its established case-law to the effect that where deprivation of
liberty is concerned, it is particularly important that the general
principle of legal certainty be satisfied. It is therefore essential
that the conditions for deprivation of liberty under domestic law be
clearly defined and that the law itself be foreseeable in its
application, so that it meets the standard of “lawfulness”
set by the Convention, a standard which requires that all law be
sufficiently precise to allow the person – if need be, with
appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail (see Baranowski, cited above, § 52; Mooren v.
Germany [GC], no. 11364/03, § 72, 9 July 2009; and Medvedyev
and Others v. France [GC], no. 3394/03, § 80, ECHR 2010). As
regards the application of this principle to the instant case, the
Court agrees entirely with the Chamber’s conclusions that the
applicant’s deprivation of liberty on 25 July 2003 did not have
a sufficient legal basis in domestic law, in so far as it was not
prescribed by “a law” meeting the requirements of Article
5 § 1 of the Convention. For the reasons given by the Chamber,
it considers that there has been a violation of that provision.
V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
121. 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
1. The parties’ submissions
122. The
applicant claimed 20,375 euros (EUR) before the Chamber in respect of
pecuniary damage, representing loss of salary, the reduction in his
retirement pension and the subsistence costs which he had incurred
during his detention. He submitted an accountant’s report drawn
up outside the framework of the proceedings. He also claimed EUR
300,000 for the non-pecuiniary damage which he had allegedly
sustained. He did not alter those claims before the Grand Chamber.
123. The
Government noted that the applicant had not substantiated his claim
in respect of pecuniary damage and that there was no causal link
between the alleged violations of Article 5 of the Convention and the
pecuniary damage referred to. They also submitted that the amount
claimed in respect of non-pecuniary damage was excessive.
2. The Chamber judgment
With
regard to the claim in respect of pecuniary damage, the Chamber noted
that there was no causal link between the violations found by the
Court and the applicant’s claim. In any event, the claim had
not been accompanied by any relevant supporting documents, as the
expert report submitted to the Court was too brief and did not cite
its sources. The Chamber considered, however, that the applicant had
undeniably sustained non-pecuniary damage and, ruling on an equitable
basis, awarded him EUR 8,000 under that head.
3. The Court’s assessment
The
Court notes that an award of just satisfaction can only be based on
the same violations of the Convention as those found by the Chamber,
namely the violation of Article 5 § 1 of the Convention on
account of the lack of legal basis for the applicant’s
deprivation of liberty on 16 July 2003, at least from 12
noon to 10 p.m., and during his placement in pre-trial detention on
25 July 2003, following the application to quash the judgment of 21
July 2003. Having regard to the foregoing, for the reasons set out by
the Chamber and because the applicant did not change the claim
initially submitted to the Chamber, the Court rejects the claim in
respect of pecuniary damage and awards the applicant the sum of EUR
8,000 in respect of non-pecuniary damage.
B. Costs and expenses
1. The parties’ submissions
126. The
applicant also claimed 890 Romanian lei (RON) and EUR 3,000 for
the costs and expenses he had incurred before the national courts and
in the proceedings before the Chamber. He submitted supporting
documents for part of that amount. It must be noted that the
applicant did not alter the claim that he had initially submitted to
the Chamber but submitted a claim for legal aid for the costs and
expenses incurred before the Grand Chamber.
127. The
Government noted that only a part of the amount claimed had been
substantiated by relevant documents and that no link had been
established between a portion of the claim and the present case.
2. The Chamber judgment
The
Chamber awarded the applicant EUR 500 for costs and expenses.
3. The Court’s assessment
The
Court notes that the applicant has received legal aid for the costs
and expenses incurred in the context of the proceedings before the
Grand Chamber. Consequently, it can only take into account those
costs and expenses incurred before the domestic courts and before the
Chamber.
According
to its well-established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually incurred, were necessarily incurred and were also reasonable
as to quantum. Furthermore, legal costs are only recoverable in so
far as they relate to the violation found (see, among other
authorities, Beyeler v. Italy (just satisfaction) [GC]
no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany
[GC], no. 30943, § 105, ECHR 2003-VIII).
In
the light of the foregoing, the Court awards the applicant EUR 500
for costs and expenses.
C. Default interest
132. 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses
the Government’s preliminary objection;
2. Holds
that there has been a violation of Article 5 § 1 of the
Convention on account of the applicant’s deprivation of liberty
on 16 July 2003, at least from 12 noon to 10 p.m.;
3. Holds
that there has been no violation of Article 5 § 1 on account of
the applicant’s pre-trial detention from 10 p.m. on 16 July
2003 to 10 p.m. on 18 July 2003;
4. Holds
that there has been a violation of Article 5 § 1 of the
Convention on account of the applicant’s placement in pre-trial
detention on 25 July 2003;
5. Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into the national currency at
the rate applicable at the date of settlement:
(i) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English and in
French, and delivered at a public hearing at the Human Rights
Building, Strasbourg, on 23 February 2012.
Vincent
Berger Nicolas Bratza Jurisconsult President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following opinions are annexed to this
judgment:
(a) concurring
opinion of Judge Bratza;
(b) joint
concurring opinion of Judges Costa, Garlicki, Gyulumyan, Myjer,
Hirvelä, Malinverni, Vučinić and Raimondi.
N.B.
V.B.
CONCURRING OPINION OF JUDGE BRATZA
I
am in full agreement with the conclusions of the majority of the
Court on all aspects of the case. In particular, I share the view
that Article 5 § 1 of the Convention was violated
on account of the applicant’s deprivation of liberty on 16 July
2003, at least in respect of the period from 12 noon to 10 p.m.
I
can also generally agree with the Court’s reasoning leading up
to this conclusion from paragraph 91 of the judgment onwards. Where,
however, I part company with the reasoning in the judgment is in the
discussion devoted to the issue of burden of proof in paragraphs 88
to 90, which appears to me to be neither necessary to the conclusion
reached nor correct.
The
traditional approach of the Court to assessing whether there has been
a deprivation of liberty within the meaning of Article 5 § 1 or
a mere restriction on freedom of movement falling outside that
provision, is to examine the concrete situation of the applicant as
it appears on the material before it, taking account of a whole range
of criteria, such as the type, duration, effect and means of
implementation of the measure of restraint in question. In making its
assessment, the Court has not in general found it necessary to have
recourse to questions of the burden and standard of proof. Where the
underlying facts have been found by national courts in domestic
proceedings, the Strasbourg Court will normally require cogent
elements to lead it to depart from those findings, even though it is
not constrained by the national court’s legal conclusions as to
whether or not those facts give rise to a deprivation of liberty
within the meaning of Article 5 § 1. Where, as in this case,
there has been no such judicial determination and there is a factual
dispute between the parties, the Court’s assessment has
normally been made on the basis of a free evaluation of all the
material before it, including such inferences as may flow from the
agreed facts and the submissions of the parties.
The
Government argued in the present case that the applicant had failed
to discharge the burden of proving that he was deprived of his
liberty, a burden which was said to be imposed on him in order to be
able to claim victim status under Article 34. This argument is
rejected in the judgment, the Court correctly noting that the
Convention provisions do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit
probatio. However, the judgment goes on to find, on the contrary,
that in the present case the burden of proof shifted to the
respondent Government once the applicant had provided prima facie
concordant evidence capable of showing that he was under the
exclusive control of the authorities on the day of the events in
question.
I
have not found it helpful to examine this case in terms of the burden
of proof. I have considerable hesitations as to whether it is, in any
event, a case suitable for applying a reverse burden. The two
categories of case cited in paragraph 89 of the judgment, in which
the burden of proof is shifted to the respondent Government –
namely, cases under Articles 2 and 3 of the Convention concerning
deaths occurring and injuries sustained in custody and those under
Article 5 § 1 concerning disappearances of persons last seen in
military or police establishments to which they had been summoned to
appear – are far removed from the circumstances of the present
case. In particular, while there are compelling reasons, in a case
where an individual has been officially summoned to premises under
the control of the authorities and has not been seen since, for
shifting the evidential burden to the authorities to prove that he
has voluntarily left the premises, no such reasons apply in the
present case, where the question is whether the factual circumstances
are such that the individual is to be regarded as having been
deprived of his liberty within the meaning of Article 5 § 1. The
mere fact, which is relied on in the judgment, that the present
applicant entered premises which were under the control of the
authorities pursuant to a summons is not in my view sufficient to
justify placing an evidential burden on the authorities.
In
my view, the conclusion arrived at by the majority of the Court on
the material before it that, whatever the position until 12 noon, the
applicant was certainly deprived of his liberty thereafter, can and
should have been reached without the need to impose an evidential
burden on the Romanian authorities.
JOINT CONCURRING OPINION OF JUDGES
COSTA, GARLICKI,
GYULUMYAN, MYJER,
HIRVELÄ, MALINVERNI, VUČINIĆ AND
RAIMONDI
While
we agree that there has been a violation of
Article 5 § 1 of the Convention on account of the applicant’s
deprivation of liberty on 16 July 2003, we are of the
opinion that the deprivation of liberty in question did not last “at
least” from 12 noon to 10 p.m. (as stated in point 2 of
the operative provisions and paragraphs 100 and 109 of the
reasoning), but “only” within this time span.
The
applicant’s situation between 9 a.m. and 12 noon amounted not
to a deprivation of liberty but merely a restriction on his freedom
of movement. It would have been desirable for the Grand Chamber, as
the highest judicial formation of the Court, to have avoided leaving
questions unanswered, where possible, and to have reached that
conclusion in the light of the following information.
The
applicant’s situation between 9 a.m. and 12 noon
was determined by a combination of obligations resulting from a
summons issued by an investigating authority and from his
subordination to military-like discipline.
Firstly,
the presence of the applicant in the NAP premises was a consequence
of a summons to appear before the NAP in order to make statements for
the purpose of a criminal investigation. While it may be true that,
once he had entered the NAP premises, he might have had problems in
trying to leave without permission, the same applies to many persons
summoned to testify before a police authority, a prosecutor or a
court. Such persons are under a duty to appear and to remain in place
for such time as is necessary for their depositions to be taken,
which means that they are not free to leave as long as investigative
measures are under way (see paragraph 90
of the judgment). This limitation applies not only to persons
summoned in their capacity as a “witness”, but also to
those “suspects” (that is, persons already charged) who
have not been detained on remand. Even if they may not be physically
restrained to prevent them from leaving without permission, the law
provides for sanctions, criminal as well as administrative, to secure
their compliance. It is regarded as obvious, including under the
Court’s case-law, that in the context of a criminal
investigation, both the duty to appear and the duty not to leave
before being permitted to do so are regarded as restrictions on
freedom of movement.
Secondly,
the applicant, as a police officer, was subject to military
discipline. He, together with several other colleagues, received an
order from his hierarchical superior to report to the NAP. Hence, his
presence in the NAP premises resulted from due application of the
discipline he was subject to. The very essence of military discipline
consists of situations when a subordinate must go where he or she is
ordered to go and remain there as long as he or she is ordered to
stay. It may also include punishments for disregarding an order and
even physical restraint in the event of non-compliance. Such
restrictions on movement constitute an inherent part of the operation
of any armed formation and have nothing to do with deprivation of
liberty.
