European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

Ciobanu v. Romania and Italy - 4509/08

Judgment 9.7.2013 See: [2013] ECHR 648 [Section III]

Article 5

Article 5-1

Lawful arrest or detention

Procedure prescribed by law

Lack of clarity in the law resulting in refusal to deduct period spent under house arrest overseas from length of prison sentence: violation

 

Facts - In a final judgment delivered in January 2005, a court of appeal in Romania sentenced the applicant, in his absence, to two years’ imprisonment for fraud and forging private documents. In order to enforce the sentence, the Romanian authorities asked Italy - where the applicant was living - to extradite him. In May 2006 the applicant was apprehended and remanded in custody for a fortnight, pending extradition. His detention was replaced by house arrest, with authorisation to go out to work, until his eventual extradition to Romania in December 2007, one year and six months later. The applicant brought proceedings before the Romanian courts challenging the execution of his sentence. He argued that considering the time he had spent under house arrest in Italy pending his extradition, he had already served enough of the sentence to entitle him to release on licence under the Romanian Criminal Code. The court of first instance found in his favour. The prosecution appealed and the county court found that house arrest was not a custodial measure, whereas the Romanian Criminal Code provided only for the deduction of time actually spent in detention under the custodial measures provided for in Romanian law, that is to say in remand or in pre-trial detention. The applicant was not released on licence until December 2008.

Law - Article 5 § 1: The applicant complained about the Romanian authorities’ refusal to deduct the time he had spent under house arrest in Italy from the prison sentence he served in Romania. Romanian law (Section 18 of Law no. 302/2004) provided for time spent in “detention” abroad pending the outcome of an extradition request from the Romanian authorities to be deducted from the prison sentence pronounced by the Romanian courts. However, the county court refused to apply the provision concerned, considering that the applicant’s house arrest in Italy had been a provisional measure not provided for in Romanian law and that it had not deprived the applicant of his liberty. Under Italian law, however, a person placed under house arrest was considered to be in detention pending trial, even if he was allowed to go to work. Indeed, in its amply reasoned judgment the first-instance court had found that the applicant had been deprived of his liberty while under house arrest. On appeal, however, the county court had set aside that judgment. It should therefore have given good reasons for overruling the first-instance judgment. The reasons it gave were insufficient, however. That being so, the applicant could arguably claim that he had spent time in detention in Italy that should have been deducted from the sentence he served in Romania.

Furthermore, section 18 of Law no. 302/2004 was not sufficiently clear for the category of measures it covered to be foreseeable. This lack of clarity of the law had not been offset by any settled case-law of the Romanian courts as to its interpretation. On the contrary, not until an appeal made for the purpose of clarifying the law did the High Court of Cassation and Justice - in a judgment of 2009, that is, after the applicant had been released - rule on the interpretation of that particular law, thereby putting an end to the conflicting case-law of the Romanian courts as regards the deduction of house arrest abroad from a prison sentence served in Romania. Clearly such divergence in the case-law was not likely to allow a person to foresee, to a degree that was reasonable in the circumstances, the consequences which a given action might entail. That being so, the relevant Romanian legislation did not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 of the Convention. The applicant had therefore served a longer sentence than necessary under Romanian law considering the time that should have been deducted. The additional time he had spent in prison could not be considered as lawful detention within the meaning of Article 5 § 1 of the Convention, for want of a basis in law of the requisite quality to satisfy the general principle of legal certainty.

Conclusion: violation by Romania (unanimously).

The Court also found a violation of Article 3 because of the conditions of the applicant’s detention in Romania.

Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected.

 

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