CASE OF STĂNCULEANU v. ROMANIA
(Application no. 26990/15)
9 January 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stănculeanu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 5 December 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 26990/15) 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, Ms Andreea-Cornelia Stănculeanu (“the applicant”), on 30 May 2015.
2. The applicant was represented by Mr Gh. Dragomir, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that she had been unlawfully held in police custody between 6.15 a.m. on 4 December 2014 and 01.10 a.m. on 5 December 2014, in breach of Article 5 § 1 of the Convention; she further complains under Article 3 of the Convention of the conditions of her detention on the premises of the Bucharest police station detention facility.
4. On 9 February 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1975 and lives in Voluntari.
6. In March 2014 a large-scale criminal investigation was initiated against several persons for money laundering and fiscal fraud. On 3 December 2014 the investigation was extended in respect of thirty-two other persons, including the applicant.
7. Within the framework of the criminal investigation, on 4 December 2014 several police officers carried out a search at the applicant’s home. According to the search report, signed by the applicant and by her appointed lawyer without any objections, the search started at 6.15 a.m. and lasted until 2 p.m.
8. Immediately after the search and in accordance with the provisions of Articles 265-266 of the Romanian Criminal Code of Procedure (hereinafter RCCP, see paragraph 33 below), namely on the basis of an order to appear before the investigation body, the applicant was taken by police officers to the Bucharest police headquarters.
9. According to the record drawn up at the time, the enforcement of the order to appear was executed between 2.10 p.m. and 2.40 p.m., when the applicant arrived at the police station.
“In the interests of the investigation ongoing in the above-mentioned criminal file [number] concerning money laundering and fiscal fraud, the questioning of [the applicant’s name and identification data] in her capacity of suspect is necessary.
11. The documents on file show that between 8.40 a.m. on 4 December 2014 and 3 a.m. the next day, the investigating authorities, namely five prosecutors and six judicial police officers, conducted interviews in respect of fourteen witnesses and twenty-five suspects and/or defendants in connection with the criminal investigation involving the applicant.
12. According to the register kept by the police to record third parties entering the police station on a daily basis, the applicant’s appointed lawyer, Mr R.-M.S., entered the premises of the police headquarters at 4.10 p.m. The applicant contended that up until that time, her lawyer had been prevented from joining her because he had not submitted a written mandate proving that he lawfully represented her (see also paragraph 22 in fine, below).
14. At an unspecified time before 7.32 p.m., a prosecutor informed the applicant that she was a suspect in an ongoing criminal investigation, and was to be charged with complicity in fiscal fraud; the applicant was also informed of the rights and obligations she had in that capacity. When invited to give a statement, she refused, claiming that she was unwell and needed medical assistance.
The minutes recording this interview do not mention the exact time of their drafting; they are signed by the applicant, who confirmed having received a copy. Her lawyer does not appear to have been present.
15. The Government contended that the applicant’s request for medical assistance had been part of her defence strategy, as proved, in their view, by the transcripts of a phone conversation she had had with a third party at 7.14 p.m., in which she was advised accordingly (see also paragraph 13 above). The same argument was backed, according to the Government, by the conclusions of the medical investigations, which attested to the fact that no urgent need for medical care had been identified in her case (see paragraph 16 below).
16. At 7.32 p.m. an ambulance was called to the police station. It arrived at 7.50 p.m. and provided medical care (mainly intravenous infusion with minerals) to the applicant until 8.31 p.m., when she was taken to the Emergency University Hospital. Accompanied by police officers, she arrived at the hospital at 8.40 p.m., and was diagnosed with lipothymia. She remained in the hospital until 00.10 a.m. the next day and several medical examinations were performed during this time, following which vitamins, calcium and analgesics were administered. The diagnosis when the applicant left the hospital, accompanied by police officers, was neurovegetative dystonia and light hypokalemia.
18. At about 00.22 a.m. the applicant’s questioning started. In the presence of her chosen lawyer, the applicant refused to give a statement on the grounds that she was very tired, having spent the last four hours in hospital. She also referred to the fact that neither she nor her lawyer had been given the opportunity to familiarise themselves with the contents of the criminal case file in which she was a suspect.
19. Subsequently, at 01.10 a.m., the applicant was informed in the presence of her chosen lawyer that the prosecutor had decided to remand her in custody (reţinere) for twenty-four hours.
20. Her lawyer lodged a complaint with the prosecutor against the decision to remand her in custody, as well as another complaint concerning her being unlawfully deprived of her liberty as of 12.00 p.m. on 4 December 2014.
21. In the first complaint, it is claimed that the order to appear became effective on 4 December 2014 at 6.20 a.m., and that the applicant was de facto remanded in custody as of 2.20 p.m. It is argued that the applicant’s deprivation of liberty throughout that interval was unlawful and unjustified, aimed solely at obtaining statements from her under duress.
22. In the second complaint it is claimed that on 4 December 2014, as of 12.00 p.m. when the search of her home ended, the applicant’s liberty to move around was restricted, as proved by the fact that she had been accompanied by police officers not only to the police station but also to the hospital, where she had been taken under escort to obtain medical assistance. The applicant mentioned that her lawyer had not been allowed to accompany her or to assist her because he did not have a written mandate, even though the lack of such a document was objectively justified by the circumstances in which she had been taken to the police station.
23. The prosecutor dismissed both complaints on the same day, holding that the measure to remand the applicant in custody was lawful, necessary and proportional to the gravity of the charge. He stated that the order to appear became effective after the house search had been performed, the presence of the applicant during the search being necessary in relation to its conduct and thus outside the limits of such an order. The prosecutor further considered that the time interval during which the applicant was under medical surveillance could not be included within the eight-hour time-limit set out by Article 265 § 12, as that was an incident excluding the responsibility of the investigating authorities. The limitation of her lawyer’s access to the criminal file had been justified by the necessity to get to the truth and to obtain from the applicant a genuine statement, uninfluenced by those already given by the other suspects or witnesses.
24. On 5 December 2014, relying on testimonial, documentary and audio surveillance evidence, the prosecutor asked the Bucharest County Court to place the applicant in pre-trial detention (arest preventiv) for thirty days as her release posed a threat to public order.
25. By an interlocutory judgment delivered on 6 December 2014, the Bucharest County Court allowed the prosecutor’s request and ordered the applicant’s detention until 3 January 2015. An appeal lodged against this was dismissed by the Bucharest Court of Appeal on 15 December 2014. Her pre-trial detention was extended for another thirty days by a decision of the Bucharest County Court issued on 29 January 2015, upheld on appeal.
26. The applicant was released on 11 February 2015 after two months of pre-trial detention.
27. It appears that the proceedings on the merits are still pending.
B. The applicant’s conditions of detention on the premises of the Bucharest police station detention facility
28. The applicant claimed that for two months, she had been placed in a cell measuring 9 square metres, which she had shared with three other detainees. She also complained about the poor conditions of hygiene, lack of ventilation and natural light. According to the applicant, the toilet was not separated from the living area by any partition, thus offering no privacy.
29. The Government provided information about the applicant’s conditions of detention. They submitted that the applicant had been detained in a cell measuring 9.32 sq m, which she had occupied with two or three other detainees from 5 to 8 December 2014. From 9 December to the date of her release, the applicant had been placed in a room measuring 9.42 sq m, along with two or three others.
30. They stated that each cell had sanitary facilities such as a toilet and a shower, which were separated from the rest of the cell by a curtain. Both cells had access to natural and artificial light, as well as ventilation provided by a double-glazed window measuring 115cm x 77cm.
II. RELEVANT LAW
A. Relevant international and domestic reports concerning the material conditions of detention in Romanian prisons and police station detention facilities
31. Excerpts from the relevant international and domestic reports concerning the situation in Romanian prisons and police station detention facilities are given in Rezmiveș and Others v. Romania (nos. 61467/12 and 3 others, §§ 48-56, 25 April 2017).
32. In the reports on its June 2006, September 2010 and June 2014 visits to Romania, the Committee for the Prevention of Torture (CPT) expressed concern about the conditions of detention in the Bucharest police station detention facility. According to these reports, cells were overcrowded and insufficiently lit and ventilated, while toilets were not completely separated from the rest of the cell.
B. Domestic law
“(1) A person may be brought before a criminal investigation body or a court on the basis of an order to appear if he or she has been previously summonsed but has not appeared, and if his or her questioning or presence is necessary, or if the summons could not be duly communicated because the recipient avoided accepting it.
(2) A suspect (suspectul) or a defendant (inculpatul) may be brought [before the authorities] on the basis of an order to appear even before being summonsed if the criminal investigation body or the court considers that the measure is necessary for the purposes of determining the case.
(3) During a criminal investigation the order to appear is issued by the criminal investigation body, while during trial it is issued by the judge.
(8) The order to appear (...) shall include:
d) the purpose for its issuing;
e) the name of the person to be brought in by the order to appear (...). In the case of a suspect or a defendant, the order to appear shall mention the offence that forms the object of the criminal investigation;
f) the grounds and reasons why the order to appear is necessary;
(10) An order to appear issued by the criminal investigation body during a criminal investigation, or by the judge during trial, shall accordingly include all the elements set out in paragraph (8).
(11) The person brought [before the authorities] by virtue of an order to appear shall be heard immediately (...).
(12) The person brought [before the authorities] on the basis of an order to appear shall remain at the disposal of the judicial authorities only for such time as is required to question him or her, but for no more than eight hours, except where his or her remand in custody or pre-trial detention has been ordered.
(1) The order to appear shall be enforced by the criminal investigation bodies of the judicial police and by the public order bodies. The person in charge of enforcement of the order shall hand it over to the person in whose name it was issued and shall require him or her to accompany them. If the person indicated in the order refuses to comply or tries to escape, he or she shall be brought in by force...”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
34. The applicant complained about the conditions of her detention in the Bucharest police station detention facility, particularly with regard to overcrowding, poor hygiene conditions and inadequate food. She relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
35. The Government provided factual information concerning the applicant’s conditions of detention, leaving it up to the discretion of the Court to evaluate them in terms of the relevant standards under Article 3 of the Convention.
36. The Court observes that in the pilot case of Rezmiveș and Others v. Romania (nos. 61467/12 and 3 others, §§ 86-87 and §§ 115-117, 25 April 2017) it found a violation in respect of issues similar to those in the present case. It also notes that the applicant’s submissions about overcrowding and unhygienic conditions correspond to the findings by the CPT in respect of Bucharest police station detention facility (see paragraph 32 above).
37. Having examined all the material submitted to it (see in particular paragraphs 28-30 above), and in view of its case-law on the subject (see in particular Muršić v. Croatia [GC], no. 7334/13, §§ 136-141, ECHR 2016), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the applicant’s complaint under Article 3 of the Convention. It finds therefore that the applicant’s material conditions of detention in the Bucharest police station detention facility were inadequate.
38. There has accordingly been a violation of Article 3 of the Convention in that respect.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
39. The applicant complained that she had been unlawfully held in police custody between 6.15 a.m. on 4 December 2014 and 1.10 a.m. on 5 December 2014. She relied on Article 5 § 1 of the Convention, which reads:
“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. Scope of the complaint
40. The Government argued that the period of time occupied by the house search, which − according to the search report − started on 4 December 2014 at 6.15 a.m. and lasted until 2 p.m., could not be taken into consideration for the purposes of assessing the lawfulness of the applicant’s deprivation of liberty within the meaning of Article 5 § 1.
41. The applicant disagreed, holding that during the search she had been under the control and at the disposal of the law enforcement authorities, and therefore unlawfully deprived of her liberty.
42. The Court therefore considers it necessary to firstly establish the period to be taken into consideration in relation to the applicant’s complaint.
43. The Court reiterates that Article 5 § 1 protects the physical liberty of the person. It is not concerned with mere restrictions upon liberty of movement, which are addressed by Article 2 of Protocol no. 4. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, 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. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 57, ECHR 2012).
44. In view of the above criteria, and even assuming that during the house search the presence of the applicant had not been absolutely necessary but was rather the consequence of a mere restriction imposed by the investigating authorities on her liberty of movement, the Court notes that − according to the search report − neither the applicant nor her chosen lawyer objected in any way about the manner in which the search was conducted. Furthermore, in the aforementioned report, neither of them referred to any form of restriction of liberty imposed upon the applicant during the search (see paragraph 7 above).
45. Noting also that the participation of a person to the search of his or her house is a safeguard aimed to ensure that the search procedure is conducted fairly, the Court cannot take the view of the applicant and to consider that she was deprived of her liberty in the period during which the investigating authorities carried out the search of her home; that period cannot therefore be taken into consideration for the purposes of assessing the applicant’s complaint under Article 5 § 1.
46. The Court
further notes that the enforcement of the order to appear became effective at 2.10
p.m. (see paragraph 9 above). It therefore considers that the period to be
taken into consideration for the
above-mentioned purposes started at 2.10 p.m. on 4 December 2014.
47. The Court notes that the applicant’s complaint that there was no legal basis for her deprivation of liberty from 2.10 p.m. on 4 December until 1.10 a.m. on 5 December 2014 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
48. The applicant contended that her deprivation of liberty had been unlawful for several reasons. Firstly, at the time when the order to appear became effective, she had not had the legal standing required by the law for those subjected to such an order, namely that of a suspect or a defendant in a criminal trial, because the prosecutor’s decision to extend the criminal investigation had not been the appropriate procedural means whereby to charge somebody as suspect. Secondly, she had never before been summonsed to appear before the investigating authorities, which would have been necessary to justify the measure taken. Thirdly, she had been deprived of her liberty for a period of more than eight hours, thus breaching the relevant domestic law and without any justification for such a long detention given that her questioning, once conducted, lasted less than twenty minutes. Fourthly, the order to appear failed to state the reasons for its imposition, as required by the law.
49. The applicant concluded that the actual reason why she had been taken to the police station was not to be questioned, but rather to have her phone conversations wiretapped, and to thus illegally obtain evidence for the criminal case file (see also paragraph 13 above).
50. The Government conceded that during the impugned interval (see paragraph 46 above) the applicant had been deprived of her liberty. However, they argued that the domestic law regulating the order to appear had been fully complied with: the authorities had implemented the order in good faith and in a proportionate manner, given that no other milder means of fulfilling the applicant’s obligation to appear before the investigating authorities existed; the applicant’s deprivation of liberty had been in full compliance with domestic law and with the provisions of Article 5 § 1 b) of the Convention (the Government cited Osypenko v. Ukraine, no. 4634/04, 9 November 2010 and Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011), for the following reasons.
51. Firstly, the Government maintained that at the time when the order to appear became effective, the applicant was officially a suspect in the criminal case concerning tax evasion and fiscal fraud, as a consequence of the prosecutor’s decision of 3 December 2014 extending the criminal investigation (see paragraph 6 above). They argued that no previous summons had been sent to the applicant ‒ a suspect in a large-scale case involving a significant number of people ‒ because the strategy followed by the investigating authorities imposed a different approach, requiring that a series of measures be taken on the same day in respect of several suspects and defendants in the case.
52. Secondly, the Government contended that the applicant’s deprivation of liberty had been ordered with the purpose of securing the fulfilment of her obligation, in her capacity as suspect in a criminal case, to be present before the judicial body at their request, so as to give statements, be confronted with the other persons involved in the criminal case, give clarifications before an expert and so on. As soon as the procedural act for which she had been brought before the authorities had been carried out, the basis for the applicant’s detention ceased to exist, as proved by the fact that once she had given her statement and thus fulfilled her obligation, the deprivation of liberty based on the order to appear ended.
53. Lastly, the Government claimed that the provisions of Article 265 § 12 of the RCCP laid down a time-limit of eight hours not as the maximum period for which a person could be deprived of his or her liberty on the basis of an order to appear, but as the maximum period for which a person could remain specifically at the disposal of the judicial authorities on the basis of such an order. They further argued that the time during which the applicant was in the hands of the medical team could not be regarded as part of the eight-hour limit imposed by the law, since during that period the judicial authorities had not been in a position to carry out any procedural acts that required the presence of the applicant. It followed that the period of time when the applicant was at the disposal of the investigating authorities on the basis of the order to appear, leaving aside the periods of time when the applicant was transported from her home to the police station and from the police station to the hospital and back, amounted to six hours and fifty-one minutes, and therefore complied with the provisions of the domestic law.
2. The Court’s assessment
54. The Court reiterates that Article 5 § 1 of the Convention requires in first and foremost that any detention be “lawful”, which includes the criterion of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Benham v. the United Kingdom, 10 June 1996, §§ 40, Reports of Judgments and Decisions 1996-III and Stanev v. Bulgaria [GC], no. 36760/06, § 143, ECHR 2012).
55. Turning to the circumstances of the present case, the Court observes that it is not disputed by the Government that from 2.10 p.m. on 4 December until 1.10 a.m. on 5 December 2014 the applicant was “deprived of her liberty” within the meaning of Article 5 § 1 of the Convention. The deprivation of liberty was a consequence of the enforcement of an order to appear issued by the prosecutor in charge of conducting criminal investigations in which the applicant was a suspect, while the legal basis for the said order to appear was Article 265 of the RCCP.
56. Noting therefore that the measures taken against the applicant were “situated in a punitive context”, the Court considers that the lawfulness of the applicant’s deprivation of liberty must be examined under Article 5 § 1 (c) of the Convention (see Valerian Dragomir v. Romania, no. 51012/11, § 77, 16 September 2014 and, mutatis mutandis, Hoalgă and Others v. Romania, no. 76672/12, § 107, 15 March 2016; contrast, Iliya Stefanov v. Bulgaria, no. 65755/01, § 74, 22 May 2008).
57. The Court further observes that, according to the domestic law, a suspect − as was the applicant in the present case − could be brought before the investigating authorities even before being summonsed if the criminal investigation body or the court considered that such a measure was necessary for the purposes of determining the case (see paragraph 35 above). In this respect, the Court takes note of the fact that the order to appear issued in respect of the applicant referred both to the object of the criminal investigation, namely that of money laundering and fiscal fraud, and to the necessity of bringing the applicant before the investigating authorities so as to invite her to give a statement in her capacity as a suspect. The Court concludes therefore that the prosecutor’s order fully conformed with the rules applicable to domestic criminal procedure (see, by way of contrast, Ghiurău v. Romania, no. 55421/10, § 85, 20 November 2012).
58. The Court further notes that according to Article 265 §§ 11 and 12 of the RCCP, a person appearing by virtue of an order to appear must be heard immediately and may remain at the disposal of the judicial authorities only for such time as is required to question him or her, but no longer than eight hours (see paragraph 33 above).
59. In this connection the Court firstly notes that the applicant was taken from her home at 2.10 p.m. to be brought to the Bucharest police station, where she arrived at 2.40 p.m. According to the information in the file, the applicant’s chosen lawyer arrived at the police station at 4.10 p.m. (see paragraph 12 above), and the first attempt to question the applicant took place about three hours later, namely at approximately 7.32 p.m. (see paragraph 14 above). It would appear, therefore, that the applicant was not heard “immediately” after being brought before the investigating authorities on the basis of the impugned order.
60. Nevertheless, the Court cannot ignore that at the time of the relevant events, five prosecutors and six judicial police officers were conducting simultaneous hearings in respect of more than thirty persons involved − in one capacity or another − in the criminal investigation in which the applicant herself was a suspect (see paragraph 11 above).
61. The Court is conscious of the constraints arising in a criminal investigation and cannot disregard the complexity of the proceedings instituted in the instant case, which required a unified strategic approach, in a large-scale case involving a significant number of people. It therefore considers that in the present case, the domestic authorities appear to have taken sufficient precautions to ensure that the interrogation could be conducted within the time-limits imposed by the law, notwithstanding the large number of suspects and defendants involved.
62. Against this background, the period of two hours during which the applicant was kept waiting before being called to make a statement does not lack justification to such an extent as to become arbitrary (contrast, Valerian Dragomir, cited above, §§ 81-82).
63. Secondly, turning back to the provisions of
Article 265 § 12 of the RCCP (see paragraph 33 above), the Court takes
note of the domestic authorities’ interpretation of the text, confirming that
time-limit refers to the period when the person called by the investigating authorities on the basis of an order to appear is effectively at their disposal for the purposes of giving a statement.
64. The Court reiterates that it is first and foremost for the national authorities, especially the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among many other authorities, Benham, cited above, § 41 and Oravec v. Croatia, no. 51249/11, § 46, 11 July 2017).
65. In the present case, the Court notes that, following the applicant’s request that she be medically assisted, an ambulance came to the police station at 7.50 p.m. and provided her with medical care until 8.31 p.m., when it was decided that she should be transferred to the Emergency University Hospital; she remained in the hospital under medical supervision until 00.10 a.m., when she was taken back to the police station (see paragraph 16 above).
66. Against this factual background, the Court fails to see how the above-mentioned time-frame could be regarded as a period within which the investigating authorities were obliged to conduct their questioning of the applicant so as not to prolong unnecessarily her deprivation of liberty and to thus remain compliant with the requirements of the domestic law.
67. The Court considers therefore that in the present case, in the period during which the applicant was provided medical care, both at the police station and later at the hospital, the applicant did not in fact remain at the disposal of the judicial authorities so as to enable them to promptly and diligently comply with the terms of the order to appear. The period from 7.50 p.m. on 4 December 2014 until 00.10 a.m. the following day cannot therefore be counted within the maximum limit of eight hours allowed by the law to the domestic authorities to conduct their questioning of the applicant by virtue of the order to appear.
68. The foregoing considerations are sufficient to enable the Court to conclude that by keeping the applicant in custody for a period totalling eleven hours, of which more than four hours were dedicated to providing her with appropriate medical care, the authorities did not overstep the reasonable balance between the need to question the applicant and her right to liberty. Finally, as already mentioned above (see paragraphs 57, 62 and 67) the Court does not perceive anything to suggest that the applicant’s deprivation of liberty was unlawful (see, mutatis mutandis, Soare and Others v. Romania, no. 24329/02, § 239, 22 February 2011 and Iliya Stefanov, cited above, § 75).
69. Consequently, there has been no violation of Article 5 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
70. 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.”
71. In respect of pecuniary damage, the applicant claimed 169,590 euros (EUR). This amount represented compensation for the salary of which she was deprived for fifteen months, namely from 11 February 2015, when she was dismissed by her employer as a result of the deprivation of liberty measures, up until 20 June 2016, when she was able to find a new job. She furthermore claimed EUR 200,000 in respect of the non-pecuniary damage caused by the abusive nature of her arrest and her detention in inhuman and degrading conditions.
72. The Government argued that there was no causal link between the compensation claimed in respect of pecuniary damage and the alleged violations in the present case. They requested that the amount granted in respect of non-pecuniary damage remain in line with the Court’s case-law in similar cases.
73. The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 1,000 in
B. Costs and expenses
74. The applicant also claimed EUR 6,000 for her lawyer’s fee as well as 1,050 Romanian lei (RON) for the costs and expenses incurred in connection with her correspondence with the Court.
75. The Government relied on the Court’s case-law in similar cases, asking it to apply the same principles in the present case.
76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court, making an equitable assessment, considers it reasonable to award the sum of EUR 1,500, covering costs under all heads.
C. Default interest
77. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds that there has been no violation of Article 5 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of 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;
5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Ganna