THIRD SECTION
CASE OF
GHIURĂU v. ROMANIA
(Application no.
55421/10)
JUDGMENT
STRASBOURG
20 November 2012
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 Ghiurău v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall,
President,
Egbert Myjer,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
55421/10) 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 Gheorghe Ghiurău
(“the applicant”), on 13 September 2010.
The applicant was represented by Mrs D. O. Hatneanu,
a lawyer practising in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Ms I. Cambrea.
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of
the Rules of Court), the President of the Chamber appointed Mrs Kristina
Pardalos to sit as ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules
of Court).
The applicant alleged, among other matters, that
he had been subjected to ill-treatment in violation of Article 3 of the
Convention and that the authorities had not carried out a prompt and effective
investigation of that incident. Relying on Article 5 § 1 of the Convention, he
claimed that he had been unlawfully held in police custody between 4 p.m.
on 27 November 2006 and 2 a.m. on 28 November 2006. Relying
on Article 5 § 2 of the Convention, he complained that he had
not been promptly informed of the reasons for his deprivation of liberty.
On 19 May 2011 the above complaints were
communicated to the Government. It was decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and lives in Oradea.
A. The
incident of 27 November 2006
1. The applicant’s version
According to the applicant, at about 4 p.m. on 27 November 2006,
police officers belonging to the special intervention forces of Bihor Police Inspectorate
took the applicant into custody in order to transport him from his home in
Borş to Cluj, about 200 km away. They had not presented any warrant or
other legal document justifying his arrest, nor informed him of the reason for
his arrest or where they intended to transport him.
The applicant contended that while in custody he had
been beaten by police officers so severely that he had lost consciousness. As a
result, he needed urgent medical assistance and was admitted to the emergency
ward of Huedin Hospital. While he was on a drip at the hospital, he was hit again
and handcuffed by police officers. This occurred in the presence of his lawyer.
The Cluj Police immediately transferred him from
Huedin Hospital to the emergency ward of Cluj Hospital, where he remained for
about three hours from 9.15 p.m. until midnight.
At about 0.45 a.m., although unable to speak
because he had been given sedatives in hospital, he was transported from the
hospital directly to the Cluj Police Headquarters in order to be interviewed. There,
he was informed for the first time of the reason for his arrest, namely that he
was suspected of making repeated phone calls threatening to kill someone. He
was interviewed until 1.52 a.m.
2. The Government’s version
A preliminary criminal investigation was
initiated in connection with allegations that the applicant had made threatening
telephone calls against a resident of Cluj-Napoca. On 27 November 2006, the
prosecutor attached to the Cluj-Napoca District Court therefore issued an order
for the applicant to be brought before him for questioning.
At 4 p.m. on the same day, having been informed by
police officers about the order, the applicant agreed to accompany the police
officers to the Prosecutor’s Office in Cluj. On their way to Cluj, near Huedin,
the applicant informed them that he was feeling sick and became physically
agitated, presenting the symptoms of an epileptic seizure.
The police officers took the applicant to the
nearest hospital in Huedin, where he was examined and received immediate
medical treatment. While in the consulting room, the applicant had a panic
attack and started hitting his legs and hands against the bed. Two police
officers had to intervene and immobilise the applicant’s hands so that he could
be disconnected from the medical devices.
The applicant was transported in an ambulance from
Huedin Hospital to the emergency ward of Cluj-Napoca Hospital for further
medical examinations, which took place from 9 p.m. until midnight. The
diagnosis was abdominal trauma and abrasions.
As no traumatic injuries or clinical indications
requiring an immediate operation were diagnosed, the applicant was discharged
from the hospital and presented himself at the police station for questioning.
After questioning, the applicant gave a written
statement, which according to the prosecutor was barely legible. He was
assisted by his lawyer during the questioning.
B. Further developments
On 28 November 2006 the Bihor Forensic Institute
examined the applicant and issued a report that stated that his injuries could
have been caused the previous day by being hit with a hard object. It noted the
existence of bruising and abrasions on the upper abdomen and on both hips, and
estimated that the applicant would need four to five days to recover.
A medical certificate issued by Cluj-Napoca
Hospital on 19 December 2006 showed that the applicant had been hospitalised
on 27 November 2006 for about three hours. The certificate stated
that the applicant had been diagnosed with a minor cranial trauma, abdominal
trauma and abrasions, and concluded with the expression “Affirmative assault”
(“Afirmativ agresiune”).
The applicant contended that although on
29 November 2006 he had submitted a request with the Bihor Police
Inspectorate to be provided with a copy of the order to which the police
officers had referred in order to justify the deprivation of his liberty, he
had not received a copy.
On 22 June 2009 the Prosecutor’s Office attached
to Cluj County Court decided to discontinue the criminal proceedings against
the applicant for making threatening phone calls on the grounds that his guilt
could not be proved.
C. Criminal investigation into the incident
On 7 December 2006 the applicant lodged a criminal
complaint against ten police officers alleging unlawful arrest, abuse of
authority, abuse of the officers’ powers of investigation and deprivation of
liberty.
On 4 January 2007 the applicant’s lawyer, B.V., made
a written statement concerning the events that had occurred on
27 November 2006. She submitted that the manager of the applicant’s
company had called her at about 4 p.m. informing her that two police patrols
had taken the applicant into custody. She had called the applicant, who had confirmed
that he was in police custody. She also submitted that she could hear police
officers insulting and hitting the applicant. As she had understood from their
phone conversation that the applicant did not feel well, she had decided to accompany
him. She had called the ambulance service and discovered that the applicant had
been taken to the Huedin Hospital emergency ward. When she found him there, he had
been connected to medical devices but supervised by three police officers from the
Cluj Police Department. She alleged that she had seen the police officers punch
the applicant because he refused to remain in bed. She had accompanied the
applicant to Cluj-Napoca Hospital and then to the police headquarters,
assisting him during questioning.
On 12 March 2007 the applicant’s criminal complaint
was registered with the Prosecutor’s Office attached to the Cluj Court of
Appeal.
On 6 February 2008 four of the police officers against
whom the applicant had lodged a criminal complaint were heard by the
prosecutor. Their written statements were all identical.
On 12 February 2008 the Prosecutor’s Office attached
to the Cluj Court of Appeal decided not to prosecute on the grounds of
lack of evidence that the offences in question had been committed. The decision
stated that criminal proceedings had been initiated against the applicant on
27 November 2006. His deprivation of liberty had been justified by
the necessity to interview him immediately, even before summoning him on the
basis of an order to appear before the investigating body (mandat de aducere)
issued by a prosecutor. The decision further stated that the applicant had
agreed to accompany the police officers and that, in any event, the applicant’s
allegation that he had not been given a copy of the warrant could not lead to
the conclusion that the police officers had abused their position, as his
legal interests had not been infringed. In addition, the prosecutor held that the
applicant had been provided with the order on the way from Huedin Hospital to Cluj-Napoca Hospital. In respect of the applicant’s allegation that he was subjected
to physical violence by the police officers, he concluded that the injuries
noted by the forensic doctor had been self-inflicted. The police officers had accompanied
him to Huedin Hospital because he had mentioned that he did not feel well.
While he was being examined by a doctor, he had had a panic attack and had
started to hit the hospital’s bed with his body, hands and feet. The police
officers’ intervention had therefore been necessary; they had immobilised him
in order to disconnect him from the various medical devices.
On 1 August 2008 the head of the Prosecutor’s
Office dismissed the applicant’s appeal against the aforesaid decision on the
grounds that it had been lodged outside the time-limit set by the law. He
stated, inter alia, that the order to appear before the
investigating body had been issued because the applicant, although legally
summoned, had refused to go to the police station to be interviewed. He added
that the decision of 12 February 2008 had been communicated to the
applicant on 14 February 2008 by registered letter and kept at the local
post office until 26 February 2008. As the applicant had not collected
the letter, it had been returned to the sender.
On 23 September 2008 the applicant appealed to
the Cluj Court of Appeal against the prosecutor’s decisions.
On 15 January 2009 the Cluj Court of Appeal dismissed
the appeal on the grounds that it had been lodged outside the time-limit. It
stated that the decision of 1 August 2008 had been communicated to the
applicant by registered letter on 5 August 2008, but had not been collected by
him from the post office. It concluded that the legal term of twenty days for
lodging an appeal against the prosecutor’s decision had begun on
5 August 2008 and not on 16 September 2008, the date on which
the applicant had allegedly found out about the decision.
The applicant appealed again, claiming that the
decision of 1 August 2008 had never been communicated to him and,
therefore, that the term for submitting his complaint against it had not
started to run.
On 18 May 2009 the High Court of Cassation and
Justice allowed the appeal on points of law lodged by the applicant on the
grounds that the appeal had been lodged within the time-limit set by law,
quashed the judgment of 15 January 2009 and referred the file back to the Cluj Court of Appeal.
The applicant lodged an application with the
High Court of Cassation and Justice for the removal of the file to another
court on the grounds that the Cluj Court of Appeal was not impartial. His
application was granted on 2 November 2009 and the file was transferred to the
Ploieşti Court of Appeal.
On 19 January 2010, the Ploiesti Court of Appeal
allowed the applicant’s appeal against the prosecutors’ decision not to
prosecute. It sent the file back to the Prosecutor’s Office attached to the
Cluj Court of Appeal for further investigation on the grounds that the
investigation proceedings had not been properly conducted. It noted, inter
alia, that the investigation of the allegations against the police officers
had not been thoroughly investigated on the basis of the evidence against each
of them. It added that despite the fact that the file contained 236 pages, the
procedural acts carried out by the criminal investigation body were mentioned only
at pages 217-32 and consisted of four identical statements made by
four of the police officers involved in the incident, and the statements of the
applicant (pages 50-54) and the applicant’s lawyer (pages 12-14). The rest
of the file contained copies of documents submitted by the applicant and copies
of documents not related to the case. It also noted that the prosecutor, in
deciding not to prosecute, had provided no explanation as to why only
four police officers out of ten had been interviewed, why their statements
were identical and why he had not taken into account the documents submitted by
the applicant attesting that the applicant had suffered injuries. It made
particular reference to the medical certificate issued by the Bihor Institute of
Forensic Medicine on 28 November 2006, as well as the medical
certificate issued by Cluj Hospital on 19 December 2006. It concluded that in
the light of such medical certificates, a competent court could not decide that
there was a lack of evidence that the offences in question had been committed.
On 14 April 2010 the High Court of Cassation and
Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office
attached to the Ploieşti Court of Appeal. Consequently, the decision to
continue the investigation was upheld.
On 18 January 2011 the prosecutor questioned for
the first time the six other police officers involved in the events of 27 November 2006.
On 21 April 2011 the applicant’s lawyer made a
written statement that she had not only heard during her phone conversation
with the applicant but had also seen how the latter had been subjected to
ill-treatment by the police officers on 27 November 2006. She added that
despite the fact that she had repeatedly asked to see the order to appear
before the investigating authority on the day of the events, she had only seen
it two years later in the case file.
On 22 August 2011 the prosecutor heard two of
the police officers who had already made statements on 6 February 2008.
On 25 August 2011 the Prosecutor’s Office
attached to the Cluj Court of Appeal again decided not to prosecute the police
officers. It found that the applicant had not been subjected to ill-treatment
by the police officers and had been deprived of his liberty pursuant to a
warrant that had been issued in compliance with the law.
The applicant lodged an appeal against this
decision with the chief prosecutor, claiming that the prosecutor in charge had
not observed the instructions of the High Court of Cassation and Justice in
respect of the evidence to be re-administered. He also claimed that despite the
fact that he had been summoned to appear before the prosecutor on
18 July 2011, he had not been heard because the prosecutor had been absent
from his office for the whole day. The applicant also submitted that not all of
the police officers against whom he had lodged the criminal complaint had been
heard by the prosecutor; he made the same claim with respect to other
individuals who had witnessed the events of 27 November 2006 but had never been
heard by the investigating body.
On 21 September 2011 the chief prosecutor dismissed
the applicant’s appeal on the grounds that the injuries mentioned in the
forensic certificate had been self-inflicted while he was simulating an
epileptic seizure. He held inter alia that the order to appear before
the investigating body had been issued because the applicant had failed to
appear before the prosecutor, despite the fact that he had been summoned.
By a decision of 11 November 2011, the Ploiesti
Court of Appeal allowed the applicant’s appeal. It held that the prosecutor had
not complied with its decision of 19 January 2010 and again remitted the case
to the Prosecutor’s Office, ordering it to commence criminal proceedings against
the ten police officers mentioned in the initial criminal complaint.
The criminal proceedings are still pending and
no judgment on the merits has been rendered.
II. RELEVANT DOMESTIC LAW
A. Romanian Criminal Code
. Excerpts
from the relevant provisions of the Romanian Criminal Code with regard to
ill-treatment can be found in Iambor v. Romania (no. 64536/01,
§ 130, 24 June 2008).
. Article
180 of the Romanian Criminal Code deals with bodily harm and provides, inter
alia, that the harm caused to the physical integrity or health of a person
requiring up to twenty days of medical care is punishable by one to three
months’ imprisonment or a fine.
. Article
250 deals with abusive behaviour and provides that a public servant on duty who
uses insulting language while physically harming someone shall be punished by
six months to five years’ imprisonment.
B. Code of Criminal Procedure
The order to appear before the courts (mandatul
de aducere) was, at the material time, provided for by Articles 183-184 of
the Code of Criminal Procedure, which read as follows:
Article 183
“(1) A person may be brought before [a] criminal-investigation
body or [a] court on the basis of an order to appear, drawn up in accordance
with the provisions of Article 176, if, having been previously summoned, he or she
has not appeared, and his or her hearing or presence is necessary.
(2) An offender or a defendant may be brought [before the
authorities] on the basis of an order to appear even before being summoned, if
the criminal-investigation body or the court considers that, and provides
reasons why, this measure is necessary for the determination of the case.”
Article 184
“(1) [An]
order to appear is enforced by the police.
(2) If the
person specified in the order cannot be brought [before the authorities]
because of an illness or for any other reason, the police officer appointed to
enforce the order shall mention this situation in an official report, which
shall immediately be handed to the criminal-investigation body or the court.
(3) If the police officer appointed to enforce the order to
appear does not find the person specified in the order at the specified
address, he shall investigate and, if unsuccessful [in locating the
individual], shall draw up an official report including mention of the
investigative activities undertaken.
(31) If the offender or the defendant refuses to
accompany a police officer or tries to escape, he or she may be forced to obey
the order.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention that he had been beaten by police officers on 27 November 2006 and
that the authorities had not carried out a prompt and effective investigation
of that incident. In his written submission of 5 January 2012, namely after the
communication of the present application to the respondent Government, the
applicant also raised a complaint under Article 13 in connection with his grievances
under Article 3. However, as it has decided in previous cases, the Court need
not to rule on complaints raised after the communication of an application to
the Government (see Vigovskyy v. Ukraine, no. 42318/02, § 14,
20 December 2005). Moreover, the Court notes that the applicant
complained under Article 6 § 1 of the Convention that the criminal proceedings
initiated by him have lasted too long, without any result. The Court,
which is the master of the characterisation to be given in law to the facts of
the case, finds that the above complaints fall to be examined solely under
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Court notes that those complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that the injuries
inflicted on him while in police custody had been caused by police officers. He
further claimed that the Government’s submissions that he had harmed himself
were based solely on the police officers’ statements and totally disregarded
his lawyer’s and his own statements.
The applicant contended that there were long
lapses of time in the investigation conducted by the authorities when no procedural
steps were taken. Although he had lodged his criminal complaint on
7 December 2006, it was registered several months later on 12 March
2007. He added that essential evidence had not been gathered by the prosecutor
despite clear instructions in this respect from the courts, which had twice remitted
the case to the prosecutor, first in January 2010 and again in
November 2011.
The Government contested the applicant’s
allegation that he had been beaten by police officers. They maintained that the
injuries sustained by the applicant had not been inflicted by the police
officers, but had been self-inflicted during a panic attack in Huedin Hospital. They further alleged that the applicant’s aggressive attitude towards the
police officers had forced them to intervene and immobilise him with hand-cuffs
so that he could be disconnected from medical devices. They contended that the
expression “affirmative assault” used by the doctor who had prepared the medical
certificate of 19 December 2006 referred not to the doctor’s findings but to
the applicant’s allegation that he had been assaulted.
The Government further contended that the
judicial authorities had conducted a proper investigation into the applicant’s
allegations of ill-treatment and that no deficiencies could be identified
in that respect.
2. The Court’s assessment
The Court reiterates that according to its
well-established case-law, ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of this
minimum level of severity is relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the victim
(see, inter alia, Price v. the United Kingdom,
no. 33394/96, § 24, ECHR 2001-VII; Mouisel v.
France, no. 67263/01, § 37, ECHR 2002-IX; Naumenko v. Ukraine,
no. 42023/98, § 108, 10 February 2004; and Gäfgen v. Germany
[GC], no. 22978/05, § 88, ECHR 2010).
In order for a punishment or treatment
associated with it to be “inhuman” or “degrading”, the suffering or humiliation
involved must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or punishment
(see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).
Having regard to all the above-mentioned
principles and the particular circumstances of the present case, it has to be
determined whether the applicant, in the course of his detention, was subjected
to inhuman and/or degrading treatment within the meaning of Article 3 of
the Convention.
The Court notes at the outset that the applicant
was in good health when he was taken into custody by the police, but was
reported to have bruises and abrasions on the upper abdomen and on both hips
when he was released. In addition, according to the medical certificate issued
by the Bihor Forensic Institute on 28 November 2006, he needed four to
five days to recover.
The Court considers that given the nature and
severity of the injuries suffered by the applicant and the circumstances in
which they were sustained, an arguable claim has been raised under the
substantive limb of Article 3 of the Convention.
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated by the police or
other such agents of the State unlawfully and in breach of Article 3, that
provision, read in conjunction with the State’s general duty under
Article 1 of the Convention to “secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official investigation. This
investigation, as with that under Article 2, should be capable of leading
to the identification and punishment of those responsible. If this were not the
case, the general legal prohibition of torture and inhuman and degrading treatment
and punishment, despite its fundamental importance, would be ineffective
in practice and it would be possible in some cases for agents of the State to
abuse the rights of those within their control with virtual impunity (see Assenov
and Others v. Bulgaria, 28 October 1998, § 102, Reports of
Judgments and Decisions 1998-VIII).
Where allegations are made under Article 3 of
the Convention, the Court must apply a particularly thorough scrutiny, even
if certain domestic proceedings and investigations have already taken place
(see Cobzaru v. Romania, no. 48254/99, § 65,
26 July 2007).
The Court notes that the applicant is in
possession of two medical certificates attesting that he had sustained injuries
while in police custody. He lodged a criminal complaint against the police
officers whom he accused of subjecting him to degrading and ill-treatment, but
the complaint was twice dismissed by the prosecutor on the grounds that there
was a lack of evidence that the offences in question had been committed.
As the applicant was injured while in police custody,
it was incumbent on the Government to produce evidence casting doubt on the
account given by the victim and his chosen lawyer, and on the medical evidence submitted.
The Court is particularly concerned about the
way the criminal investigation was conducted.
It notes that although the applicant had lodged
his complaint on 7 December 2006, it took several months until it was
registered as a criminal complaint on 12 March 2007. The first statements of
four (out of ten) police officers involved in the events and of the applicant’s
lawyer were taken only on 6 February 2008. On the basis of that evidence, the
Prosecutor’s Office attached to the Cluj Court of Appeal decided on 12 February
2008 not to open an investigation against the police officers.
On 19 January 2010, almost four years after the
applicant had submitted his criminal complaint, the Ploiesti Court of Appeal, noting
the shortcomings of the prosecutor’s investigation, sent the file back to the
Prosecutor’s Office. It held, inter alia, that the investigation against
the police officers had not been conducted thoroughly on the basis of the
evidence of each crime having taken place or targeted against each of the
offenders. It also noted that the prosecutor, in deciding not to prosecute, had
provided no explanation of why only four police officers out of ten had been interviewed,
why the four statements were identical and why he had not taken into account
the documents submitted by the applicant attesting that that applicant had
suffered injuries.
On 18 January 2011, more than four years after
the events, the prosecutor took statements from the six other police officers
involved in the events. After re-hearing the applicant’s lawyer on 21 April
2011 and two of the police officers on 22 August 2011, the prosecutor again
decided not to start criminal proceedings. On the grounds that the prosecutor
did not follow the court’s instructions to open an investigation and to
supplement the evidence, on 11 November 2011 the Ploiesti Court of Appeal sent
the file back to the Prosecutor’s Office attached to the Cluj Court of Appeal.
Thus, the Court observes that essential evidence
was not gathered or was gathered with delay by the prosecutor, despite clear instructions
in this respect from the Ploiesti Court of Appeal, which had twice remitted the
case to the Prosecutor’s Office.
In particular, the Court notes that the
prosecutor questioned the police officers and the applicant’s lawyer who had
been present at the scene of the incident, but no other witnesses. There is no
explanation as to why the medical staff and/or patients of the two hospitals
where the applicant was hospitalised, the driver of the ambulance, or the nurse
who accompanied him from Huedin to Cluj, had not testified before the domestic
authorities.
The Court is also concerned about the way the
prosecutor disregarded the statements made by the applicant’s lawyer, S.B., who
was present when the events of 27 November 2006 occurred. The Court notices
that the prosecutors did not explain why her statements would be less credible
than those of the police officers.
The Court further considers that the medical
records made by the doctors who examined the applicant were not adequately
examined by the authorities.
Having regard to the above-mentioned
deficiencies identified in the investigation and to the fact that after more
than five years since the applicant had lodged his criminal complaint not a
single final judicial decision had been taken on the merits of the case, the
Court concludes that the State authorities failed to conduct an effective
investigation into the applicant’s allegations of ill-treatment.
There has accordingly been a violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that he had been
unlawfully held in police custody between 4 p.m. on 27 November 2006 and 2
a.m. on 28 November 2006. He relied on Article 5 § 1 of the
Convention, which reads as follows:
“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. Admissibility
The Court notes that this complaint 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.
B. Merits
1. The parties’ submissions
The applicant submitted that on 27 November 2006
he was apprehended by police officers from the Bihor Police Inspectorate without
any explanation. He claimed that he was not allowed to leave of his own free will
or to phone his family or lawyer. He was guarded by police officers while in
the hospitals and the ambulance that transported him from Huedin Hospital to Cluj Hospital, and was handcuffed in Huedin Hospital. He therefore concluded that
this treatment amounted to a deprivation of his liberty and not a mere
restriction upon his liberty.
The applicant further submitted that his
deprivation of liberty was not in compliance with Articles 183 and 184 of the
Code of Criminal Procedure. He emphasised that he had never been summoned
to appear before the Prosecutor’s Office attached to the Cluj Court of Appeal
before 27 November 2006 and that no reasons had been provided by the
Romanian authorities for taking such a measure against him.
The Government contended that the enforcement of
the order to appear before the criminal-investigation authority issued in the
applicant’s name could not be considered a deprivation of liberty within the
meaning of Article 5 § 1. They claimed that the applicant had
willingly accompanied the police officers from the Bihor Police Inspectorate.
They maintained that although the questioning of the applicant had lasted one and
a half hours (between 0.30 a.m. and 1.52 a.m.), enforcement of the measure
had taken longer because of the applicant’s problematic medical condition.
The Government further submitted that the order to appear before the
criminal-investigation authority had been issued in compliance with the national
law and had been justified by the investigators’ doubt that the applicant would
present himself for questioning at the police headquarters.
2. The
Court’s assessment
(a) 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. 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.
The Court also 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. The difference
between deprivation of and restriction upon liberty is merely one of degree or
intensity, and not one of nature or substance (see Austin and Others
v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012).
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 Van Droogenbroeck v. Belgium,
24 June 1982, § 38, Series A no. 50).
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 (see Medvedyev and Others v. France [GC], no. 3394/03, § 79,
ECHR 2010).
(b) Application in the instant case
Firstly, the Court considers it necessary to
establish the period to be taken into consideration. It notes that it is not
disputed that at about 4 p.m. on 27 November 2006 the applicant was
taken by three police officers from his home in Borş and transported to Cluj
in connection with a criminal investigation. The parties also agreed that the
applicant had been released at 1.52 a.m. the next day. In this connection,
the Court concludes that the measure complained of started at about 4 p.m. on
27 November 2006 and lasted until 1.52 a.m. the following day.
The Court further notes that while the applicant
claimed that he was forced to accompany the police officers, the Government
contended that the applicant agreed to accompany them. In this connection, the
Court notes that the applicant was guarded by police officers continuously and
that at no point during the journey from Borş to Cluj was the applicant
allowed to leave of his own free will. It also notes that the applicant was
guarded by the police officers also while in hospital and in the ambulance
transporting him from Huedin to Cluj Hospital. The Court therefore considers
that the applicant was under the authorities’ control throughout the entire period,
and concludes that he was deprived of his liberty within the meaning of
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 the 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, Creangă v. Romania [GC], no. 29226/03, § 101,
23 February 2012).
The Court notes that in the present case, the
legal basis for depriving the applicant of his liberty was Articles 183 and 184
of the Romanian Code of Criminal Procedure in force at the time.
According to Article 183 § 1, an individual
could be brought before a criminal-investigation body or a court on the basis
of an order to appear, if, being previously summoned, he or she had not
appeared and his or her hearing or presence was necessary. In this
connection, the Court notes that while the applicant contended that he had
never been summoned to appear before the Cluj authorities in connection with
criminal proceedings against him, the Government failed to submit any evidence to
the contrary, as for example a copy of the summons.
The Court further notes that, pursuant to Article
183 § 2 of the same code, an offender or a defendant could be exceptionally
brought before the courts on the basis of an order to appear even before being
summoned, if the criminal-investigation body or the court considered that this
measure was necessary for the determination of the case, and provided reasons
why.
In this respect the Court observes that the prosecutor’s
order of 27 November 2006 issued on the basis of Article 183 § 2 of
the Romanian Code of Criminal Procedure did not contain any reason justifying
the measure. The Court therefore concludes that by omitting to specify the
reasons on which it was based, the prosecutor’s order failed to conform to the rules
applicable to domestic criminal procedure.
The Court also notes that the subsequent prosecutor’s
decisions in connection with the criminal proceedings initiated by the
applicant against the police officers contain discrepancies concerning the
reasons for issuing an order to appear. According to the decision delivered by
the Prosecutor’s Office attached to the Cluj Court of Appeal on
12 February 2008, criminal proceedings had been initiated against the
applicant on 27 November 2006 and his deprivation of liberty had been
justified by the necessity to interview him immediately, even before summoning
him. However, in his decision of 1 August 2008 the head of the Prosecutor’s
Office attached to the Cluj Court of Appeal argued that the prosecutor issued
an order to appear because the applicant, although legally summoned, had
refused to go to the police station to make a statement.
Furthermore, the Court doubts whether the
applicant’s deprivation of liberty and his transport to a city located 200 km
from his home, escorted by ten police officers, was necessary to ensure that he
gave a statement. In addition, the Court notes that the prosecution dropped the
charges against the applicant because his guilt could not be proved.
The Court considers that the above circumstances
disclose that the applicant was not deprived of his liberty in accordance with
a procedure prescribed by domestic law, which renders the deprivation of the
applicant’s liberty between 4 p.m. on 27 November 2006 and 2 a.m. on 28 November 2006
incompatible with the requirements of Article 5 § 1 of the Convention.
There has therefore been a violation of
Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
The applicant complained that he had not been
promptly informed of the reasons for his deprivation of liberty. He relied on
Article 5 § 2 of the Convention, which reads as follows:
“Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge
against him.”
A. Admissibility
The Court notes that this complaint 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.
B. Merits
1. The parties’submissions
The applicant submitted that he had complained
that he had not been informed immediately about the reasons for the deprivation
of his liberty at the time he was apprehended on 27 November 2006. He further claimed
that he had never been informed about the reasons for his deprivation of
liberty and had never been presented with a copy of the order to appear before
an investigating body. He admitted that he had been briefly informed about the
charges against him approximately eight hours after being apprehended by police
officers.
The Government submitted that the provisions of
Article 5 § 2 of the Convention were not applicable, as the
applicant had not been taken into custody by the police but had been escorted by
police officers to the Prosecutor’s Office attached to the Cluj-Napoca District
Court for interrogation pursuant to an order to appear before the criminal-investigation
authority. They further contended that the police officers had informed the
applicant verbally about the accusations against him when he was first arrested,
and had then informed him in extenso of the accusations within
eight hours of his arrest.
The Government concluded that the applicant had
waived his right under Article 5 § 2 because he had refused to take
part in the investigation after the case had been remitted to the prosecutor
the second time.
2. The Court’s assessment
The Court reiterates that paragraph 2 of
Article 5 contains the elementary safeguard that any person arrested
should know why he is being deprived of his liberty. This provision is an
integral part of the scheme of protection afforded by Article 5: by virtue of
paragraph 2 any person arrested must be told, in simple, non-technical
language that he can understand, the essential legal and factual grounds for
his arrest, so as to be able, if he sees fit, to apply to a court to challenge
its lawfulness in accordance with paragraph 4. Whilst this information must be
conveyed “promptly”, it need not be related in its entirety by the arresting
officer at the very moment of the arrest. Whether the content and promptness of
the information conveyed were sufficient is to be assessed in each case
according to its particular features (see, mutatis mutandis,
Murray v. the United Kingdom, 28 October 1994, § 72, Series A
no. 300-A).
The Court notes that there are discrepancies
between the applicant’s and the Government’s accounts of the circumstances. Thus,
while the Government contended that the applicant had been informed immediately
of the reasons for his detention and that he agreed to accompany the police
officers to Cluj, the applicant maintained that he had not been informed at the
time of his taking into custody about the reasons for depriving him of his
liberty. However, the Court notes that the parties agreed that the applicant
was informed of the charges against him on arrival at Cluj Police Station
almost eight hours later.
The Court reiterates that a person must be
informed at or soon after the time of arrest, or be able to deduce the reasons
of arrest from the questioning or the circumstances within a few hours of
arrest. Having regard to its case-law (see in particular Fox, Campbell and
Hartley v. the United Kingdom, 30 August 1990, §§ 41-43,
Series A no. 182, where an interval of up to seven hours between
the arrests and the giving of all the information were found to meet the
requirement of promptness and Čonka v. Belgium, no.
51564/99, §§ 51-53, ECHR 2002-I where no violation was found when broad
reasons for detention were given upon detention and written reasons supplied
two days later) the Court considers that in the context of the present case an
interval of eight hours cannot be regarded as falling outside the time constraints
imposed by the notion of promptness in Article 5 § 2. Moreover, the Court considers
that the reasons for the applicant’s deprivation of liberty were sufficiently
brought to his attention during his interview.
In conclusion, Article 5 § 2 of the Convention
has not been breached.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article 6 § 1
of the Convention, about the lack of impartiality on the part of the
domestic courts.
However, in the light of all the material in its possession,
and in so far as the matters complained of are within its competence, the Court
finds that they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 35,000 euros (EUR) in respect
of non-pecuniary damage, in compensation for the physical and emotional
harm caused to him by the domestic authorities. He did not claim any amount in
respect of pecuniary damage.
The Government contended that the amount
claimed by the applicant in respect of non-pecuniary damage was excessive and
that the mere acknowledgement of a violation of the Convention would represent
in itself a just satisfaction.
The Court awards the applicant EUR 9,750 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 415 for the
costs and expenses incurred before the domestic courts. For the expenses and
costs incurred before the Court he claimed EUR 4,398.5, of which EUR 5.93 were
for the costs of correspondence with the Court and EUR 4,391.6 for lawyer’s
fees. In this respect, the applicant presented a legal fees agreement with
his representatives and an approved timesheet of the legal work performed
before the Court. In addition, he presented receipts for the costs related to
his correspondence with the Court and invoices for the fuel he allegedly bought
for his transport to the domestic courts.
The Government maintained that the applicant’s
claim concerning his travel costs for allegedly participating in the domestic
proceedings was unsubstantiated, as the applicant did not submit evidence that
the costs had been incurred in connection with the judicial proceedings. They
further claimed that the amount representing the lawyer’s fees was excessive given
the financial crisis and the real contribution of the lawyer to the
proceedings.
In accordance with 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. The Court reiterates that under Rule 60 of the
Rules of Court any claim for just satisfaction must be itemised and submitted
in writing, together with the relevant supporting documents and within the
time-limit fixed for the submission of the applicant’s observations on the
merits, “failing which the Chamber may reject the claim in whole or in part”. In
the present case, regard being had to the documents in its possession and the
above criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings and considers it reasonable to award the sum of EUR 4,398
for the proceedings before the Court.
C. Default interest
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 complaints concerning
Articles 3, 5 §§ 1 and 2 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 1 of the Convention;
4. Holds that there has been no violation of
Article 5 § 2 of the Convention;
5. Holds
(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, which are to be to be converted into the
respondent State’s national currency at the rate applicable on the date of
settlement:
(i) EUR 9,750 (nine thousand
seven hundred and fifty euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage;
(ii) EUR 4,398 (four thousand three hundred and ninety-eight
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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
