CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 novembre 2014

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ROMANIA   (Application no. 31973/03)                   JUDGMENT       STRASBOURG   13 November 2014     FINAL   13/02/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Lazariu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Luis López Guerra,   Kristina Pardalos,   Johannes Silvis,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 21 October 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31973/03) 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, Mrs Victoria Lazariu (“the applicant”), on 15   August   2003. 2.     The applicant, who had been granted legal aid, was represented by Mr   D. Burghelea, a lawyer practising in Iaşi. The Romanian Government (“the Government”) were represented by their Agent, Ms   C.   Brumar, of the Ministry of Foreign Affairs, and Ms I. Cambrea, co-Agent. 3.     The applicant complained of various violations of her rights under Articles 3, 5, 6 and 8 of the Convention. 4.     By a decision of 22 November 2011 the Court decided to communicate the applicant’s complaints under the following Articles of the Convention: Article 3 concerning alleged ill-treatment on 28 May 2003; Article 5 § 1 concerning the legality of the alleged deprivation of liberty on 28 May 2003 and from 28 May to 5 June 2003, when she was held in a psychiatric hospital; Article 5 § 4 concerning the right to judicial review of the legality of her confinement in a psychiatric hospital; Article 6 § 1 concerning the alleged lack of reasoning in the domestic decisions delivered in the criminal proceedings against her and the duration of those proceedings; Article 6 § 1 taken together with Article 6 § 3 (c) concerning the right to be heard by the domestic courts; and Article 8 concerning the right to respect for private life, and to declare the remainder of the application inadmissible. 5.     The applicant and the Government each submitted further written observations (Rule 59 § 1) on the merits. 6.     On 12 July 2013 the Court decided, of its own motion, to restrict public access to the case file, in accordance with Rule 33 § 2. 7.     On 6 March 2014 the Court decided to ask for additional observations from the parties concerning the admissibility of the complaint under Article   5 § 1 of the Convention concerning the legality of the alleged deprivation of liberty on 28 May 2003. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1951 and lives in Iaşi. A.     Incident on 28 May 2003 9.     The applicant, who was admitted to the Bucharest Bar Association in December 2004, was involved, as a party, in several sets of civil and criminal proceedings. 10 .     In February 2003 she was informed by E.E., a prosecutor attached to the Iaşi District Court, that she was suspected of incitement to false testimony. She was specifically suspected of having persuaded the witnesses in a different set of criminal proceedings to give false testimony. The development of those proceedings is described in paragraphs 37 to 57 below. 11.     At about 9 a.m. on 28 May 2003 the applicant went to the prosecutor’s office attached to the Iaşi District Court. According to her, she wanted to submit a complaint to the superior of the prosecutor investigating the case against her. According to the Government, the applicant went there at the prosecutor’s invitation in order to be informed of the content of the criminal file against her ( prezentarea materialului de urmărire penală ). 12.     The applicant argued that the prosecutor had seen her for only a few minutes at the entrance to his office and that afterwards she had been taken by a police officer to a room on the first floor, where she was kept waiting. 13 .     The Government claimed that when the prosecutor declined the applicant’s request to have photocopies of all the documents in the criminal file, she had refused to remain in the prosecutor’s office. Consequently, at 9.30 a.m. the prosecutor issued an order to appear ( mandat de aducere ) to prevent her from leaving the building and instructed police officer M.L.E. to ensure that it was complied with. The Government submitted a copy of the order to appear.     They also claimed that the applicant had refused to comply with the order, and had continued to behave inappropriately, using malicious language against the prosecutors and the police. The police prevented her from leaving the building. At 10.40 a.m. the applicant was received by the chief prosecutor. She was then allowed to write a complaint in the waiting room of the building. 14 .     Subsequently, at an unknown time the same day, E.E. ordered the applicant’s immediate confinement to the Iaşi Psychiatric University Hospital (“the Socola hospital”) for an assessment of her mental state. The reasons given were the following: “Given that [the applicant] has shown an exaggerated propensity to complain and that her language has become extremely vehement, facts that give rise to doubts as to her psychological state, and having regard to Articles 116, 117 and 203 of the Code of Criminal Procedure and section 14 of Decree no 79/1971, I order that a psychiatric assessment be conducted ...”. 15.     While she was still in the building, the applicant made a handwritten complaint against the confinement order. In her complaint, she also mentioned that she had been held in the building since 11 a.m. After her confinement she lodged other similar complaints. 16.     At about 2 p.m., as the applicant refused to go to the hospital, prosecutor E.E. asked the police to execute the confinement order. According to the applicant, several police officers dragged her by the hands and lifted her by force into a car, in which she was then taken to the hospital. She sustained several bruises and other injuries. According to a report drafted by the Iaşi police the same day, four police officers (other than M.L.E. – see paragraph 13 above) carried the applicant in their arms to the car. She resisted and tried several times to hit her knees against a wooden doorframe. 17 .     The applicant was photographed by the press while being taken away from the premises of the prosecutor’s office. She submitted to the Court several articles that had appeared in the local press. They included a photograph of the applicant on her knees in a doorway while being dragged out of the building by two police officers. B.     The applicant’s confinement in a psychiatric institution 18.     At about 3 p.m. on 28 May 2003 the applicant was presented to the doctor on duty at the Socola hospital. 19.     On 5 June 2003 the applicant underwent an examination by a panel of three doctors at the Socola hospital. The examination report concluded that she was mentally sound and aware of her acts. She was released from the hospital on the same day. 20 .     On 9 June 2003 the applicant was informed by a note from the chief prosecutor attached to the Iaşi District Court that her complaint against the confinement order had been dismissed by a decision of 6 June 2003. The prosecutor’s note did not indicate any reasons for the dismissal of the applicant’s complaint. C.     Investigations into the incident of 28 May 2003 21 .     On 29 May 2003 the applicant underwent a forensic medical examination. The doctor reported that she had various bruises on her arms and legs which could have been caused by being hit with blunt objects and by pressure exerted with the fingers, and estimated that she needed three or four days’ treatment. 22.     Following the incident, the applicant submitted numerous requests with various authorities, such as the police, the prosecutor’s office, the Ministry of Justice and the President of Romania. Those relevant to the case are summarised below. 1.     Request to the Iaşi County Police 23 .     On 3 June 2003, the applicant wrote to the Iaşi County Police asking to be informed of the legal grounds of the actions taken by the police on 28   May 2003. She also requested the names of the police officers who had escorted her by car from the prosecutor’s office to the Socola hospital. 24.     On 26 June 2003, the police informed her that she had been escorted to the Socola hospital by virtue of an order delivered by the prosecutor under Article 117 of the Code of Criminal Procedure (“the CCP”), but that they could not disclose the names of the police officers because they were not their employees. 2.     Request to the Iaşi Police (Second Precinct) 25.     On 4 August 2003, the applicant wrote to the Iaşi Police (Second Precinct) with a similar request (see paragraph 23 above). 26 .     On 13 August 2003, the police informed her that the officers who had escorted her were indeed employed by the Iaşi Police (Second Precinct), but that they could not disclose their names without a specific instruction from the prosecutor’s office attached to the Iaşi District Court. 3.     Criminal complaints 27 .     The applicant lodged several complaints against E.E. and other prosecutors who had examined her case, and against M.L.E. She generally complained of abusive behaviour, insults, defamation and the disclosure of confidential information with reference, among other things, to the 28   May   2003 incident. It appears that the prosecutor’s office attached to the Iaşi Court of Appeal examined most of those complaints and decided not to prosecute. The applicant did not challenge the decisions not to prosecute before the courts. 28 .     One particular complaint of the applicant’s was examined by the prosecutor’s office attached to the High Court of Cassation and Justice (“the High Court”). The complaint, directed against M.L.E., E.E. and three other prosecutors, referred, among other things, to ill-treatment, torture and illegal deprivation of liberty. 29.     On 19 June 2003, the applicant was heard by a prosecutor. She gave evidence on the circumstances of her complaint, identifying the individuals against whom she had complained. 30.     On 21 July 2003, the prosecutor’s office attached to the High Court decided not to prosecute, on the grounds that the individuals under investigation had not committed the alleged offences. 31 .     The applicant challenged the prosecutor’s decision before the High Court under Article 278 1 of the CCP (see paragraph 66 below). By a decision 15 April 2005, the High Court referred the case to the chief prosecutor of the same prosecutor’s office. By a decision of 16   December   2005 the chief prosecutor dismissed the applicant’s criminal complaint, on the grounds that her complaints had already been examined or were under examination at that time. The applicant was informed of that decision on 27   December 2005. 32 .     The applicant did not challenge the decision of 16 December 2005 before the courts. 4.     Action lodged under Law no. 29/1990 on administrative litigation (the Administrative Litigation Act) 33.     In November 2003, the applicant brought an action against the Iaşi District Court, the Iaşi Court of Appeal and the prosecutor’s office attached to the Iaşi Court of Appeal, claiming that they had unlawfully examined a complaint she had made in February 2003. At a later date, she extended her complaint against the Romanian Government, the Ministry of the Interior, the Romanian Gendarmerie, the General Prosecutor’s Office and the Ministry of Public Finance. She claimed that they had been responsible for the actions of the prosecutor’s office attached to the Iaşi Court of Appeal. 34.     On 15 January 2004, the applicant extended her complaint against a judge, several prosecutors, police officers and gendarmes, claiming that they had been involved in her confinement in the Socola hospital. 35 .     By a decision of 20 February 2006, the Iaşi Court of Appeal dismissed the applicant’s complaint. It noted, in particular, that, with regard to the individuals allegedly involved in her confinement in the psychiatric hospital, the provisions of the Administrative Litigation Act were not applicable and that the applicant should have lodged a criminal complaint. 36.     The applicant lodged an appeal on points of law. By a decision of 16   January 2007, the High Court dismissed her appeal for lack of specification. D.     Criminal proceedings against the applicant 37 .     On 13 December 2003 the prosecutor’s office attached to the Iaşi District Court issued an indictment against the applicant and eight other individuals (“the co-accused”). The applicant was charged on several counts: defamation, incitement to give false testimony, unlawfully practising activities specific to the profession of lawyer ( practicarea ilegală a activităţilor specifice profesiei de avocat ), fraud, forgery and use of forged documents. 38.     The case was initially assigned to the Iaşi District Court. The applicant challenged the latter’s impartiality before the High Court and asked for the file to be transferred to a different court. On 5 March 2004, the High Court assigned the case to the Cluj Napoca District Court (“the District Court”). 39 .     Fifty-six hearings were held before the District Court. Most of the postponements were for procedural issues (irregularities in notifying the parties, missing case file, failure of proposed witnesses to appear before the court) or at the request of the co-accused or civil parties. The hearing was postponed about twenty-five times at the applicant’s request, owing either to a change of counsel, to her inability to appear before the court for medical or professional reasons or to her challenging the judge reviewing her case. A few of the applicant’s requests overlapped those made by the prosecution or the co-accused. 40.     On 18 March 2005 a District Court judge made a written note in the case file that some documents relating to the charge of “fraud” were missing. 41 .     On 24 March 2005 in the District Court the bill of indictment was read out in the presence of the applicant and her chosen counsel. The applicant’s counsel asked that the co-accused be heard separately by the court in order to avoid them influencing each other. Six of the co-accused were heard during that hearing. The applicant and her counsel asked them a few questions. Two of the co-accused did not appear in court and so could not be heard. The court acceded to the applicant’s request to hear the testimonies of four witnesses. She undertook to produce the home addresses of the witnesses in question. 42 .     On 6 September 2005 the District Court heard testimony from the applicant. She criticised the manner in which the criminal investigation had been conducted: the prosecutors had refused to carry out a graphology test, had influenced the witnesses and had communicated confidential information to the press. She also complained that her defence rights had been disregarded. 43 .     On 21 March 2006 the District Court approved, in the applicant’s presence, her request to have eight additional witnesses heard. The court also heard another co-accused. The applicant’s request to have all the co ‑ accused, the civil parties and the plaintiffs heard once again was dismissed on the grounds that their testimonies had been taken in accordance with the law. 44.     On 5 September 2006 the District Court heard the last co-accused in the proceedings in the applicant’s presence. 45 .     The District Court also heard six of the witnesses proposed by the applicant. The other witnesses did not appear in court for various reasons (for example, they had refused to appear or were too ill to do so). 46 .     On 24 April 2007 the applicant declared before the District Court that the offences with which she had been charged had become statute ‑ barred but that she wanted the proceedings to continue in order to prove her innocence. 47 .     During the proceedings before the District Court the applicant requested numerous times that the case be remitted to the prosecutor. However, all her requests were dismissed for lack of grounds. She also asked for a graphology report to be prepared, but her request was dismissed because such a report had already been prepared during the criminal investigation and there was no need for a new one. The applicant raised an objection of non-constitutionality, which was dismissed as ill ‑ founded. She also argued that the proceedings in respect of the charge of false testimony should be discontinued as a final decision on the subject had already been made, but her objection was dismissed on the grounds that a prosecutor’s decision could not be likened to a judicial decision. 48 .     The first-instance proceedings lasted until 23   July 2009, when the District Court delivered a judgment in the case. It established that the applicant had committed all the offences with which she had been charged, but discontinued the criminal proceedings against her on the charges of incitement to false testimony, false accusation and carrying out activities specific to the profession of lawyer, noting that criminal liability for those offences was time-barred. It also found the applicant guilty of the charges of fraud, forgery and use of forged documents, and gave her a three-year suspended sentence. The court found that the evidence adduced during the prosecutor’s investigation was corroborated by the evidence adduced directly before it, namely statements by the accused persons, the civil parties and the witnesses, including the witnesses proposed by the applicant. The court further established that the applicant had forged three documents issued by a law office with a view to certifying her alleged status as an apprentice lawyer, and had pretended to be a lawyer in order to represent five people before the courts. She had forged the signatures of two of her clients on documents she had used in the proceedings concerning those clients. The District Court also ordered the applicant to pay damages to the civil parties. 49.     The applicant, the prosecutor and the civil parties lodged an appeal before the Cluj County Court (“the County Court”). The applicant made written submissions in support of her appeal, requesting leave, among other things, to give a statement before the appellate court. 50 .     The County Court held four hearings in the case. The applicant did not attend, but was represented by court-appointed counsel. 51.     During the final hearing on 12 April 2010, the applicant was represented by court-appointed counsel. The court noted that the applicant had submitted a power of attorney for counsel of her choice, indicating that he could not be present at the hearing in question and asking for its postponement. The court decided to proceed with the review of the case even though the applicant and her chosen counsel were not present, indicating that the applicant had been lawfully summoned at the addresses she had given and that she could be represented by the court ‑ appointed lawyer. The latter asked that the criminal proceedings against the applicant be discontinued or, in the alternative, that a milder sentence be applied. 52 .     The County Court delivered its decision on 27 April 2010. It found that the sentence applied to the applicant was too mild, given the offences with which she was charged. It further held that the way in which she had committed the offences revealed that she was highly dangerous. Taking into account her behaviour after having committed the crimes, and her constant denial of guilt, it held that finding her guilty was not sufficient warning for her and that it was therefore fitting that she should serve a prison sentence. It accordingly sentenced her to five years’ imprisonment. 53.     The County Court also found that for two of the crimes of which the applicant had been convicted by the first-instance court (forgery and use of forged documents) her criminal liability was time-barred, and discontinued the proceedings regarding those charges. 54.     The applicant lodged an appeal on points of law, submitting written observations. She raised the following arguments, inter alia : ­           she had not been heard by the lower courts; ­           the case file was incomplete as, according to a note by the first ‑ instance judge, the documents relating to the fraud charge were missing from the file; ­           two of the co-accused had stated before the first-instance court that they had been forced during the criminal investigation to declare that she had incited them to make false statements; ­           the lower courts had breached her right not to be tried twice for the same acts, since by a final decision of 7 November 2002 the Iaşi County Court had found that her co-accused had not given false testimonies; ­           one of the civil parties had never made a request to join the proceedings as a civil party; ­           her requests for evidence had not been approved; and ­           numerous procedural errors had vitiated the entire proceedings and her right to defence had not been respected during the criminal investigation and before the courts. 55.     The case was registered before the Cluj Court of Appeal (“the Court of Appeal”). The Court of Appeal held two hearings in the case; the applicant did not attend them. 56.     During the final hearing on 20 October 2010, the applicant was represented by a different court-appointed lawyer from the one who had represented her in the appeal proceedings (see paragraph 50 above). The court-appointed counsel indicated that the applicant had instructed her to ask for a postponement of the hearing. The Court of Appeal dismissed her request. The applicant’s representative asked for her acquittal or for a milder sentence. 57 .     By a final decision of the same date, the Court of Appeal dismissed the applicant’s appeal on points of law as manifestly ill-founded. The court found that the applicant’s right to defence had been respected throughout the proceedings. The court further held that the lower courts had examined extensive evidence, correctly determined the facts of the case and established her guilt beyond any doubt. It also held that the sentence given to her had been correctly determined. E.     Complaints lodged by the applicant concerning press coverage of the 28 May 2003 incident 58.     On 3 June 2006, the applicant complained to the Iaşi County Police that police officers had called the press during her removal from the prosecutor’s office to the Socola hospital on 28 May 2003. On 27   June   2003, the police dismissed her allegations and found that the applicant herself had called the press from her mobile phone. 59.     The applicant also lodged several complaints, both criminal and civil, against the journalists who had published articles following that incident. She submitted before the Court copies of first-instance judgments by which two journalists had been ordered to pay her 4,640 euros (EUR) for non-pecuniary damage. She also lodged a complaint against the photographer who had allegedly taken the photograph that featured in the impugned articles. The Năsăud District Court dismissed her complaint on 24 November 2004, reasoning that that photographer was not the one who had taken photographs of her, and that taking a person’s photograph was not, in any event, a punishable offence. 60.     The applicant did not provide any information as to whether those judgments became final or were appealed against. Nor did she inform the Court whether she had received the non-pecuniary damages ordered by the courts. II.     RELEVANT DOMESTIC LAW AND PRACTICE 61 .     Articles 69 to 74 of the CCP set out the procedure for taking the statement of the accused. They do not establish precisely when the accused must give testimony. 62.     The provisions of Article 117 § 1 of the CCP on psychiatric assessment, as well as the relevant case-law of the Romanian Constitutional Court, are described in C.B. v. Romania (no.   21207/03, §§ 35-36, 20   April   2010). 63 .     The provisions of Articles 136 to 150 of the CCP on the preventive measures that can be taken during the criminal proceedings are described in Creangă v. Romania [GC] (no. 29226/03, § 58, 23 February 2012). 64 .     Article 183 § 1 of the CCP provides that an individual may be brought before a criminal ‑ investigation body or a court on the basis of an order to appear, if, having been summoned, he or she had not appeared and his or her hearing or presence was necessary. Article 183 § 2 provides that an individual may exceptionally be brought before the courts on the basis of an order to appear even before being summoned, if the criminal ‑ investigation body or the court considers that this measure is necessary for the determination of the case, and provides reasons why. 65 .     Article 250 of the CCP refers to the presentation to the accused of the file as established by the prosecutor (“ prezentarea materialului de urmărire penală ”). The accused has the right to familiarise himself with the content of the file and must be provided with the facilities to do so. He or she may also make further requests or give fresh testimony. 66 .     Article 278 1 of the CCP introduced by Law no. 281/2003 provides that a prosecutor’s decision not to prosecute may be contested before the courts. Law no. 281/2003 entered into force on 1 January 2004 and included transitional provisions with regard to prosecutors’ decisions adopted before its entry into force. 67 .     The provisions of Law no. 487/2002 on mental health and the protection of people with mental disorders (“The Mental Health Act”), its amendments and the relevant secondary legislation are described in B.   v.   Romania (no. 2) (no. 1285/03, §§ 43-60, 19 February 2013). In particular, Sections 12 and 13 of the Act provide that the assessment of a person’s mental health, with a view to making a diagnosis or determining whether the person is of sound mind, requires a direct examination by a psychiatrist at the request of the person concerned in the case of voluntary admission, or at the request of an appropriate authority or authorised person in the case of compulsory admission. Sections 44-53 of the Act govern the various circumstances in which compulsory admission may take place, following a psychiatric examination, and the relevant procedure (a request stating reasons, submitted by the family, the police or the person’s doctor, among others; notification of the psychiatrist’s decision to the patient, his or her representative and family, and also to the public prosecutor’s office and a medical panel, for confirmation). Also, an appeal against a decision on compulsory admission may be lodged “with the competent court according to the law” by the patient or his or her representative (section 54). 68 .     By a decision of 12 April 2011, the High Court of Cassation and Justice found that the accused or the defendant, who claimed that the procedural rules or their lawful rights had been breached, could complain of it only within the framework of the criminal proceedings opened against them. However, a criminal complaint lodged against the prosecutor who had carried out the investigation in pending criminal proceedings was not one of the legal means the accused or the defendant could use, as it gave them the possibility to have aspects of lawfulness concerning the pending criminal trial examined outside the framework expressly provided by the CCP and of the pending criminal proceedings opened against them. Moreover, if the prosecutor’s decision was challenged before the courts, the latter could not substitute their judgment to that of the judicial authorities in charge with the pending criminal proceedings. THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION 69.     The Government contended that the applicant had abused the right of individual application. In her response to the Government’s observations, she had used offensive language against the Government Agent. 70.     The Court reiterates that, in principle, an application may only be rejected as abusive under Article 35 §§ 3 and 4 of the Convention if it was knowingly based on untrue facts, even if it uses offensive language (see Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000-X, and Akdivar and Others v. Turkey , 16 September 1996, §§ 53-54 , Reports of Judgments and Decisions 1996-IV). However, the persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see Apinis v. Latvia (dec.), no. 46549/06, 20 September 2011, Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004, Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002, Duringer and Others v. France (dec.), nos. 61164/00 and 18589/02, ECHR 2003-II (extracts), and Stamoulakatos v. the United Kingdom , no. 27567/95, Commission decision of 9 April 1997). 71 .     The Court notes, on the one hand, that in her response to the Government’s observations, the applicant made some remarks concerning the Government Agent’s professional and private life. It finds the use of such language unacceptable and deplores the applicant’s attitude in this respect. On the other hand, the Court takes into consideration that such expressions occur rarely in the applicant’s voluminous submissions (see Manoussos , cited above, and compare and contrast Haţegan v. Romania (dec.), no. 24159/03, §§ 29-30, 17 April 2012). 72.     Considering all the circumstances of the case, the Court does not find it appropriate to declare the application inadmissible as being abusive within the meaning of Article 35 § 3 of the Convention, and dismisses the Government’s preliminary objection. II.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 73.     The applicant complained of the unlawfulness of her deprivation of liberty on 28 May 2003 when she was held at the prosecutor’s office from 9.30 a.m. until sometime in the afternoon and later confined to a psychiatric hospital, where she was held until 5 June 2003. She 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; ... (e)     the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”   74.     The Court notes that the applicant’s complaint is twofold. She complained, first, of deprivation of liberty while she was held at the prosecutor’s office, and secondly, of her confinement to a psychiatric institution. The Court will examine those complaints separately. A.     The applicant’s alleged deprivation of liberty on the premises of the prosecutor’s office 1.     Admissibility 75.     The Government raised a preliminary objection that the applicant had not exhausted domestic remedies. 76 .     They argued that, given the particular context of the case, namely the short duration of the applicant’s stay at the prosecutor’s office following the delivery of the warrant to appear, which did not amount to a deprivation of liberty, made it impossible for a judge to rule immediately on the lawfulness of the warrant to appear. However, the applicant could have challenged, after the events, the prosecutor’s decision and she disposed of two remedies to that end. 77.     Thus, the Government inferred, on the one hand, that the applicant had only made a general criminal complaint with regard to the events on 28   May 2003, without raising a specific complaint of illegal deprivation of liberty, and that, in any event, she had not challenged before the courts, under Article 278 1 of the CCP, the prosecutor’s decisions not to prosecute (see paragraphs 27 and 32 above). Had she done so, the courts could have either referred the case back to the prosecutor’s office or examined the merits of the complaint. On the other hand, they argued that the applicant did not lodge a civil action for damages, on the basis of the general tort law in force at the time of events. 78 .     The Government did not provide copies of pertinent domestic case ‑ law, but referred to the opinion of the High Court of Cassation and Justice and of several other courts, expressed in March-April 2014. The majority of these courts contended that both the criminal and the civil remedy were effective and adequate. With regard to the criminal complaint, opinions diverged as to the legal qualification of the facts: illegal deprivation of liberty ( lipsire de libertate în mod ilegal ), illegal arrest and abusive investigation ( arestare nelegală şi cercetare abuzivă ) or abuse in function ( abuz în serviciu ). 79.     The applicant maintained that she had exhausted all domestic remedies available at the time of events. 80 .     The Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports 1996 ‑ IV). 81.     However, there is no obligation to have recourse to remedies which are inadequate or ineffective. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see, among other authorities, Balogh v. Hungary , no.   47940/99, § 30, 20 July 2004 and Vučković and Others v. Serbia [GC], no.   17153/11, § 74, 25 March 2014). 82.     As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others , cited above, § 68; and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). 83.     In the instant case, the Court notes that the Government indicates two remedies that the applicant could have used: a criminal complaint and a civil action for compensation. 84 .     With regard to the criminal remedy, the Court notes that the Government did not submit relevant domestic case-law and relied rather on the opinions expressed by the High Court of Cassation and Justice and other Romanian courts in 2014. Without challenging the validity of those opinions, the Court notes that they were expressed eleven years after the events in case and are of a theoretical nature, disclosing the state of the law and of the legal practice of recent years and not necessarily of those in force in 2003. 85 .     In any event, the Court notes that the opinions that the Government relied on do not disclose a unanimous domestic practice (see paragraphs 68 and 78 above). Moreover, if some of the courts expressed the opinion that the applicant could have lodged a criminal complaint for illegal deprivation of liberty or illegal arrest (see paragraph 78 above), the Government themselves, in their submissions before the Court, contradicted such opinion by arguing that the warrant to appear did not entail a deprivation of liberty (see paragraph 76 above). 86.     The Court therefore finds that, in the particular circumstances of the case, the Government did not establish that the criminal complaint was an effective remedy. Consequently, the applicant was not under the obligation to challenge before the courts the decision of 16 December 2005 of the chief prosecutor of prosecutor’s office attached to the High Court of Cassation and Justice (see paragraph 32 above). 87.     With regard to the civil claim for damages, the Court notes that the Government did not submit in support of their allegations any examples of relevant domestic case-law contemporary to the timeframe in the present case and referred only to the theoretical opinions expressed by the High Court of Cassation and Justice and other domestic courts (see paragraph 84 above). 88.     In any event, the Court has already found that in a situation of allegations of abuse against State agents a civil action for damages based on the general tort law would have been in theory available to the applicant ( mutatis mutandis , Kilyen v. Romania , no.   44817/04, § 26, 25   February   2014). However, it has also found in similar cases against Romania that, at the time of the events, civil liability had a subjective character in Romanian law, requiring proof of negligence on the part of the person complained against (see Kilyen , cited above, § 26; and Eugenia Lazăr v. Romania , no. 32146/05, § 90, 16 February 2010). 89.     In view of its findings above with regard to the effectiveness of the criminal complaint, the Court considers it unlikely that an action for compensation under the general principles of tort law would have had any prospects of success in the current case (see paragraph 85 above). 90.     The Court therefore finds that, in the particular circumstances of the case, the Government did not establish that the civil action for damages was an effective remedy. 91 .     It follows that the Government’s preliminary objection as to the exhaustion of domestic remedies must be rejected. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits 92.     The applicant maintained that she had been unlawfully held on the premises of the prosecutor’s office. A police officer had been especially assigned to prevent her from leaving. She remained most of the time in the waiting room located on the first floor of the building and did not have access to her criminal file. 93.     The Government argued that Article 5 § 1 of the Convention was not applicable in the case, since the applicant had not been deprived of her liberty. She had gone of her own free will to the prosecutor’s office and at 9.30 a.m., when she had declared that she intended to leave, the prosecutor had issued on order to appear before the courts in order to make sure that she remained in the building and became acquainted with the criminal file against her. A police officer was instructed to ensure that the order was followed and she was prevented from leaving the building. She left the building by car, escorted by police officers, some time during the afternoon. At 3.35 p.m. she had already been seen by a doctor at the Socola hospital. 94 .     However, unlike in the case of Creangă v. Romania , cited above, the applicant was free to go wherever she wanted within the building and made use of that right by meeting two prosecutors in their respective offices and by drafting a complaint on a bench in the waiting room. She remained in the building until her confinement order could be executed. 95.     The Government argued that, in any event, the requirements of Article 5 § 1 of the Convention had been met. The deprivation of liberty had been justified under Article 5 § 1 (b) of the Convention, since its purpose had been to allow the applicant to become acquainted with the criminal file against her. Relying on the case of Soare and Others v. Romania (no.   24329/02, 22   February 2011), they pointed out that the order had not had a punitive intent, but had been issued in order to ensure that an obligation prescribed by law was fulfilled. Moreover, the order to appear had a legal basis in domestic law, namely Articles 183 and 250 of the CCP, and it had been delivered by the prosecutor in the interests of the proper administration of justice. Bearing in mind the applicant’s behaviour in the past, when she had refused to comply with such orders, the prosecutor had reasons to suspect that she might try to obstruct and delay the proceedings. The Government provided copies of summonses to appear which had been sent to the applicant in December 2002 and January 2003, as well as police reports stating that the applicant had not responded to those summonses. 96.     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. 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). In determining whether or not there has been a violation of Convention rights it is often necessary to look beyond 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). 97.     Where the “lawfulness” of detention is at 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). 98.     In the instant case, the Court notes that on 28 May 2003 the applicant was subjected to an order to appear delivered by the prosecutor. In the sense of the CCP (see paragraph 63 above) the order to appear is not a preventive measure, such as police custody or preventive detention. In this regard, the Court reiterates 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 ( Creangă , cited above, § 92). 99.     The Court must therefore examine the applicant’s concrete situation. The parties agree that the applicant was prevented by the police from leaving the premises of the prosecutor’s office. The Government argued, however, that that restriction had not amounted to a deprivation of liberty since the applicant had been free to move within the building. 100.     The Court further notes that the applicant was ordered not to leave the premises of the prosecutor’s office at 9.30 a.m. on 28 May 2003 and that a police officer was assigned to enforce that measure. During the afternoon of that day the applicant was not allowed to leave the building freely; rather, the police escorted her by car to the Socola hospital. The Court therefore considers that the applicant was under the authorities’ control throughout the entire period and concludes that she was deprived of her liberty within the meaning of Article 5 § 1 of the Convention (see Ghiurău v. Romania , no.   55421/10, § 80, 20 November 2012, and Creangă , cited above, §§   94 ‑ 100). 101.     The Court also notes that in the present case the applicant’s deprivation of liberty was based on the relevant provisions of the CCP (see paragraph 64 above). More specifically, under Article 183 § 1, an individual could be brought before an investigating authority or a court on the basis of an order to appear, if, having been previously summoned, he or she had not appeared and his or her hearing or presence was necessary. In this connection, the Court notes that the Government have argued that the applicant had not complied with summonses to appear delivered in December 2002 and January 2003, and provided copies of them. The Court also notes that under that particular provision of the CCP, the prosecutor was not required to give additional reasons for issuing order to appear (compare and contrast, Ghiurău , cited above, §   83). 102.     The Court therefore finds that the applicant was deprived of her liberty in accordance with a procedure prescribed by domestic law. However, comp