CEDH · CASELAW;CLIN;ENG — 23 février 2012

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Information Note on the Court’s case-law No. 149 February 2012 Creangă v. Romania [GC] - 29226/03 Judgment 23.2.2012 [GC] Article 5 Article 5-1 Deprivation of liberty Procedure prescribed by law Article 5-1-c Reasonable suspicion Failure to follow statutory procedure for detention of suspect: violation Facts – The applicant had been an officer in the criminal investigation department since 1995. At 9   a.m. on 16   July 2003 the applicant reported to the National Anti-Corruption Prosecution Service headquarters (“the NAP”) after being informed by his hierarchical superior that he was required to go there for questioning. At 10   a.m. he was questioned by a prosecutor. He was detained until 8   p.m., at which point he was informed of the allegations that had been made against him. He was then placed in pre-trial detention on the basis of a temporary warrant for pre-trial detention issued by virtue of the NAP order of 16   July 2003, which mentioned that his detention had been ordered for three days, namely from 10   p.m. on 16   July 2003 to 10   p.m. on 18   July 2003. On 18   July 2003 the Military Court of Appeal, sitting as a single judge, extended his pre-trial detention by twenty-seven days. On the same day, a warrant for pre-trial detention identical to that of 16   July 2003 was issued in respect of the applicant. On 21   July 2003 the Supreme Court of Justice upheld an appeal contesting the lawfulness of the constitution of the court that had delivered the judgment, set aside the judgment and ordered the applicant’s release. The applicant was released the same day. The Procurator General then lodged an application with the Supreme Court of Justice to have that judgment quashed. By a final judgment of 25   July 2003 the Supreme Court of Justice, sitting as a bench of nine judges, upheld the application and quashed the judgment of 21   July 2003. On 25   July 2003 the applicant was placed in pre-trial detention. In July 2004 the Military Court of Appeal ordered that the applicant be released and replaced his pre-trial detention by an order prohibiting him from leaving the country. By a judgment of 15   June 2010 the European Court concluded, unanimously, that there had been a violation of Article 5 §   1 on the ground that there had been no legal basis for the applicant’s deprivation of liberty from 10   a.m. to 10   p.m. on 16   July 2003 and his placement in detention on 25   July 2003 following the application to have the judgment of 21   July 2003 quashed, and that there had been no violation of Article 5 §   1 of the Convention as regards the insufficient reasons given for the applicant’s placement in temporary detention from 16 to   18 July 2003. Law – Article 5 § 1: It was not disputed that the applicant had been summoned to appear before the NAP and that he had entered the premises of the prosecution service at 9   a.m. to make a statement for the purpose of a criminal investigation. The applicant was under the control of the authorities from that moment. Consequently, the Government had to provide an explanation as to what subsequently happened at the NAP premises. The Government were unable to produce the logbooks recording the entry and exit of persons at the NAP premises as they had been destroyed on the expiry of the retention period. Furthermore, the statement of the prosecutor who was responsible for the investigation at the material time was contradicted not only by the statements of the applicant but also by the concordant written statements of two witnesses. The applicant had not only been summoned but had also received a verbal order from his hierarchical superior to report to the NAP. The head of police had also been informed that several police officers had been summoned on 16   July 2003 so as to ensure their presence at the prosecution service premises. At the material time, police officers were subject to military discipline and it would have been extremely difficult for them not to carry out the orders of their superiors. While it could not be concluded that the applicant had been deprived of his liberty on that basis alone, there were other significant factors pointing to the existence of a deprivation of liberty, at least once verbal notification of the decision to open the investigation had been given at 12   noon: the prosecutor’s request to the applicant to remain on site in order to make further statements and participate in multiple confrontations, the applicant’s placement under investigation during the course of the day, the fact that seven police officers not placed under investigation had been informed that they were free to leave the NAP headquarters since their presence and questioning was no longer necessary, the presence of the gendarmes at the NAP premises and the information provided by the prosecutor that the applicant could be assisted by a lawyer. In view of their chronological sequence, those events clearly formed part of a large-scale criminal investigation. That procedure was intended to dismantle a petroleum-trafficking network. The opening of proceedings against the applicant and his colleagues fitted into that procedural context, and the need to carry out the various criminal investigation procedures concerning them on the same day tended to indicate that the applicant had indeed been obliged to comply. In conclusion, having regard to the Government’s failure to provide convincing and relevant information in support of their version of the facts, namely that the applicant had left the NAP headquarters and that he had been free to leave the prosecution service premises of his own free will after his first statement, as also to the coherent and plausible nature of the applicant’s account, the applicant had indeed remained in the prosecution service premises and had been deprived of his liberty, at least from 12   noon to 10   p.m. The applicant had been summoned to appear at the NAP to make a statement in the context of a criminal investigation, and had not been given any additional information as to the purpose of that statement. Domestic law on the subject required the summons to indicate the capacity in which a person was being summoned and the subject matter of the case. It followed that the applicant had been unaware whether he had been summoned as a witness or a suspect, or even in his capacity as a police officer carrying out investigations himself. In any event, according to the Government’s version of the facts, at around 12   noon, when all the police officers had completed their statements, the prosecutor had come back into the room to inform them that a criminal investigation had been opened in the case in respect of ten of the police officers present, including the applicant, and that they were entitled to choose a lawyer or would otherwise be assigned an officially appointed lawyer. When making his first statement, the applicant had been unaware of his legal status and the guarantees arising therefrom. Even though, in such conditions, the Court had doubts about the compatibility with Article 5 §   1 of the Convention of the applicant’s situation during the first three hours that he had spent at the NAP premises, it did not intend to examine that issue since it was clear that at least from 12   noon, the applicant’s criminal status had been clarified as a result of the opening of the criminal investigation. From that moment, the applicant had undeniably been considered to be a suspect, so that the lawfulness of his deprivation of liberty had to be examined, from that point, under Article 5 §   1   (c). From 12   noon, the prosecutor had had sufficiently strong suspicions to justify the applicant’s deprivation of liberty for the purpose of the investigation. Romanian law provided for the measures to be taken in that regard, namely placement in police custody or pre-trial detention, but the prosecutor had decided only at a very late stage to take the second measure, towards 10   p.m. Accordingly, the Court considered that the applicant’s deprivation of liberty on 16   July 2003, at least from 12   noon to 10   p.m., had had no basis in domestic law. Conclusion : violation (unanimously). The Court also concluded that there had been no violation of Article 5 §   1   (c) as the applicant’s deprivation of liberty from 10   p.m. on 16   July 2003 to 10   p.m. on 18   July 2003 had been justified. The Court further concluded that the applicant’s deprivation of liberty on 25   July 2003 had not had a sufficient legal basis in domestic law, in so far as it had not been prescribed by a “law”. Article 41: EUR 8,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes