In the case of Pantea v. Romania,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Ms A. Mularoni, judges,
and Ms S. Dollé,
Section Registrar,
Having deliberated in private on 13 May 2003,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no.
33343/96) against Romania lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian
national, Mr Alexandru Pantea (“the applicant”) on 28 August 1995.
2. The Romanian Government (“the Government”) were
represented by their Agent, Mrs C.I. Tarcea, Ministry of Justice.
3. The applicant alleged, in particular, that his
arrest and pre-trial detention had been in violation of Article 5 of the
Convention and that during this detention he had been subjected to treatment in
violation of Article 3 of the Convention.
4. The application was transmitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force (Article
5 § 2 of Protocol No. 11).
5. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 6 March 2001 the Court declared
the application partly admissible.
7. The applicant and the Government each filed
observations on the merits (Rule 59 § 1).
8. On 1 November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This application was later assigned
to the newly composed Second Section (Rule 52 § 1).
9. On 16 April 2002 the
Chamber asked the parties to submit additional information.
10. The Government
replied in a letter dated 29 April 2002 and the applicant in a letter dated 6
May 2002.
11. By a letter of 23
May 2002 the Registry drew the Government's attention to the fact that they had
omitted to submit certain information and documents. Accordingly, the Registry
invited the Government to send it this material as soon as possible.
12. No steps in response
to this invitation from the Registry were taken by the Government, whose last
letter dates back to 29 April 2002.
13. By a letter of 18 June 2002 the Registry
informed the Government that, in the circumstances mentioned in paragraphs 9-11
above, the Court would deliberate on the case on the basis of the evidence as
it currently stood.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
14. The applicant is a former public prosecutor who
now works as a lawyer. He was born in 1947 and lives in Timişoara.
A. The applicant's detention and the criminal
proceedings brought against him
15. During the night of 20 to 21 April 1994 the
applicant was involved in an altercation with D.N., who was seriously wounded.
According to the report of the medical examination carried out after the
incident in question, D.N. sustained several fractures on this occasion,
requiring 250 days of medical care. Without appropriate medical treatment,
these injuries could have proved life-threatening.
16. By a resolution of 7 June 1994 public prosecutor
D. from the prosecution service at the Bihor County Court decided to open a
criminal investigation with regard to the applicant.
17. On 7, 14, 16, 23 and 30 June and 5 July 1994
D.N. (the victim) and twenty-one witnesses were interviewed by the prosecution
service in connection with the incident.
18. On 23 June 1994 the applicant was questioned by
public prosecutor D. on the subject of his altercation with D.N. During this
interview the applicant was not assisted by a lawyer.
19. By an order of 5 July 1994 prosecutor D.
instituted criminal proceedings against the applicant and decided that he
should be placed in pre-trial detention. He issued a committal warrant against
the applicant for a period of thirty days from the date of his arrest by the
police. Relying on Article 148 §§ (c), (e) and (h) of the Code of Criminal
Procedure (CCP), the prosecutor mentioned in his order that the applicant was
wanted by the police, whom he was wilfully evading, and that his continued
liberty represented a threat to public order.
20. On 13 July 1994, on an application by public
prosecutor D., the applicant was committed for trial before the Bihor County
Court for attempted homicide, an offence prohibited under Article 174 § 2 of
the Criminal Code. The prosecutor stated in his application that he had ordered
the applicant's arrest on the ground that the applicant had evaded the criminal
proceedings brought against him. The prosecutor pointed out that the applicant
had failed to appear for the reconstruction of the events of the night of 20 to
21 April 1994 and had also failed to appear before the public prosecution
service, which had summoned him to provide a further statement.
21. On 20 July 1994 the applicant was arrested and
imprisoned in Oradea prison.
22. In the medical record established at the time of
his imprisonment the doctor noted that the applicant weighed ninety-nine
kilograms and was suffering from a duodenal ulcer, cholelithiasis and paranoid
personality disorder.
23. On 21 July 1994, pursuant to Article 152 of the
CCP, the applicant, assisted by a lawyer of his choice, was brought before
Judge M.V., President of Section at the Bihor County Court. At a private
hearing the judge informed the applicant that the prosecution service had
decided that he should be committed for trial, and read him the prosecution's
submissions word-for-word. On this occasion, when questioned about a statement
he had made to the prosecution service, the applicant complained that the
prosecutor had not allowed him to write the statement himself, arguing that it
was late and that he did not have time. The applicant also complained that he
had been “terrorised” by the prosecutor, who had made him wait for two days in
the corridor of the prosecution service, threatening not to record his
statement and to have him arrested. Finally, he stressed that he had responded
to the prosecution service's summonses and had not evaded criminal proceedings.
It does not appear from the verbatim record of the hearing that the issue of
the lawfulness of the applicant's detention was discussed or that judge M.V.
considered it on 21 July 1994.
24. On 5 September 1994 the applicant appeared for
the first time before the Bihor County Court, sitting with two judges. In the
presence of prosecutor K.L. and two lawyers of his choice, the applicant asked
that the charges brought against him be amended to assault causing grievous
bodily harm and pleaded self-defence. It does not appear from the verbatim
record of the hearing that the issue of the lawfulness of the applicant's
detention was discussed or that the bench considered it on 5 September 1994.
25. Other hearings were held before the Bihor County
Court on 3 and 17 October and 14 November 1994, at which the court, sitting in
the same composition and in the presence of the same prosecutor K.L., the
applicant and his lawyers, heard evidence from fifteen or so witnesses. It does
not appear from the verbatim records of the hearings of 3 and 17 October and 14
November 1994 that the issue of the lawfulness of the applicant's detention was
examined.
26. The court delivered its judgment on 28 November
1994. It stated that the investigation carried out by the prosecution service
had been incomplete and sent the file to the Bihor County Prosecution Service
for additional investigative measures. In addition, the court decided to
prolong the applicant's pre-trial detention, considering that, given the
gravity of the offence, there was a risk that he would commit other crimes.
27. On 9 December 1994 the applicant appealed
against this judgment. He alleged a lack of impartiality on the part of
prosecutor D., who, since the beginning of the investigation, had deprived him
of his fundamental defence rights and had violated the presumption of innocence
by describing him as a “recidivist” although he had never previously been
convicted. The applicant also expressed his fear that, were his pre-trial
detention to continue, he was likely to be the target of further misuse of authority
by prosecutor D. and be subjected to ill-treatment by prisoners. Further
alleging the unlawfulness of his detention, he requested his release and an
urgent examination of his appeal. With regard to substantive issues, he also
requested that the charge against him be amended to assault causing grievous
bodily harm and that he be acquitted.
28. On 16 February 1995, at a public hearing before
the Oradea Court of Appeal attended by an officially-appointed lawyer
representing the applicant, the prosecution service requested an adjournment in
order to be able to summon the applicant. This request was allowed by the Court
of Appeal, which set the date of the next hearing for 6 April 1995.
29. On that date, the Oradea Court of Appeal raised
of its own motion and submitted to the parties for comment the issue of the
lawfulness of the steps taken to pursue criminal proceedings against the
applicant, including the prosecutor's application, having regard to the fact
that he had not been assisted by a lawyer while being interviewed by the
prosecution service and that he had not been given notice of the official
record of the end of the investigation. By a final judgment delivered on the
same date the Court of Appeal allowed the applicant's appeal and quashed the part
of the judgment of 28 November 1994 concerning his continued pre-trial
detention for the following reasons:
– it ruled that the applicant's arrest on 20 July
1994 had been unlawful. In this connection, it stressed that the applicant had
not evaded criminal proceedings but had complied with every summons from the
prosecution service, and that the prosecutor had in fact left him to wait in
vain in the corridor;
– further, it considered that the applicant's detention
after 19 August 1994 had been unlawful. In this regard, it noted that an arrest
warrant had been issued against the applicant on 5 July 1994, to run for a
period of thirty days from the date of his arrest, and that he had been
apprehended on 20 July 1994. The Court noted that this period had expired
on 19 August 1994 and that the measure to maintain the applicant in pre-trial
detention had not subsequently been prolonged in accordance with a procedure
prescribed by law;
– it also noted that the applicant's right to be
assisted by a lawyer had been violated by the prosecutor responsible for the
investigation and that the prosecution service had failed to draw up an
official record of the end of the investigation, in violation of Article 171 of
the CCP.
Accordingly the Court of Appeal ordered the applicant's release
and quashed all the procedural steps taken by the prosecution service,
including its application, and returned the case file to the prosecution
service for resumption of the investigation.
30. On 7 April 1995 the applicant was released.
...
31. By an application of 16 April 1997 the applicant
was committed for trial before the Beiuş Court of First Instance on a charge of
assault causing grievous bodily harm, an offence prohibited under Article 182 §
1 of the Criminal Code. The prosecution service granted the applicant the
extenuating circumstance provided for in Article 73 (b) of the Criminal Code,
namely that the offence had been committed under the influence of the strong
emotion which he would have experienced when the victim threw a brick towards
him.
...
43. By a decision of 12 December 1997 the Supreme
Court of Justice allowed the applicant's request and referred the case to the
Craiova Court of First Instance.
...
55. By a judgment of 12 May 1999 the court sentenced
the applicant to imprisonment for 262 days for serious violence committed under
the influence of emotion, an offence punishable under Article 181 § 1 of the
Criminal Code.
56. On 18 May and 3 June 1999 respectively the
applicant and the victim appealed against this judgment.
...
61. By a decision of 13 March 2000 the Dolj County
Court upheld the judgment delivered by the Craiova Court of First Instance on
12 May 1999 (paragraph 55 above).
...
66. By a judgment of 13 September 2000 the Craiova
Court of Appeal allowed the applicant's appeal and quashed in its entirety the
judgment of 12 March 1999 of the Craiova Court of First Instance, together with
the Dolj County Court's decision of 13 March 2000. The Court of Appeal found
that, bearing in mind the prosecution's application and the evidence in the
file, the lower courts had convicted the applicant without establishing a
causal link between the applicant's actions in respect of the victim and the
latter's injuries. Accordingly, it sent the case back to the Craiova Court of
First Instance for a fresh examination of the merits.
...
72. According to the information available to the
Court, the case is still pending before the Craiova Court of First Instance.
The Court has no further information regarding any procedural steps taken since
17 May 2001.
...
C. The action for damages for illegal detention
142. On 18 November 1999 the applicant instituted
civil proceedings against the State, represented by the Directorate-General of
Public Finances, in the Timiş County Court. Relying on Articles 504 and 505 of
the CCP, taken together and as interpreted by a decision of the Constitutional
Court dated 10 March 1998, and on Article 5 §§ 1-5 of the Convention, he
requested 2,000,000,000 Romanian lei as compensation for his pre-trial
detention from 5 July 1994 to 6 April 1995, which had been ruled improper and
unlawful by the final decision of 6 April 1995 (see paragraph 29 above).
In particular, he asserted that during the period in issue he had experienced
assaults resulting in multiple cranial and costal fractures.
143. By a judgment of 7 July 2000 the court
dismissed the applicant's action on the ground that it was premature, in that
the proceedings brought against him were still pending before the national
courts.
144. By a decision of 23 November 2000 the Timişoara
Court of Appeal allowed the applicant's appeal and, quashing the judgment of
7 July 2000, sent the case back to the same court for a new judgment. The
Court of Appeal held that the damages claimed by the applicant were related to
his detention, which had been ruled unlawful, and that consequently the fact
that the criminal proceedings against the applicant were still pending was
irrelevant to the case in issue. The Court of Appeal concluded that the Court
of First Instance had been wrong to dismiss the applicant's action on the
ground that it was premature.
145. On a date which has not been specified proceedings
resumed before the Timiş court. At the hearing on 30 March 2001 the State asked
the court to dismiss the applicant's action since the limitation period had
expired. It noted that, under Article 504 § 2 of the CCP, an action for damages
could be brought within one year of the date on which the final decision to
acquit or discontinue proceedings was delivered. Further, it considered that in
the present case this period had begun on 26 November 1996, the date on which
the Oradea Court of Appeal's decision of 6 April 1995, finding that the
applicant's pre-trial detention had been unlawful, had become final. It
submitted that the applicant had brought his action on 18 November 1999, almost
three years after the date of the decision in his favour.
The applicant raised an objection alleging the
unconstitutionality of Articles 504 § 2 and 505 § 2 of the CCP and asked
that the case be referred to the Constitutional Court.
146. By an interlocutory decision of 27 April 2001
the court referred the case to the Constitutional Court for a decision on the
objection raised by the applicant.
147. On 20 September 2001 the Constitutional Court
allowed the limb of the objection concerning Article 504 § 2 of the CCP, ruling
that this provision was unconstitutional in so far as it limited the cases in
which the State's liability for miscarriages of justice in criminal proceedings
could be engaged.
However, the Constitutional Court dismissed the plea of
unconstitutionality with regard to Article 505 § 2 of the CCP as follows:
“Neither the constitutional rules in force nor the
international treaties to which Romania is a party guarantee that there is to
be no limitation on the right of persons who have been wronged by unlawful
detention to bring an action for the damage they have suffered, nor do these
rules or treaties guarantee a prescribed time-limit within which this right may
be exercised. ... The time-limit of one year provided for in Article 505 § 2 of
the Code of Criminal Procedure is a reasonable period of limitation on the
right to bring proceedings and guarantees the injured party the best possible
conditions for bringing an action to obtain full reparation.”
148. By a judgment of 18 January 2002 the Timiş
Court of First Instance dismissed the applicant's action on the ground of
limitation. It held that in the present case the limitation period of one year
provided for by Article 505 § 2 of the CCP had begun on 26 November 1996, the
date on which the Oradea Court of Appeal's decision, finding that the
applicant's pre-trial detention had been unlawful, had become final. The
applicant's action having been brought on 18 November 1999, the court held that
it was out of time.
149. Although this judgment could have been
appealed, the applicant did not use this remedy since he considered that, given
the contradictory decisions of the national courts, he had no prospect of
success. Accordingly, the judgment of 18 January 2002 became final and could no
longer be challenged by ordinary appeal.
II. RELEVANT DOMESTIC
LAW
A. Relevant
provisions concerning pre-trial detention and its extension
150. The relevant articles of the Code of Criminal
Procedure (CCP) provide:
Article 136 on the purpose and categories of interim
measures
“In cases concerning offences
which are punishable by a prison sentence, and in order to ensure the proper
conduct of the criminal trial and prevent the suspect or accused from evading
criminal proceedings..., one of the following preventative measures may be
taken against him or her: ... 1 (c) pre-trial detention. ... The measure
provided for in Article 136 § 1 (c) may be ordered by the prosecutor or by a
court.”
Article 137
on the form of the legal instrument by which an interim measure is adopted
“The legal instrument by which an interim measure is adopted
must list the facts which gave rise to the charges, their legal basis, the
sentence provided for in the legislation concerning the offence in question and
the specific reasons which determined the adoption of the interim measure.”
Article 143 on police custody
“The authority responsible for criminal proceedings may detain
a person in police custody if there is cogent direct or indirect evidence that
he or she has committed an offence prohibited by the criminal law... Cogent
evidence exists where, in the circumstances of the case at issue, the person
who is subject to criminal proceedings may be suspected of having committed the
alleged offences.”
Article 146 on pre-trial detention of the defendant
“Where the requirements of Article 143 are met, and in one of
the cases provided for in Article 148 of the Criminal Code, the prosecutor may,
on his or her own motion or at the request of the prosecuting authority, order
that the suspect be placed in pre-trial detention by a reasoned order
indicating the legal grounds for such detention, for a period not exceeding
five days.”
Article 148 on pre-trial detention of the accused
“Pre-trial detention of the accused
may be ordered [by the prosecutor] where the requirements set out in Article
143 are met and if one of the following conditions is satisfied:
...
(h) the accused has committed an
offence for which the law prescribes a prison sentence of more than two years
and his or her continued liberty would constitute a threat to public order.”
Article 149 on the length of pre-trial detention of the
accused
“The length of pre-trial
detention of the accused [ordered by the prosecution service] may not exceed
one month, except where it is prolonged in accordance with a procedure
prescribed by law.”
Article 152 on enforcement of the arrest warrant
“Where the accused's arrest was ordered in his or her absence,
the committal warrant shall be transmitted ... to the police authority for
enforcement.
The police authority shall apprehend the person whose name
appears on the warrant ... and bring him or her before the authority which
issued the warrant.
Where the committal warrant was issued by the prosecutor, the
latter shall note on the warrant the date on which the accused was brought
before him, shall interview him or her immediately and then rule by resolution
on whether the accused should be placed in pre-trial detention. If the case has
been referred to the court in the interim the prosecutor shall send the
arrested person to the court.
The president of the court shall hear the accused and, if he or
she raises objections which require a rapid solution, immediately set a date
for a hearing.”
Article 155 on extension of the pre-trial detention of the
accused
“Where necessary, pre-trial detention of the accused may be
extended if reasons are given. Extension of pre-trial detention may be ordered
by the trial court...”
Article 159 on the court procedure to extend pre-trial
detention
“The trial court shall be presided over by the president of the
court or a judge appointed by him or her; the prosecutor's participation is
compulsory.
The investigation file shall be lodged [at the court] by the
prosecutor at least two days prior to the hearing and may be consulted by the
lawyer on request. The accused shall be brought before the court, assisted by a
lawyer... If the court grants extension [of the detention], such extension may
not exceed thirty days.
The prosecutor or the accused may appeal against the
interlocutory decision by which the court decides on extension of the pre-trial
detention. The time-limit for an appeal shall be three days, starting from
delivery of the judgment for those who are present and, for those who are not
present, from the date of notification. An appeal against a decision to extend
pre-trial detention has no suspensive effect... The court may grant further
extensions of pre-trial detention, but none of these may exceed thirty days.”
Article 300 on supervision of the lawfulness of the accused
person's arrest
“... In cases where the accused is arrested, the court is
obliged of its own motion and at the first hearing to confirm the lawfulness of
the adoption and prolongation of the detention measure [against the accused].”
B. Relevant provisions and practice on obtaining
compensation in the event of unlawful detention
151. The relevant articles of the CCP state:
Article 504
“1. Anyone who has been finally convicted is entitled to
compensation from the State for any loss or damage suffered where after a
retrial it is held in a judgment against which no appeal lies that he did not
commit the offence in question or that the offence was not committed.
2. Anyone against whom a preventative measure has been
taken, and in whose favour a decision to discontinue proceedings or of
acquittal has been given for the reasons listed in the preceding paragraph,
also enjoys a right to compensation for damage suffered.”
Article 505
“...
2. The claim [for compensation] must be lodged within one
year of the date of the final acquittal or order discontinuing the
proceedings.”
Article 506
“For the awarding of compensation, the person concerned may
apply to the court in his or her place of residence by instituting proceedings
against the State...”
152. In a decision of 10 March 1998 the Romanian
Constitutional Court, to which an objection had been submitted alleging that
Article 504 § 1 of the CCP was unconstitutional, ruled as follows:
“Under Article 48 of the Constitution, the State is liable for
damage caused by miscarriages of justice committed in criminal proceedings. It
follows that the principle of the State's liability with regard to persons who
have been victims of a miscarriage of justice in a criminal trial must be
applied to all victims of such a miscarriage... The Court notes that the
legislature has not brought the provisions of Article 504 of the Code of
Criminal Procedure into conformity with those of Article 48 § 3 of the
Constitution... Consequently, bearing in mind that Article 504 of the Code of
Criminal Procedure provides for only two cases in which the State's
responsibility for miscarriages of justice committed in criminal proceedings
may be engaged, it follows that this restriction is unconstitutional, since
Article 48 § 3 of the Constitution does not allow for any such limitation.”
153. The relevant parts of Article 1000 of the Civil
Code read as follows:
“... Masters and principals [shall be liable] for damage caused
by their servants and agents in the exercise of the duties entrusted to them.”
...
THE LAW
...
II. ON THE ALLEGED
VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
216. The applicant
further complained that he had been unlawfully arrested and detained,
without reasonable grounds for considering it necessary to prevent his fleeing
after having committed an offence. He relied on Article 5 § 1 (c) of the
Convention, the relevant parts of which provide:
“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:
...
(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;”
...
1. On the
applicant's arrest without reasonable grounds for believing it necessary
to prevent his fleeing after having committed an offence
218. The applicant considered that he had been
arrested in the absence of reasonable grounds for so doing.
219. The Government accepted that the applicant's
detention had not been in compliance with the requirements of domestic law.
Referring to the conclusion reached by the Oradea
Court of Appeal in its judgment of 6 April 1995, the Government stressed that,
in their opinion, there had been no reason for the prosecutor to issue an
arrest warrant against the applicant since he had not in fact been evading
criminal proceedings. The Government also noted that the prosecutor, in breach
of Article 146 of the CCP, had nowhere mentioned in his order the facts which
led him to consider that the applicant's continued freedom would have posed a
threat to public order.
220. The Court notes that the terms “lawful” and “in
accordance with a procedure prescribed by law” which appear in Article 5 § 1,
cited above, essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof (see Assenov and
Others v. Bulgaria, judgment of 28 October 1998, Reports of
Judgments and Decisions 1998-VIII, p. 3321, § 139). Although it is in the
first place for the national authorities, notably the courts, to interpret and
apply domestic law, where, under Article 5 § 1, failure to comply with domestic
law entails a breach of the Convention the Court can and should exercise a
certain power to review whether this law has been complied with (Douiyeb v.
the Netherlands [GC], no. 31464/96, § 45, 4 August 1999).
221. In this respect, the Court notes that, by an
order of 5 July 1994, the prosecutor D. issued a committal warrant against the
applicant in application of Articles 146 and 148 (c), (e) and (h) of the CCP,
referring to the fact that he had evaded criminal proceedings and that his
continued freedom would be a threat to public order. In its judgment of 6 April
1995 the Oradea Court of Appeal found that the applicant's detention had been
unlawful, on the grounds that he had not evaded criminal proceedings but had
attended all the appointments to which he had been summoned by the prosecution
service and that he had been left to wait in vain in the corridor.
222. The Court also notes that the Government
accepted that the applicant's detention had not been in compliance with the
requirements of domestic law since no grounds had been put forward to justify
the prosecutor's decision to issue an arrest warrant against him and the
prosecutor had failed to set out, in
accordance with Article 146 of the CCP, his reasons for believing that the
applicant's continued liberty would represent a threat to public order.
223. In those
circumstances, the Court considers that the failure to comply with the
“procedure prescribed by law” at the time of the applicant's arrest, a failure
recognised by the Romanian courts and admitted by the Government, has been
clearly established and entailed a violation of Article 5 § 1 (c) of the
Convention.
...
III. ON THE
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
228. The applicant also complained that he had not
been brought promptly before a judge after his arrest. He relied on Article 5 §
3, which provides:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this article shall be brought promptly before a
judge or another officer authorised by law to exercise judicial power...”
229. In their initial observations on the
admissibility and merits of the application the Government admitted that the
Romanian legislation applicable at the material time did not comply with the
requirements of Article 5 § 3 of the Convention, given that the prosecutor who
was empowered to issue a committal warrant did not provide the safeguards
required by the concept of “officer” within the meaning of the above-mentioned
Article 5 § 3. In the instant case, the applicant had been placed in pre-trial
detention on the basis of an order from the prosecutor dated 5 July 1994, for a
period of thirty days from the date of his arrest, namely 20 July 1994.
230. In their supplementary observations, submitted
after 6 March 2001, the date on which the decision on the application's
admissibility was delivered, the Government argued that the Court could not
examine in abstracto a law which, in certain cases, could lead to a
violation of Convention rights and, in others, to a finding of no violation. In
this respect the Government pointed out that on 21 July 1994, the day following
the applicant's arrest, he was brought before a judge at the Bihor County Court
for questioning, under Article 152 §§ 2, 4 and 5 of the CCP. In the
Government's opinion, this judge was an officer who clearly provided the
safeguards required by Article 5 § 3 of the Convention. Accordingly, the
Government argued that no breach of this Article could be held in the instant
case.
231. The Court considers it necessary to examine
first of all the argument raised by the Government in their supplementary
observations. In this respect, it notes that it has on many occasions held that
the fact that an arrested person had access to a judicial authority is not
sufficient to constitute compliance with the opening part of Article 5 § 3.
This provision enjoins the judicial officer before whom the arrested person
appears to review the circumstances militating for or against detention, to
decide by reference to legal criteria whether there are reasons to justify
detention, and to order release if there are no such reasons (see, inter
alia, the above-mentioned Assenov and Others judgment, p. 3298,
§ 146; De Jong, Baljet and Van den Brink v. the Netherlands, judgment
of 22 May 1984, Series A no. 77, pp. 21-24, §§ 44, 47 and 51). In other
words, Article 5 § 3 requires the judicial officer to consider whether
detention is justified.
232. In the instant case, the Court notes, like the
Government, that the applicant was brought on 21 July 1994 before judge M.V., Section
President at the Bihor County Court, who told him that the prosecution service
had decided that he was to be committed for trial, informed him of the content
of the application against him and questioned him about a statement that he had
made to the prosecution service.
233. The Court notes that there is nothing to
suggest that the judge in question considered whether the applicant's detention
was justified. In fact, it appears from the official record of the hearing on
21 July 1994 that the question of the lawfulness of the applicant's detention
was not raised (see paragraph 23 above in fine).
234. The Court therefore considers that the
applicant's appearance before judge M.V. on 21 July 1994 was not such as to
ensure compliance with Article 5 § 3 of the Convention. Accordingly, this
argument by the Government cannot be accepted.
235. The Court considers that the applicant's
complaint under Article 5 § 3 of the Convention raised two separate questions
in the instant case: firstly, whether the prosecutor who ordered the
applicant's detention was an “officer” for the purposes of Article 5 § 3; and
secondly, if so, whether the judicial review of the applicant's detention had
taken place “promptly” within the meaning of the same provision.
1. As to whether the public prosecutor who ordered the
applicant's detention was an “officer”
236. According to the principles which emerge from
the Court's case-law, judicial control of interferences by the executive with
the individual's right to liberty is an essential feature of the guarantee
embodied in Article 5 § 3 (see Aksoy v. Turkey, judgment of
18 December 1996, Reports 1996‑VI, p. 2282, § 76). Before an “officer”
can be said to exercise “judicial power” within the meaning of this provision,
he or she must satisfy certain conditions providing a guarantee to the person
detained against any arbitrary or unjustified deprivation of liberty (see Schiesser
v. Switzerland, judgment of 4 December 1979, Series A no. 34, pp.
13-14, § 31). Thus, the “officer” must be independent of the executive and of
the parties (ibid). In this respect, objective appearances at the time
of the decision on detention are material: if it appears at that time that the
“officer” may later intervene in subsequent criminal proceedings on behalf of
the prosecuting authority, his independence and impartiality may be open to
doubt (see the judgments in the cases of Huber v. Switzerland, 23
October 1990, Series A no. 188, p. 18, § 43, and Brincat v. Italy,
26 November 1992, Series A no. 249-A, p. 12, § 21).
237. The Court notes firstly that in the instant
case the prosecutor at the Bihor County Court intervened initially at the
investigation stage, examining whether it was necessary to charge the
applicant, directing that criminal proceedings should be opened against him and
taking the decision to place him in pre-trial detention. He subsequently acted
as a prosecuting authority, formally charging the applicant and drawing up the
indictment on which the latter was committed for trial in the Bihor County
Court. However, he did not act as prosecuting counsel before this court
although this would have been possible, since no provision in the Law on the
Administration of Justice would have specifically forbidden him from so doing.
Accordingly, it is appropriate to consider whether, in the circumstances of the
case, he provided the guarantees of independence and impartiality inherent in
the concept of “officer” in the meaning of Article 5 § 3.
238. In this respect, the Court points out that it
has already noted in the Vasilescu v. Romania case (judgment of 22
May 1998, Reports 1998-III, pp.1075-1076, §§ 40‑41), in the
context of Article 6 § 1 of the Convention, that since prosecutors in Romania
act as members of the Prosecutor-General's department, subordinate firstly to
the Prosecutor-General and then to the Minister of Justice, they do not satisfy
the requirement of independence from the executive. The Court finds no reason
to depart from this conclusion, albeit under Article 5 § 3 of the Convention in
the instant case, given that independence from the executive is also one of the
guarantees inherent in the concept of “officer” for the purposes of this
provision (see Schiesser, cited above, pp. 13-14, § 31).
239. Having regard to the foregoing, the Court
concludes that the prosecutor who ordered the applicant to be placed in
pre-trial detention was not an “officer” for the purposes of the third
paragraph of Article 5. Accordingly, it must now be determined whether judicial
review of the applicant's detention nonetheless took place “promptly” within
the meaning of the same Convention provision.
2. As to compliance with the requirement of promptness
imposed by Article 5 § 3 of the Convention
240. The Court points out that Article 5 § 3 of the
Convention requires that judicial review take place rapidly, the promptness in
each case having to be assessed according to its special features (see De
Jong, Baljet and Van den Brink, cited above, pp. 24-25, §§ 51-52). However,
the scope of flexibility in interpreting and applying the notion of promptness
is very limited (see Brogan and Others v. the United Kingdom, judgment
of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62), as prompt
judicial review of detention is also an important safeguard against
ill-treatment of the individual (see Aksoy, cited above, p. 2282, § 76).
241. In the instant case, the Court notes that the
applicant was placed in pre-trial detention by an order of the prosecutor dated
5 July 1994 for a period of thirty days starting from the date of his arrest,
and that he was apprehended and imprisoned on 20 July 1994. Yet it was only on
28 November 1994 that the question of the merits of his detention was
examined by the Bihor County Court, which, it is not contested, provided the
guarantees required by Article 5 § 3 of the Convention (see paragraph 26
above). The total length of the applicant's detention before being brought
before a judge or another officer within the meaning of Article 5 § 3 was
therefore more than four months.
242. The Court points out that, in the Brogan and
Others judgment, it held that a period of detention in police custody
amounting to four days and six hours without judicial review fell outside the
strict constraints permitted by Article 5 § 3, even though it was designed to protect
the community as a whole from terrorism (ibid, pp. 33-34, § 62). A
fortiori, the Court cannot therefore accept in the instant case that it was
necessary to detain the applicant for more than four months before bringing him
before a judge or another officer who satisfied the requirements of paragraph 3
of Article 5.
243. There has accordingly been a violation of
Article 5 § 3 of the Convention.
(...)
FOR THESE REASONS, THE COURT
UNANIMOUSLY
(...)
3. Holds that there has been a violation of
Article 5 § 1 of the Convention on account of the applicant's arrest, in the
absence of reasonable grounds for believing that it was necessary to prevent
his fleeing after having committed an offence;
...
5. Holds that there has been a violation of
Article 5 § 3 of the Convention;
...
Done in French, and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 3 June 2003.
S. DOLLÉ J.-P.
COSTA
Registrar
President
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