Last Updated on November 23, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 21525/15
Laurențiu Eugen GANEA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:
FarisVehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 27 April 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Laurențiu Eugen Ganea, is a Romanian national who was born in 1963 and lives in Bacău. He was represented before the Court by Mr M. Cliveti, a lawyer practising in Bacău.
2. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 August 2014 the applicant became the subject of a criminal investigation on suspicion of having committed economic crimes (organising a criminal group, tax evasion and money laundering).
5. On 29 August 2014 a pre-trial-detention judge of the Bacău County Court (judecătorul de drepturişilibertăţi) placed the applicant under judicial control, ordering him, notably, to refrain from contacting by any means the other suspects, their families and the witnesses in the case.
6. On 31 October 2014 the County Court (the pre-trial-detention judge) found that the applicant had made contact with one of the witnesses. Consequently, citing Article 215 § 7 of the Code of Criminal Procedure (“the CCP”, see paragraph 11 below), it ordered the applicant’s immediate detention pending trial. He was arrested on the same day.
7. On 3 November 2014 the applicant, through his chosen lawyers, lodged an objection (contestaţie) to the court’s decision, arguing that the conditions required by law for changing the preventive measure had not been met. The objection was dismissed by a final decision of 6 November 2014 of the Bacău Court of Appeal.
8. His detention pending trial was subsequently extended on two occasions by interlocutory judgments of the County Court of 19 December 2014 and 8 January 2015. In his appeals against these interlocutory judgments the applicant, through his elected lawyers, complained that he had been unlawfully placed in detention pending trial, in so far as the decision of 31October 2014 (see paragraph 6 above) had not been finalised by the date when his detention had started. He argued that his situation, where one preventive measure had been replaced by another, was not expressly regulated by the CCP (see paragraph11 below). Therefore, he argued that the general rules of procedure should apply, which prescribed that the objection suspended the enforcement of the court order. He claimed that, as the initial detention had been unlawful, all extensions were also unlawful.
9. In a final decision of 23 December 2014 the Court of Appeal dismissed the objection against the interlocutory judgment of 19 December 2014. The court reiterated in general terms that the detention had been lawful but gave no explicit answers to the arguments raised by the applicant. The Court of Appeal also dismissed the objection against the interlocutory judgment of 8 January 2015. In its final decision of 15 January 2015 the court found that its jurisdiction was limited to the extension of the detention pending trial, and therefore could not assess whether the measure had been lawfully taken in the beginning.
10. The applicant remained in detention until 25 January 2015 when he was again released under judicial control.
B. Relevant domestic law
11. The relevant provisions of the Code of Criminal Procedure (“the CCP”) in force since 1 February 2014 read as follow:
Article 204 – Objectionsagainst interlocutory judgments whereby the court decides on preventive measures during a criminal prosecution
“(3) An objection lodged against an interlocutory judgment whereby the court ordered the taking or the extension of a preventive measure or whereby the court noted that a measure had ended in accordance with the law does not have suspensory effect.”
Article 215 – Contentof judicial control
“(7) If an accused person breaches in bad faith the obligations imposed … under judicial control, the pre-trial-detention judge … at the prosecutor’s request or of his or her own motion may replace this measure with house arrest or detention pending trial, in accordance with the law.”
Article 230Warrantfor arrest
“(1) Relying on the interlocutory judgment whereby the detention pending trial was ordered, the judge … issues immediately the warrant for arrest.”
Article 234 – Extensionduring the criminal investigation of the detention pending trial
“(1) Detention pending trial may be extended during the criminal investigation if the reasons which justified the initial arrest still make it necessary to deprive the accused of his liberty, or if there are new reasons which justify extending the measure.”
Article 242 – Revokingor replacing the preventive measures
“(3) A preventive measure shall be replaced … with a harsher measure if the conditions provided by law for that measure are met and if after assessment of the specific circumstances of the case and of the person’s conduct during trial, it is considered that the more severe measure is needed in order to secure the purpose [for which the measures were taken].”
Article 416 – Suspensoryeffect of the appeal
“An appeal lodged within the time-limit suspends the enforcement of both the criminal and the civil branches [of the decision], unless the law provides otherwise.”
Article 4251 – Lodgingand ruling on the objection
“(4) When ruling on an objection, the provisions of Article 416 … shall apply accordingly; …”
Article 539 Right to compensation
“(1) The person who was unlawfully detained pending trial is entitled to compensation.
(2) The unlawfulness of the detention pending trail must be established, as applicable, by a prosecutor’s decision, by a final interlocutory judgment rendered by the pre-trial-detention judge or by the judge from the preliminary chamber, as well as by a final interlocutory judgment or decision rendered by the court with jurisdiction over the merits of the accusation brought by the interested party.”
Article 598 Objection to the enforcement
“(1) An objection to the enforcement of a criminal-court decision may be lodged in the following cases:
(a) when the enforcement of a decision which was not yet final had started; …”
12. On 27 to 28 November 2014 representatives of the Romanian Superior Council of Magistrates met with the presidents of the criminal-law sections of the High Court of Cassation and Justice and of the Courts of Appeal to discuss aspects of the CCP which had given rise to a divergent interpretation by courts since the entry into force of the CCP in February 2014. One subject discussed was whether an objection against an interlocutory judgment whereby one preventive measure was replaced by detention pending trial had a suspensory effect. The opinions expressed were that such an interlocutory judgment was not final and thus could not be enforced:
“Concerning the situation when a lighter measure is replaced with detention pending trial, neither the general rule provided in Article 242 § 3 of the CCP, nor the special provisions (Articles 215 § 7, 217 § 9 and 221 § 11 of the CCP), derogate from the provisions of Article 4251§ 4 of the CCP. Consequently, such an interlocutory judgment is not enforceable from its adoption. The justification might be the fact that, unlike in the case when the measure of preventive detention is applied, in the above situation the person is already subject to a preventive measure, albeit a less severe one, and thus at the authority’s disposal.
Two other practical aspects are of relevance: the order for pre-trial detention [mandatul de arestarepreventivă] is issued when the interlocutory judgment becomes final, and the length of pre-trial detention is calculated from the date when the order is enforced.”
COMPLAINT
13. The applicant complains under Article 5 § 1 of the Convention that he had been unlawfully placed in detention pending trial before the court order to that effect had become final. He also alleged that the court ordering his detention pending trial had failed to give relevant reasons for this preventive measure.
THE LAW
14. The applicant complained about the alleged unlawfulness of his detention. He relied on Article 5 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …”
A. The parties’ submissions
1. The Government
15. The Government argued that the applicant had failed to exhaust the domestic remedies, in so far as he had not raised the alleged unlawfulness of his detention in his objection to the decision of 31October 2014. If the Court of Appeal had declared his detention unlawful, he could have sought damages under Article 539 of the CCP. The Government further argued that the applicant could have complained against the enforcement of the arrest warrant, under the provisions of Article 598 § 1 of the CCP (see paragraph 11 above).
16. The Government also argued that the fact that the applicant had been arrested before the court order had become final had been caused by a divergent interpretation of the law at that time. The interpretation which had called for the immediate detention had been justified by the need to prevent future violations of the obligations set by the judiciary, and to ensure the good administration of justice during the criminal investigation. Moreover, they pointed out that in previous cases the Court had accepted that divergent practice had not in itself breached the requirements of the Convention. They referred to the cases Movement for the Spiritual Integration in the Absolute v. Romania ((dec.), no. 18916/10, 2 September 2014), Albu and Others v. Romania (nos. 34796/09 and 63 others, 10 May 2012) and Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, 20October 2011). They reiterated that the system in place in the respondent State is capable of putting an end to divergent practices and of offering a unified interpretation of the law. Moreover, the Government stressed that the divergent practice had not affected the length of the applicant’s pre-trial detention, its only impact being on the date when that detention had started.
2. The applicant
17. The applicant argued that he had complained of the unlawfulness of the detention in his appeals against the extension of that measure.
18. He further asserted that his pre-trial detention had been unlawful and reiterated the arguments raised with the domestic courts in his appeals against the interlocutory judgments of 19 December 2014 and 8 January 2015 (see paragraph 8 above).
B. The Court’s assessment
19. The general principles concerning the requirement that any deprivation of liberty must be “lawful” and “in accordance with a procedure prescribed by law” have been recently reiterated by the Court in Merabishvili v.Georgia ([GC], no. 72508/13, §§ 184-86, 28 November 2017).
20. Turning to the facts of the case, the Court notes that the applicant’s detention pending trial was ordered by a court (contrast Varga v. Romania,no. 73957/01, § 52, 1 April 2008). In its decision of 29 August 2014 that court assessed the lawfulness of the preventive measure and gave reasons for ordering it; those reasons were based on domestic law (see paragraph 6 above).
21. The Court also notes that in ordering that the detention start immediately, the County Court relied on an interpretation of the domestic legislation which was based on domestic law and was also shared by other domestic courts at the time. In this connection it should be reiterated that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018). Moreover, there is no indication that the domestic courts’ assessment was arbitrary or manifestly unreasonable in this respect (ibid.).
22. The Court observes that the professional bodies, notably the Superior Council of Magistrates and the presidents of the criminal-law sections of the High Court of Cassation and Justice and of the Courts of Appeal acknowledged that a divergent practice existed at that time in this matter (see paragraph12 above).
23. It thus remains to be determined whether because of the existence of a divergent interpretation at that time domestic law was not sufficiently accessible, precise and foreseeable in its application (see Merabishvili, cited above, § 186). This standard requires that the law at issue be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Savca v. the Republic of Moldova, no.17963/08, § 46, 15 March 2016).
24. On this point, the Court reiterates that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction (see, under Article 6 of the Convention, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116 (b), 29 November 2016). Nothing in this case indicates that “profound and long‑standing differences” existed in the case-law of the domestic courts at that time (see, mutatis mutandis, Lungu v.Romania (dec.), no. 65556/13, § 42, 16 January 2018). In fact, the Court notes that the impugned legislation entered into force on 1 February 2014 (see paragraph 11 above) and the applicant’s case was decided nine months later (see paragraph 6 above). Moreover, the Court notes that the respondent State’s justice system was able to address the matter of divergent interpretations in a swift and efficient manner, offering a unified interpretation of the law (ibid.,§ 42; see also paragraph 12 above).
25. Consequently, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of Article 5 § 1 of the Convention.
26. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§3(a) and4 of the Convention.
27. This conclusion makes it unnecessary for the Court to examine the objection of non-exhaustion of domestic remedies raised by the Government (see paragraph 15 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on26 September 2019.
Andrea Tamietti FarisVehabović
Deputy Registrar President
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