DOBRILĂ AND VODISLAV v. ROMANIA (European Court of Human Rights)

FOURTH SECTION
DECISION
Applications nos. 44489/15 and 45670/15
Daniela DOBRILĂ against Romania
and Dana Maria VODISLAV against Romania

The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:

Faris Vehabović, President,
Iulia AntoanellaMotoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above applications lodged on 1 September 2015 and 10 September 2015 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Ms Daniela Dobrilă (“the first applicant”), is a Romanian national, who was born in 1979 and lives in Focşani.

2. The applicant in the second case, Ms Dana Maria Vodislav (“the second applicant”), is a Romanian national, who was born in 1957 and lives in Târgu Jiu.

3. The applicants were represented by Mr I. Panaitescu, a lawyer practising in Bucharest. 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

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Application no. 44489/15

5. On 13 March 2014 the first applicant was indicted for corruption committed in her role as a public servant. The crimes with which she was charged carried sentences of up to twelve years in prison.

6. On 14 March 2014 the prosecutor lodged a request with the Cluj County Court for the first applicant to be placed in pre-trial detention. The pre-trial detention judge considered that that measure was not necessary. The judge decided to place her under house arrest for a period of thirty days. The court set the following conditions for the first applicant’s house arrest: a prohibition on leaving her house; an obligation to appear before the prosecutor whenever so requested; and a prohibition on talking with the other suspects and the witnesses.

7. The Cluj County Court extended the measure on a monthly basis on the grounds that it continued to be justified. The first applicant’s objections were dismissed by the court. The first applicant’s objections did not concern the alleged unlawfulness of the measure.

8. On 1 July 2015 the Cluj County Court held that the measure was no longer necessary and released the first applicant under supervision.

2. Application no. 45670/15

9. On 25 February 2014 the second applicant was indicted for corruption committed in her role as a public servant. The crimes with which she was charged carried sentences of up to ten years in prison.

10. She was placed under house arrest for a period of thirty days on 19 February 2014 by a decision of the pre-trial detention judge of the Gorj County Court. The court set the following conditions for the second applicant’s house arrest: a prohibition on leaving her house; an obligation to appear before the prosecutor whenever so requested; and a prohibition on talking with the other suspects and the witnesses.

11. The measure was extended on a regular basis by the domestic court on the grounds that it continued to be justified. The second applicant’s objections were dismissed by the court, every thirty days during the course of the investigation and approximately every sixty days once the case was lodged with the courts (both for the preliminary chamber proceedings and then for the proceedings on the merits). The second applicant’s objections did not concern the alleged unlawfulness of the measure.

12. On 5 May 2015 the Gorj County Court held that the measure was no longer necessary and released the second applicant under supervision.

B. Relevant domestic law and practice

13. The relevant provisions of the Code of Criminal Procedure (“the CCP”) in force at the relevant time were as follows:

Article 202

Purpose and applicability of preventive measures

“(4) The preventive measures are:

(a) arrest;

(b) release under supervision;

(c) bail;

(d) house arrest; and

(e) pre-trial detention.”

Article 207

Verification of the preventive measures during preliminary chamber proceedings

“(2) Within three days of the date when the file is registered, the preliminary chamber judge shall verify on his own initiative whether the measure is lawful and well‑founded. The verification shall take place at the latest five days before the date when the measure is due to expire and the accused shall be summoned to appear.

(6) Throughout the preliminary chamber proceedings the judge, on his own initiative, shall periodically consider, no later than every thirty days, whether the reasons for taking the preventive measure of pre-trial detention or house arrest still apply.

…”

Article 208

Verification of the preventive measures during court proceedings

“(2) The court shall verify on its own initiative whether the reasons for taking, extending or maintaining the preventive measure are still valid. Such verification shall take place before the date when the measure is due to end, and the accused shall be summoned to appear.

(4) Throughout the proceedings the court shall, on its own initiative, periodically consider, no later than every sixty days, whether the reasons for maintaining the preventive measure of pre-trial detention or house arrest still apply.”

Article 222

Length of house arrest

“(1) During the criminal investigation the preventive measure of house arrest may be ordered for a period of a maximum of thirty days.

(2) House arrest may be extended during the criminal investigation if necessary, provided the reasons for adopting the measure continue to exist. No extension shall be longer than thirty days.

(9) The maximum overall length of house arrest during the criminal investigation phase is 180 days.”

Article 236

Extending pre-trial detention during the criminal investigation

“(4) The overall length of pre-trial detention during the criminal investigation may not exceed a reasonable length and may not be longer than 180 days.”

Article 239

Maximum length of pre-trial detention during the proceedings before a first-instance court

“(1) The overall length of pre-trial detention during the proceedings before a first-instance court must be reasonable and shall not exceed half of the maximum punishment for the crime being examined at trial. In all cases the length of pre-trial detention during proceedings before a first-instance court shall not exceed five years.”

Article 399

Provisions concerning the preventive measures

“(9) The length of the house arrest will be deducted from the sentence applied, by equating one day of house arrest to one day’s reduction in the sentence.”

14. At that time, there was no provision in the CCP regulating the maximum overall length of the house arrest when applied during the course of proceedings before a first-instance court.

15. On 7 May 2015 the Constitutional Court of Romania adopted decision no. 361, which entered into force on 12 June 2015. In this decision the Constitutional Court held that the provisions of the CCP governing the preventive measure of house arrest were unconstitutional in that they failed to provide for a maximum overall length of the measure when applied during the course of proceedings before a first-instance court, unlike the provisions concerning pre-trial detention.

16. The CCP was subsequently amended by Government Ordinance no. 24/2015 in order to reflect the decision of the Constitutional Court. The amended text of Article 222 entered into force on 30 June 2015, confirming that the provisions of Article 239 of the CCP governing the overall length of the measure of pre-trial detention when applied during court proceedings also applied to the measure of house arrest.

COMPLAINT

17. Invoking Article 5 § 1 of the Convention, the applicants complained about the unlawfulness of their house arrest.

THE LAW

A. Joinder of the applications

18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).

B. Complaint under article 5 of the Convention

19. The applicants complained that the measure of house arrest imposed on them had not been “lawful” within the meaning of Article 5 § 1 of the Convention, in so far as, at that time, the domestic law had not provided an overall maximum length for this measure when applied during court proceedings. Article 5 reads as follows, in so far as relevant:

“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;

…”

1. The parties’ submissions

(a) The Government

20. The Government argued that the applicants had not exhausted the domestic remedies in so far as they had not complained before the domestic courts of the alleged unlawfulness of their detention or about its overall length.

21. They further maintained that the requirements of Article 5 § 1 should not be understood as an obligation for the States to impose any particular time-limits on the duration of pre-trial detention. On this point, they noted that a comparative study of the penal systems of thirty member States made by the Court in the case of Buzadji v. the Republic of Moldova ([GC], no. 23755/07, 5 July 2016) did not indicate a European consensus on the overall length of pre-trial detention or the number of permitted renewals. They pointed out that the only requirement in this respect is that of a “reasonable length”, which in the present case had been observed by the domestic courts. Lastly, the Government observed that the CCP required that the measure be reconsidered every thirty or sixty days, depending on the stage of the proceedings.

(b) The applicants

22. The applicants admitted that they had not complained before the domestic courts of the alleged unlawfulness of their detention pending trial. However, they reiterated that the object of their application with the Court was the absence of any provision regulating the overall length of their house arrest and not the opportunity to extend the measure. In this context, they considered that the arguments put forward by the Government were not relevant.

23. Relying on Baranowski v. Poland (no. 28358/95, § 56, ECHR 2000‑III), the applicants argued that that the practice whereby a person is detained for an unlimited and unpredictable time without his or her detention being based on a concrete legal provision is in itself contrary to the principle of legal certainty. They contended that while the measure had been lawfully taken by the court in their case, it had been unlawfully maintained on an indefinite basis, in breach of the Convention requirements.

2. The Court’s assessment

24. According to the Court’s case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article5 of the Convention (see De Tommaso v.Italy [GC], no. 43395/09, §87, ECHR2017 (extracts), and Buzadji, cited above, §104).

25. Having regard to the requirements of the applicants’ house arrest as described in paragraphs 6, 10 and 13 above, the Court considers that subjecting them to that measure constituted a deprivation of liberty in the sense of Article 5 of the Convention (see, mutatis mutandis, Buzadji, cited above, § 105).

(a) General principles

26. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article5 §1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law (see Ilnseher v. Germany [GC], nos.10211/12 and 27505/14, §135, 4 December 2018; S., V. and A. v.Denmark [GC], nos.35553/12 and 2others, § 74, 22 October 2018).

27. In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. They also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law 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 Khlaifia and Others v.Italy [GC], no. 16483/12, §§91‑92, ECHR2016 (extracts), and Del Río Pradav. Spain [GC], no.42750/09, § 125, ECHR2013, with further references).

28. In addition, the Court must ascertain whether the domestic law is itself in conformity with the Convention, including the general principles expressed or implied therein (see, among many other authorities, Baranowski, cited above, § 51, and Savca v. the Republic of Moldova, no. 7963/08, §45, 15 March 2016).

(b) Application of those principles to the present case

29. The Court notes at the outset that the Government raised an objection of inadmissibility for non-exhaustion of domestic remedies (see paragraph 20 above). However, it considers that it is not necessary to examine it because the case is inadmissible anyway on other grounds.

30. Turning to the facts of the present case, the Court notes that the applicants were placed under house arrest during court proceedings for initial periods of thirty days (see paragraphs 6 and 10 above, respectively) which were prolonged for total periods of fifteen and fourteen months respectively (see paragraphs 8 and 12 above, respectively). At that time, the CCP indicated the maximum overall length of such a measure during the criminal investigation phase (which was 180 days; see Article 222 (9) of the CCP, quoted in paragraph 13 above). There was, however, no maximum overall length for that measure when applied, as in the applicants’ cases, during the course of the proceedings before a first-instance court (see paragraph 15 above). Conversely, the CCP did provide for an upper time‑limit for pre-trial detention imposed during both the criminal investigation phase and the court proceedings (see Articles 236 and 239 of the CCP, quoted in paragraph 13 above). The Court cannot see any reasons why the legislature would willingly chose not to regulate one of the four possible situations. Consequently it must conclude that the provisions of the CCP lacked consistency in this respect.

31. However, that matter was resolved on 7 May 2015 when the Constitutional Court declared the absence of a provision setting an upper limit for the duration of house arrest during court proceedings unconstitutional (see paragraph 15 above). Consequently, the CCP was amended and it now also provides for an upper limit in such a situation (see paragraph 16 above).

32. That said, the Court reiterates, as also pointed out by the Government, that Article5§1 of the Convention should not be understood as an obligation for the States to impose any particular time-limits on the duration of the detention on remand(see Savca, cited above, § 51 in fine, and paragraph 21 above). The same applies to house arrest when imposed as a pre-trial measure.

33. Furthermore, the applicants did not argue that the measure had been taken unlawfully or that it had been unjustifiably maintained (see paragraph 22 above). The Court accepts that the length of pre-trial detention as well as the reasons for extending that measure constitute a separate issue from that of the lawfulness of that detention, which pertains to Article 5 § 3 of the Convention (see, mutatis mutandis, Buzadji, § 61, and Savca, §§ 38‑39, both cited above). However, it cannot but note that, in the present case, the applicants were not held indefinitely under house arrest; the length of the measure complied with the statutory time-limits for pre-trial detention (soon afterwards the Constitutional Court extended these time-limits to house arrest as well see paragraph 16 above). The duration of their house arrest was also significantly shorter than the five-year maximum allowed in the applicants’ cases (see paragraphs 5 and 9 above, as well as Article 239 of the CCP, quoted in paragraph 13 above). Moreover, that measure was taken and maintained by the courts, which verified its justification at regular intervals (see paragraphs 6-7, and 10-11 above). It was terminated as soon as the courts found that the measure was no longer necessary (see paragraphs 8 and 12 above).

34. In conclusion, the Court does not perceive anything to suggest that the measure of house arrest taken against the applicants was unlawful.

35. 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.

36. Accordingly, these applications are manifestly ill-founded and must be rejected in accordance with Article35 §§3(a) and4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 26 September 2019.

Andrea Tamietti                                       Faris Vehabović
Deputy Registrar                                     President

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