CASE OF CONSTANTINOVICI v. ROMANIA (European Court of Human Rights)

FOURTH SECTION
CASE OF CONSTANTINOVICI v. ROMANIA
(Application no. 29405/16)

JUDGMENT
STRASBOURG
22 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of Constantinovici v. Romania,

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

Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 1 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 29405/16) 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, Ms Rodica Constantinovici (“the applicant”), on 19 May 2016.

2. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, of the Ministry of Foreign Affairs.

3. On 11October 2017 notice was given to the Government of the complaints concerning the applicant’s stay in the offices of the National Anti-corruption Directorate (“the DNA”) and concerning the conditions of her pre-trial detention and the remainder of the application was declared inadmissiblepursuant to Rule54§3 of the Rules of Court.

4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Bucharest.

A. Background of the case

6. At the date of the events under examination in the present case, the applicant was a member of the National Authority for the Restitution of Property (AutoritateaNaţionalăpentruRestituireaProptietăţilor, hereinafter “the ANRP”). The ANRP was a State agency, responsible for the restitution of property confiscated by the communist State in an abuse of process.

7. On 16 January 2015 the DNA opened a large-scale investigation into allegations of fraud committed by members of the ANRP. In particular, it was believed that some of the properties had been overvalued, thus causing loss to the State budget.

8. On 25 November 2015 the DNA ordered the prosecution of nine individuals, including the applicant, for abuse of office. In particular, the applicant was accused of having validated an expert report which had overvalued the property being claimed, thus allowing the former owner to receive more compensation than the property was worth. The applicant thus became a suspect in the criminal investigation into the offence of abuse of office, which was prohibited under Article 132 of the Anti-corruption Act (Law no. 78/2000) and under Article297§1 and Article 309 of the Criminal Code.

9. On 26 November 2015, at 6 a.m., the DNA issued orders to appear in respect of each of the nine suspects. On that day, starting from 7.30 a.m., all the suspects were taken to the DNA’s offices for questioning. Between 7.30 a.m. and 4.05 p.m. they were all interviewed twice, in the presence of their respective lawyers, first as suspects and then as accused.

B. Applicant’s stay in the DNA’s offices

10. The order to appear in the applicant’s name, issued by the prosecutor at 6 a.m. on 26November 2015, read as follows:

“The police shall bring the suspect, [the applicant] …, to the [DNA’s] offices for questioning, the object of the case being the offence prohibited under Article 132 of Law no. 78/2000, read together with Article 297 § 1 and Article 309 [of the Criminal Code].

This order to appear is issued for the purpose of determining the case, under Article 265 § 2 of the Code of Criminal Procedure.”

11. At 7 a.m. on that day two police officers appeared at the applicant’s home. She was served with the order to appear and willingly accompanied the police officers to the DNA’s offices. They arrived there half an hour later, at 7.30 a.m.

12. At the applicant’s request, she was allowed to wait for her chosen lawyer who, according to the applicant, arrived at around 11a.m. The DNA’s records show that the lawyer arrived at the DNA’s offices at 9.30 a.m. and remained on the premises until 5.15 p.m.

13. Upon the lawyer’s arrival, the applicant and her counsel were allowed time for consultation. The applicant was then interviewed by the prosecutor, in the presence of her lawyer. She was informed of the object of the criminal investigation and about her rights as a suspect in the investigation. She refused to provide a statement and requested time to consult further with counsel in private. The report drafted by the prosecutor indicated that the interview lasted from 10.50a.m. to 11.10 a.m. The applicant alleged that she had been interviewed at noon.

14. Later that day the prosecutor informed the applicant of the decision to prosecute her and once again interviewed her in her lawyer’s presence. It was recorded on the applicant’s statement that the interview had started at 3.10 p.m. and had ended at 4.02 p.m. According to the applicant, her second interview started at about 4 p.m.

15. At 3.30 p.m. that day, the prosecutor decided to remand the applicant in custody for twenty-four hours, in order to prevent her from absconding and reoffending. The prosecutor informed her of that decision.

16. The applicant alleged that except for the time spent with the prosecutor, she had had to wait in a corridor, under constant surveillance by three armed police officers. She had not been allowed to leave the building to get food or water.

17. According to the Government, the applicant spent that time in a waiting room, in the lobby of the building. That waiting room was equipped with chairs, tables, water dispensers and a television set.

C. Conditions of detention in the police detention centre

1. Applicant’s description

18. The applicant was held in the police detention centre from 6 p.m. on 26 November 2015 until 10 December 2015.

19. According to her, she was taken into custody on the evening of 26 November and held until the morning of 28 November 2015, when the High Court of Cassation and Justice placed her in pre-trial detention. During this time, she was held without food or water, wearing the same clothes as she had had on when she had left her home.

20. During her detention in the police centre she was allotted a bunk bed in shared cells. She complained of the poor conditions of hygiene, lack of ventilation and natural light. According to the applicant, the toilet was not separated from the living area by any partition, thus offering no privacy.

2. Government’s account

21. According to the Government, the applicant was held in the police detention centre from 26 November 2015 until 3.30 p.m. on 27 November 2015 and again from the afternoon of 28 November until 10 December 2015. They provided information about the conditions of the applicant’s detention. They submitted that the applicant had been detained in two different cells, each measuring about 8.6 sq. m, shared with two or three other detainees, and on one night in a cell measuring 13.52 sq. m, shared with four or five other detainees.

22. In each cell the applicant had had her own bed, equipped with bed linen, a pillow and blankets. The bathroom was located within the cell, and was separated from the living space by means of a plastic curtain. The bathroom was equipped with a sink, a squat toilet, and a shower.

II. RELEVANT DOMESTIC LAW

23. The relevant provisions of the Code of Criminal Procedure (“the CCP”), in force since 1 February 2014, concerning orders to appear before the investigating authorities, provide as follows:

Article 265

“(1) A person may be brought before a criminal investigation body or a court on the basis of an order to appear if he or she has been previously summonsed but has not appeared, and if his or her questioning or presence is necessary, or if the summons could not be duly served because the recipient avoided service.

(2) A suspect (suspectul) or an accused (inculpatul) may be brought [before the authorities] on the basis of an order to appear even before being summonsed if the criminal investigation body or the court considers that the measure is necessary for the purpose of determining the case.

(3) During a criminal investigation an order to appear is issued by the criminal investigation body, while during trial it is issued by the judge.

(8) The order to appear … shall include:

(d) the purpose for which it was issued;

(e) the name of the person to be brought in as a result of the order to appear … In the case of a suspect or a defendant, the order to appear shall mention the offence that forms the object of the criminal investigation;

(f) the grounds and reasons why the order to appear is necessary;

(10) An order to appear issued by the criminal investigation body during a criminal investigation, or by the judge during trial, shall include all the elements set out in paragraph (8).

(11) The person brought [before the authorities] by virtue of an order to appear shall be examined immediately …

(12) The person brought [before the authorities] on the basis of an order to appear shall remain at the disposal of the judicial authorities only for such time as is required to question him or her, but for no more than eight hours, except where his or her remand in custody or pre-trial detention has been ordered.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24. The applicant complained under Article 3 of the Convention that she had been held without food or water from the evening of 26 November 2015 until the morning of 28 November 2015. Under the same Article, she complained about the conditions of detention in the Bucharest police detention centre where she had been held from 6 p.m. on 26 November 2015 until 10 December 2015.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Lack of access to food and water at the DNA’s offices

1. The parties’ submissions

(a) The Government

25. The Government refuted the allegation that the applicant had been under the uninterrupted control of the authorities from 26 to 28 November 2015 (see paragraph 21 above).

26. As for the period of eight hours spent in the DNA’s headquarters, the Government pointed out that the applicant herself had requested that they wait for her lawyer (see paragraph 12 above). The authorities had taken all reasonable steps in order to reduce that wait to a minimum.

27. During her stay in the DNA’s offices, the applicant had been accommodated in a waiting room, had been offered water and had had the option to buy food. The DNA’s restaurant had been accessible to persons brought in for questioning. Moreover, from 9.30 a.m. the applicant’s lawyer had also been present and could have freely gone to buy food or drink.

(b) The applicant

28. The applicant reiterated that she had been unable to get food or water from the morning of 26 November until 28 November 2015 (see paragraph 19 above). As for the time spent in the DNA’s offices, she reiterated that she had been under constant police surveillance, which had rendered any attempt to wander around to find the restaurant impossible.

2. The Court’s assessment

29. The Court notes at the outset that on 26 November 2015 the applicant was taken to the DNA’s offices at 7.30 a.m. (see paragraph 11 above) and left the premises at the latest by 6 p.m. (see paragraph 18 above). She was thus held for a maximum time of ten and a half hours.

30. The Court has already held that making applicants wait for ten hours in order to be questioned as witnesses ‒ without food or water or the opportunity to rest ‒ could amount to degrading treatment (see Soare and Others v. Romania, no. 24329/02, §§ 221-22, 22 February 2011).

31. The Court notes that the facts of the present case were disputed by the parties. While the Government argued that the applicant had enjoyed comfortable conditions and had had free access to the DNA’s restaurant (see paragraphs 17 and 27 above), the applicant contested that she had been afforded such freedom (see paragraphs 16 and 28 above). However, even assuming that the applicant was unaware that the DNA’s offices had a restaurant or assuming that she did not have any money on her, she could have asked her lawyer to purchase her some food and water from elsewhere (see, mutatis mutandis, Pendiuc v. Romania [Committee], no. 17605/15, § 70, 14 February 2017). The lawyer could have attempted to purchase food or drinks during the waiting periods when the applicant was not being interrogated (see paragraphs 13, 14 and 27 above). Nothing in the file indicates that the prosecutor would have opposed such action or would have proceeded with the questioning in the absence of the lawyer. In fact, the parties agreed that the prosecutor had waited for the applicant’s lawyer to arrive before engaging with the applicant (see paragraph 12 above).

32. The length of the investigation into the applicant’s case may be justified in view of the fact that it could be regarded as complex – it involved nine suspects and related to serious criminal accusations that had been brought against them (see paragraph 18 above). In addition, during the ten and a half hours that she spent at the DNA’s offices, the applicant was repeatedly involved in procedural measures, and she did not contest the information submitted by the DNA to the Government that during the carrying out of those measures she and her legal representatives had had the opportunity to sit down (ibid., § 71).

33. In these circumstances, the Court finds that the treatment the applicant received on 26 November 2015 prior to her remand in police custody did not exceed the inherent and inevitable suffering caused by the legal proceedings and the questioning in relation to the case.

34. It follows that this part of the applicant’s complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Conditions of detention in the police detention centre

1. Admissibility

35. The Court notes that this part of the complaint is not manifestly
ill-founded within the meaning of Article35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

36. The applicant reiterated that the conditions of detention in the police detention centre had been contrary to the requirements of the Convention.

37. The Government left it to the Court’s discretion to evaluate whether the conditions of detention had complied with the requirements of the Convention.

(b) The Court’s assessment

38. The Court observes that in the pilot case of Rezmiveş and Others v. Romania (nos. 61467/12 and 3 others, §§ 86-87 and §§ 115-17, 25 April 2017) it found a violation in respect of issues similar to those in the present case. It also notes that the applicant’s submissions about overcrowding and unhygienic conditions correspond to the findings by the CPT in respect of the Bucharest police detention facility (see Stănculeanu v. Romania,no. 26990/15, § 32, 9 January 2018).

39. Having examined all the material submitted to it (see, in particular, paragraphs 18 to 22 above), and in view of its case-law on the subject (see, in particular, Muršić v. Croatia [GC], no. 7334/13, §§ 136-41, 20 October 2016), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the applicant’s complaint under Article 3 of the Convention. It finds therefore that the material conditions of the applicant’s detention in the Bucharest police detention facility were inadequate.

40. There has accordingly been a violation of Article 3 of the Convention in that respect.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

41. The applicant complained that she had been unlawfully deprived of her liberty on 26 November 2015 from 7.30 a.m. to 3.30 p.m. She 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:

(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;

(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. Government’s observations

42. The Government admitted that an order to appear issued by a prosecutor when a person is subject to criminal investigation can constitute a deprivation of liberty. Such a deprivation of liberty was allowed under the provisions of Article 265 of the CCP (see paragraph 23 above).

43. The Government pointed out that the applicant had only been kept in the DNA’s offices for eight hours, as allowed by the domestic legislation. They also averred that the case involved a complex criminal investigation, with nine suspects being brought to the DNA’s offices and interviewed on the same day. Moreover, the applicant had not been kept waiting for long periods of time, but was allowed time for a genuine consultation with her chosen lawyer.

2. Applicant’s observations

44. The applicant argued that the Government had failed to provide any legal grounds for her stay in the DNA’s offices on 26 November 2016. Her presence had not been needed for more than one hour and ten minutes, the time it had taken her to give her statement. No significant procedural steps had been taken that would justify the overall length of her stay in the DNA’s offices. She concluded that the only explanation for the long wait was that the prosecutor had been trying to intimidate her and induce a state of psychological terror.

B. The Court’s assessment

1. General principles

45. The Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, M.A. v.Cyprus, no. 41872/10, § 190, ECHR 2013 (extracts)).

46. As the Court has also held, the requirement to take account of the “type” and “manner of implementation” of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see De Tommaso v.Italy [GC], no.43395/09, § 81, 23 February 2017, and Nada v.Switzerland [GC], no.10593/08, § 226, ECHR 2012).

47. 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.0211/12 and 27505/14, §135, 4 December 2018, and S., V. and A. v.Denmark [GC], nos.35553/12 and 2others, § 74, 22 October 2018).

48. In providing 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, 15 December 2016, and Del Río Pradav.Spain [GC], no.42750/09, §125, ECHR2013, with further references).

2. Application of those principles to the facts of the present case

49. Turning to the facts of the present case, the Court observes that it is not disputed between the parties that the applicant was “deprived of her liberty” within the meaning of Article 5 § 1 of the Convention during her stay in the DNA’s offices on 26 November 2016 (see paragraphs 41 and 42 above). The Court has no reason to rule otherwise (see paragraph 45 above).

50. It is to be noted that the deprivation of liberty had a legal basis in Article 265 of the CCP (see paragraphs 10 and 23 above). It was a consequence of the enforcement of an order to appear issued by the prosecutor in charge of conducting the criminal investigations in which the applicant was a suspect.

51. The Court further observes that, in accordance with the domestic law, a suspect – such as the applicant in the present case − could be brought before the investigating authorities even before being summonsed if the criminal investigation body or the court considered that such a measure was necessary for the purposes of determining the case (see Stănculeanu, cited above, § 57). In this regard, the Court takes note of the fact that the order to appear issued in respect of the applicant referred to the object of the criminal investigation and to the reasons why it was necessary to bring her before the prosecutor’s office (see paragraph 10 above). The Court concludes therefore that the prosecutor’s order fully conformed with the applicable domestic rules (see paragraph 23 above and, by way of contrast, Ghiurău v. Romania, no. 55421/10, § 85, 20November 2012).

52. The Court notes that the applicant was held in the DNA’s offices for a maximum time of ten and a half hours (see paragraph 29 above). The order to remand her in custody was made at 3.30 p.m. on that day (see paragraph 15 above), that is, within the eight hours mandated by Article 265 of the CCP (see paragraph 23 above and Stănculeanu, cited above, § 58). Article 265 § 12 of the CCP expressly allows that a person brought before the authorities may remain at their disposal for longer than eight hours if either remand in custody or pre-trial detention has been ordered (see paragraph 23 above). It remains to be seen if the extended amount of time was indeed required for the purpose of the investigation.

53. In this connection, the Court notes that the applicant arrived at the DNA’s offices at 7.30 a.m. (see paragraph 11 above) and met the prosecutor for the first time at 10.50 a.m. (see paragraph 13 above). It would appear, therefore, that the applicant was not heard “immediately” after being brought before the investigating authorities on the basis of the impugned order (see, mutatis mutandis, Stănculeanu, cited above, § 59).

54. Nevertheless, the Court observes that the prosecutor’s office was conducting simultaneous interviews in respect of nine individuals, including the applicant, who were all processed, first as suspects and then as accused (see paragraph 9 above). Moreover, the applicant’s questioning was postponed in order to allow her time to wait for her lawyer (see paragraph 12 above). She was also granted, at her request, additional time for consultation with her lawyer (see paragraph 13 above). Those measures inevitably prolonged the overall time needed for processing the case, but cannot be held against the authorities.

55. The Court is conscious of the constraints arising in a criminal investigation and cannot disregard the complexity of the proceedings instituted in the case against the applicant, which required a unified strategic approach, in a large-scale case involving a significant number of people. It therefore considers that in the present case, the domestic authorities appear to have taken sufficient precautions to ensure that the interview could be conducted within the time-limits imposed by the law, notwithstanding the number of persons involved (see Stănculeanu, cited above, § 61).

56. Against this background, the periods during which the applicant was kept waiting before being questioned do not lack justification to such an extent as to become arbitrary (see, by way of contrast, Valerian Dragomirv. Romania, no. 51012/11, §§ 81-82, 16 September 2014). On this point the Court notes that, while the parties contested the time when the lawyer arrived at the DNA’s offices, they both agreed that the first interview took place about an hour after the lawyer’s arrival (see paragraphs 12 and 13 above). This waiting time cannot be viewed as unreasonable (contrast ibid., § 78). The Court attaches importance to the fact that the applicant spent that interval in consultation with her lawyer.

57. The foregoing considerations are sufficient to enable the Court to conclude that by keeping the applicant in custody for a period attaining a maximum of ten and a half hours, the authorities did not overstep the reasonable balance between the need to question the applicant and her right to liberty. Moreover, the Court does not perceive anything to suggest that the applicant’s deprivation of liberty was unlawful (see, mutatis mutandis, Stănculeanu, cited above, §68).

58. It follows that no appearance of violation of Article 5 § 1 of the Convention can be disclosed in the present case. This complaint is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE41 OF THE CONVENTION

59. Article41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

60. The applicant claimed 25,000 euros (EUR) in respect of
non-pecuniary damage for each violation found by the Court in her case.

61. The Government considered that the amount sought was too high in comparison with other similar cases decided by the Court.

62. The Court considers that the applicant must have sustained
non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

63. The applicant did not make any claim under this head.

64. Consequently, the Court is not called upon to make an award for costs and expenses.

C. Default interest

65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the conditions of detention in the Bucharest police detention centre admissible and the remainder of the application inadmissible;

2. Holdsthat there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention in the Bucharest police detention centre;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismissesthe remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                          Faris Vehabović
Deputy Registrar                        President

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