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

FOURTH SECTION
CASE OF BĂDOIU v. ROMANIA
(Application no. 33809/16)

JUDGMENT
STRASBOURG
22 October 2019

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

In the case of Bădoiu 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. 33809/16) 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, Mr George VichenteBădoiu (“the applicant”), on 6 June 2016.

2. The applicant was represented by Mr F. David, a lawyer practising in Arad. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, of the Ministry of Foreign Affairs.

3. On 27 February 2017 notice of the complaint concerning Article5 § 1 of the Convention (alleged unlawful deprivation of liberty at the police station) was given to the Government 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 1983 and lives in Arad.

6. At 11.08 a.m. on 16 September 2014 the applicant was stopped by two police patrol officers in Zăbrani for a roadside check. He gave his name, but informed the police officers that he did not have his identity papers or driving licence with him. When his name was checked against the database, he was found to have been driving his car while suspended.

7. The applicant was taken to the Zăbrani police station, where he remained for about two hours under the supervision of several police officers. He alleged that he had not been allowed to use his mobile telephone during this time. He was then taken to the Lipova police station, some 10 km from where he was stopped. The applicant explained that he had remained under police escort at all times.

A. Criminal proceedings against the applicant

8. The police immediately started a criminal investigation to establish the facts. T.M., one of the police officers who participated in the roadside check, drafted a report on the events (proces verbal de constatare), stating as follows:

“On 16 September 2014, at about 11.08 a.m., while carrying out a roadside check operation in the village of Zăbrani, at the intersection in the centre of the village, together with a representative from the Romanian Car Registry in Arad, we stopped … for a check, a white [model] car, [licence number], being driven by [the applicant’s name in full], son of [the parents’ first names in full], born on [date of birth], in [place of birth], living at [full address], [the applicant’s personal identification number], holder of the identity card [full number] delivered by [the authority’s name in full], who declared orally that he did not have any identity documents or his driving licence on him, and that he had been driving the above-mentioned car on county road no. 682 from the village of Neudorf with the intention of going to Arad.

Based on the above, in the presence of the assistant witness [full identification of eyewitness S.D.V.], we found that [the applicant’s full identification] is registered in the police database as having had his driving licence suspended since 2013, for the offence of driving a car on a public road while having a blood alcohol level of 0.8 g/l.

We thus drafted the present report.”

9. The police officer also drafted a report in similar terms with a view to starting an investigation (proces-verbal de sesizare din oficiu).

10. The police interviewed S.D.V., the eyewitness who had been present when the applicant was stopped by the police. After the interview, T.M. drafted a report on starting a prosecution (ordonanţă de începereaurmăririipenale), in similar terms to his previous reports, and asking the prosecutor’s office to start an investigation against the applicant. The latter thus became a suspect in the case and was questioned in this capacity from 5.50 to 6.20 p.m., in the presence of a court-appointed lawyer.

11. At 6 p.m. that day the applicant was arrested and placed in police custody for twenty-four hours, from 6 p.m. on 16 September 2014 to 6 p.m. on 17 September 2014 (see paragraph 19 below). He did not lodge a complaint against the decision to place him in police custody.

12. On 17 September 2014 he was interviewed again, from 11.50 a.m. until noon, in the presence of the court-appointed lawyer. He did not complain in any of his statements that he had been detained at the police station unlawfully or prevented from leaving the premises.

13. On 4 March 2015 the applicant was interviewed by the prosecutor in the presence of a lawyer of his own choosing. He complained that he had been held against his will at the police station until 6 p.m. on 16 September 2014.

14. On 30 June 2015 the applicant was convicted by the Lipova District Court. He received a suspended prison sentence of one year and four months. In his final written address to the court, the applicant argued that he had been unlawfully deprived of liberty on 16 September 2014.

B. Criminal proceedings for alleged unlawful deprivation of liberty

15. On 12 December 2014 the applicant lodged a criminal complaint with the prosecutor’s office attached to the Timişoara Court of Appeal against T.M., the police officer who had taken him to the police station on 16 September 2014. He accused T.M. of illegal deprivation of liberty and abuse of power. On 8February 2015 the criminal complaint was forwarded to the prosecutor’s office attached to the Lipova District Court for investigation.

16. The prosecutor started an investigation into the criminal complaint brought by the applicant against T.M. The prosecutor conducted interviews with the applicant on 28 October 2015, a witness on 29 October 2015, and T.M. on 6 November 2015. The latter claimed that the applicant had been allowed to wait for his chosen lawyer at the front of the police station, with his mobile telephone on him. At 5 p.m. the applicant had entered the building, informed T.M. that his lawyer was not coming, and asked for a court-appointed lawyer.

17. On 6 November 2015 the prosecutor’s office ended the investigation on the grounds that the applicant’s detention had been ordered at 6 p.m., in compliance with the applicable legal provisions.

18. The applicant complained and in a final decision of 22 March 2016 the Lipova District Court found that the period of six hours and fifty-two minutes from the time he had been stopped by the roadside until the time he had been arrested had been necessary in order to take him to the police station and process the case.

II. RELEVANT DOMESTIC LAW

19. The relevant provisions of the Code of Criminal Procedure (“the CCP”), in force since 1 February 2014, read as follows:

Article 209 – Police Custody

“…

2. An arrested person shall be informed promptly, in a language which he understands, of any charge against him and of the reasons for his arrest.

3. Police custody may be ordered for a maximum of twenty-four hours. The time strictly necessary for bringing a suspect or accused to the judicial body’s premises in accordance with the law shall not be included in the period of police custody.

5. Police custody may only be ordered after the suspect or accused is heard, in the presence of a lawyer of his own choosing or appointed by the court.

8. The chosen lawyer is under an obligation to attend the judicial body’s premises within two hours of being notified. If [he or she] fails to do so, the investigative body or prosecutor shall appoint a lawyer.

14. A suspect or accused may, before the period ends, complain to the prosecutor’s office overseeing the investigation about the investigative body’s decision to place him in custody. The prosecutor shall decide the matter promptly. If the prosecutor observes that the legislative provisions concerning the taking of that measure have been breached, [he or she] shall revoke it and order the person’s immediate release.

15. A suspect or accused may, before the period ends, complain to the prosecutor in chief or the hierarchically superior prosecutor’s office about the prosecutor office’s decision to place him in custody. The prosecutor shall decide the matter promptly. If the prosecutor observes that the legislative provisions concerning the taking of that measure have been breached, [he or she] shall revoke it and order the person’s immediate release.”

20. Article 31 of the Police Act (Law 218/2002 on the organisation and functioning of the Romanian Police) provides that police officers have a duty to:

“(b) escort thoseto the police station who are, by their actions, a danger to others, public order or other social values, as well as those who are suspected of having committed a criminal act and whose identity could not be verified in accordance with the law; … the situation of such persons must be verified and legal measures taken, if necessary, within twenty-four hours, as an administrative measure;”

THE LAW

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

21. The applicant complained under Article 5 § 1 of the Convention that he had been unlawfully taken into police custody from 11.08 a.m. to 6 p.m. on 16September 2014. 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. Admissibility

1. The parties’ observations

22. The Government argued that the applicant should have lodged a complaint against the decision to place him in police custody for
twenty-four hours. Relying on Article 209 § 3 of the CCP (paragraph 19 above), they averred that, if the applicant had considered that he had been held longer than strictly necessary for bringing him to the police station, he should have lodged a complaint against the decision to place him in police custody for twenty-four hours and asked that the period not strictly necessary be deducted from the twenty-four-hour time-limit. They considered that the absence of relevant domestic practice in this field did not exempt the applicant from lodging this complaint with the authorities. To this end, they cited the case of Gherghina v. Romania ((dec.) [GC], no. 42219/07, § 100, 9July 2015).

23. The applicant argued that when the police officer had taken his statement on 16 September 2014 he had informed him that the discussion concerned exclusively the offence of driving while suspended and not his being held under police escort at the police station. For the latter accusations, the police officer had allegedly advised him to lodge a criminal complaint, which he had done on 12 December 2014 (see paragraph 15 above).

2. The Court’s assessment

24. The Court reiterates at the outset that judicial review of detention must be automatic and cannot be made to depend on a previous application by the detained person (see ViorelBurzo v. Romania, nos.75109/01 and 12639/02, §107, 30 June 2009, and McKay v. the United Kingdom [GC], no. 543/03, §34, ECHR 2006‑X).

25. Turning to the facts of the present case, it notes that the applicant complained both to the prosecutor and the court, as well as in a separate criminal complaint against T.M. that he had been unlawfully arrested (see respectively paragraphs 13, 14 and 15 above). The Government have not stated that any of these procedures were manifestly devoid of purpose in the context of the specific issues relating to Article 5 § 1 of the Convention (see, mutatis mutandis, Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, § 100, 10 April 2018) or offered any explanation as to why the action they suggested would constitute a better way forward for the applicant.

26. Consequently, in the particular circumstances of the case, the Court does not find the actions taken by the applicant unreasonable or devoid of any prospect of success (ibid., § 100). It therefore dismisses the Government’s objection.

27. The Court further notes that the application 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.

B. Merits

1. The parties’ observations

28. The applicant argued that he had been held unlawfully for six hours and fifty-two minutes at the two police stations, under the control of the authorities. He also pointed out that the police officer had issued the arrest order at 6 p.m. even though the interview had lasted until 6.20 p.m. (see paragraphs 10 and 11 above). This proved, in his view, that the decision had already been takento place him in police custody, irrespective of what would happen during the interview.

29. The Government denied that the applicant had been deprived of his liberty during the period under consideration. Relying on the statements by the police officer T.M. (see paragraph 16 above), they contended that the applicant had waited outside the police station and had been allowed to use his mobile telephone. Although there was no evidence indicating that the applicant had been informed that he was free to leave, nothing in the file supported his version of the facts. Moreover, he had never been handcuffed or otherwise prevented from leaving.

30. Even assuming that he had been deprived of his liberty, the Government argued that the measure had been provided for by law (the Police Act and the CCP – see paragraphs 19 and 20 above) and justified by the need for the police officers to identify the applicant. They averred that the applicant had refused to show his identity papers when he had been stopped by the roadside. They also explained that the rules of criminal procedure required a certain number of procedural steps to be taken before an individual could be arrested. In the present case, those procedural requirements had been fulfilled during the period under examination. The Lipova District Court had confirmed this justification in its decision of 22 March 2016 (see paragraph 18 above).

2. The Court’s assessment

31. At the outset, the Court notes that the parties disagree as to whether the applicant was deprived of his liberty while at the police stations (see paragraphs 28 and 29 above). Therefore, it must first establish whether the applicant was deprived of liberty within the meaning of Article 5 § 1 of the Convention.

(a) Whether the applicant was deprived of his liberty from 11.08 a.m. to 6 p.m. on 16 September 2014

(i) General principles

32. The Court reiterates that in proclaiming the “right to liberty”, paragraph 1 of Article5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article2 of Protocol No. 4. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see De Tommaso v. Italy [GC], no.43395/09, §80, ECHR2017 (extracts), with further references, and Khlaifia and Others v.Italy [GC], no.16483/12, § 64, ECHR 2016 (extracts)).

33. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă v.Romania [GC], no. 29226/03, § 92, 23 February 2012).

(ii) Application of those principles to the present case

34. The Court has already established in its case-law that administrative escorting (including the taking of a person to a police station and his or her presence there) amounts to “deprivation of liberty” (see Tsvetkova and Others, cited above, §107). In the present case, nothing suggests that, as a matter of fact and/or given the requirements of Romanian law (see paragraph 20 above), the applicant could have freely decided not to follow the police officers to the police station or that, once there, he could have left at any time without incurring adverse consequences (ibid., § 107, as well as, mutatis mutandis, Creangă, cited above, §§ 94-100).

35. The Court considers that throughout the events there was an element of coercion which, notwithstanding the relatively short duration of the procedure, was indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, mutatis mutandis, Khalikova v. Azerbaijan, no. 42883/11, § 102, 22 October 2015).

36. Consequently, the Court finds that the applicant was deprived of his liberty within the meaning of Article 5 § 1.

(b) Whether the deprivation of liberty breached Article 5 § 1 of the Convention

(i) General principles

37. 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, and S., V. and A. v.Denmark [GC], nos.35553/12 and 2others, § 74, 22 October 2018).

38. 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, cited above, §§ 91‑92, and Del Río Pradav.Spain [GC], no. 42750/09, § 125, ECHR2013, with further references).

39. Lastly, the Court reiterates that in order for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see S., V. and A. v. Denmark, cited above, § 77).

(ii) Application of those principles to the present case

40. The Court notes that the applicant was stopped by the traffic police and taken to two police stations, where he was held for about seven hours in total (see paragraphs 6 and 7 above). He was subsequently placed in police custody in accordance with the provisions of the CCP (see paragraph 11 above).

41. The Government argued firstly that the purpose of the administrative escorting measure had been to allow the police to identify the applicant. Moreover, they relied on the provisions of the Police Act (see paragraph 30 above).

42. However, the Court notes that the report drafted by the police officer about the incident contains the applicant’s full identity details (see paragraph 8 above). Moreover, at no point during his time at the police stations was there any mention that he had refused to identify himself or denied the information retrieved by the police about his criminal record. In these circumstances, it is hard to accept that the applicant was taken into police custody and kept for almost seven hours for identification. Consequently, it has not been established that the applicant’s arrest was in keeping with the administrative escorting measure allowed by the Police Act (see paragraph 20 above).

43. Moreover, the Court notes that the police reports drafted on 16 September 2014 did not mention that the applicant was deemed to be a danger to others, public order or other social values (see paragraphs 8, 9, and 20 above). Nothing in the file therefore supports the Government’s assertion that the applicant’s arrest was necessary (see S., V. and A. v. Denmark, cited above, § 77, and contrast Stănculeanu v. Romania, no. 26990/15, § 57, 9 January 2018).

44. For these reasons, the Court is not satisfied that the administrative escorting and deprivation of liberty of the applicant were free from arbitrariness and in compliance with domestic law. Consequently, the deprivation of his liberty was not “lawful” within the meaning of Article 5 § 1 (c) of the Convention.

It follows that there has been a violation of Article 5 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. Article 41 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.”

46. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declaresthe application admissible;

2. Holdsthat there has been a violation of Article 5 § 1 of the Convention.

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                                 FarisVehabović
Deputy Registrar                               President

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