Resolution CM/ ResDH ( 2013)220 Creangă against Romania

Execution of the judgment of the European Court of Human Rights

Application

Case

Judgment of

Final on

29226/03

CREANGÄ‚

23/02/2012

Grand Chamber

(Adopted by the Committee of Ministers on 6 November 2013

at the 1183rd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)857 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

Creangă v. Romania

(Application N o. 29226/03 , Grand Chamber ’ s judgment of 23 February 2012)

The case concerns the deprivation of liberty of the applicant for a period of ten hours without legal basis and his remand in pre-trial detention following the Prosecutor General ’ s application for quashing of the final decision ordering his release, i n 2003 (violations of Article 5 §1).

The European Court awarded the applicant just satisfaction for non-pecuniary damages and costs and expenses, which was paid to the applicant on 18 May 2012.

The period to be taken into account for the purposes of Article 5 had ended before the European Court delivered its judgment.

Consequently, the authorities consider that no further measure is necessary.

a) the applicant ’ s deprivation of liberty for ten hours without legal basis

The government recalls that the European Court found a violation of Article 5 §1 on account of the applicant ’ s deprivation of liberty, as he remained for a period of ten hours in the prosecution service ’ s headquarters without being allowed to leave these premises and in the absence of any order for placement in custody or in pre-trial detention.

Pursuant to the relevant provisions of the Code of Criminal Procedure (CCP), namely Article 144 CCP, the custody measure could be decided for maximum 24 hours. The period during which a suspect has been deprived of liberty consequently to the administrative measure of being accompanied to the police headquarters shall be deducted from the duration of the custody. If the suspect is placed in custody after interrogation, the period of 24 hours shall be calculated from the moment the custody order was issued. The custody order shall state the day and the time the measure has begun.

Articles 149 and 149 1 CCP further provide that the pre-trial detention measure shall be decided for maximum 30 days out of which there shall be deducted the period of time spent in custody, if any.

Having regard to the European Court ’ s findings in the present case, it would appear that the shortcomings identified in the European Court ’ s judgment are a matter of application of the relevant provisions of the CCP and do not call into question the existing legal framework.

The government therefore considers that awareness-raising measures are capable of preventing in the future similar violations of the Convention.

To this end, the judgment of the European Court was translated into Romanian and published in the Official Journal No. 613 of 27 August 2012 and listed on the website of the Superior Council of Magistracy at www.csm1909.ro .

The government considered the need of further awareness-raising measures, to ensure that the provisions of the CCP in matters related to the procedure of deciding the placement of a suspect under detention on remand will be construed and applied in the light of the requirements of the right to liberty resulting from this judgment. In this respect, the government ’s a gent before the European Court communicated the judgment to the Prosecutor ’ s Office attached to the High Court of Cassation and Justice for dissemination to the national prosecutor ’ s offices.

The Prosecutor ’ s Office attached to the High Court of Cassation and Justice took further steps for the implementation of this judgment. They observed that the main problem posed in the instant case referred to a proper development of the criminal investigation in complex criminal cases which concerned serious criminal matters or a significant number of suspects.

Additional guidelines have been directed to the territorial prosecutor ’ s offices in order for more prosecutors to be appointed to investigate large-scale cases and to carry out simultaneously interrogations of suspects for a decision on the pre-trial detention measure to be made in due time. Regard must be had towards the administration of evidence during this stage of proceedings, as well.

A division among the suspects ’ legal situations appeared to be a proper way of handling a case concerning multiple defendants, so that the prosecutor could submit to the court the motion to place under pre-trial detention those suspects who had been interviewed and charged.

Guides of good practices for certain types of cases and summaries of the European Court ’ s case law have been elaborated and communicated to the prosecutors and the police for an adequate performance of the criminal investigation.

In respect of the requirement for a hour-by-hour report to be drawn up during the proceedings, it is noticeable the fact that, as the Code of Criminal Procedure provides a certain sequence of proceedings during fixed time-limits (especially in case of a police custody measure of 24 hours), the criminal investigation activity is organi s ed with a view to the deprivation of liberty of the suspect within the legal framework and to the exercise of his right to defence in front of the judge invested with the prosecutor ’ s motion to take the pre-trial detention measure.

The procedural legal provisions encompass rules for indicating the period of time spent by a person at the premises of the judicial authority.

Thus, the prosecutor ’ s resolution of initiating the criminal investigation refers to the date and hour when this measure was ordered, pursuant to Article 228, §1 1 CCP.

The time when a person enters the headquarters of a judicial authority is mentioned in the subpoena which, in conformity with Article 176, §1d) CCP, must contain the hour and the date when the summoned person attends the appointment with the authority ’ s representatives.

In case a person is presented to the judicial authority on the basis of an order to appear, the time is mentioned in that order, pursuant to Article 183, §1 taken in conjunction with Article 176 CCP. A person under the power of an order to appear could not remain at the disposition of the judicial authority longer than necessary and he/she is immediately interviewed (Article 183, §§2 and 3 CCP).

The statement given by the accused person contains the starting time and the ending time, by virtue of Article 73, §1 CCP.

If a custody measure is decided, then the time for placing the accused person under custody is mandatory to be mentioned.

In practice, the ending time of the testimony given by an accused and the time for placing that person under custody correspond, without any further delays between these two moments.

Subsequently, within the time-limit of 24 hours of the custody measure, a new hearing of the accused person takes place in a capacity as a defendant and he/she is presented to a judge for a pre-trial detention measure to be decided.

When no subsequent measures are taken in respect of that person, he/she could leave the headquarters of the judicial authority without any restraints.

Observing that the procedural moments during a person ’ s staying in the premises of a judicial authority are highlighted in the summons, the statements given by that person as an accused and then, as a defendant, the resolution for placing that person under custody, no need for additional steps to be taken and documents to be drafted appear to raise in this respect.

On the other side, a separate hour-by-hour report appears to be unnecessary, since the investigators are held to observe certain procedural stages within a short period of time of only 24 hours: to inform the accused person of the charges, to secure the presence of a defence attorney, to interview that person in a capacity as an accused after the initiation of the criminal investigation, to interview that person in a capacity as a defendant after the criminal action has been set in motion, to notify the police for taking the defendant into custody at the arrest facilities, and to draft the request for the judge to decide the pre-trial detention.

Therefore, as the Code of Criminal Procedure affords the means to calculate the period of time spent by a person at the premises of the judicial authority, no extra reports are imposed to be drafted in such proceedings.

Consequently, the authorities consider that no additional measures are necessary under the aforementioned issues.

b) the applicant ’ s remand in pre-trial detention following the Prosecutor General ’ s application for quashing of the final decision ordering his release

The Articles of the Code of Criminal Procedure governing applications to have final judicial decisions quashed were repealed by Law No. 576 of 14 December 2004, which was published in Official Journal No. 1223 of 20 December 2004 and entered into force on 23 December 2004.

Accordingly, no further measures are required in this respect.

Having regard to the above, the government considers that no other individual or general measures are to be taken in the present case and that Romania complied with the obligations imposed under Article 46, paragraph 1 of the Convention. The government therefore invites the Committee of Ministers to close the examination of this case.