CONCURRING OPINION OF JUDGE BRATZA

1. I am in full agreement with the conclusions of the majority of the Court on all aspects of the case. In particular, I share the view that Article 5 § 1 of the Convention was violated on account of the applicant’s deprivation of liberty on 16 July 2003, at least in respect of the period from 12 noon to 10 p.m.

2. I can also generally agree with the Court’s reasoning leading up to this conclusion from paragraph 91 of the judgment onwards. Where, however, I part company with the reasoning in the judgment is in the discussion devoted to the issue of burden of proof in paragraphs 88 to 90, which appears to me to be neither necessary to the conclusion reached nor correct.

3. The traditional approach of the Court to assessing whether there has been a deprivation of liberty within the meaning of Article 5 § 1 or a mere restriction on freedom of movement falling outside that provision, is to examine the concrete situation of the applicant as it appears on the material before it, taking account of a whole range of criteria, such as the type, duration, effect and means of implementation of the measure of restraint in question. In making its assessment, the Court has not in general found it necessary to have recourse to questions of the burden and standard of proof. Where the underlying facts have been found by national courts in domestic proceedings, the Strasbourg Court will normally require cogent elements to lead it to depart from those findings, even though it is not constrained by the national court’s legal conclusions as to whether or not those facts give rise to a deprivation of liberty within the meaning of Article 5 § 1. Where, as in this case, there has been no such judicial determination and there is a factual dispute between the parties, the Court’s assessment has normally been made on the basis of a free evaluation of all the material before it, including such inferences as may flow from the agreed facts and the submissions of the parties.

4. The Government argued in the present case that the applicant had failed to discharge the burden of proving that he was deprived of his liberty, a burden which was said to be imposed on him in order to be able to claim victim status under Article 34. This argument is rejected in the judgment, the Court correctly noting that the Convention provisions do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio . However, the judgment goes on to find, on the contrary, that in the present case the burden of proof shifted to the respondent Government once the applicant had provided prima facie concordant evidence capable of showing that he was under the exclusive control of the authorities on the day of the events in question.

5. I have not found it helpful to examine this case in terms of the burden of proof. I have considerable hesitations as to whether it is, in any event, a case suitable for applying a reverse burden. The two categories of case cited in paragraph 89 of the judgment, in which the burden of proof is shifted to the respondent Government – namely, cases under Articles 2 and 3 of the Convention concerning deaths occurring and injuries sustained in custody and those under Article 5 § 1 concerning disappearances of persons last seen in military or police establishments to which they had been summoned to appear – are far removed from the circumstances of the present case. In particular, while there are compelling reasons, in a case where an individual has been officially summoned to premises under the control of the authorities and has not been seen since, for shifting the evidential burden to the authorities to prove that he has voluntarily left the premises, no such reasons apply in the present case, where the question is whether the factual circumstances are such that the individual is to be regarded as having been deprived of his liberty within the meaning of Article 5 § 1. The mere fact, which is relied on in the judgment, that the present applicant entered premises which were under the control of the authorities pursuant to a summons is not in my view sufficient to justify placing an evidential burden on the authorities.

6. In my view, the conclusion arrived at by the majority of the Court on the material before it that, whatever the position until 12 noon, the applicant was certainly deprived of his liberty thereafter, can and should have been reached without the need to impose an evidential burden on the Romanian authorities.

JOINT CONCURRING OPINION OF JUDGES COSTA, GARLICKI, GYULUMYAN, MYJER, HIRVELÄ, MALINVERNI, VUČINIĆ AND RAIMONDI

1. While we agree that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s deprivation of liberty on 16 July 2003, we are of the opinion that the deprivation of liberty in question did not last “at least” from 12 noon to 10 p.m. (as stated in point 2 of the operative provisions and paragraphs 100 and 109 of the reasoning), but “only” within this time span.

The applicant’s situation between 9 a.m. and 12 noon amounted not to a deprivation of liberty but merely a restriction on his freedom of movement. It would have been desirable for the Grand Chamber, as the highest judicial formation of the Court, to have avoided leaving questions unanswered, where possible, and to have reached that conclusion in the light of the following information.

2. The applicant’s situation between 9 a.m. and 12 noon was determined by a combination of obligations resulting from a summons issued by an investigating authority and from his subordination to military-like discipline.

3. Firstly, the presence of the applicant in the NAP premises was a consequence of a summons to appear before the NAP in order to make statements for the purpose of a criminal investigation. While it may be true that, once he had entered the NAP premises, he might have had problems in trying to leave without permission, the same applies to many persons summoned to testify before a police authority, a prosecutor or a court. Such persons are under a duty to appear and to remain in place for such time as is necessary for their depositions to be taken, which means that they are not free to leave as long as investigative measures are under way (see paragraph 90 of the judgment). This limitation applies not only to persons summoned in their capacity as a “witness”, but also to those “suspects” (that is, persons already charged) who have not been detained on remand. Even if they may not be physically restrained to prevent them from leaving without permission, the law provides for sanctions, criminal as well as administrative, to secure their compliance. It is regarded as obvious, including under the Court’s case-law, that in the context of a criminal investigation, both the duty to appear and the duty not to leave before being permitted to do so are regarded as restrictions on freedom of movement.

4. Secondly, the applicant, as a police officer, was subject to military discipline. He, together with several other colleagues, received an order from his hierarchical superior to report to the NAP. Hence, his presence in the NAP premises resulted from due application of the discipline he was subject to. The very essence of military discipline consists of situations when a subordinate must go where he or she is ordered to go and remain there as long as he or she is ordered to stay. It may also include punishments for disregarding an order and even physical restraint in the event of non-compliance. Such restrictions on movement constitute an inherent part of the operation of any armed formation and have nothing to do with deprivation of liberty.