CASE OF RICCARDI v. ROMANIA
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
7. The applicant was born in 1956 and lives in TârguMureş, Romania. 8. On 19 October 2001 criminal proceedings were initiated against the applicant and other third parties in respect of embezzlement, forgery of accountancy papers and tax evasion offences that had allegedly been committed by him in his capacity as director of the limited liability company R. On the same day he was placed in police custody for twentyfour hours on the basis of Article 148 (c) and (h) of the Romanian Code of Criminal Procedure (“the CCP”) on the ground that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged, that he was a danger to public order, that the offences with which he had been charged were punishable by more than two years’ imprisonment, and that he was preparing to abscond. 9. On 20 October 2001 the TârguMureş Prosecutor’s Office issued an arrest warrant on the basis of Article 148 (h) of the CCP and the applicant was placed in pretrial detention for thirty days on the ground that the offences with which he had been charged were punishable by more than two years’ imprisonment and that he was preparing to abscond. 10. On 18 February 2002 the applicant and the third parties were indicted to stand trial on the abovementioned charges. They continued to remain in pretrial detention. 11. The applicant’s pretrial detention was extended repeatedly by final interlocutory judgments of the TârguMureş County Court. The court confirmed the legality of the detention on the ground that the reasons provided for by Article 148 (h) of the CCP which had justified the applicant’s initial detention remained valid, did not breach his right of presumption of innocence and that the length of proceedings depended on the complexity of the case. Therefore it dismissed the applicant’s repeated arguments that he was not a danger to public order, that his pretrial detention could be replaced by alternative measures and that the length of his detention and of the overall proceedings was excessive. The domestic courts did not provide any other explanation for the extension of the applicant’s pretrial detention. Moreover, the eight hearings held between March 2002 and April 2003 were repeatedly adjourned, inter alia, in order to allow all the suspects to employ the services of a lawyer, for witnesses to be heard, the summoning of various parties to the proceedings, the submission of technical and medical expert reports and the examination of the transfer of the file to another court as a result of the applicant’s request. 12. By the interlocutory judgment of 20 May 2003 the TârguMureş County Court, having regard to the length of the pretrial detention, the applicant’s complaint concerning his state of health and his medical condition, the facts of the case and the evidence submitted by the parties, ordered the release of the applicant. The court also ordered the applicant not to leave town without the court’s consent pending the outcome of the criminal investigation. Lastly, the court adjourned the hearing until 17 June 2003 for procedural reasons. The TârguMureş Prosecutor’s Office appealed against the decision. 13. By a final interlocutory judgment of 23 May 2003 the TârguMureş Court of Appeal allowed the appeal of the Prosecutor’s Office on the ground that according to the medical expert reports the applicant’s health problems could be treated in prison hospitals and that the initial reasons justifying his detention were still valid. Consequently, the court ordered the applicant’s pretrial detention to be extended from 26 May to 24 June 2003. 14. By an interlocutory judgment of 17 June 2003 the TârguMureş County Court, sitting as a twojudge bench, again extended the applicant’s pretrial detention from 25 June to 24 July 2003. The court held that the applicant’s detention was still justified under Article 148 (h) of the CCP. Moreover, the court could not be held responsible for the length of proceedings given the complexity of the case, the large amount of evidence submitted by the parties and the difficulties it faced in summoning the witnesses living in other cities. Lastly, the court adjourned the hearing for procedural reasons and ordered a technical expert report to be drafted. The applicant appealed against the decision. 15. By a final interlocutory judgement of 2 July 2003 the TârguMureş Court of Appeal allowed the applicant’s appeal, quashed the interlocutory judgment of 17 June 2003 in part and ordered the lower court to reexamine the matter of extending the applicant’s pretrial detention. The court held that the decision had been taken by two judges despite the applicable procedural rules requiring that this be done by a single judge. The court did not address the issue of the applicant’s release despite this having been requested by the applicant. 16. By an interlocutory judgment of 4 July 2003 the TârguMureş County Court extended the applicant’s pretrial detention to 23 July 2003 on the ground that the reasons justifying his initial detention were still valid. It also dismissed the applicant’s claim that his pretrial detention had ceased to be lawful after the final interlocutory judgment of 2 July 2003. It held that the said interlocutory judgment had mainly concerned the composition of the bench which had examined the merits of the judgment and considered, in terms of the lawfulness of the applicant’s detention, that the conditions set out by Article 160c of the CCP had been met. Moreover, the extension of the applicant’s pretrial detention had been lawful since it had been the will of both judges. The applicant appealed against the decision. 17. By a final interlocutory judgment of 7 July 2003 the TârguMureş Court of Appeal dismissed the applicant’s appeal and upheld the decision of 4 July 2003. 18. By an interlocutory judgment of 23 July 2003 the TârguMureş County Court rejected the request of the Prosecutor’s Office for the extension of the applicant’s pretrial detention and ordered the applicant’s immediate release. The court held that following the judgment of 2 July 2003 the applicant’s detention from 25 June 2003 had been unlawful in so far as the authorities had not extended the arrest warrant which had expired on 24 June 2003. Moreover, the present decision was not in breach of the res judicata principle in respect of the final decision of 4 July 2003 since the current decision, among others, did not touch on the merits of the case, but only assessed the lawfulness of the detention, and the decision of 4 July had interfered with the applicant’s procedural rights. The Prosecutor’s Office appealed. 19. By a final interlocutory judgment of 23 July 2003 the TârguMureş Court of Appeal allowed the appeal of the Prosecutor’s Office. It held that the County Court’s judgment of 23 July 2003 interfered with the legal principle of res judicata. Consequently it quashed the decision and ordered the extension of the applicant’s pretrial detention on the general ground that he was a danger to public order and that the reasons justifying his initial detention, including the ground provided for by Article 148 (c) of the CCP, were still valid. 20. Between 19 August 2003 and 19 April 2004 the applicant’s pretrial detention continued to be extended by final interlocutory judgments of the domestic courts generally on the basis of the provisions of Article 148 (h) of the CCP, while his complaints concerning the length of his pretrial detention and of the proceedings as a whole were dismissed generally for the reason that the case was complex. Furthermore, no additional reasons or explanations were provided by the courts in respect of the applicant’s personal situation and his repeated claims that his pretrial detention following the judgment of 2 July 2003 was illegal were dismissed as res judicata. Finally, the hearings were repeatedly adjourned, inter alia, in order to allow for witnesses and parties to the proceedings to be heard or resummoned and for the submission of technical expert reports. 21. By an interlocutory judgment of 12 May 2004 the TârguMureş County Court assessed the lawfulness of the applicant’s detention and ordered his immediate release. The court held that the applicant’s detention between 20 October 2001 and 24 June 2003 had been unlawful in so far as the arrest warrant had been issued by a prosecutor who was not a “magistrate” within the meaning of the European Convention on Human Rights (ECHR) and who had not clearly established the charges against the applicant. The prosecutor had also failed to hear the applicant prior to his detention or to provide reasons for his detention and had failed to immediately bring him before a judge following his arrest. At the same time, it considered that the assessment of lawfulness carried out by the domestic courts following the applicant’s arrest could not have remedied the abovementioned failures. Furthermore, it held that the applicant’s pretrial detention between 25 June and 4 July 2003 had also been unlawful in so far as following the final judgment of 2 July 2003 the applicant’s arrest had not been based on any express or valid court order. It considered that the previous decisions delivered by the domestic courts in respect of the same issue were not res judicata, because the said principle did not apply to issues such as the applicant’s detention which were separate from the merits of the case concerning the existence of the offence and the guilt of the accused. Moreover, it considered that its argument flowed from the provisions of the domestic procedural law which required courts to regularly assess the lawfulness of pretrial detention even if other domestic courts had previously delivered final judgments in respect of the same issue and to revoke ex officio the measure if it had been rendered unlawfully. The court further held that the applicant’s detention after 4 July 2003 had also been unlawful on the ground that the judgment of 4 July 2003 could not simply extend his pretrial detention which had started on 20 October 2001 since the applicant had not been lawfully detained at the time. In so far as the judgment could be perceived as a new detention order, the court considered that the legal conditions for such an order had not been met: there were no new grounds for the applicant’s detention, the court had not provided any reasons for it, no new detention order had been issued and the transcript of the applicant’s evidence given to the court in respect of his detention had been missing from the file. Finally, the court held that in any event the extension of the applicant’s pretrial detention could no longer be justified. There was no evidence that the applicant was a danger to public order or that his release would interfere with the criminal investigation and his continuous pretrial detention of two years and seven months was excessive and did not comply with the guarantees set out by Article 5 of the ECHR. The court also adjourned the hearing on procedural grounds and ordered the resummoning of some of the witnesses. The Prosecutor’s Office appealed against the decision. 22. By an interlocutory judgment of 16 June 2004 the TârguMureş Court of Appeal adjourned the appeal proceedings against the interlocutory judgment of 12 May 2004 for twentyfour hours on the ground that the applicant had not been summoned and ordered his summoning. 23. By an interlocutory judgment of 17 June 2004 the TârguMureş Court of Appeal, in the absence of the applicant, who had been summoned, but in the presence of his chosen lawyer, suspended the appeal proceedings against the interlocutory judgment of 12 May 2004 pending the referral of an objection of unconstitutionality raised by the applicant’s lawyer to the Constitutional Court in respect of Article 38511 (3) of the CCP. Relying on the provisions of Article 303 (6), 3002 and 160b of the CCP the court reviewed and maintained the applicant’s pretrial detention. Consequently, it dismissed the applicant’s request for an end to his detention. He had based his request on the argument that after 16 June 2004 his pretrial detention had no longer had a legal basis, since the sixtyday timelimit for assessing the lawfulness of detention provided for by the Constitution and the CCP had lapsed. 24. By a final interlocutory judgment of 13 August 2004 the TârguMureş Court of Appeal reviewed and maintained the applicant’s pretrial detention on the ground that the reasons justifying the applicant’s initial detention were still valid. 25. By an interlocutory judgment of 27 August 2004 the TârguMureş County Court ordered the applicant’s immediate release. It held that the argument of the Prosecutor’s Office that the applicant’s pretrial detention was justified by the applicant’s preparation to abscond (Article 148 (c)) had already been dismissed by the domestic courts on 7 March 2002 and that there was no new relevant evidence to rebut that finding. Moreover it held that there was no evidence that the applicant was a danger to public order and that two years and ten months was an unreasonable length of time for the proceedings. At the same time the court adjourned the hearing for procedural reasons. The TârguMureş Prosecutor’s Office appealed. 26. By a final interlocutory judgment of 30 August 2004 the TârguMureş Court of Appeal dismissed the appeal and upheld the judgment of 27 August 2004. The applicant was released the same day. 27. In October 2004 the Constitutional Court dismissed the objection of unconstitutionality raised by the applicant’s lawyer at the hearing of 17 June 2004 on the ground that the legal provision contested by the applicant was in compliance with the Constitution. 28. By a final interlocutory judgment of 8 December 2004 the TârguMureş Court of Appeal dismissed the Prosecutor Office’s appeal against the interlocutory judgment of 12 May 2004 as moot on the ground that the applicant had already been released. 29. The thirtyone hearings held by the TârguMureş County Court between 24 September 2004 and 2 February 2009 were repeatedly adjourned, inter alia, in order to allow for more witnesses to be heard, the summoning of various parties to the proceedings, the resummoning of some of the witnesses, the submission of technical expert reports and the examination of some of the judges’ requests to withdraw from the proceedings. 30. On an unspecified date in 2008 the applicant was arrested in Italy. He refused to take part via video link in the hearing of 2 February 2009 concerning the criminal proceedings brought against him in Romania and pending before the domestic courts. 31. By an interlocutory judgment of 6 March 2009 the TârguMureş County Court decided to separate the proceedings concerning the applicant from the proceedings concerning the other co-accused and ordered the applicant’s temporary transfer from Italy to be arranged. 32. The proceedings brought against the applicant are still pending before the firstinstance court. 33. In January 2002, following an episode of depression, the applicant underwent a psychiatric examination. The panel of experts concluded that the applicant’s condition was a “situational reaction” and that he could be treated in detention in Bucharest Prison Hospital which was equipped with a psychiatric unit. 34. The two psychiatrists on the panel of experts expressed a dissenting opinion. They concluded that the applicant should be treated in a civilian psychiatric hospital because psychotherapy sessions could not be properly provided in detention owing to the “lack of privacy”. 35. There is no evidence in the applicant’s medical file to show that he spent time in hospital for psychiatric treatment or that he continued to have similar problems afterwards. 36. The applicant also informed the Court that he had been kept in solitary confinement and that from the end of 2003 he had been under the same detention regime as dangerous detainees, which meant that he had been under constant supervision. His allegations are contradicted by a letter of 13 November 2003 sent by the TârguMureş Prison authorities to the domestic courts from which it can be seen that the applicant was not classified as a “dangerous detainee”. 37. According to the applicant’s medical records, he was diagnosed with chronic uveitis in his left eye in May 2002. 38. A medical expert report drafted in February 2003 concluded that the applicant’s situation required surgery and postsurgery treatment in a specialised hospital, specifically the RahovaBucharest Prison Hospital. However, his state of health was not incompatible with his detention. 39. The applicant did not undergo the surgery. However, he did not complain about the lack of medical treatment before the domestic courts under Article 3 of the Government Emergency Ordinance no. 56/2003 (GEO 56/2003) concerning the rights of individuals serving prison sentences. 40. After his release from prison on 30 August 2004 the applicant underwent cataract surgery in Italy. 41. The relevant parts of Emergency Ordinance no. 56/2003 on the rights of prisoners, adopted by the Government on 25 June 2003 read as follows: “(2) Prisoners may complain about measures taken by prison authorities (...) (5) In examining a complaint, the court takes one of the following decisions: (a) allows the action and orders the annulment, revocation or change of the measure taken by the penitentiary authority; (b) dismisses the action if it is ill-founded.” 42. The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide: “In cases concerning offences which are punishable by a prison sentence, and in order to ensure the proper conduct of the criminal trial and prevent the suspect or accused from evading criminal proceedings ..., one of the following preventive measures may be taken against him or her: (...) (c) pre-trial detention. The measure provided for in (c) may be ordered by the prosecutor or by a court.” “The legal instrument by which an interim measure is adopted must list the facts which gave rise to the charges, their legal basis, the sentence provided for in the legislation concerning the offence in question and the specific reasons which determined the adoption of the interim measure.” “An interlocutory judgment delivered by a first-instance court ordering, revoking (...) a preventive measure can be separately appealed (recurată) against by the accused or the prosecutor (...) The appeal (recurs) lodged against an interlocutory judgment ordering a preventive measure to be taken does not suspend its enforcement.” “The authority responsible for criminal proceedings may detain a person in police custody if there is cogent direct or indirect evidence that he or she has committed an offence prohibited by the criminal law. (...) Cogent evidence exists where, in alleged offences.” “Where the requirements of Article 143 are met, and in one of the cases provided for in Article 148, the prosecutor may, of his or her own motion or at the request of the prosecuting authority, order that the suspect be placed in pre-trial detention by a reasoned order indicating the legal grounds for such detention, for a period not exceeding five days. (...)” “Pre-trial detention of the accused may be ordered where the requirements set out in Article 143 are met and if one of the following conditions is satisfied: (...) (c) the accused absconded or prepared to abscond ...; (...) (h) the accused has committed an offence for which the law prescribes a prison sentence of more than two years and his or her continued liberty would constitute a threat to public order. (...)” “The length of pre-trial detention of the accused may not exceed one month, except where it is extended in accordance with a procedure prescribed by law. ... (...)” “Where necessary, pre-trial detention of the accused may be extended if reasons are given. Extension of pre-trial detention may be ordered by the trial court (...)” “The trial court shall be presided over by the president of the court or a judge appointed by him or her; the prosecutor’s participation is compulsory. The investigation file shall be lodged [at the court] by the prosecutor at least two days prior to the hearing and may be consulted by the lawyer on request. The accused shall be brought before the court, assisted by a lawyer. (...) If the court grants extension [of the detention], such extension may not exceed thirty days. (...) The prosecutor or the accused may appeal against the interlocutory decision by which the court decides on extension of the pre-trial detention. The time-limit for an appeal shall be three days, starting from delivery of the judgment for those who are present and, for those who are not present, from the date of notification. An appeal against a decision to extend pre-trial detention has no suspensive effect, while an appeal against a decision to dismiss the request for an extension of the pre-trial detention does have suspensive effect. (...) The court may grant further extensions of pre-trial detention, but none of these may exceed thirty days.” “... In cases where the accused is arrested, the court is obliged of its own motion and at the first hearing to confirm the lawfulness of the adoption and extension of the detention measure [against the accused].” 43. The relevant domestic practice concerning the notion of “danger to public order” provided for by the provisions of Article 148 (h) of the CCP is set forth in the case of Calmanovici v. Romania (no. 42250/02, §§ 4042, 1 July 2008). Following the amendment of the CCP by Law no. 281/2002 published in the Official Gazette on 1 July 2003, Article 148 (h) of the CCP required the existence of evidence that the release of an accused would pose a real danger to public order. 44. Article 160c of the CCP in force for a brief period of time provided that during the trial stage of proceedings the firstinstance court could extend pretrial detention if new elements had appeared justifying the measure. 45. Article 23 (6) of the Romanian Constitution and Article 160b of the CCP provide that during the judgment stage of the proceedings the domestic courts must regularly examine, no later than every sixty days, the lawfulness of the pretrial detention. If the court finds that the reasons justifying the detention have ceased to exist and that there are no new reasons justifying it, it must order the release of the accused. Article 3002 of the CCP provides that when the accused has been detained at the trial stage of the proceedings, the court to which the matter has been lawfully referred must examine the lawfulness of the pre-trial detention pursuant to the provisions of Article 160b of the CCP. Article 303 (6) provides, by referring to Article 160b of the CCP, that the regular examination of pretrial detention is also necessary where the proceedings have been suspended for a matter to be referred to the Constitutional Court. 46. Article 38511 (3) of the CCP provides that appeals (recurs) in respect of preventive measures can be decided in the absence of the accused as long as he has been legally summoned.