IOVIŢĂ v. ROMANIA
Inadmissible
András Sajó;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Ms Cerasela Tanța Ioviţă, is a Romanian national who was born in 1980 and lives in Drobeta-Turnu Severin. She was represented before the Court by Ms R. Cercel, a lawyer practising in Drobeta-Turnu Severin. 2. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, and then by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 15 October 1999 the applicant moved to Italy, where she lawfully took up residence with her husband. She was lawfully employed there and received a fixed monthly income. 5. On 21 December 2003 the applicant and her husband travelled to Romania for the winter holidays. As they attempted to cross the Romanian border she was stopped and questioned by the Mehedinți border police. 6. On the same date the border police produced a report attesting that they had withheld the applicant’s passport (dovadă de reținere) as documentary evidence because two of its pages had been replaced. 7. On the same date the border police opened a criminal investigation against her for forgery of official documents and use of forged documents. 8. On 6 January 2004 the Gorj Records Office (Serviciul de Evidență Informatizată a Persoanei al Județului Gorj) informed the applicant that, in accordance with Article 14 § 1e of Government Ordinance no. 65/1997 on Romanian passports, her right to use her passport had been suspended until 21 December 2007 following her return from Italy, based on a readmission agreement between the two countries. They also informed her that she had thirty days to challenge the decision before the Passport Service attached to the Romanian Ministry of Internal Affairs (“the Passport Service”). 9. On 6 February 2004 the applicant lodged a challenge to the decision with the Passport Service. 10. On 26 February 2004 the Drobeta-Turnu Severin prosecutor’s office informed the applicant that the criminal investigation opened against her had been discontinued and that the case had been referred back to the Mehedinți border police in order for them to identify the potential perpetrators. The prosecutor’s office held that it could not be established that the two pages of the passport had been replaced by the applicant. Moreover, not all the elements of an offence were present as there was no evidence that she knew that her passport was forged. 11. On 27 February 2004 the Passport Service dismissed the applicant’s challenge of 6 February 2004 and informed her that following the opening of a criminal investigation against her it had been decided that the measure taken by the Gorj Records Office in accordance with Article 14 § 1e of Government Ordinance no. 65/1997 would be maintained. The Passport Service also informed her that her situation would be re-examined after the criminal investigation had ended. 12. On 9 March 2004 the Passport Service allowed the applicant’s challenge of 6 February 2004 and informed her that the measure taken against her had been cancelled. 13. On an unspecified date the Gorj Passport Service issued a new passport in the applicant’s name at her request. 14. She returned to Italy on 5 April 2004. 15. On 12 May 2004 the applicant brought civil proceedings against the Romanian State, seeking 208,000 Romanian Lei (RON – approximately 51,400 euros (EUR)) in pecuniary and non-pecuniary damages for the restriction on her freedom of movement. She relied on Article 504 § 2 of the Romanian Code of Criminal Procedure (“the CCP”). She argued, inter alia, that the measure taken against her had been unlawful and had prevented her from returning to Italy for four months. As a result, she had been forced to stay in Romania alone, separated from her husband who had had to return to Italy in order not to lose his job. Furthermore, she had lost her salary rights for the four months in question. In addition, she and her husband had been pressured by the border police to admit that she had replaced the two pages of her passport, as she had been held (ținută) for an entire night at the customs office without being allowed to contact her parents in order for them to instruct a legal representative on her behalf. 16. On 1 July 2004 the Gorj County Court dismissed the applicant’s action. It held that she had not been convicted by a final judgment. Furthermore, the measure to place her in the custody of the border police had been necessary given that the border guards had noticed that two pages of her passport had been replaced and she herself had admitted as much. In addition, the applicant’s right to use her passport had been suspended following her return from Italy on the basis of the readmission agreement between the two countries and Article 14 § 1e of Government Ordinance no. 65/1997. Consequently, the conditions of Article 504 § 2 of the CCP had not been met in her case. 17. The applicant appealed against the judgment. 18. On 14 March 2005 the applicant asked the Craiova Court of Appeal to order the Gorj Records Office to disclose the act on which the decision to take the measure against her had been based. 19. On the same date the court dismissed the request on the grounds that the evidence in question was not relevant to the case. 20. It also dismissed the applicant’s appeal against the judgment of 1 July 2004. It held that the suspension of her right to use her passport had been necessary pending the outcome of the criminal investigation opened against her, as it was uncontested that two pages of her passport had been replaced. The applicant had to bear the natural consequences of the finding of such an irregularity, namely the criminal investigation. The passport was one of a person’s most important identity documents and was used mainly abroad. Each passport holder was therefore responsible for preserving the document’s integrity. The measure taken against the applicant had thus been necessary because a person could not use a document which had been guaranteed by the State and which no longer met the lawful conditions it had had from the moment it had been issued. The measure taken against the applicant seemed even more justified, given that she had initially admitted altering the passport and had not proven that she had been coerced to admit that. 21. The applicant lodged an appeal on points of law (recurs) against the judgment. She argued, inter alia, that the lower courts’ decision to dismiss her request for additional evidence had been unjust. The evidence in question was relevant to the case since the reasons the Gorj Records Office had relied on in order to take the measure against her had no legal basis as, as could be seen from the evidence, she had been lawfully residing and working in Italy. Furthermore, there was no distinction between her situation and that of arrest or detention, given that she had been prevented from leaving the country even though she had been living and working in Italy with her husband. Consequently, the domestic courts had to find a way to compensate her for the damage sustained following the arbitrary measure taken against her by the authorities. 22. On 7 December 2006 the High Court of Cassation and Justice allowed the applicant’Article 504 of the CCP had been met. In spite of the available contradictory evidence, the lower courts had not clarified what had been the legal basis of the measure taken against the applicant. In particular, they had not established whether the measure had been taken in the context of the criminal proceedings opened against her – it was well known that in such cases a passport was material evidence – or had been taken based on either Article 14 § 1e of Government Ordinance no. 65/1997 or on Government Ordinance no. 105/2001 on Romania’s borders by the head of the customs clearance point the applicant had crossed following the interruption of her travels. Moreover, the lower courts had not established the lawful review procedure for the measure imposed on the applicant or whether she had challenged the measure lawfully. Furthermore, they had not established the grounds for cancelling the measure taken against her or for issuing her with a new passport. If the measure had been taken against the applicant within the context of the criminal proceedings, the lower courts had to establish whether the conditions set out in Article 504 of the CCP had been met and whether the State could be held liable. 23. On 7 October 2008 the Gorj County Court allowed the applicant’s action and awarded her RON 8,000 (approximately EUR 2,040) in pecuniary damages and RON 50,000 (approximately EUR 12,700) in nonpecuniary damages. It noted that following the reopening of the case and in line with the High Court of Cassation and Justice’s instructions the parties had been allowed to adduce written and testimonial evidence to the file. In this connection, the court noted that the judicial and nonjudicial authorities had been asked to submit the documents concerning the criminal investigation opened against the applicant and those justifying the measure taken against her. It also noted that it had heard two witness testimonies. 24. The court established, based on the available evidence, that on 21 December 2003 the Romanian border authorities had placed the applicant in custody because two of the pages of her passport had been replaced and because she had been pressured by the representatives of the border police to admit that she had replaced them. The applicant had subsequently withdrawn her statement because she had not actually known how the pages had come to be replaced. A criminal investigation had been opened against her. Consequently, at the request of the Mehedinți border police, the Gorj Records Office had decided to suspend the applicant’s right to use her passport and restricted her freedom of movement for four years on the basis of Government Ordinance no. 65/1997. The criminal investigation against the applicant had subsequently been discontinued and therefore the Passport Service attached to the Romanian Ministry of Internal Affairs had cancelled the measure taken against her and she had been able to return to Italy. 25. The court also held that, given the criminal investigation opened against her and the measure taken, the applicant had sustained pecuniary and nonpecuniary damage since she had been unable to return to work in Italy and had been forced to remain in Romania alone and separated from her husband. The applicant had clearly proven the pecuniary damage sustained by her and, under the joint provisions of Article 998 of the Romanian Civil Code, Article 504 § 1 of the CCP and Article 52 § 3 of the Romanian Constitution, the State was liable for the non-pecuniary damage caused by legal errors. 27. Lastly, the court held that a person’s freedom of movement was guaranteed both by Article 25 of the Romanian Constitution and Article 2 of Protocol No. 4 to the Convention. Consequently, it could be restricted only in circumstances provided for in the domestic legislation and if the restrictive measure was necessary and proportionate to the aim pursued. 28. The State appealed against the judgment. 29. On 24 March 2009 the Craiova Court of Appeal allowed the State’s appeal, quashed the judgment of 7 October 2008 and dismissed the applicant’s action. It held that in 1998 the Romanian Constitutional Court had established that Article 504 § 1 of the CCP was constitutional only in so far as the situations in which the State’s financial liability could be engaged for damage caused by legal errors during criminal proceedings was not limited to the circumstances given in that provision. Subsequently, in 2001 the Constitutional Court held that Article 504 § 2 of the CCP was constitutional only in so far as a person’s right to be compensated if he or she had been acquitted or the criminal investigation opened against him or her had been discontinued after a preventive measure had been taken against him or her were not restricted to the circumstances given in Article 504 § 1. 30. The court also held that under Article 136 of the CCP, the preventive measures that could justify proceedings based on Article 504 were placement in police custody, detention pending trial and the obligation not to leave town, all measures ordered during criminal proceedings. The right provided by Article 504 of the CCP fell within the area of rights guaranteed by Article 5 of the Convention. 31. Furthermore, the court held that according to the available evidence, none of the aforementioned preventive measures which could justify proceedings under Article 504 had been taken against the applicant during the criminal investigation initiated against her. No measures restricting her liberty for the purposes of Articles 136 and 504 of the CCP taken together with Article 5 of the Convention had been taken against her. 32. The only measure that had been taken had been one restricting her freedom of movement, as guaranteed by Article 2 of Protocol No. 4 to the Convention. It had been taken based on Article 14 § 1e of Government Ordinance no. 65/1997 and she had failed to challenge the measure as permitted by Article 15 of the same ordinance. 33. The court noted that the applicant had admitted during the preliminary stages of the criminal investigation that she had replaced the two pages of her passport. After she had been informed of the criminal charges against her and of her right to a legal representative, she had intentionally or very negligently obstructed or had attempted to obstruct the investigation. Consequently, the provisions of Article 504 § 3 of the CCP were applicable in the instant case. However, the provisions of Article 5 of the Convention could not be applied to her case, given that there had been a reasonable suspicion that she had committed an offence. 34. The court lastly held that the applicant’s right to freedom of movement was not absolute. The right could be restricted in certain circumstances provided for by law – those provided for by Government Ordinance no. 65/1997 were proportionate to the aim pursued, necessary, accessible and foreseeable. 35. Consequently, the State’s potential civil liability in tort could not be engaged as the provisions of Article 5 of the Convention and Article 2 of Protocol No. 4 to the Convention had not been breached. 36. The applicant appealed on points of law against the judgment. 37. By a final judgment of 4 November 2009 the High Court of Cassation and Justice (Civil Division) dismissed the applicant’s appeal on points of law. It held that her freedom of movement had not been restricted as a result of the preventive measure taken during the criminal investigation opened against her by the judicial authorities, but as a result of the measure to suspend her right to use her passport. That measure had been ordered by the police because the passport used by her to cross the border had presented elements of forgery. That fact was undisputed. 38. The court also held that the measure taken against the applicant was provided for by law. Furthermore, it had been justified given that the document had presented elements of forgery and she had been responsible for the integrity of the document. In addition, it had been necessary in order to ensure public safety within the meaning of Article 2 § 3 of Protocol No. 4 to the Convention. 39. The court also held that under Article 15 of Government Ordinance no. 65/1997, the applicant could have challenged the measure before the domestic non-judicial authorities and then before the administrative court. She had successfully challenged the measure before the Passport Service and a new passport had been issued for her. 40. The appellate court’s decision had thus been lawful given that the applicant had not proven that the domestic authorities had taken the measure against her unjustly and unlawfully, and it had not been proven that a legal error for the purposes of Article 504 of the CCP had been committed during the criminal investigation. 41. The applicant submitted an article from an unidentified newspaper which had reported on a criminal investigation initiated by the National Anticorruption Prosecutor’s Office against a border guard for allegedly receiving a bribe from the applicant in order to help her with her passport problems. The article referred to a statement by the applicant, in which she claimed that the border guard who had checked her passport had suggested she admit to the unlawful act because the problem was not serious and could be solved. The applicant also claimed that once she had written the confession, the border guard had told her that she should pay some money for the situation to remain uncomplicated. The applicant also stated that even though she and her husband had paid EUR 100, the border guard had been displeased with the amount and had started searching their luggage and unlawfully confiscating champagne, sweets and coffee. She stated that she had realised afterwards that her problems would not be solved and that she had become the subject of a criminal investigation. 42. The article also quoted a local senior police officer who had stated that the applicant’s allegation of bribe taking was being investigated by the relevant authorities and that the investigation into the incident had been referred to the National Anticorruption Prosecutor’s Office. 43. The relevant provisions of Government Ordinance no. 65/1997 on Romanian passports, in force at the material time, read as follows: “Passports ... are issued by the Passport Service of the Romanian Ministry of Internal Affairs or its subordinate local offices and are kept (se păstrează) by their holders.” “(1) A Romanian citizen may be temporarily refused a passport or, if the passport has already been issued, it may be withdrawn or the right to use suspended where: (a) there is a reasonable suspicion that he has committed an offence punishable by more than two years’ imprisonment and that he intends to use the passport to abscond. The measure shall be taken at the request of the police for a maximum period of seven days; (b) is charged with a criminal offence or is indicted during criminal proceedings and the magistrate has ordered that a measure not to leave town or the country is to be taken against him, in order to ensure the proper administration of justice, regardless of the stage of the proceedings; ... (e) has committed acts abroad which could affect national security, the preservation of public order, the protection of another person’s health, morals or fundamental rights and freedoms, which have been established by a court judgment or are the subject of a criminal investigation. The acts committed abroad shall be proven by judicial acts recognised by Romanian law. In such cases, the measure shall be taken by the ... local Records Office for a period between one and five years, to be determined in proportion to the seriousness of the act and its consequences. The same measure may also be taken against a person ... who has been returned on the basis of a readmission agreement between Romania and other States ...; (2) In the circumstances provided for by paragraph 1 (a), (b) ... the measure shall only be taken ... on the basis of a written request by criminal investigation bodies, the courts ...” “(1) ... the decision to suspend the right to use a passport shall be notified in writing to the person concerned within fifteen days of the date the measure was taken, including the reasons for it. (2) ... the person concerned may challenge the measure before the body hierarchically superior to the one that has taken it, within thirty days of the date of notification. (3) The challenge shall be examined within thirty days of the date of registration and, if the person is dissatisfied with the outcome, [he or she] may bring proceedings before the competent administrative court.” “The following acts amount to contraventions of the passport scheme: ... (d) the loss, damage or destruction of a passport or other travel document, owing to the fault of the holder; ... (f) making unlawful changes or additions (adăugări) to a passport or other travel document, if the act has not been committed in conditions that, under the law, amount to an offence.” “The contraventions mentioned in Article 18 ... are punishable by a fine ...” 44. Article 504 of the former Romanian Code of Criminal Procedure, in force at the material time, reads as follows: “(1) Anyone who has been convicted by a final decision is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that the offence did not take place. (2) Anyone against whom a preventive measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for the damage sustained. (3) The person who intentionally or out of serious negligence has obstructed or has attempted to obstruct the investigation during the criminal investigation or trial, does not enjoy a right to compensation for the damage sustained. ...” 45. Article 52 § 3 of the Romanian Constitution provides, inter alia, that the State is liable for damage caused as a result of legal errors. Its liability may also be established in accordance with the law. 46. Articles 18 and 19 of Law no. 554/2004 on administrative litigation provide, inter alia, that when examining applications the administrative courts must also decide any claims for pecuniary and non-pecuniary damage lodged by the applicants. If the person asks for the administrative act to be cancelled without claiming damages at the same time, the statutory limitation period for seeking damages runs from the moment he or she became aware or ought to have become aware of the seriousness of the damage suffered. 47. The relevant provisions of the former Romanian Civil Code concerning civil liability for tort, in particular Articles 998 and 999, are described in the case of Elena Cojocaru v. Romania (no. 74114/12, § 70, 22 March 2016). 48. The Government submitted seventeen final judgments (no. 8540 of 26 November 2004, no. 8851 of 9 December 2004, no. 984 of 17 February 2005, no. 1187 of 24 February 2005, no. 1574 of 10 March 2005, no. 2096 of 30 March 2005, no. 2128 of 31 March 2005, no. 2297 of 6 April 2005, no. 2434 of 12 April 2005, no. 3055 of 16 May 2005, no. 3138 of 18 May 2005, no. 5147 of 25 October 2005, no. 5679 of 25 November 2005, no. 361 of 2 February 2006, no. 734 of 7 March 2006, no. 1783 of 17 May 2006 and no. 3911 of 10 November 2006) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by various applicants against the Passport Service, seeking to have cancelled decisions to suspend or maintain the suspension of their right to use their passports taken on the basis of Article 14 § 1 of Government Ordinance no. 65/1997. Referring to the provisions of the relevant domestic legislation and the particular circumstances of each case, the High Court of Cassation and Justice allowed the applicants’ actions and either cancelled the decisions in full or in part. In its assessment of the applications the court held, inter alia, that the prosecutor’s office could no longer ask for the applicants’ right to be suspended pending the outcome of criminal proceedings once the case files had been referred to the courts. Furthermore, Article 14 § 1e of Government Ordinance no. 65/1997 did not impose a duty on the authorities to take the measure in question, but rather provided them with the option to do so. 49. The Government also submitted two final judgments (no. 4985 of 18 October 2005 and no. 2946 of 19 September 2006) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by two applicants against the Passport Service seeking to have cancelled the suspension of their right to use their passports taken on the basis of Article 14 § 1 of Government Ordinance no. 65/1997 as well as compensation for the and non-pecuniary damage sustained following the decision. In judgment no. 4985 of 18 October 2005, the court allowed the applicant’s action in part, cancelled the suspension and awarded him pecuniary damage. It held, inter alia, that the decision taken against the applicant had been unlawful and had deprived the applicant of his income. However, the applicant had not proven that he had suffered nonpecuniary damage and a simple cancellation of the administrative decision could not lead to the conclusion that he had suffered psychological trauma. In judgment no. 2946 of 19 September 2006, the court dismissed the applicant’s action. It held, inter alia, that as the decision had been taken within the lawful exercise of the domestic authorities’ right of assessment and within the limits of their powers of decision, it could not establish that the applicant’s rights had been violated. As the decisions had been lawful, no link could be established between the allegedly unlawful decision and the damage sustained. 50. The Government also submitted a final judgment (no. 3131 of 20 June 2007) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by an applicant against the Passport Service seeking compensation for pecuniary and nonpecuniary damage sustained following a decision to suspend his right to use his passport which had been previously cancelled by the domestic courts. The applicant relied on Article 19 of Law no. 554/2004 and on Articles 998 and 999 of the Romanian Civil Code. The court dismissed the applicant’s action. It held, inter alia, that there had been no direct link between the damage sustained by the applicant and the measure taken by the domestic authorities as the damage, in particular the loss of income, had arisen following a decision of the foreign authorities to dismiss his application for asylum.