003-3856254-4434027

issued by the Registrar of the Court ECHR 074 (2012) 23.02.2012 Insufficient legal basis for depriving a police officer of his liberty in connection with an investigation into corruption In today's Grand Chamber judgment in the case of Creang v. Romania (application no. 29226/03), which is final,1 the European Court of Human Rights held, unanimously, that there had been: a violation of Article 5 � 1 of the European Convention on Human Rights on account of Mr Creang's deprivation of liberty on 16 July 2003, at least from 12 noon to 10 p.m., and his placement in pre-trial detention on 25 July 2003; no violation of Article 5 � 1 on account of Mr Creang's deprivation of liberty from 10 p.m. on 16 July 2003 to 10 p.m. on 18 July 2003. The case concerned a police officer's deprivation of liberty in connection with a largescale criminal investigation aimed at dismantling a petroleum-trafficking network. Principal facts The applicant, Sorin Creang, is a Romanian national who was born in 1956 and lives in Bucharest (Romania). He was a police officer and in 1995 became an officer in the criminal investigation department of the Bucharest police. On 16 July 2003 he was informed by his superior that he was required to go to the headquarters of the National Anti-Corruption Prosecution Service ("the NAP") for questioning. Mr Creang and 25 of his colleagues were questioned by a military prosecutor about thefts of petroleum from pipelines on the outskirts of Bucharest. According to the applicant, he was told at around midnight that a warrant had been issued for his temporary pre-trial detention for a period of three days, from 16 to 18 July 2003. According to the Government, at about 12 noon on 16 July 2003 the prosecutor informed the police officers that a criminal investigation had been opened in respect of ten of them, including Mr Creang, who then waited voluntarily in the NAP premises to have his legal situation clarified. At 10 p.m. the prosecutor charged Mr Creang with accepting bribes, aiding and abetting aggravated theft and criminal conspiracy, and placed him in temporary pre-trial detention. During the night, he was transferred to Rahova Prison with 13 of his co-accused. In an interlocutory judgment of 18 July 2003 the Military Court of Appeal granted a request by the prosecution service to extend the pre-trial detention of the applicant and the other co-accused by 27 days, finding that there was evidence in the case file to suggest that they had committed the offences with which they had been charged, and that their pre-trial detention was necessary on public-order grounds. It took into account the risk that they might influence witnesses, their attempts to evade criminal proceedings and the execution of the sentence, the complexity of the case, the large number of accused and the difficulty in obtaining evidence. 1 Grand Chamber judgments are final (Article 44 of the Convention). All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution On 21 July 2003 the Supreme Court of Justice upheld an appeal by the applicant and his co-accused and ordered their release. In a final judgment of 25 July 2003 the Supreme Court of Justice upheld an application by the Procurator General of Romania to have the judgment of 21 July 2003 quashed and, on the merits, dismissed the applicant's appeal. It held that the pre-trial detention of the accused was justified since there was sufficient evidence in the file to suggest that each of them could have committed the offences with which they had been charged. On 25 July 2003 Mr Creang was placed in pre-trial detention. By an interlocutory judgment of 29 June 2004 the territorial military court ordered his release, at the same time prohibiting him from leaving the country. In a judgment of 22 July 2010 Mr Creang was sentenced to three years' imprisonment, suspended, for taking bribes and harbouring a criminal. Complaints, procedure and composition of the Court Relying on Article 5 � 1 (right to liberty and security), Mr Creang submitted that his detention on 16 July 2003 and his placement in pre-trial detention on 25 July 2003 had been unlawful. The application was lodged with the European Court of Human Rights on 4 September 2003. In a Chamber judgment of 15 June 2010 the Court held unanimously that there had been a violation of Article 5 � 1 on account of Mr Creang's deprivation of liberty from 10 a.m. to 10 p.m. on 16 July 2003 and his placement in detention on 25 July 2003 following the application by the Procurator General to have the Supreme Court's judgment quashed. It also held that there had been no violation of Article 5 � 1 of the Convention as regards Mr Creang's detention from 16 to 18 July 2003. On 3 September 2010 the Government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention (referral to the Grand Chamber). On 22 November 2010 the panel of the Grand Chamber accepted the request. Judgment was given by the Grand Chamber of 17 judges, composed as follows: Nicolas Bratza (United Kingdom), President, Jean-Paul Costa (France), Fran�oise Tulkens (Belgium), Nina Vaji (Croatia), Dean Spielmann (Luxembourg), Lech Garlicki (Poland), Peer Lorenzen (Denmark), Alvina Gyulumyan (Armenia), Egbert Myjer (Netherlands), Mark Villiger (Liechtenstein), Isabelle Berro-Lef�vre (Monaco), P�ivi Hirvel� (Finland), Giorgio Malinverni (Switzerland), Mirjana Lazarova Trajkovska (the Former Yugoslav Republic of Macedonia), Nebojsa Vucini (Montenegro), Guido Raimondi (Italy), Ganna Yudkivska (Ukraine), Judges, and also Vincent Berger, Jurisconsult. Decision of the Court Article 5 � 1 Deprivation of liberty from 9 a.m. to 10 p.m. on 16 July 2003 In its Chamber judgment of 15 June 2010 the Court had concluded that Mr Creang had been deprived of his liberty without any legal basis from 10 a.m. on 16 July 2003, when he had been questioned by the prosecutor. The parties did not dispute that Mr Creang had been summoned to appear before the NAP on 16 July 2003 and that he had entered the NAP headquarters at 9 a.m. to make a statement for the purpose of a criminal investigation. Although he had not been brought there under duress, Mr Creang had been under the control of the authorities from that moment. The large-scale criminal investigation which clearly formed the background to the events of 16 July 2003 had been aimed at dismantling a vast petroleum-trafficking network involving police officers and gendarmes. The opening of proceedings against Mr Creang and his colleagues was therefore to be seen in this context, and the need to carry out a series of criminal investigation procedures on the same day tended to indicate that Mr Creang had been obliged to comply. Seeing that the Government had been unable to show that the applicant had left the NAP headquarters or that he had been free to leave the premises after his initial statement, and having regard to the coherent nature of his account, the Court considered that he had indeed remained in the prosecution service premises and had been deprived of his liberty, at least from 12 noon to 10 p.m. The Court had to determine whether Mr Creang had been deprived of his liberty "in accordance with a procedure prescribed by law" within the meaning of Article 5 � 1. Mr Creang had been summoned to appear before the NAP to make a statement in the context of a criminal investigation, without having been given any further information. At 12 noon the prosecutor had informed him that criminal proceedings had been opened against him. The Court considered that, from that moment, the prosecutor had had sufficiently strong suspicions to justify depriving the applicant of his liberty for the purpose of the investigation and that Romanian law provided for the measures to be taken in that regard. However, the prosecutor had decided only at a very late stage, towards 10 p.m., to place him in pre-trial detention. Accordingly, Mr Creang's deprivation of liberty on 16 July 2003, at least from 12 noon to 10 p.m., had had no basis in domestic law and had breached Article 5 � 1. Pre-trial detention from 10 p.m. on 16 July 2003 to 10 p.m. on 18 July 2003 The Court observed that the suspicions against the applicant had been based on facts and evidence in the case file suggesting that he could have committed the offences in question. The risk that Mr Creang, as a police officer, might exert an influence on individuals who were due to be questioned had been a relevant and sufficient reason to justify his pre-trial detention. Reiterating the reasons set out in the Chamber judgment, the Court considered that the deprivation of liberty had been justified and that there had therefore been no violation of Article 5 � 1. Placement in pre-trial detention from 25 July 2003 In its Chamber judgment the Court had found that an application to have a decision quashed had been neither accessible nor foreseeable for the applicant. The remedy in question could be used only by the Procurator General, who was the hierarchical superior of the prosecutor who had ordered the applicant's detention and requested its extension. The Court had also noted that the provision of the Code of Criminal Procedure by which an application to have a final decision quashed could be lodged where the decision was "contrary to the law" was too vague to be foreseeable. It had held that Mr Creang's deprivation of liberty from 25 July 2003 had not had a sufficient basis in domestic law. Reiterating that it was essential for the conditions for deprivation of liberty under domestic law to meet the standard of "lawfulness" set by the Convention, the Court agreed entirely with the conclusions of the Chamber judgment of 15 June 2010 and held that there had been a violation of Article 5 � 1. Article 41 By way of just satisfaction, the Court held that Romania was to pay the applicant 8,000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of costs and expenses. Separate opinions Judges Bratza, Costa, Garlicki, Gyulumyan, Myjer, Hirvel�, Malinverni, Vucini and Raimondi expressed concurring opinions, which are annexed to the judgment. The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Court's press releases, please subscribe to the Court's RSS feeds. Press contacts [email protected] | tel: +33 3 90 21 42 08 Denis Lambert (tel: + 33 3 90 21 41 09) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70) C�line Menu-Lange (tel: + 33 90 21 58 77) Nina Salomon (tel: + 33 3 90 21 49 79) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. 4