Communicated on 8 February 2016
FOURTH SECTION
Application no. 21525/15
Laurențiu Eugen GANEA
against Romania
lodged on 27 April 2015
STATEMENT OF FACTS
The applicant, Mr Laurențiu Eugen Ganea, is a Romanian national, who was born in 1963 and lives in Bacău.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 August 2014 the applicant became the subject of a criminal investigation on suspicion of having committed economic crimes (organising a criminal group, tax evasion and money laundering).
On 29 August 2014 a judge for rights and liberties of the Bacău County Court (judecătorul de drepturi şi libertăţi) placed the applicant under judicial control, ordering, notably, that he refrain from contacting by any means the other suspects, their families and the witnesses in the case.
The prosecutor discovered that the applicant had repeatedly contacted I.C. even after becoming aware that he had been called as a witness in the case. Therefore, the prosecutor asked the court to change the preventive measure of judicial control to detention pending trial. The applicant opposed this request. Among his arguments he referred to the fact that the court order whereby he had been placed under judicial control had not mentioned the names of the persons whom he was forbidden from contacting.
On 31 October 2014 a judge for rights and liberties of the County Court established that the applicant had indeed made contact with I.C., despite knowing that the latter had been called to testify as a witness in his trial. The court further considered, based on the evidence before it that the criteria for placing the applicant in detention pending trial had been met. The court therefore granted the prosecutor’s request and ordered the applicant’s immediate detention pending trial. He was arrested on the same day.
The applicant lodged an objection (contestaţie) to the court’s decision. The substance of the complaint was that the conditions required by law for changing the preventive measure had not been met and that the court should have examined more carefully the prosecutor’s conduct during the investigation. The objection was dismissed by a final decision of 6 November 2014 of the Bacău Court of Appeal.
His detention pending trial was subsequently extended on two occasions (on 24 November and 27 December 2014) and he was released on 25 January 2015 following the Bacău Court of Appeal’s decision (of 23 January 2015), not to accept the prosecutor’s request for a new extension of the detention order. The applicant was placed under judicial control.
B. Relevant domestic law and practice
The relevant provisions of the Code of Criminal Procedure (“the CCP”) read as follow:
Article 204 - Objections against interlocutory judgments whereby the court decides on preventive measures during a criminal prosecution
“(3) An objection lodged against an interlocutory judgment whereby the court ordered the taking or the extension of a preventive measure or whereby the court noted that a measure ended in accordance with the law does not have suspensory effect.”
Article 215 - The content of judicial control
“(7) If the accused person breaches in bad faith the obligations imposed ... under judicial control, the judge for rights and liberties ... at the prosecutor’s request or of his/her own motion may replace this measure with house arrest or detention pending trial, according to the law.”
Article 242 - Revoking or replacing the preventive measures
“(3) A preventive measure shall be replaced ... with a harsher measure if the conditions provided by law for that measure are met and if after assessment of the concrete circumstances of the case and of the person’s conduct during trial, it is considered that the more severe measure is needed in order to secure the purpose [for which the measures were taken].”
Article 416 - Suspensory effect of the appeal
“An appeal lodged within the time-limit suspends the enforcement of both the criminal and the civil branches [of the decision], unless the law provides otherwise.”
Article 4251 - declaring and ruling on the objection
“(4) When ruling on an objection, the provisions of Article 416 ... shall apply accordingly; ...”
On 27 to 28 November 2014 representatives of the Romanian Superior Council of Magistrates met with the presidents of the criminal law sections of the High Court of Cassation and Justice and of the Courts of Appeal to discuss aspects of the CCP which gave rise to a divergent interpretation by courts. One subject discussed was whether an objection against an interlocutory judgment whereby one preventive measure was replaced by detention pending trial had a suspensory effect. The opinions expressed were that such an interlocutory judgment was not final and thus could not be enforced:
“Concerning the situation when a lighter measure is replaced with detention pending trial, neither the general rule provided in Article 242 § 3 of the CCP, nor the special provisions (Articles 215 § 7, 217 § 9 and 221 § 11 of the CCP), derogate from the provisions of Article 4251 § 4 of the CCP. Consequently, such an interlocutory judgment is not enforceable from its adoption. The justification might be the fact that, unlike in the case when the measure of preventive detention is applied, in the above situation the person is already subject to a preventive measure, albeit less severe, and thus at the authority’s disposal.
Two other practical aspects are of relevance: the order for pre-trial detention [mandatul de arestare preventivă] is issued when the interlocutory judgment becomes final, and the length of pre-trial detention is calculated from the date when the order is enforced.”
COMPLAINT
The applicant complains under Article 5 § 1 of the Convention that he was unlawfully placed in detention pending trial, on the basis of a court decision which was not final and thus should not have been enforced. He points out that, unlike in a case where detention pending trial is applied, extended, confirmed or ends (where the objection does not suspend the enforcement of the court order), the situation in the present case, where one measure is replaced by another, is not expressly regulated and therefore the general rules of procedure should apply.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted the effective remedies at his disposal to complain about the alleged unlawfulness of his arrest on 31 October 2014? In particular, the Government should explain whether the applicant had any means at his disposal to complain against the enforcement of the decision of 31 October 2014.
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 (c) of the Convention during the period between 31 October 2014 and 6 November 2014?
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