Editura Universitara PREVENTIVE ARREST AND ILLEGAL DETENTION. Judgments of the European Court of Human Rights in cases against Romania

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ISBN: 978-606-28-0175-5

DOI: 10.5682/9786062801755

Publisher year: 2015

Edition: I

Pages: 674

Publisher: Universitară

Author: Dragos Calin, Mihaela Vasiescu, Paula-Andrada Cotovanu, Beatrice Ramascanu, Alexandra Lancranjan, Cristina Radu, Florin Mihaita, Anamaria Lucia Zaharia, Lavinia Circiumaru, Ionut Militaru, Victor Horia Dimitrie Constantinescu, Alexandra Gherghesanu, Vasile Bozesan, Iulian Balan, Roxana-Maria Calin, Costel Cristinel Ghigheci

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The right to liberty and security is regulated as a distinct principle in our criminal procedure legislation in art. 9 of the new Code of Criminal Procedure, which provides that "during the criminal proceedings is guaranteed the right of every person to liberty and security." From this formulation it can be concluded that the new Code of Criminal Procedure did not have as source of inspiration art. 23 of the Romanian Constitution, which stipulates that "individual freedom and security of the person are inviolable", but rather Article 5 of the European Convention on Human Rights, which provides in paragraph 1 that "everyone has the right to liberty and security of person". This results, secondly, from the fact that par. (3) - (5) of art. 9 of the Code of Criminal Procedure are fairly accurate reproductions of paragraphs 2, 4 and 5 of art. 5 of the European Convention on Human Rights. This reveals the special importance that the domestic legislator attaches to the European Convention on Human Rights and the jurisprudence of the ECHR, in applying this fundamental principle of the Romanian criminal process, which is also a fundamental human right.

The right to liberty and security has been analyzed by the European Court of Human Rights in cases against Romania, from the perspective of specific issues that have arisen in Romanian judicial practice in this field. Although many of the Court's decisions, adopted in cases against other countries, solve problems similar to those in our country, and may be useful to our judicial practice, the greatest impact on it still has the cases against Romania. For these reasons we consider that the analysis of the jurisprudence of the Court in these cases can be a useful tool for all participants in criminal and civil proceedings, which raises the issue of respect for the right to liberty and security, and can better help distinguish the many nuances highlighted by our judicial practice. , in connection with this so important right.
  • ARESTAREA PREVENTIVA SI DETINEREA NELEGALA. Hotarari ale Curtii Europene a Drepturilor Omului pronuntate in cauzele impotriva Romaniei

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Roxana-Maria Calin
Judge, Bucharest Tribunal, deputy editor-in-chief of the Forum of Judges Magazine, vice-president of the European Association of Magistrates for Human Rights, member of the editorial board of the Jurisclasor ECHR magazine.

Dragos Calin
Judge at the Bucharest Court of Appeal, trainer of the National Institute of Magistracy for continuous professional training European Union law, international judicial cooperation in civil and commercial matters, labor law and social insurance law; associate scientific researcher of the Institute of Legal Research of the Romanian Academy - Center for European Law Studies, director of the Journal of the Judges Forum, member of the scientific college of the journal Jurisclasor ECHR, co-editor of the Journal iaduer.ro - European Legal Affairs, founding member and co-president Romanian Judges Forum Association (2007-present), member of the GEMME Europe Board of Directors (May 2010-present), vice-president of GEMME Europe - European Grouping of Magistrates for Mediation (May 2010-May 2012), founding member of CIMJ International Conference on Mediation for Justice), October 2009, Paris

Mihaela Vasiescu
Judge, Targu Mures Court of Appeal, vice-president, doctor of law, member of the scientific college of the Jurisclasor ECHR magazine.

Paula-Andrada Cotovanu
Judge of the Ploiești Court of Appeal, judicial inspector, Judicial Inspection, member of the editorial board of the ECHR Jurisclasor Magazine, member of the editorial board of the Forum of Judges Magazine.

Beatrice Ramascanu
Judge, Ploiești Court of Appeal, trainer of the National Institute of Magistracy, member of the scientific college of the journal Jurisclasor ECHR, doctor of law.

Alexandra Lancranjan
Prosecutor, National Anticorruption Directorate, trainer of the National Institute of Magistracy.

Cristina Radu
Judge at the Ploiești Court of Appeal, member of the editorial board of the ECHR Jurisclasor Magazine.

Florin Mihaita
Judge, Bucharest 4th District Court, editor-in-chief of Jurisclasor ECHR magazine, member of the editorial board of Forumul Judecatorilor Magazine.

Anamaria Lucia Zaharia
Judge, Bucharest Court of Appeal, trainer of the National Institute of Magistracy for continuous professional training in commercial law, representative of the Romanian Section of GEMME - European Group of Magistrates for Mediation; member of the editorial board of the Forumul Judecatorilor Magazine, member of the editorial board of the Jurisclasor ECHR Magazine.

Lavinia Circiumaru
Judge, Bucharest Tribunal, member of the editorial board of the ECHR Jurisclasor Magazine.

Ionut Militaru
Judge, Bucharest Court of Appeal, editor-in-chief of the Judges Forum Magazine, doctor of law, co-president of the Romanian Judges Forum Association, president of the Association of European Magistrates for Human Rights, editorial director of the ECHR Jurisclasor magazine.

Victor Horia Dimitrie Constantinescu
Judge, Bucharest 6th District Court, member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR magazine.

Alexandra Gherghesanu
Judge, Iasi Court of Appeal, trainer of the National Institute of Magistracy, member of the editorial board of the Forum of Judges Magazine, deputy editor-in-chief of the Jurisclasor ECHR magazine.

Vasile Bozesan
Judge, Teleorman Tribunal, member of the editorial board of Forumul Judecatorilor Magazine, member of the editorial board of Jurisclasor ECHR magazine.

Iulian Balan
Judge, Targu Mures Court of Appeal.

Costel Cristinel Ghigheci
Judge, Braşov Court of Appeal, trainer of the National Institute of Magistracy, doctoral lecturer at the Faculty of Law of the Transilvania University of Braşov. member of the editorial board of the Forumul Judecatorilor Magazine, member of the editorial board of the Jurisclasor ECHR Magazine.

Content

Alphabetical table of contents / 7

Introductory study / 9
Jiga case against Romania / 62
Scundeanu case against Romania / 76
Cause C.B. against Romania / 87
Pantea case against Romania / 95
Damian-Burueana and Damian case against Romania / 110
Case of Emilian-George Igna against Romania / 124
Leontin Pop case against Romania / 129
Begu case against Romania / 134
Calmanovici case against Romania / 160
Rupa case against Romania / 178
Tarau case against Romania / 190
Mihuta case against Romania / 199
Tiron case against Romania / 204
Raducu case against Romania / 209
Tanase case against Romania / 217
Stoican case against Romania / 228
Case of Irinel Popa and others against Romania / 231
Case of Degeru against Romania / 238
Bujac case against Romania / 246
Case of Cioinea against Romania / 252
Hermesiu case against Romania / 257
Iorgoiu case against Romania / 260
Riccardi case against Romania / 272
Case of Creanga v. Romania / 281
Lazar's case against Romania / 310
Case of Radu Pop against Romania / 314
Transylvanian case against Romania / 321
Contoloru case against Romania / 333
Sandru's case against Romania / 341
Anderco case against Romania / 347
Lauruc case against Romania / 355
Hamvas case against Romania / 365
Gonta case against Romania / 369
Konolos case against Romania / 380
Visan case against Romania / 384
Lapusan case against Romania / 387
Leontiuc case against Romania / 391
Simon's case against Romania / 400
Catana case against Romania / 406
Ciobanu case against Romania and Italy / 413
Balteanu case against Romania / 420
Kaya case against Romania / 427
Hussain case against Romania / 430
Thomas' case against Romania / 435
E.M.B. against Romania / 444
Ghiurau case against Romania / 449
Case of Cristian Teodorescu against Romania / 456
Case of Ionut-Laurentiu Tudor against Romania / 463
Al-Agha case against Romania / 472
Case of Stelian Rosca against Romania / 486
Philip's case against Romania / 503
Sissanis case against Romania / 511
Varga case against Romania / 521
Rosengren case against Romania / 528
Galliani case against Romania / 533
Case of Parascineti against Romania / 536
Oprea case against Romania / 541
Petrea's case against Romania / 544
Bucharest case against Romania / 547
Mircea case against Romania / 552
Spinu case against Romania / 556
Temesan case against Romania / 563
Atudora's case against Romania / 567
Nastase case against Romania / 593
Totolici case against Romania / 610
Voicu case against Romania / 620
Birgean case against Romania / 628
Karoly case against Romania / 638
Lazarus case against Romania / 642
Sancraian case against Romania / 656
Case of Valerian Dragomir against Romania / 666

INTRODUCTORY STUDY

Scope of application of the right to liberty and security.

The right to liberty and security is regulated as a distinct principle in our criminal procedure legislation in art. 9 of the new Code of Criminal Procedure, which provides that "during the criminal proceedings is guaranteed the right of every person to liberty and security." From this formulation it can be concluded that the new Code of Criminal Procedure did not have as source of inspiration art. 23 of the Romanian Constitution, which stipulates that "individual freedom and security of the person are inviolable", but rather Article 5 of the European Convention on Human Rights, which provides in paragraph 1 that "everyone has the right to liberty and security of person". This results, secondly, from the fact that par. (3) - (5) of art. 9 of the Code of Criminal Procedure are fairly accurate reproductions of paragraphs 2, 4 and 5 of art. 5 of the European Convention on Human Rights. This reveals the special importance that the domestic legislator attaches to the European Convention on Human Rights and the jurisprudence of the Court, in applying this fundamental principle of the Romanian criminal process, which is also a fundamental human right.

The guarantee of the right to liberty of any person, during the criminal trial, appeared with the promotion of the presumption of innocence, because it was natural for a presumed innocent person, until the final conviction, to be investigated in a state of freedom. However, this right is not an absolute one, in certain situations recognizing the possibility of depriving a person of liberty, even before a final conviction is handed down. Regarding the violation of the presumption of innocence by taking the measure of pre-trial detention, in the case of E.M.B. c. In Romania, the Court specified that there is a fundamental difference between the statement that a person is suspected of committing a crime and the statement that the accused committed that crime, given that no definitive solution has been given yet. In this case, the Court noted that in two judgments, handed down by the Prahova Tribunal and the Brasov Court of Appeal, the presumption of innocence was infringed by the fact that the courts reasoned that the applicant had committed the offenses for which she was being investigated, but as a result of by a subsequent decision, the Brasov Tribunal annulled all the previous decisions, the Court considered that this solution represented a remedy able to remove all the previous deficiencies regarding this aspect. More interesting is the appearance and meaning that has been given to the concept of the right to safety. It has its origins in Anglo-Saxon law, where it was called habeas corpus, which means the guarantee given to each person arrested or detained to be referred without delay to a jury or judge, called to rule either the release of the accused or the maintenance in detention. From Anglo-Saxon law, the concept of the right to security was taken over, at the French Revolution, in the Declaration of the Rights of Man and of the Citizen of 1789, as a fundamental right that represents the guarantee given by the Constitution to citizens and all persons on state territory. repression and, in particular, against any arbitrary measures of the state bodies, having as object their deprivation of liberty by arrest or detention. The French Revolution promoted the ideas of freedom and equality, arguing that, through these principles, the aim was to eliminate the abuses of the previous monarchical regime committed against ordinary citizens. This explains the introduction in the Declaration of human and citizen's rights of a concept that constitutes a guarantee against the abuses committed by the state agents, towards the citizens.


In this way, the right to freedom and security was regulated in most democratic constitutions, being enshrined in this form and in art. 23 of the Romanian Constitution, which stipulates that “individual freedom and security of the person are inviolable”. In our constitutional doctrine it was mentioned, in an opinion1, that the notions of “individual freedom” and “security of the person” do not have the same meaning and do not form a unique legal category, because the first refers to the physical freedom of the person, while the second concerns the totality of the guarantees through which the natural person is protected from any arbitrariness of the public authorities in case of restriction of the physical freedom. In another opinion2, it was shown that, although the "right to safety" does not seem to have a fundamentally different meaning from "individual freedom" (this also implies the safety of the person), it can still evoke a meaning of its own, namely protection against by the arbitrary interferences of the political authorities in the space of individual freedom, immaterialized interferences in the detention or detention of the person.


This second opinion is paIt is closer to the vision of the European Court of Human Rights, which ruled that the expression "freedom and security of the person" should be cited as forming an ensemble, the word "security" being related to the word "freedom". The notion of "safety" has not been given an independent interpretation. Thus, after several clarifications in the jurisprudence, it was concluded that its field of applicability cannot be detached from physical freedom and, consequently, it has nothing to do with the idea of ​​social security, physical security or economic security. The doctrine also raises the question of whether the right to security could not justify an individual action on the part of the person who has suffered damage as a result of the dysfunction of the judiciary, which, for example, has inappropriately released a particularly dangerous person4. It seems quite strange to raise this issue in the context of the analysis of the right to liberty and security, provided by art. 5 of the Convention, taking into account the special care and the restrictive conditions that this text establishes for the deprivation of liberty of persons, as well as the jurisprudence of the European Court of Human Rights in the matter of prolonging the measure of pre-trial detention. However, it also reveals the existence of a reverse of the medal, which obliges the judiciary to analyze the consequences of a decision to release a person arrested for dangerous acts, even if this aspect does not seem to be a concern for the European Court of Justice. Human Rights.


Also in connection with the scope of application of art. 5 of the Convention, the question arose under what conditions the liability of states for violating this article could intervene, when the violation of the right to liberty and security is the result of the action of a private person who did not act as an agent of the state. The doctrine criticized the ECHR decision because of Nielsen, which shows that the right to security implies only protection against the interference of public authorities, the states having no obligation to protect persons under their jurisdiction against private interference, considering that this interpretation would that this be the only provision of the Convention which does not create positive obligations on the part of a State and would be far from the principle of the effective guarantee of the rights of the Convention5. However, the Court has ruled in other cases that there are also positive obligations of the state to protect the freedom of vulnerable persons from third parties, ruling that state authorities are obliged to take, in advance, practical measures for effective protection of vulnerable persons, including by taking concrete measures to prevent a deprivation of liberty of which they were or should have been aware6. Also, the interference with a person's right to liberty is considered to be imputable to the state even if the deprivation of liberty is committed by third parties, but with the active participation of the authorities, without which deprivation would not have been possible7. Compared to these nuances in the jurisprudence of the Court, it could be argued that states are mainly responsible for the violation by their agents of the right to liberty and security and, only in some special cases, for the violation of this right by private persons.

It should also be emphasized here that the notion of freedom, used in Article 5 of the European Convention on Human Rights, is restricted only to the person's freedom of movement. It does not have the extended meaning of the word "freedom" in the expression "fundamental freedoms", which refers to all the rights and freedoms of the person, including freedom of thought, freedom of expression, freedom of religion, etc. From this perspective, since the physical freedom of the person is regulated especially to prevent its violation by state agents, in exercising the powers that allow them to detain or arrest people, it is correct to use the notion of "right to liberty", which would otherwise seem pleonastic . The law later emerged to promote and guarantee the freedoms of the person, which have existed since the beginning of human society. As we have shown above, this regulation of the right to liberty did not initially appear to protect the person from the restrictions on freedom of movement that would come from private individuals, but it aimed to protect the person from the abuses of state agents, who exercised illegally. the attributions of detention and arrest of persons. Therefore, it is the state that must guarantee this "right to freedom" to private individuals.


Another issue related to the scope of application of the right to liberty and security is whether in order to retain its incidence it is necessary for the person to be deprived of liberty or a simple restriction is sufficient.angels of freedom of movement. The Court has often pointed out, including in cases against Romania, that by proclaiming the "right to liberty" art. 5 par. 1 refers to the physical freedom of the person and that it does not aim at the simple restrictions of the freedom of movement, which falls under the incidence of art. 2 of Protocol no. 4. However, in practice it is not always easy to distinguish between the deprivation of liberty of a person and the simple restriction of his freedom of movement, being difficult to establish concretely whether or not a person has been deprived of liberty.

Thus, according to the jurisprudence of the Court in the field of hospitalization of persons with mental disorders, the concept of "deprivation of liberty" has both an objective aspect, namely the detention of a person in a closed space for a significant period of time, and a subjective aspect, which implies that the person in question did not validly consent to his or her hospitalization (Stanev v. Bulgaria). In this sense, in the case of Stelian Ro as v. Romania, the Court recalled that, in order to determine whether a person was deprived of liberty within the meaning of art. 5, its concrete situation and a series of criteria must be taken into account, such as the type, duration, effects and modalities of application of the measure (reference is made to the cases of Guzzardi v. Italy and Mogos v. Romania). The Court also points out that, without a doubt, the reality behind the appearances and the vocabulary used must be taken into account (reference is made to Van Droogenbroeck v. Belgium).

Also, in cases where the persons brought with a warrant of summons invoked their unlawful deprivation of liberty, the Court had to consider whether the actual manner in which such a measure was taken and enforced constituted a deprivation of liberty or a restriction of freedom of movement.

Thus, in the case of Valerian Dragomir v. Romania, the Government submitted that, between 8 February at 9.20 pm and 9 February 2011 at 10.55 am, the applicant had been made available to investigators on the basis of a warrant them. According to the constant jurisprudence of the Court, coercion is a crucial element in its analysis, in order to establish whether or not a person was deprived of liberty within the meaning of art. 5 par. 1 of the Convention (reference is made to the cases of Foka v. Turkey and M.A. v. Cyprus). However, the applicant did not voluntarily go to the DNA headquarters. The Court further stated that the applicant had been permanently guarded by police officers and that at no time during the journey from his home to Bucharest had the applicant been allowed to leave voluntarily. He was also guarded by police officers while waiting at the DNA headquarters. Therefore, the Court considered that the applicant had been under the control of the authorities throughout the period and concluded that he had been deprived of his liberty within the meaning of Art. 5 par. 1 of the Convention. In the case of Rupa v. Romania, it was held that, at the material time, art. 183 and art. 184 of the old C.pr.pen. they did not allow the authorities in charge of execution

an arrest warrant, neither to detain a person nor to prevent him from moving freely, much less to enter his home, in the absence of a search warrant. Consequently, the detention of the applicant on 11 March 1998, in the absence of an arrest warrant and after the police had entered his apartment, as well as the hours spent by the police in front of the applicant's building took place in violation of legal provisions, within the meaning of art. 5 par. 1. It should be noted, however, that in this case it was important for the Court to find a violation of the Convention and that in the warrant of pre-trial detention issued a few hours later, the authorities mentioned only the offenses of which the applicant was accused and the fact that the sentence the law was longer than two years, summarizing to state that the plaintiff presented a danger to public order if he had been released, without arguing this statement, according to the requirements of art. 146 and art. 148 from the old C.pr.pen ..

Also, in the case of Ghiurǎu v. Romania, the Court expressed doubt that it was necessary to deprive the applicant of his liberty in order to be accompanied for a distance of 200 km by 10 police officers in order to be heard in a criminal investigation, which it ended with his failure to sue on the grounds that his guilt could not be proven. In this case, it was also concluded that art. 5 par. 1 of the Convention. It should be noted that this jurisprudence of the Court, in cases against Romania, is likely to raise several questions related to its vision on how to regulate the procedure of bringing mandated persons who do not appear at the summons of legal bodies. If it is considered that in these cases it is speaking of a deprivation of liberty, it means that always the persons brought with a warrant should be presented before a judge, as provided by art. 5 par. 3 of the Convention? In this case, too, the right of the person deprived of liberty to file an appeal before a court should be provided, as required by art. 5 par. 4 of the Convention? What happens if the person is brought with a warrant before the criminal investigation bodies? Should the warrant be issued only by a judge? We consider that such an interpretation would be excessive and that it does not result from all the jurisprudence of the Court in this matter. It is true that, at first sight, the conclusions reached by the Court in the aforementioned cases would lead to the idea that in the case of issuing a warrant, all the guarantees from art. 5 par. 2-4 of Connentie. It should not be forgotten, however, that the analysis of the violation or non-violation of the rights guaranteed by the Convention is made by the Court, in each case, depending on all the circumstances of the case, and in the above cases the solution was not determined by the plaintiffs. brought by the prosecutor. Relevant for the support of this point of view is the solution adopted by the Court in the case Lolova-Karadzhova v. Bulgaria, where it was ruled that the deprivation of liberty of a person, for a period of 29 hours, in order to execute an arrest warrant, does not require the existence of a right to lodge an appeal with a court, given the short period of deprivation of liberty. In this case, the violation of art. 5 par. 1 of the Convention, but this was justified by the fact that the distance between the applicant's home and the city where the hearing took place, of 160 km, did not justify the duration of the deprivation of liberty.

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