ITEMID: 001-109226
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF CREANGĂ v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen
TEXT: 11. The applicant was born in 1956 and lives in Bucharest.
12. In 1985 the applicant joined the Bucharest police force. In 1995 he became an officer in the criminal investigation department of Bucharest police section no. 5.
13. On his application form, the applicant stated that on 16 July 2003 he was informed by his hierarchical superior that he was required to go to the National Anti-Corruption Prosecution Service headquarters (“the NAP”) for questioning.
In his written observations to the Grand Chamber of 10 February 2011 the applicant stated that at about 5 p.m. on 15 July 2003, while he was on leave, a colleague from Bucharest police section no. 5 informed him by telephone that he was required to attend the NAP on the following day; he was not given any additional information.
14. At about 8.45 a.m. on 16 July 2003 the applicant met twenty-five colleagues in the courtyard of the NAP headquarters. They were then asked to enter the building at about 9 a.m. At the entrance, a police officer entered the particulars of the applicant and his colleagues in a logbook.
15. The applicant and his colleagues were taken to a meeting room on the ground floor of the building. Shortly afterwards V.D., a military prosecutor, entered and asked them to make written statements on the circumstances in which they had met three individuals: I.D., S.B. and M.I. The prosecutor then left the room and returned at approximately 9.30 to 9.40 a.m. to collect the statements. After reading them, the prosecutor allegedly began to threaten the applicant and his colleagues with pre-trial detention. The prosecutor left the room again. Four or five masked and armed gendarmes burst in. One of the gendarmes asked the applicant and his colleagues to take out their mobile phones and to put them on a table next to another gendarme. They were also informed that they were allowed to leave the room to go to the toilet or smoke a cigarette only individually and if accompanied by an armed gendarme.
16. At about 3 p.m. the applicant and his colleagues asked for permission to leave the room to purchase water and food. After obtaining the prosecutor’s permission, a gendarme collected money from the police officers and went to buy the requested groceries.
17. Throughout this time, the applicant was not assisted by either a lawyer of his own choosing or an officially appointed lawyer. He was unable to contact anyone outside the building.
18. On the application form, the applicant stated that he had managed to contact a lawyer at around 8 p.m.
In his written observations to the Grand Chamber, the applicant alleged that towards 11 p.m., he and one of his colleagues had been taken to the prosecutor’s office on the first floor. The prosecutor, another man and two women were present in the office. The prosecutor allegedly suggested to the applicant that he state that the commanding officers at Bucharest police section no. 5 were guilty of corruption. He added that in exchange, the applicant would not be placed in pre-trial detention and would be able to see his family again soon. The applicant asked for assistance from a lawyer of his choosing. The prosecutor replied that the two women present were officially appointed lawyers and asked him to select one of them to assist him. The applicant refused. He claimed that the prosecutor began to “insult him” and to threaten that if he did not cooperate, he would be placed in detention and would be forbidden family visits. He was taken out of the office by a gendarme, who was instructed to prevent him from speaking to anyone and from going to the toilet without the prosecutor’s permission.
At the public hearing on 30 March 2011 the applicant stated that at an unspecified time his family, who knew that he was to go that day to the NAP and who had not seen him come home, had contacted the lawyer C.N., who asked his colleague, Mr Cus, to assist the applicant at the prosecution service premises. Mr Cus arrived at 10 p.m. and was allowed to meet with the applicant.
19. At about 1.15 to 1.30 a.m. on 17 July 2003 the applicant was again taken into the prosecutor’s office. The prosecutor filled in a pre-printed form setting out the charges against the applicant and read it to him. In response, the applicant stated that he did not acknowledge the acts of which he was accused and that he stood by his initial statement. The applicant signed the form in the presence of an officially appointed lawyer, Ms M.S. The prosecutor also served on him a warrant for his pre-trial detention, issued on 16 July 2003, which mentioned that his detention had been ordered for three days, namely from 16 to 18 July 2003.
20. At about 1.40 a.m., in the presence of Mr Cus, the lawyer chosen by the applicant, the prosecutor informed him of the order for his pre-trial detention. He also outlined to the applicant the evidence against him in support of his detention, namely statements by his colleagues. The order was based on Article 148 § 1 (h) of the Code of Criminal Procedure (“the CCP”). Referring to the relevant legal texts, the prosecutor indicated that the acts of which the applicant was accused amounted to the offences of criminal conspiracy, accepting bribes and aiding and abetting aggravated theft. The relevant part of the order was worded as follows:
“On an unspecified date in 1999 or 2000, a date that will be determined precisely [at a later stage], [the applicant], along with several colleagues from police section no. 5, caught several persons in the Bucureştii Noi district in the act of transporting in a Dacia van more than two tons of petrol that had been siphoned from pipelines. They then asked for and received the sum of 20,000,000 lei from S.B. and M.I. in exchange for not opening a criminal investigation against them and allowing them to continue their unlawful activity.
The fact that the suspect/accused committed these criminal acts is proved by the following evidence:
- witness statements;
- records of confrontations;
- statements by the accused persons;
- audio recordings;
- photographs;
- records of photo-based identification procedures.
Given that the conditions laid down in Article 148 § 1 (h) CCP have been met, namely that the offence committed is punishable by between four and eighteen years’ imprisonment and that the accused’s release would pose a threat to public order and to the conduct of the investigation in this case, since the accused is a police officer and could use this fact to influence the persons who are to be questioned;
On the basis of Article 136 § 5, Article 146 § 1, Article 148 § 1 (h), Article 1491 and Article 151 CCP [the prosecutor] decides that:
The suspect/accused is to be held in temporary pre-trial detention ... for a period of three days;
Pursuant to Article 146 § 3 and Article 1491 § 3 CCP, the detention referred to above shall commence at 10 p.m. on 16 July 2003 and end at 10 p.m. on 18 July 2003.
A warrant for temporary pre-trial detention will be issued ... from 16 July 2003 ...”
21. At about 2.30 a.m. the applicant was taken to a room in the basement of the building where thirteen other colleagues were present. Shortly afterwards he was transferred to Rahova Prison.
22. During the autumn of 2002 the NAP was informed of thefts of petroleum products from Petrotrans S.A. pipelines on the outskirts of Bucharest, committed in close collaboration with gendarmes and police officers. The questioning of several individuals on 9 and 11 July 2003 and photographic identification revealed the applicant’s involvement in the operation. The prosecutor responsible for the case, V.D., decided to summon around fifty people to give evidence on 16 July 2003.
23. On 15 July 2003 the applicant and sixteen police colleagues were summoned at their workplace (Bucharest police section no. 5) to appear before the NAP in order to make statements for the purpose of a criminal investigation. The head of police of the 1st District of Bucharest was also informed so that he would be aware of the police officers’ absence from work on the following day and in order to ensure their presence at the NAP.
24. At 9 o’clock the following morning the applicant and his colleagues went to the NAP premises. The military prosecutor V.D. greeted them in a room on the ground floor of the building and informed them that they were to be questioned in the context of a preliminary investigation (acte premergătoare) into their suspected involvement in the fraudulent removal of petroleum products from oil pipelines. All of the police officers verbally denied any involvement in such activity, but agreed to make a written statement on the subject. As a result, they received a ten-point questionnaire which they answered on a plain sheet of paper. During this period the prosecutor left the room and went to his office, on the first floor of the building, to continue procedural formalities with regard to other individuals involved in the case.
25. Towards 12 noon, when all of the officers had finished writing their statements, the prosecutor returned to the room and informed them that, by a decision of the same day, a criminal investigation had been opened in the case against ten of the police officers, including the applicant, for accepting bribes, aiding and abetting aggravated theft and criminal conspiracy. The other seven police officers were free to leave the NAP premises.
26. The prosecutor asked the ten police officers concerned to make new statements and to take part in confrontations with other persons. He also informed them that they were entitled to be assisted by counsel of their own choosing. Some of the police officers contacted lawyers, while the prosecution service asked the Bucharest Bar to ensure that lawyers could be officially appointed for the others, including the applicant.
27. The applicant waited voluntarily in the NAP premises in order to have his legal situation clarified. He was not obliged to stay there, and was free to leave the premises at any point in order, for example, to purchase water or cigarettes; indeed, two police officers, A.A. and G.C., left that day and did not return.
28. The applicant was at no time supervised or guarded. Gendarmes were present in the NAP premises on that day purely for the purpose of maintaining order. Furthermore, there was no separate entrance or special room for persons placed in police custody or in pre-trial detention.
29. At about 1 or 2 p.m., after their chosen lawyers (for five of the police officers) or officially appointed lawyers had arrived at the NAP headquarters, the prosecutor began questioning each of the officers in turn. This process lasted three to four hours.
30. At an unspecified time while being questioned, the applicant, assisted by M.S., an officially appointed lawyer, added to his initial statement made on a plain sheet of paper, confirming that he was a colleague of officers C.D. and M.G.M. and that he had a normal relationship with them. On that occasion, the prosecutor noted on the sheet that the initial statement had been made at 10 a.m.
31. At an unspecified time the applicant made a new statement in the presence of the same officially appointed lawyer, this time on a pre-printed form bearing the words “suspect/accused”. The form indicated that the applicant had been informed of the acts of which he was accused and their legal classification, and of his procedural rights. A record was accordingly drawn up and signed by the prosecutor, the applicant and the officially appointed lawyer.
32. The prosecutor subsequently carried out several confrontations between suspects, accused persons and witnesses.
33. At 10 p.m., by an order, the prosecutor decided to charge several police officers, including the applicant, with accepting bribes, aiding and abetting aggravated theft and criminal conspiracy.
34. At the same time, the prosecutor decided, by an order, to place the applicant in temporary pre-trial detention. A warrant for pre-trial detention was issued and served on him at an unspecified time. During the night of 16 to 17 July 2003 the applicant was transferred to Rahova Prison.
35. The Government observed that the logbooks recording persons entering and leaving the NAP premises in 2003 had been destroyed well before the present case had been communicated on 19 February 2009, the retention period being three to five years, in accordance with the legal provisions in force.
36. On 17 July 2003, on the basis of Article 148 § 1 (c), (d) and (h) CCP, the NAP asked the Bucharest Military Court to extend by twentyseven days the pre-trial detention of the applicant and his thirteen co-accused, starting on 19 July 2003.
37. At 10 a.m. on 18 July 2003 the applicant was taken to court. He alleged that his lawyer was given access to the case file only while the prosecution was presenting its request for an extension of the pre-trial detention. The Military Court ordered that the case be referred to the Military Court of Appeal, which, in view of the military rank of one of the co-accused, had jurisdiction.
38. By a judgment delivered in private on the same date, the Military Court of Appeal, sitting as a single judge, granted the prosecution’s request and extended the pre-trial detention of the applicant and the other co-accused by twenty-seven days.
39. The Military Court of Appeal held, having regard to the case file, that there was evidence that the accused had committed the offences of criminal conspiracy, taking bribes, aiding and abetting aggravated theft and inciting others to give false evidence. It held that it was necessary to place the accused in pre-trial detention on grounds of public order, noting that they could influence witnesses and that they had taken steps to evade criminal proceedings and execution of the sentence. Lastly, it noted that the complexity of the case, the large number of accused and the difficulty in obtaining evidence were also to be taken into account.
40. On the same day, a warrant for pre-trial detention identical to that of 16 July 2003 was issued in respect of the applicant.
41. The applicant and his co-accused lodged an appeal against the judgment, arguing that the court which had delivered it had not been legally constituted. The prosecution likewise submitted that the court had been incorrectly constituted.
42. By a final judgment of 21 July 2003 the Supreme Court of Justice upheld the appeal, set aside the judgment and ordered the release of the applicant and his co-accused. It held that, in order to ensure greater transparency in the fight against corruption, Law no. 161 of 21 April 2003 had amended, with immediate effect, the procedural provisions set out in Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption (“Law no. 78/2000”). Thus, Article 29 §§ 1 and 2 of Law no. 78/2000 provided that a court ruling at first instance on the offences set out in that Law had to be composed of two judges.
43. The applicant was not informed of the reasoning of that judgment.
44. The applicant was released on the same day.
45. On an unspecified date, the Procurator General of Romania lodged an application with the Supreme Court of Justice to have the final judgment of 21 July 2003 quashed. He submitted that the Supreme Court had committed serious errors of law in its interpretation of the domestic legislation, resulting in an unsatisfactory solution to the matter.
46. The applicant stated that he had learned only on 24 July 2003, through the media, of the existence of the application to have the judgment quashed, and of the fact that the hearing had been scheduled for 25 July 2003.
47. At 9.30 a.m. on 25 July 2003 the applicant attended the hearing, accompanied by two lawyers who requested that the case be adjourned on the ground that neither the reasoning of the judgment of 21 July 2003 nor the application to have that judgment quashed had been communicated to the applicant. The Supreme Court of Justice granted this request and, referring to the urgent nature of the case, adjourned the hearing until 12.30 p.m.
48. When the proceedings resumed the applicant submitted that the final judgment of 21 July 2003 could only be challenged by means of an appeal in the interests of the law and not by an application to have it quashed, and that there were no plausible reasons to justify his pre-trial detention.
49. By a final judgment of 25 July 2003 the Supreme Court of Justice, sitting as a bench of nine judges, upheld the application, quashed the judgment of 21 July 2003 and, on the merits, dismissed the applicant’s appeal on the ground that the aforementioned judgment had incorrectly interpreted Article 29 §§ 1 and 2 of Law no. 78/2000. It considered that the application of the amendments to Law no. 78/2000 and to the CCP led to the conclusion that the legislature’s intention had been to ensure a single set of rules concerning pre-trial detention, namely that it was to be ordered by a single-judge bench sitting in private, whatever the nature of the offence.
50. Having regard to the case file, which contained sufficient information to suggest that each of the persons under criminal investigation could have committed the offences with which they had been charged, the Supreme Court of Justice also held that their pre-trial detention was justified.
51. On 25 July 2003 the applicant was placed in pre-trial detention.
52. By an interlocutory judgment of 29 June 2004, upheld on 2 July 2004 by the Military Court of Appeal, the territorial Military Court ordered that the applicant be released and replaced his pre-trial detention by an order prohibiting him from leaving the country.
53. By a judgment of 22 July 2010 the Bucharest Court of Appeal sentenced the applicant to three years’ imprisonment, suspended, for taking bribes (Article 254 § 2 of the Criminal Code taken together with Article 7 of Law no. 78/2000) and harbouring a criminal (Article 264 of the Criminal Code). By the same judgment, M.T. and G.S., whose statements had been produced by the applicant, were sentenced to two years’ and five years’ imprisonment respectively for taking bribes and criminal conspiracy, and taking bribes and harbouring a criminal.
54. At the request of the Court, on 8 March 2011 the applicant produced the statements of two of his police colleagues, M.T. and G.S., who had also been present in the NAP premises on 16 July 2003. Their statements had been taken by the applicant’s lawyer on 3 March 2011.
55. M.T.’s statement read as follows:
“At around 9.30 p.m. on 15 July 2003 the duty officer of police section no. 5 informed me by telephone that I was to attend the NAP at 9 a.m. on 16 July 2003, but I was given no additional information. At 8.45 a.m. on 16 July 2003, outside the NAP premises, I met several colleagues including Sorin Creangă. Shortly afterwards, we were invited to enter the building. At the entrance, a gendarme asked us for our identity documents so as to note down our particulars in the logbook. I was taken with my colleagues to a room on the ground floor of the building. Shortly afterwards, a person entered the room and introduced himself as V.D., the military prosecutor. He gave us sheets of paper and pens and asked us to state whether and in what circumstances we had met three people: I.D., S.B. and M.I. He left the room, leaving us alone.
After approximately forty minutes, V.D., the prosecutor, came back into the room and gathered up the statements. [After having read the statements] and noted that some [of us] had responded negatively, he became angry and very tense and threatened to place us in detention with our colleagues who had already been arrested. He then left the room. Four or five armed gendarmes (masked and armed with machine guns and wearing bulletproof vests) burst into the room. One of the gendarmes, who had the rank of officer, asked us to get out our mobile phones and place them on a table next to another gendarme; we were also told that we were authorised to leave the room only if accompanied by a gendarme. That situation lasted until 5 p.m., when we asked for permission to leave the room to purchase food and water. We were asked to collect the money so that a gendarme could go and buy the groceries we had requested.
We were forbidden from contacting our families or anyone on the outside. Until 10 p.m. we were authorised to leave the room to use the toilet only individually and accompanied by an armed gendarme. We were not assisted by lawyers of our own choosing or officially appointed lawyers. At about 10.30 p.m. to 11 p.m., a gendarme took me with Sorin Creangă to an office on the first floor. Present in the office were the prosecutor V.D., the person who had taken us to the NAP premises, another man and two women. The prosecutor suggested to me and to Sorin Creangă that we state that the officers in charge of police section no. 5 were guilty of corruption and were accepting bribes from thieves ... and assured us that if we were to make such a statement no action would be taken against us. Otherwise, we would be arrested. That being so, my colleague Sorin Creangă asked to be assisted by a lawyer of his choosing. The prosecutor replied that the two women present, who were officially appointed lawyers, would assist them. Sorin Creangă refused their assistance and said that he would not make a statement. The prosecutor started to insult him, calling him a peasant, and told him that he would be arrested even if he didn’t make a statement and that he would never see his family again if he didn’t cooperate. Sorin Creangă was then taken from the office.
Approximately forty minutes later, when I was taken to a room in the basement of the building, I saw Sorin Creangă in the corridor, near the door of the prosecutor’s office, being guarded by an armed gendarme. At around 2.30 a.m. on 17 July 2003 Sorin Creangă was taken to the basement room. Shortly afterwards, we got into a windowless vehicle and were taken to Rahova Prison in Bucharest, escorted by gendarmes.
I would point out that I was not allowed any contact with my family and was not allowed to be assisted by a lawyer of my choosing.”
56. In his statement, S.G. confirmed the truth of M.T.’s statement and described the course of events after 16 July 2003.
57. At the request of the Court, on 7 March 2011 the Government produced the statement of the prosecutor V.D., responsible for the proceedings brought against the applicant. Dated 17 January 2011, the relevant parts read as follows:
“After having consulted ‘the records’ of the file on the criminal investigation, I wish to clarify the following:
- The following ‘făptuitori’ [‘alleged perpetrators’ or ‘suspects’, at a stage prior to the opening of proceedings against them], officers of police section no. 5, were summoned on the aforementioned date [16 July 2003] by a written request sent to the head of police of the 1st District of Bucharest: G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A., M.G., S.T., C.B., N.T., C.S., G.R., L.C. and G.D.
- The aforementioned persons were informed that they were to be questioned as ‘făptuitori’ (in the context of the preliminary investigation) in connection with their involvement in the fraudulent extraction of petroleum products from oil pipelines. From the outset, all the police officers summoned verbally denied any involvement in this activity but agreed to make a statement in that regard. Consequently, they were given a ten-point questionnaire to which they responded in writing.
After having obtained their agreement and in the interests of the efficiency of the investigation, I decided that the statements would be made simultaneously in the NAP meeting room because it would have taken several hours to question them individually. I left the room while the statements were being drawn up because, as I was the only prosecutor working on the case, I had other investigative formalities to complete in my office.
- At around 12 noon, when all the officers had finished writing their statements, I re-entered the room and informed them that a criminal investigation had been opened in the case against G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A. and M.G. I asked those persons to make new statements and to take part in confrontations. I explained to them that they were entitled to be assisted by lawyers of their own choosing and that, for those who did not have lawyers, officially appointed lawyers would be requested from the Bucharest Bar.
Accordingly, the persons wishing to be assisted by a lawyer of their own choosing were permitted to contact their lawyers, and officially appointed lawyers were requested from the Bucharest Bar for the others. The first lawyers arrived at the prosecution headquarters one hour after having been contacted and they were allowed to meet with their clients in the corridors of the building before the hearings and confrontations.
The police officers in respect of whom no criminal investigation had been opened were free to leave the NAP and return to their place of work.
In addition to the above-mentioned ‘făptuitori’, police officers D.M., C.M.E., I.E. and D.C.B were summoned to appear as ‘făptuitori’ at the prosecutor’s office on the same day. The same procedure was followed in respect of those police officers, since they were also the subject of a criminal investigation.
- Before the lawyers for the fourteen police officers under investigation arrived (that is, before 1 p.m.), I completed other investigative formalities in my office such as questioning, re-examination or confrontation, in respect of other persons, for example M.I., S.B., D.C., G.M.M. and G.A., some of whom were already in pre-trial detention.
- A series of witnesses, including M.P., M.B. and D.A.I., were summoned on the same day in the same case.
- At around 1 or 2 p.m. I started questioning the fourteen police officers, as suspects, in the presence of their lawyers. Each suspect made two separate statements (one written on a plain sheet of paper and another on the form designed for suspects), signed by their lawyers.
I recall that none of the fourteen suspects admitted any involvement in the criminal activities at issue, even though their involvement had been established on the basis of evidence gathered earlier.
The fourteen suspects were questioned for at least three to four hours.
- Because several confrontations were needed, the fourteen suspects, assisted by lawyers of their choosing or officially appointed lawyers, participated voluntarily in at least twenty confrontations, during which they were presented with extracts of transcripts of their telephone conversations which had been intercepted and recorded.
The confrontations went on for several hours, until 10 p.m., when a prosecution was brought against the fourteen suspects and an order for their detention was made.
Note: The special nature of the criminal investigation in this case required that repeated questioning and confrontations be carried out on the day in question, that being the only way in which the truth could be established.
Another reason for carrying out all those measures on the same day was the need to ensure the confidentiality of the results of the investigation, given that there was already sound evidence that the suspects and the accused were transmitting information about the investigation with a view to concealing the truth and obstructing the criminal investigation.
- ... as far as I recall, in 2003, just as now, the identity cards of people summoned to attend the prosecutor’s office were not retained at the entrance since the prosecutor had to identify each person before every interview.
- ... the accused Sorin Creangă completed the formalities described above. ... Thus, until 11 a.m. or 12 noon, alongside his colleagues, he drew up his first statement without the prosecutor being present in the room; the room was on the ground floor of the building. Later, Sorin Creangă waited for his lawyer to arrive; after that, he took part in two sets of questioning and various confrontations (the gendarmes were indeed present, but their purpose was to keep order, and no one was guarded individually; anyone could, without being guarded and without having to advise anyone, leave the prosecution service headquarters because no permission was required at the exit).
Personally, as the prosecutor, I do not remember the names of the two police officers who left the prosecution service headquarters during that period without advising anyone but I do remember that they disappeared and could not be found, which is why a general search warrant covering the whole country was issued in respect of them. They were found several days later and brought to the prosecution service, which detained them. They were then brought before the court, which ordered that they be placed in pre-trial detention.
- ... there was not in 2003, nor is there now, a separate entrance for persons under investigation or arrest, nor is there any special room in which such persons could wait to be called into the prosecutor’s office in connection with activities forming part of criminal investigations.
- ... the accused, Sorin Creangă, was summoned on 16 July 2003 by a letter sent by the NAP to the head of police of the 1st District of Bucharest (a copy is attached to this report), that being a legal form of service of a summons under the Code of Criminal Procedure.
Once charged, Sorin Creangă was provided with legal assistance, in accordance with the procedural requirements, given that before a criminal investigation is opened, the law does not require the presence of a lawyer and he did not request the assistance of a lawyer. Furthermore, neither did the other police officers request assistance from a lawyer when drawing up their initial statements.
Sorin Creangă did not specifically ask for permission to leave the NAP headquarters as he was under no obligation to do so and there were no checks on anyone wishing to leave the building without informing the investigating prosecutor.
Sorin Creangă was therefore never specifically told that he could leave the NAP headquarters but he was asked, along with other police officers, to participate in the activities forming part of the criminal investigation and he agreed to do so.
... Sorin Creangă was provided with information and legal assistance as was his entitlement in law; he agreed to participate in activities forming part of the criminal investigation.
Before Sorin Creangă was charged, several other accused, for example S.B., M.I., G.F.P., V.B.D., D.C., G.M.M., G.A.A., F.C., A.G.B., C.U., M.L., M.V., N.B., L.S. and I.D., had admitted committing the offences with which they had been charged and confirmed the offences committed by Sorin Creangă.
- ... I worked alone on this case file on 16 July 2003 and was not assisted by other prosecutors or police officers.”
58. The relevant provisions of the CCP, in force at the material time, read as follows:
“The person against whom a prosecution is brought is a party to the criminal proceedings and is referred to as the accused.”
“Any person who has knowledge of a fact or circumstance that might be useful in establishing the truth in the criminal proceedings may be heard as a witness.”
“1. The criminal investigation authorities may conduct any preliminary investigation measures.
...
3. The record of execution of any preliminary investigation measure shall constitute evidence.”
“The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of a criminal investigation where the content of that application or the preliminary investigation do not disclose any of the grounds not to prosecute, as provided for in Article 10, with the exception of the ground set out under letter (b)1.”
“The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.”
“1. The prosecutor shall decide to prosecute [on a proposal by the criminal investigation authority] after having examined the case file.
2. If the prosecutor agrees with the proposal, he or she shall bring the prosecution by means of an order (ordonanţă).”
“A person who is called upon to testify as a witness must appear at the place, on the date and at the time indicated in the summons. He or she is bound to reveal everything that he or she knows about the facts of the case.”
“1. The summons ... contains the following wording:
...
(b) the first name and surname of the person summoned, the capacity in which that person is being summoned and the subject matter of the case.”
“Any person who, despite having been summoned to appear, has not done so and whose testimony is deemed to be necessary may be brought before the criminal investigation authorities or before a court by virtue of a warrant to appear drawn up in accordance with the provisions of Article 176 CCP.
The suspect or accused may be the subject of a warrant to appear even before a summons has been issued if the criminal investigation authority or the court finds, by a reasoned decision, that such a measure is required.
[Provision inserted by Law no. 281/2003, which entered into force on 1 January 2004] Any person appearing by virtue of the warrant referred to in paragraphs 1 and 2 of this Article shall be available to the judicial authorities only for such time as is required to question them, save where an order has been made for them to be placed in police custody or pre-trial detention.”
“1. In cases concerning offences which are punishable by life imprisonment or an prison sentence, in order to ensure the proper conduct of the criminal proceedings and to prevent the suspect or accused from evading the criminal investigation, trial or execution of the sentence, one of the following preventive measures may be taken:
(a) police custody;
(b) prohibition on leaving the district;
(c) prohibition on leaving the country;
(d) detention.
...
3. The measure provided for in paragraph 1 (a) of this Article may be imposed by the criminal investigation authority or by the prosecutor.
...
5. The measure provided for in paragraph 1 (d) of this Article may be imposed by the court or, in the cases provided for by law, as a temporary measure, by the prosecutor within the framework of a criminal investigation.
...
8. In selecting the measure to be imposed, the authorities in question shall take account of its purpose, the danger to society posed by the offence, and of the health, age and previous record of the person involved and any other relevant circumstances.”
“The decision by which a preventive measure is adopted must list the facts which gave rise to the charges, their legal basis, the sentence provided for in the legislation governing the offence in question and the specific reasons for adoption of the preventive measure.”
“Any person held in police custody or pre-trial detention shall be informed immediately of the reasons justifying such a measure. That person shall be informed at the earliest opportunity, in the presence of a lawyer, of the suspicions against him or her.”
“1. The criminal investigation authority may place a person in police custody if there are reasonable indications or evidence that he or she has committed an offence prohibited by the criminal law.
2. Police custody must be ordered in the cases provided for in Article 148, irrespective of the length of the applicable sentence for the alleged offence.
3. Reasonable evidence exists where, having regard to the existing information on a given case, the person under investigation may be suspected of having committed the alleged offence.”
“1. Police custody may last for a maximum of twenty-four hours. The period during which the person was deprived of liberty as a result of the administrative measure of being taken to the police premises must be deducted from the duration of the police custody, as provided for by Law no. 218/2002 on the organisation and functioning of the Romanian police.
2. The order for placement in police custody must state the date and time at which police custody began and the order for release must state the date and time at which police custody ended.
3. Where the criminal investigation authority considers pre-trial detention necessary, it shall make a reasoned request to the prosecutor within the first ten hours of police custody ... If the prosecutor considers that the statutory requirements have been met, he or she shall order the pre-trial detention within the time-limit set out in the first paragraph of Article 146.
4. Where the prosecutor has ordered police custody and considers that pre-trial detention is required, he or she must make the relevant order within ten hours of the commencement of the police custody, in accordance with Article 146.”
“1. Where the requirements of Article 143 are met, where any of the cases provided for in Article 148 is shown to exist, and where it is considered necessary for the purpose of the criminal investigation, the prosecutor, acting of his or her own motion or at the request of the criminal investigation authority, may, by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the suspect in the presence of his or her lawyer, order that the party concerned be placed in temporary pre-trial detention for a maximum period of three days.
2. The prosecutor shall also draw up a warrant for the temporary pre-trial detention of the suspect. ...
3. If the suspect is already in police custody, the three days shall be calculated from the date of the police custody warrant.
4. Within twenty-four hours of issuing the warrant for temporary pre-trial detention, the prosecutor shall submit the case file to the court ..., with a reasoned proposal as to pre-trial detention ...
11. If the conditions set out in the first paragraph of this Article are met, the court shall make an interlocutory order for the pre-trial detention of the suspect before expiry of the period of detention ordered by the prosecutor, indicating the specific reasons for that measure and its duration, which may not exceed ten days.”
“1. Detention of the accused may be ordered where the conditions set out in Article 143 are met and in any of the following cases:
...
(d) sufficient evidence exists to conclude that the accused has attempted to impede the discovery of the truth by exerting pressure on a witness or an expert, by destroying or tampering with evidence or by taking other similar action;
(e) the accused has committed another offence or there is sufficient evidence to fear that he or she will commit another offence;
...
(h) the accused has committed an offence for which the law prescribes a prison sentence of more than four years, where there is clear evidence that his or her continued liberty would constitute a threat to public order.”
“The duration of the detention of an accused may not exceed thirty days, except where it is extended in accordance with a procedure prescribed by law ...”
“1. Where the requirements of Article 143 are met, where any of the cases provided for in Article 148 is shown to exist, and where it is considered necessary for the purpose of the criminal investigation, the prosecutor, acting of his or her own motion or at the request of the criminal investigation authority, may, by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the accused in the presence of his or her lawyer, order that the party concerned be placed in temporary pre-trial detention for a maximum period of three days.”
“The detention of the accused may only be ordered after he or she has been questioned by the prosecutor and by the court, save where the accused has disappeared, is abroad or is evading the investigation or the trial ...”
“1. The suspect, the accused and the other parties to the criminal proceedings are guaranteed the rights of the defence.
2. During the criminal proceedings, the judicial authorities shall ensure that the parties are fully able to exercise their procedural rights in the conditions laid down by law, and shall take the evidence necessary for their defence.
3. The judicial authorities shall inform the suspect or accused [at the earliest opportunity and before they are questioned – provision inserted by Law no. 281/2003, which came into force on 1 January 2004] of the charges against them and of their classification in law and shall afford them the opportunity to prepare and conduct their defence.
4. All parties are entitled to be assisted by counsel during the criminal proceedings.
5. The judicial authorities shall inform the suspect or the accused, before they make their initial statement, of their right to be assisted by counsel and shall take due note in the record of the hearing. In the conditions and in the cases provided for by law, the judicial authorities shall take all measures to ensure that the suspect or accused are provided with legal assistance where they have no counsel of their own choosing.”
“1. The suspect or accused is entitled to be assisted by defence counsel during the criminal investigation and before the court and the judicial authorities are required to inform him or her of that right.
2. Legal assistance is mandatory where the suspect or accused is a minor, is carrying out military service, is a called-up reservist, is a pupil in a military institution, is held in a rehabilitation centre or a medical and educational institution or is being detained, even in connection with a different case.
...
4. Where legal assistance is mandatory and the suspect or accused has not taken the necessary steps to choose his or her defence counsel, measures shall be taken to designate an officially appointed lawyer.”
“2. Where legal assistance is mandatory, the criminal investigation authority shall ensure that defence counsel is present while the accused is being questioned.
...
4. An accused who has been placed in pre-trial detention is entitled to contact his or her lawyer. Exceptionally, and in the interests of the investigation, the prosecutor, of his or her own motion or at the request of the investigation authority may, by a reasoned order, prohibit any contact with his or her lawyer, on a single occasion and for a maximum period of five days.
...
8. The lawyer chosen by the suspect or accused or the officially appointed lawyer is required to provide that person with legal assistance. The criminal investigation authority or the court may bring to the attention of the relevant bar association any failure to fulfil that obligation in order that measures may be taken.”
“The Procurator General at the Supreme Court of Justice may, of his own motion or on an application by the Minister of Justice, apply for any final decision to be quashed.”
“Final decisions other than those referred to in the first paragraph [the first paragraph concerns decisions to convict, to acquit or to discontinue proceedings] may only be contested by an application to have them quashed if they are inconsistent with the law.”
59. The Articles of the CCP governing applications to have decisions quashed were repealed by Law no. 576 of 14 December 2004, which was published in the Official Gazette of 20 December 2004 and entered into force on 23 December 2004.
60. As regards the preliminary investigation (acte premergătoare), the criminal investigation authority is under no obligation to provide the party concerned, who at that stage has the status of “făptuitor”, with the assistance of a lawyer in respect of the measures taken during that period. That obligation arises only once the criminal proceedings during which the party concerned acquires the status of suspect or accused have been opened (judgments no. 2501 of 14 April 2005 and no. 3637 of 7 June 2006 of the High Court of Cassation and Justice, Criminal Division). At the preliminary investigation stage, the authorities are not authorised to carry out prosecution activities, but merely to take measures that do not require a legal decision strictly speaking (judgment no. 5532 of 26 September 2006 of the High Court of Cassation and Justice, Criminal Division). If evidence is taken at that stage, such as, for example, witness statements, the questioning of the accused, or court-ordered expert reports, the proceedings will be null and void (judgment no. 806/2006 of the High Court of Cassation and Justice, Criminal Division).
The Constitutional Court has confirmed on several occasions that the criminal investigation authority is not obliged to provide legal assistance when measures are taken at the preliminary investigation stage, on the ground that no evidence capable of being used during the subsequent criminal proceedings may be taken at this stage (judgments no. 141/1999, 210/2000 and 582/2005). It has refrained, on the other hand, from making any comment on the authorities’ practice of conducting prosecution activities during the preliminary investigation phase, considering that that was an issue concerning the application of the criminal law and not a question of constitutionality (judgment no. 113/2006).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-61837
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASES OF PINI AND OTHERS v. ROMANIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8;Violation of Art. 6-1;No violation of P4-2-2;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Jean-Paul Costa
TEXT: 11. The applicants were born in 1957, 1952, 1951 and 1953 respectively. The first applicant couple live in Reggio Emilia and the second in Mantua. At the time when they lodged their applications they were deemed to be the adoptive parents of Florentina and Mariana, Romanian nationals who were born on 31 March and 17 April 1991 respectively and were living at the Poiana Soarelui Educational Centre in Braşov (“the CEPSB”).
12. In a final decision of 17 June 1994 the Iaşi County Court declared that Florentina, who at the time was 3 years old, had been abandoned. Parental rights over her were assigned to a public welfare institution, L.
13. On 6 September 1994, by a decision of the Iaşi Child Welfare Board, the child was placed in the care of the CEPSB.
14. On 15 May 2000, after the entry into force of Government Emergency Ordinance no. 25/1997 on the rules governing adoption (“Ordinance no. 25/1997”), the Romanian government entrusted a private association, C., with the task of finding a family or a person to adopt Florentina. It also instructed the Romanian Committee for Adoption to support the C. association in this process and to draw up a psychosocial report on the child.
15. The first applicant couple informed the C. association of their wish to adopt a Romanian child, and were sent a photograph of Florentina. They met her for the first time on 3 August 2000 at the CEPSB. They were subsequently informed by the C. association of the child’s desire to join them and of her love of music.
16. On 30 August 2000 the Braşov Child Welfare Board, on a proposal by the C. association, gave its approval to the adoption of Florentina by the first applicant couple, and on 21 September 2000 it referred the file on their application for adoption to the Braşov County Court, in accordance with section 14(2) of Ordinance no. 25/1997.
17. On 28 September 2000 the court granted the first applicant couple’s application. It noted that the Braşov Child Welfare Board had given its approval to the adoption and had confirmed that position before the court. Observing that the child was in the care of the CEPSB, it ordered the Population Registry Office to amend Florentina’s birth certificate and to issue her with a new one.
18. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final.
19. On 5 February 2001 the Romanian Committee for Adoption attested that Florentina’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the first applicant couple with a certificate to that effect.
20. On 14 February 2001 the Commission for Intercountry Adoption granted the child leave to enter Italy and to reside there permanently and ordered the notification of that decision, inter alia, to the Italian embassy in Bucharest.
21. On an unspecified date the Procurator-General lodged an application to set aside the Braşov County Court’s decision and the Braşov Court of Appeal’s judgment. On 5 June 2001 the Supreme Court of Justice declared the application inadmissible.
22. On 28 September 2000, following a procedure similar to that outlined in paragraphs 16 to 18 above, the Braşov County Court granted the second applicant couple’s application to adopt Mariana. It observed that the child, who had been declared to have been abandoned in a final decision of 22 October 1998, was in the care of the CEPSB, and ordered the Population Registry Office to amend her birth certificate and to issue her with a new one.
23. The Romanian Committee for Adoption appealed against that decision. On 13 December 2000 the Braşov Court of Appeal dismissed the appeal as being out of time. The decision became final.
24. On 28 December 2000 the Romanian Committee for Adoption attested that Mariana’s adoption was in conformity with the domestic legislation in force and with the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, and issued the second applicant couple with a certificate to that effect.
25. On an unspecified date the first applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over the child’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application.
26. The CEPSB appealed against that judgment and applied for a stay of its execution, arguing that the requirements for submitting an urgent application had not been satisfied and that the adoption order was not final and had been made in breach of the relevant statutory provisions.
27. On 7 March 2001 the court dismissed the appeal on the ground that the child’s interests and the fact that the adoptive parents lived abroad warranted an urgent examination of the case and that the applicants had therefore complied with the procedural requirements for making an urgent application. The court also found that, according to the documents in the file, the adoption order was final and constituted res judicata. It therefore considered that it was no longer possible for the substantive issues relating to the adoption to be re-examined in the context of the urgent proceedings. The court refused the application for a stay of execution on the ground that it was no longer justified in view of its decision to dismiss the appeal.
28. A subsequent appeal by the CEPSB was likewise dismissed by the Braşov Court of Appeal in a final judgment of 7 June 2001.
29. The first applicant couple sought to have the decisions of 28 September 2000 and 7 June 2001 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to the applicants and to give them custody of her by 2 March 2001. The president of the court subsequently ordered a stay of execution pending a ruling on the CEPSB’s objection to enforcement (see paragraphs 30-32 below).
30. On 23 February 2001 the CEPSB lodged an objection to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution.
31. On 30 March 2001 the court dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement. The court also dismissed the CEPSB’s application for a stay of execution.
32. The CEPSB appealed to the Braşov County Court, which dismissed the appeal on 2 July 2001 as being ill-founded.
33. On 12 June 2001 the first applicant couple asked the bailiffs at the Braşov Court of First Instance to resume the enforcement procedure, having regard in addition to the fact that the Supreme Court of Justice had in the meantime dismissed the Procurator-General’s application to set aside.
34. On 13 June 2001 the bailiffs notified the CEPSB that it was required to hand over the child’s birth certificate to her adoptive parents and to give them custody of her by 15 June 2001.
35. On 19 July 2001 they again served notice on the CEPSB, requesting it to comply by 8 August 2001.
36. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the first applicant couple’s favour, arguing that the urgent application procedure was intended to deal with temporary situations and that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The first applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay.
37. On 8 August 2001 the court allowed the application for a provisional stay of execution until the hearing on 22 August 2001. On that date it extended the stay of execution until the date of the following hearing, scheduled for 11 September 2001. When that day arrived, the court again extended the stay of execution until the hearing on 25 September 2001, on which occasion it dismissed the applications by the CEPSB and the applicants as being ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in a judgment that constituted res judicata. It also dismissed the first applicant couple’s claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained.
38. On 5 November 2001 the bailiffs notified the CEPSB that it was required to hand over Florentina’s birth certificate to the first applicant couple and to give them custody of her as her adoptive parents, warning it that if it did not do so they would resort to coercion.
39. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the first applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB further requested a stay of execution.
40. On 14 December 2001 the court found against the CEPSB, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a similar action under the urgent procedure. As to the merits, it noted that the adoption order and the decision on the applicants’ urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending.
41. On an unspecified date the CEPSB applied to the President of the Braşov Court of First Instance for a stay of execution. On 25 January 2002 that application was refused.
42. On 30 January 2002 at 2 p.m. the bailiffs at the Braşov Court of First Instance arrived at the CEPSB building, accompanied by police officers. The doorman refused to let them in and locked the door. Half an hour later the director of the CEPSB and his deputy came to the entrance and informed the bailiffs and police officers that the child was not on the centre’s premises but had gone on an excursion outside the city. Following a check, Florentina was not found inside the building.
43. The bailiffs pointed out to the director of the CEPSB that he was required to let Florentina join the applicants.
44. On 27 March 2002 the bailiffs ordered the CEPSB to return the child’s birth certificate and to allow her to join the applicants within ten days, and informed it that in the event of it refusing they would resort to coercion.
45. On 3 September 2002 at 10.45 a.m. a bailiff, accompanied by the first applicant couple and their lawyer, went to the CEPSB building. In the report drawn up on that occasion the bailiff stated that the centre’s doormen had detained them all inside the building. He also indicated that he had telephoned the police station and that, after he had explained the incident to Superintendent D., the latter had replied that he should have called the police before attempting enforcement. The bailiff lastly noted that it was impossible to provide the necessary legal assistance for the procedure and that an objection to the enforcement had been lodged. He stated that the enforcement attempt had ended at 1 p.m.
46. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. On 8 April 2002 the court dismissed the application as being ill-founded.
47. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in favour of the first applicant couple, on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings.
48. The CEPSB brought an urgent application in the Braşov Court of First Instance for a stay of execution on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution.
49. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003.
50. On an unspecified date the second applicant couple made an urgent application to the Braşov Court of First Instance for an order requiring the CEPSB to hand over Mariana’s birth certificate to them and to give them custody of her. On 24 October 2000 the court allowed their application.
51. That judgment was upheld on appeal by the Braşov County Court in a final judgment delivered on 22 August 2001.
52. On 1 February 2001 the CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decision of 28 September 2000, arguing that the operative provisions were unclear and that the adoption order had not complied with the relevant statutory provisions. It also applied for a stay of execution.
53. The court allowed that application and granted a stay of execution until 30 March 2001, on which date it dismissed the objection on the ground that the operative provisions of the decision were clear and did not give rise to any problems regarding execution. As to the second limb of the objection, the court held that the impugned decision constituted res judicata and that, accordingly, it was not possible to re-examine the merits of the case in the context of an objection to enforcement.
54. That judgment was upheld by the Braşov County Court in a final decision delivered on 2 July 2001 on an appeal by the CEPSB.
55. The second applicant couple sought to have the decisions of 28 September 2000 and 24 October 2000 enforced by the bailiffs at the Braşov Court of First Instance. On 22 February, 13 June and 19 July 2001 the bailiffs notified the CEPSB that it was required to hand over Mariana’s birth certificate to the applicants and to give them custody of her.
56. On 15 June 2001 the CEPSB lodged an objection to the enforcement of the decisions in the second applicant couple’s favour. They applied several times to the Braşov Court of First Instance for a stay of execution, arguing that decisions on urgent applications were generally intended to deal with temporary situations but that, in the present case, the execution of the decision in the urgent proceedings would, on the contrary, have permanent consequences. The second applicant couple contested those submissions and sought the imposition of a fine for failure to execute a final judgment, together with a penalty for delay.
57. The court ordered a stay of execution from 15 June to 11 July 2001, from 8 August to 11 September 2001 and from 14 to 25 September 2001, and on the last-mentioned date it dismissed the CEPSB’s objection and the second applicant couple’s application as being manifestly ill-founded. The court held that the issue raised by the CEPSB went to the merits of the case, which had already been determined in the decision of 28 September 2000 that constituted res judicata. It also dismissed the adoptive parents’ claim on the ground that they had neither proved that the CEPSB had acted in bad faith nor established the extent of the damage they had sustained.
58. On 5 November 2001 the bailiffs enjoined the CEPSB to hand over Mariana’s birth certificate to the second applicant couple and to give them custody of her, warning it that if it did not do so they would resort to coercion.
59. On an unspecified date the CEPSB lodged an objection to enforcement with the Braşov Court of First Instance, by means of urgent proceedings issued against the second applicant couple, on the ground that an action to set aside the adoption order was pending in the Braşov County Court, as was an application for a review of the order, and that a criminal complaint concerning the adoption process had been lodged. The CEPSB applied in addition for a stay of execution.
60. On 14 December 2001 the court refused its application, holding that since an ordinary objection to enforcement had already been dismissed, there were no longer any grounds for bringing a further, similar action. As to the merits, it noted that the adoption order and the decision on the second applicant couple’s urgent application were final and binding, and that it was immaterial that an application to have them set aside or reviewed was pending.
61. On 25 March 2002 the bailiffs again notified the CEPSB that it was required to hand over the child’s birth certificate to the second applicant couple and to give them custody of her.
62. On 30 January and 9 April 2002 a bailiff went to the CEPSB building, accompanied by the second applicant couple and police officers. He noted that Mariana was not on the centre’s premises.
63. The CEPSB lodged an objection with the Braşov Court of First Instance to the enforcement of the decisions in the second applicant couple’s favour on the ground that an application to have the adoption order set aside was pending in the Braşov Court of Appeal. The Court has not been informed of the outcome of those proceedings.
64. The CEPSB made an urgent application to the Braşov Court of First Instance for a stay of execution of the adoption order on the ground that it had lodged a fresh objection to enforcement with the court. In a judgment of 4 September 2002, the court allowed its application and provisionally ordered a stay of execution.
65. It appears from the evidence produced that the stay of execution was ordered for a period lasting until 3 April 2003. A further stay of execution was subsequently ordered, from 23 August to 12 September 2003.
66. On an unspecified date the CEPSB brought two actions in the Braşov County Court against the applicants, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the adoption orders for both of the children set aside on the ground that they were not lawful as it had not given its prior consent.
67. On 14 February 2002 the court found against it on the ground that the sole requirement for the children’s adoption had been the approval of the Braşov Child Welfare Board, which exercised parental rights over them in accordance with section 8 of Government Emergency Ordinance no. 26/1997 (“Ordinance no. 26/1997”). The court observed that the Board had given its consent to the adoptions and had notified its position to the court dealing with the applicants’ applications for adoption.
68. The CEPSB appealed against that decision. At a hearing on 2 April 2002 in the Court of Appeal, the Romanian Committee for Adoption submitted that the opposing party’s numerous applications to the domestic courts were an abuse of process in that they were not in the children’s best interests, namely integration into a family, but were intended to delay and hinder the adoption process, thereby prolonging the children’s current placement in institutional care.
69. The CEPSB requested that the cases be referred to the Constitutional Court for a ruling on the constitutionality of section 7(1)(a) and (2) of Ordinance no. 25/1997, concerning consent to adopt. On 10 December 2002 the Constitutional Court declared the plea of unconstitutionality inadmissible on the ground that it had already given a ruling, on 12 November 2002, on the constitutionality of the statutory provisions cited by the CEPSB.
70. In a final judgment of 11 February 2004, the Ploieşti Court of Appeal declared the CEPSB’s appeal against the judgment of 14 February 2002 void for failure to satisfy procedural requirements. It observed that the centre had omitted to state reasons for its appeal within the statutory period and held in that connection that the plea of unconstitutionality which it had raised at the hearing on 2 April 2002 in respect of certain provisions of Ordinance no. 25/1997 did not dispense it from having to satisfy the statutory formal requirements. The judgment of 14 February 2002 accordingly became final and no ordinary appeal lay against it.
71. On an unspecified date the applicants lodged a criminal complaint with the public prosecutor’s office at the Braşov Court of First Instance against the director of the CEPSB, alleging false imprisonment of the children.
72. On 6 August 2001 the public prosecutor’s office informed the applicants that it had decided on 9 July 2001 not to institute criminal proceedings in the case.
73. On 18 February 2002 the applicants filed another complaint against the CEPSB management with the public prosecutor’s office at the Braşov County Court, levelling accusations of, among other things, false imprisonment of their adopted daughters, in breach of Article 189 of the Criminal Code. They also expressed their disagreement with the decision of 9 July 2001 not to institute criminal proceedings.
74. A report drawn up by the Braşov police on 15 July 2002 stated that in connection with the investigation opened following the applicants’ criminal complaint, police officers had visited the CEPSB, where they had interviewed Florentina and the director. It was noted in the report that the child, who was more than 10 years old on the date of the interview, had expressed the wish to remain in the centre and had refused to join the family of her adoptive parents, whom she had never met.
75. On 28 November 2002 the public prosecutor’s office at the Braşov County Court discontinued the proceedings against the director of the CEPSB.
76. On 4 November 2002 Florentina, represented by counsel and by S.G., director of the CEPSB, as her guardian, brought an action in the Braşov County Court against the first applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked and relying on section 22 of Ordinance no. 25/1997. In the alternative, she sought 3 billion Romanian lei for non-pecuniary damage if the adoption order was not revoked. Submitting that she had never met the first applicant couple – her adoptive parents – either before or after the date on which the adoption order had been made, she stated that she had seen them only once, on 3 September 2002, when they had come to try to take her away from the CEPSB against her will, accompanied by their lawyer and the bailiff.
77. In a judgment of 9 June 2003, the Prahova County Court, to which the case had been referred by the Supreme Court of Justice, dismissed Florentina’s action as being ill-founded. On the basis of the written evidence submitted by the parties, the court considered that it was in the claimant’s interests for the adoption order not to be revoked. It noted that she had not in any way established, through her guardian, that her adoptive parents had shown a lack of interest in her; on the contrary, it appeared from the evidence that they had taken numerous steps for her to be able to join them in Italy. The court accordingly rejected the statements by C.V. and D.M., who had given evidence in support of the child in their respective capacities as her “substitute” “mother” and “aunt” at the CEPSB.
78. The court further noted that the adoption order had satisfied the relevant statutory requirements and pointed out that the Braşov Child Welfare Board, which, under section 8 of Ordinance no. 25/1997, had exercised parental rights on the date on which the application for adoption had been lodged with the court, had found the adoption to be in the child’s interests and had given its approval.
79. That judgment was upheld on an appeal by the claimant in a final judgment delivered by the Ploieşti Court of Appeal on 22 September 2003 after a public hearing which Florentina had attended, represented by counsel and by her guardian.
80. In an unappealable decision of 16 December 2003, the Ploieşti Court of Appeal dismissed an application by Florentina to set aside its final judgment of 22 September 2003.
81. On 4 September 2002 Mariana, relying on section 22 of Ordinance no. 25/1997, brought an action in the Braşov County Court against the second applicant couple, the Romanian Committee for Adoption and the Braşov Child Welfare Board, seeking to have the order for her adoption revoked.
82. At the hearing on 31 October 2003, Mariana stated in the presence of her guardian that she did not know her adoptive parents and did not wish to move to a different country as she was satisfied with her life at the CEPSB, where the conditions were good.
83. In a judgment of 31 October 2003, the court allowed her application, relying in particular on the statements by her “mothers” and “aunts” at the CEPSB, who confirmed that she had been residing there since 1994 or 1995 and was being provided with a sound education and good living conditions. Noting that there was no evidence of the emotional ties that should have formed between the adoptive parents and the child after the final decision of 28 September 2000, the court revoked the order for Mariana’s adoption by the second applicant couple and decided that the child should revert to the name she had used before 28 September 2000.
84. Although an appeal lay against that judgment, the defendants did not avail themselves of that possibility, and the judgment thus became final.
85. On 27 February 2001 the C. association requested the Braşov Child Welfare Board to revoke its decision to place the children in the care of the CEPSB. On 2 March 2001 the Board informed it that as a result of the final orders of 28 September 2000 for the adoption of the children by the applicants, the decision on their placement had been implicitly revoked and that any such request would be superfluous.
86. On 16 July 2001 the Department for Child Welfare and Adoption, in reply to a request from the applicants, informed them that it was not empowered to take the necessary steps for the children to be returned to them. It indicated that it had ceased to have any powers in the matter on the date on which the certificate attesting that the adoption order conformed to the relevant national and international rules had been issued.
87. On 27 August 2001 the applicants lodged a complaint with the Senate committee responsible for examining administrative abuses, on account of the Romanian authorities’ failure to execute final decisions.
88. The applicants sought assistance on 6 September 2001 from the Italian embassy in Bucharest and on 12 September 2001 from the Commission for Intercountry Adoption.
89. On 13 September 2001 they lodged a petition with the President of Romania, the Prime Minister and the Minister of Justice.
90. On 23 February, 5 March, 19 April, 6 August, 12 September and 15 November 2001 they complained to the Ministry of Justice about the situation resulting from the failure to execute the adoption orders.
91. On 27 October 2000 and on 19 February, 15 April and 5 June 2001 they travelled to Romania in the hope of seeing their adopted daughters, but to no avail.
92. They regularly sent the girls letters in Romanian and presents, encouraging them to write back in Romanian as they had learnt the language while waiting to see them again, and telling them that their greatest wish was to have them by their side to give them love and affection.
93. It appears from the observations submitted by the parties that the CEPSB, where the children are resident, is a private institution licensed by the Braşov Child Welfare Board and entrusted with the tasks of providing a home for orphans or abandoned children, taking care of them and giving them an education.
94. Reports by the national authority responsible for monitoring the activities of welfare institutions attest to the following: the material and sanitary conditions at the CEPSB are good; medical assistance is provided there in the form of regular check-ups by doctors and permanent supervision by the medical staff; the centre runs special programmes including educational, sports and recreational activities for the children in its care; the children attend schools in the area around the centre and are integrated into the State education system; children at the centre demonstrating particular sporting and artistic abilities are encouraged to develop them; numerous practical activities are arranged; the centre is structured into groups of seven or eight children who are closely supervised by employees assigned to act as “substitute parents”; and the centre employs a full-time psychologist.
95. On 7 September 2000 and 4 February 2002 a CEPSB employee who worked at the centre’s bakery was convicted by the Braşov Court of First Instance and given prison sentences for sexually abusing children in the CEPSB’s care aged 9, 11 and 12. Florentina and Mariana were not involved.
96. A number of articles in the Braşov local newspaper M. reported that after her visit to the CEPSB on 9 January 2001, Baroness Nicholson of Winterbourne, rapporteur for the European Parliament, had expressed the view that children in the centre’s care should not travel abroad to join their adoptive families because the CEPSB had formed a genuine family in which the children received a good upbringing and education. The articles also reported that Mr Ioan Ţiriac, the CEPSB’s founder, had stated that none of the children would be leaving the centre as they had all become members of his family and that it was time to stop “exporting” Romanian children.
97. It appears from the evidence produced by the parties that Florentina and Mariana regularly go to school, visit their close acquaintances and travel abroad on trips organised by the CEPSB. In particular, Florentina is currently attending the College of the Arts, where she is taking violin and piano lessons, while Mariana is being encouraged by the CEPSB staff to develop her skills in dance and sport.
98. Photocopies of Florentina’s passport reveal that she went on a trip to Hungary and Austria in July 2003.
99. A video recording submitted by the Government and produced with the assistance of a psychologist at the centre where the children are living indicates that they have not received any detailed practical information about the ongoing proceedings for their adoption or about the identity of their adoptive parents. It does not appear from the recording that they have been prepared for the possibility of leaving the CEPSB and joining the applicants’ families. During the recording Florentina, in particular, expressed her desire to be part of a traditional family, but was also hesitant as to her adoption by the applicants, which she said that she had initially wanted.
It is uncertain whether, before the applicants’ visit to the centre in September 2002, the children received the letters which they had been writing to them in Romanian for several years.
It appears from the recording that the girls do not currently wish to travel to Italy to join the applicants, whom they know only vaguely, but would prefer to remain at the CEPSB, where they seem to have established social and emotional ties with the other children and with the “substitute” “mothers” and “aunts”.
100. The following provisions and aspects of international law and practice are relevant to the present case.
“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin –
(a) have established that the child is adoptable;
(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;
(c) have ensured that
1. the persons, institutions and authorities whose consent is necessary for adoption have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,
2. such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,
3. the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and
4. the consent of the mother, where required, has been given only after the birth of the child; and
(d) have ensured, having regard to the age and degree of maturity of the child, that
1. he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,
2. consideration has been given to the child’s wishes and opinions,
3. the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and
4. such consent has not been induced by payment or compensation of any kind.”
“Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to –
...
(b) facilitate, follow and expedite proceedings with a view to obtaining the adoption;
(c) promote the development of adoption counselling and post-adoption services in their States;
...”
“Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.”
“Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if –
(a) the Central Authority of that State has ensured that the prospective adoptive parents agree;
(b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;
(c) the Central Authorities of both States have agreed that the adoption may proceed; and
(d) it has been determined ... that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.”
“The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.”
“1. The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.
2. The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the ... adoptive parents.
...”
“States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognise that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
...”
“An adoption shall be valid only if it is granted by a judicial or administrative authority (hereinafter referred to as the ‘competent authority’).”
“1. ... an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:
(a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect;
(b) the consent of the spouse of the adopter.
2. The competent authority shall not:
(a) dispense with the consent of any person mentioned in paragraph 1 of this Article, or
(b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1,
save on exceptional grounds determined by law.
...”
“1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock.
Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother.
2. When the rights and obligations referred to in paragraph 1 of this Article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. ...”
101. In her report to the European Parliament, Baroness Nicholson of Winterbourne, noting with satisfaction the progress made by Romania in consolidating the rule of law and respect for human rights, emphasised in her capacity as rapporteur that the situation of children in Romania required further improvements. She noted that the fate of children in institutions remained a major cause for concern and a problem in terms of fundamental rights, with an impact on the accession procedure.
102. The following provisions and aspects of domestic law and practice are relevant to the present case.
“(1) Adoption is a special measure for the protection of the child’s interests, establishing a parental relationship between the adopter and the adopted person and family ties between the child and the members of the adopter’s family.
...
(3) An adoption order shall take effect on the date when a judicial decision [granting the application for adoption] becomes irrevocable.”
“(1) The following shall be required for an application for adoption to be granted: (a) the consent of the adopted person’s parents or, as appropriate, parent ...; (b) the approval of the Child Welfare Board for the child’s place of residence; (c) the consent of the child if he or she is ten or more years of age; (d) the consent of the person or family adopting the child.
(2) If ... the child has been declared to have been abandoned in a final court decision, the consent referred to in section 7(1)(a) shall not be necessary.”
“(1) The court shall decide on the application for adoption in private, as a panel of two judges ...
(2) The following shall be summoned to attend the hearing: the Child Welfare Board which approved the adoption, representing the child; the person or family wishing to adopt; and the Romanian Committee for Adoption. State Counsel’s attendance shall be compulsory. ...
(3) The court may examine any evidence admitted by law.
(4) The consent of the child, if he or she is aged ten years or more, shall be obtained in court.”
“The child shall acquire the surname of the person who adopts him or her. ... Pursuant to an irrevocable decision by the court that makes the adoption order, the relevant registry office shall draw up a new birth certificate for the child, on which the adoptive parents shall be entered as the biological parents. The previous birth certificate shall be retained, with a marginal note referring to the issuing of the new document.”
“(1) An adoption order may be set aside or revoked in accordance with the law.
(2) An adoption order may be revoked at the request of the child, if he or she is aged ten years or more, or of the Child Welfare Board for the child’s place of residence, if revocation is in the child’s best interests.
(3) The court [revoking an adoption order] shall also rule on the surname which the child is to take after the adoption order has been revoked.”
“In order to ensure the best interests of a child in difficulty, the Child Welfare Board may order:
...
(e) the placement of the child in the care of a specialist public welfare institution or a licensed private institution.”
“If the child has been declared to have been abandoned in a final judicial decision ... parental rights shall be exercised by the county council, through the Child Welfare Board.”
“(1) The Romanian Committee for Adoption shall be structured and shall act as a specialist body under the authority of the Government with the purpose of supervising and supporting activities for the protection of children’s rights through adoption and ensuring international cooperation in this field.
(2) The Romanian Committee for Adoption shall be the central Romanian authority responsible for assuming the obligations laid down in the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption ...”
“The National Authority for Child Protection shall act as a specialist body of the central Government, with legal personality and under the authority of the Ministry of Labour, Social Solidarity and Family Affairs.”
“The Authority shall have the following duties:
...
(f) proposing that the relevant authorities suspend or terminate any activities that pose a serious and immediate danger to the health or physical or psychological development of children, and withdrawing the operating licences of the legal entities responsible;
(g) taking action to prevent or put an end to the consequences of any acts or deeds contrary to the principles and rules laid down in international treaties on children’s rights and adoption to which Romania has acceded ...”
“[From the date on which the adoption order becomes final], the rights and obligations of the adopted person in relation to the adopter shall be the same as those of a child born to a married couple in relation to his or her parents ...”
“Children below the age of majority shall live with their parents ...”
“Parents shall be entitled to request that their child be returned to them by any person having unauthorised custody of the child. The courts shall refuse to grant such a request if this would not be in the child’s interests. The child shall be consulted if he or she is aged ten years or more.”
103. These provisions were repealed and replaced by Government Emergency Ordinance no. 25/1997 on adoption (see paragraph 102, point 1, above).
“1. False imprisonment shall be punishable by a prison sentence of between one and five years.
2. If ... the victim is a minor, the penalty shall be a prison sentence of between five and twelve years.”
“1. Anyone whose legitimate interests have been adversely affected by measures and decisions taken during criminal proceedings may lodge a complaint.
...”
“Complaints about measures or decisions taken by the public prosecutor or under his orders shall be submitted to the Principal Public Prosecutor.”
104. The Constitutional Court allowed an objection that section 7(1)(a) and (2) of Government Emergency Ordinance no. 25/1997 on the rules governing adoption was unconstitutional on the ground that, in the case of a child who had been judicially declared to have been abandoned, it did not require the prior consent of the person or body entitled to exercise parental rights over the child in question.
“2. Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.”
“1. The constitutional provisions on citizens’ rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.
2. In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”
“All proceedings relating to the adoption of Romanian children by persons and families of foreign nationality shall be suspended ... for a period of twelve months from the date on which this Ordinance comes into force.”
“During the period referred to in section 1, the National Authority for Child Protection and Adoption and the Ministry of Justice shall review the rules governing international adoption, in order to bring the national legislation into line with the relevant international law and practice.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8