opencaselaw.ch

A/HRC/WGAD/2018/17

Opinion no. 17/2018 concerning Ronnen Herscovici (Romania)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2018-04-26 · en UN

Opinion; Subjects: ROMANIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.18-08542(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-first session, 17–26 April 2018

Opinion No. 17/2018 concerning Ronnen Herscovici (Romania)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 20 December 2017 the

Working Group transmitted to the Government of Romania a communication concerning

Ronnen Herscovici. The Government submitted a late response on 21 March 2018. The

State is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2018/17

General Assembly

Distr.: General

28 May 2018

Original: English

A/HRC/WGAD/2018/17

2

Submissions

Communication from the source

4.

Ronnen Herscovici, born in 1994, is a Romanian citizen. He usually resides in

Voluntari, near Bucharest. At the time of the submission by the source, Mr. Herscovici was

being held in pretrial detention at Rahova prison in Bucharest.

Arrest and detention

5.

According to the source, Mr. Herscovici was arrested on 11 March 2017. He was

returning home by car from a night out with his girlfriend when he was reportedly stopped

in traffic by a police patrol on suspicion that he had contravened a red light. One of the

police officers asked him to get out of the car. Mr. Herscovici was reportedly very scared

by the aggressive behaviour of the police officer and refused to leave his car. After his

refusal, the officer grabbed him by the collar and neck and started to pull him out of the car.

At that point, Mr. Herscovici became very frightened and, as a result of the pressure of the

situation, he turned on the engine of the car and started to drive forward, making a left turn

and coming to a halt after a few metres.

6.

The source reports that the police officer subsequently accused Mr. Herscovici of

attempted murder, referring to the fact that, when he started to drive the car, the officer

remained attached to the car and was pulled along by it. According to the source, the police

officer was later seen by a doctor who found that he had fractured a finger. The doctor

prescribed algocalmin and recommended that the officer put ice on his finger.

7.

According to the source, Mr. Herscovici stopped the car after a few metres, and 38

armed police officers subsequently gathered around the car. Mr. Herscovici then locked

himself in the car and refused to get out of the vehicle. The police officers reportedly pulled

a gun on him and then fired it into one of the wheels of the car. They also sprayed tear gas

into the car, even though Mr. Herscovici reportedly did not show any signs of violence and

was the only person in the car. In addition, at that time, his parents arrived at the scene and

tried to explain to the police that Mr. Herscovici was suffering from depression and was in

need of special care, especially in situations in which he became highly stressed. Instead of

calming down and seeking specialist advice — Mr. Herscovici was already in a state of

shock — the police reportedly continued to be aggressive and used tear gas and threatened

him with a gun. Mr. Herscovici was subsequently arrested and detained.

8.

The source reports that Mr. Herscovici was detained on the basis of articles 202 (1),

(3) and (4) (e), 223 (2) and 226 (1) and (2) of the Code of Criminal Procedure. He was

accused of committing a serious crime, namely attempted murder.

9.

The detention of Mr. Herscovici was most recently extended on 26 September 2017,

which is the date on which the judge’s decision in case No. 32916/3/2017/a1.2 in the

Preliminary Court of Bucharest Tribunal was pronounced. The prosecutor argued that it

was necessary to extend the detention of Mr. Herscovici due to the fact that he had

allegedly committed a serious crime (attempted murder), aggressed a police officer and

caused a disturbance of the peace.

10.

In his defence, the legal representative of Mr. Herscovici submitted that none of

those grounds for extending pretrial detention were justified, and requested that the motion

be rejected. With reference to article 202 of the Code of Criminal Procedure, the legal

representative suggested that another preventive non-custodial measure, notably house

arrest, would be a sufficiently firm measure to ensure the purpose of the article, but at the

same time a measure that would ensure that Mr. Herscovici could receive the medical

treatment he required.

11.

The legal representative noted that, according to the law, a request to extend the

detention would need to be further substantiated and not merely copy the arguments that

had been made previously in relation to pretrial detention or its extension. For detention to

be extended, there would have to be a justification for such a decision and a reason why

another measure would not be sufficient.

A/HRC/WGAD/2018/17

3

12.

However, according to the source, the prosecutor did not present any new reasons;

he referred only to the gravity of the allegations against Mr. Herscovici. The source

underlines that the prosecutor did not provide any new circumstances in order to justify an

extension of the pretrial detention.

13.

The legal representative of Mr. Herscovici noted that, from the viewpoint of articles

202, 234 and 237 of the Code of Criminal Procedure, the seriousness of the accusation and

the fact that a judge had previously agreed to Mr. Herscovici’s detention would not be

sufficient to extend the pretrial detention.

14.

The source indicates that, according to the legal representative, the prosecutor’s

version of the facts surrounding the event was incorrect, including the claim that Mr.

Herscovici had had the clear intention of escaping from the scene. The legal representative

also referred to the unacceptable behaviour of the police force, putting forward that Mr.

Herscovici had had no intention of harming the police officer. The fact that the officer had

subsequently clung to the car and walked a few yards next to it did not justify pressing such

a serious charge.

15.

The source also reports that the legal representative asked the judge to consider

whether the reference to the gravity of the charge was credible, given that the police officer

only suffered a relatively minor injury, namely a fractured finger. In addition, according to

medical records, the doctor had recommended that the police officer should apply ice on the

finger and take algocalmin. The source thus states that the legal classification of attempted

murder is unreasonable in this case.

16.

The legal representative also called for consideration to be given to the fact that, in

all procedural acts, the prosecutor had mentioned the sequence of events, in the sense that

Mr. Herscovici had turned on the engine and started the car, after which the police officer

hung on to it. The legal representative thus submitted that that showed that there was no

intention on the part of Mr. Herscovici to use the car to run the injured party over.

17.

At the same time, the legal representative reportedly asked for the undisclosed video

footage to be considered, in which the police officer did not appear to have fallen on the

road. In addition, other testimonies reportedly indicate that the officer had walked a few

metres next to the car, before it speeded up.

18.

According to the source, the legal representative reportedly proved that Mr.

Herscovici had had a panic attack, which was the reason for his refusal to get out of the car,

and that he showed no violence towards the police officer.

19.

In addition, the legal representative reportedly asked that the serious medical

condition of Mr. Herscovici be considered. The case file included medical records released

by Obregia Hospital, showing that Mr. Herscovici had been undergoing treatment,

including medication, for depression. Although he was not prevented from driving and did

not represent a danger to others, his reaction vis-à-vis the police officer who attempted to

remove him from his car was different from that of a person who was not undergoing such

treatment.

20.

The source refers to recommendation Rec(2006)13 of the Committee of Ministers of

the Council of Europe,1 in which it defines the applicable rules against abuse of preventive

measures, including remand in custody. According to the source, rules 6 and 7 imply that a

preventive measure cannot be extended if another preventive measure can ensure the

purpose of article 202 of the Code of Criminal Procedure.

21.

The source also refers to articles 3 and 5 of the Convention for the Protection of

Human Rights and Fundamental Freedoms, the former of which prohibits inhuman

treatment. According to the source, this prohibition would extend to the detention of a

person with an illness, including pre-emptive arrest or the execution of a sentence.

1 Recommendation Rec(2006)13 on the use of remand in custody, the conditions in which it takes place

and the provision of safeguards against abuse.

A/HRC/WGAD/2018/17

4

22.

According to the source, house arrest would ensure a balance between the

guarantees specific to the preventive measures, as defined in article 202 of the Code of

Criminal Procedure. Moreover, this would allow Mr. Herscovici to have his family close by

and the support of his current doctor and psychiatrist, and be able to treat his medical

condition.

23.

The legal representative had reportedly requested that the court take into

consideration the fact that Mr. Herscovici had attempted suicide twice and, in the event that

pretrial detention were maintained, he would not be able to receive psychological treatment

and specialized support. According to the source, legislation in Romania does not allow for

a psychiatrist from outside a prison to treat a detainee.

24.

According to the source, the legal representative also asked that, beyond the abstract

considerations that he had spoken of in respect of the law, there was the life of a real

person, Mr. Herscovici. Even if he might have been wrong in the way he responded to the

police, the court must strike a balance between what the prosecution and the defence

request and the interests of society and of the individual, and judge by objective criteria, in

accordance with rule 8 of recommendation Rec(2006)13.

25.

The source submits that other precautionary measures would be sufficient given the

current state of the investigation in the case of Mr. Herscovici.

26.

The source also submits that the detention of Mr. Herscovici is arbitrary because the

facts do not justify a charge of attempted murder.

27.

In this respect, the source notes that the Romanian Constitution allows for arrest

under the conditions stipulated by law. Article 23 of the Constitution states that individual

freedom and security of person are inviolable; that search, detainment or arrest of a person

are only permitted in cases, and under procedures, provided for in law; and that deprivation

of freedom can only be based on criminal grounds. The source also notes that, in order for

an arrest to be possible in accordance with the law, article 202 of the Code of Criminal

Procedure requires that there is a clear argument that a serious crime has been committed.

The source reiterates that the events of the night of 10 and 11 March 2017 and the injury

that the police officer sustained are not sufficiently serious to justify a charge of attempted

murder. Contravening a red light in a car cannot be the basis for an arrest lasting more than

three months. The source adds that not even that charge has been proven in the case file.

28.

The source therefore asserts that Mr. Herscovici is now in a situation of abusive and

unjustified pretrial detention for an offence that should have been punished by a small fine

or a disciplinary measure. The source notes that the legal rights of Mr. Herscovici have

been violated and that Romania does not have an efficient system of appeal and control

regarding the legality of a preventive measure.

Response from the Government

29.

On 20 December 2017, the Working Group transmitted the allegations from the

source to the Government under its regular communications procedure. The Working

Group requested that the Government provide, by 19 February 2018, detailed information

about the current situation of Mr. Herscovici and any comments on the source’s allegations.

30.

On 19 February 2018, the Government of Romania sought an extension of the

deadline to submit its response on the basis of paragraph 15 of the methods of work of the

Working Group. In conformity with paragraph 16 of its methods of work, the Working

Group granted an extension of two weeks to the Government to submit its response by 5

March 2018. However, the Government only submitted its reply on 21 March 2018. The

reply was thus 15 days late, and therefore the Working Group cannot accept it.

A/HRC/WGAD/2018/17

5

31.

On 21 March 2018, the late reply of the Government was transmitted to the source

for further comments. The Working Group appreciates receiving such further comments on

28 March 2018.

Further information received by the Working Group

32.

On 21 March 2018, the Working Group was informed that, on 20 December 2017,

the Court of Appeal of Bucharest decided to replace the pretrial detention of Mr. Herscovici

with house arrest.

Discussion

33.

In the absence of a timely response from the Government, the Working Group has

decided to render the present opinion, in conformity with paragraph 15 of its methods of

work.

34.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

35.

The Working Group observes that the present case raises the issue of the

appropriateness of the pretrial detention imposed upon Mr. Herscovici by the Romanian

authorities following the reported incident with the police on 11 March 2017, which lasted

until the replacement of pretrial detention with house arrest on 20 December 2017.

36.

It is a well-established norm of international law that pretrial detention should be the

exception and not the rule, and that it should be ordered for as short a time as possible2 in

order to comply with article 9 of the Covenant.

37.

The Working Group wishes to refer to the Human Rights Committee’s general

comment No. 35 (2014) on liberty and security of person, according to which it should not

be the general practice to subject defendants to pretrial detention. Detention pending trial

must be based on an individualized determination that it is reasonable and necessary taking

into account all the circumstances, for such purposes as to prevent flight, interference with

evidence or the recurrence of crime. The relevant factors should be specified in law and

should not include vague and expansive standards such as “public security”. Pretrial

detention should not be mandatory for all defendants charged with a particular crime,

without regard to individual circumstances.

38.

In the present case, the Working Group notes that the replacement of pretrial

detention with house arrest suggests that an individual determination of Mr. Herscovici’s

circumstances, including his need for medical treatment, may have taken place. However,

the Working Group has no further details of the nature of this decision to place Mr.

Herscovici under house arrest, how it was reached and the process that led to it.

Accordingly, the Working Group is unable to state with certainty that the Government did

not meet its obligation to provide Mr. Herscovici with an individualized determination, and

therefore does not have sufficient information to conclude whether his detention was

arbitrary.

Disposition

39.

In the light of the foregoing, the Working Group renders the following opinion:

Based on the information obtained to date, the Working Group is not in a position to

conclude that the detention of Ronnen Herscovici falls within any of the categories

2 See opinions No. 28/2014, No. 49/2014 and No. 57/2014; and A/HRC/19/57, paras. 48–58. See also

A/HRC/30/19; Kovsh v. Belarus (CCPR/C/107/D/1787/2008); CAT/C/TGO/CO/2, para. 12;

A/HRC/25/60/Add.1, para. 84; E/CN.4/2004/56, para. 49; A/HRC/19/57, para. 48; and

CCPR/C/TUR/CO/1, para. 17.

A/HRC/WGAD/2018/17

6

of arbitrary deprivation of liberty applied by the Working Group. In accordance with

paragraph 17 (c) of its methods of work, the Working Group decides to keep the

case pending without prejudice to the ability of the source and the Government to

provide further information that would allow the Working Group to determine

whether Mr. Herscovici had been detained arbitrarily.

[Adopted on 20 April 2018]