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
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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
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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
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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
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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
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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]