FOURTH SECTION

CASE OF TIBA v. ROMANIA

(Application no. 36188/09)

JUDGMENT

STRASBOURG

13 December 2016

FINAL

13/03/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
 TIBA v. ROMANIA JUDGMENT 1

In the case of Tiba v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
András Sajó, President,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 8 November 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 36188/09) against Romania
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Romanian national, Mr Tiberiu Mircea Tiba (“the applicant”), on
12 June 2009.
2. The Romanian Government (“the Government”) were represented by
their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
3. The applicant complained, in particular, under Article 5 of the
Convention of the lawfulness and lack of judicial review of the period he
spent under the control of the police and at the prosecutor’s office for
questioning prior to his placement in police custody.
4. On 18 March 2014 the above-mentioned complaint was
communicated to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and lives in Oradea. He has been a
lawyer since 1997.
6. On 11 December 2008 the National Anticorruption Department
instituted criminal proceedings against the applicant and a police officer for
traffic of influence (trafic de influenţă). The applicant was accused, as a
2 TIBA v. ROMANIA JUDGMENT

lawyer, of having requested and received money from a client in return for
persuading certain judges, other than in the context of the judicial
proceedings, to adopt a favourable judgment in his client’s case.
7. On the same day the case prosecutor authorised several police officers
to enforce a warrant to appear (mandat de aducere) issued in the applicant’s
name on the basis of Articles 183 and 184 of the Criminal Procedure Code.
According to the warrant, the applicant’s presence was required in order to
be heard as a suspect (învinuit) in the criminal investigation instituted in
File no. 206/P/2008. No other reasons or conditions were stated on the
authorisation or the warrant itself.
8. On 12 December 2008 at 8 a.m. a police officer went to the applicant’s
office in the city of Oradea to enforce the warrant to appear. According to
the police officer’s report, the applicant was shown the warrant to appear
and was escorted to the police station in the nearby town of Salonta. At
9.40 a.m. the applicant was handed over to two other police officers who
escorted him to the Timişoara office of the National Anticorruption
Department (T.N.A.D.). According to the escorting police officers’ report,
which was signed also by the applicant, he was handed over to the
prosecutor at 11.40 a.m.
9. According to the record of the statements the applicant made before
the prosecutor, he was heard as a suspect by the prosecutor at the T.N.A.D.
from 12 noon to 4.50 p.m. After the questioning the applicant was charged
with the crime of traffic of influence.
10. According to the applicant, his phone, wallet and watch had been
confiscated by the police officers and were held during this entire time.
Moreover, he had been constantly guarded by the police.
11. By an order issued on 12 December 2008 the applicant was placed in
police custody for twenty-four hours commencing at 5.10 p.m.
12. On 13 December 2008 the prosecutor’s request for the placement of
the applicant in pre-trial detention for thirty days was allowed by the
Timişoara Court of Appeal. The applicant complained before the court that
he had been unlawfully deprived of his liberty from 8 a.m. to 5.10 p.m. on
the previous day. He requested that the above-mentioned period be deducted
from his time in custody. The court considered that it was not competent to
decide on this complaint and suggested that the applicant should have used
the procedure provided by Article 1401 of the Criminal Procedure Code.
13. The applicant lodged an appeal on points of law (recurs) against that
judgment, reiterating that he had been unlawfully deprived of his liberty. On
17 December 2008 the High Court of Cassation and Justice rejected the
applicant’s appeal on points of law as ill-founded without addressing his
complaint regarding the lawfulness of his detention prior to his placement in
police custody.
 TIBA v. ROMANIA JUDGMENT 3

14. On 12 March 2010 the applicant was found guilty with final effect
and given a suspended sentence of four years’ imprisonment for traffic of
influence.

II. RELEVANT DOMESTIC LAW

15. The relevant provisions of the Criminal Procedure Code regarding

complaints against prosecutors’ decisions that were in force at the time of
the events in question read as follows:
Article 1401
Complaint against prosecutor’s order for placement in police custody
“(1) Any complaint against ... a prosecutor’s order for placement in police custody
must be lodged before the hierarchically superior prosecutor within twenty-four hours,
reckoned from the moment the measure was taken, under the conditions set in Article
278 ...
(2) The prosecutor must take a decision before expiry of the twenty-four hour period
reckoned from the moment the measure was taken.
(3) The prosecutor shall quash the measure if he decides that it was unlawful or
unjustified.”

Article 275
The right of complaint
“(1) Everyone has the right to complain against measures taken during the criminal
investigation...
(4) The lodging of a complaint does not suspend the enforcement of the measure
against which it was addressed.”

Article 277
Deadline for resolving the complaint
“The prosecutor must resolve the complaint within a maximum of 20 days from its
receipt...”

Article 278
Complaint against the investigative measures taken by the prosecutor
“(1) A complaint against the investigative measures taken by the prosecutor shall be
resolved by the hierarchically superior prosecutor...”
16. The provisions of the Criminal Procedure Code concerning police
custody and warrants to appear, as in force at the relevant time, read as
follows in their relevant parts:
Article 144
Duration of police custody
“1. Police custody may last for a maximum of twenty-four hours. The period during
which the person was deprived of liberty pursuant to the administrative measure of
4 TIBA v. ROMANIA JUDGMENT

being taken to the police premises, as provided by Law no. 218/2002 on the
organisation and functioning of the police, must be deducted from the duration of the
police custody.”

Article 183
Warrants to appear
“(1) A person may be brought before [a] criminal-investigation body or [a] court on
the basis of a warrant to appear,..., if, having been previously summoned, he/she has
not appeared, and his/her hearing or presence is necessary.
(2) The suspect (învinuitul) or accused (inculpatul) may be brought [before the
authorities] on the basis of a warrant to appear even before being summoned if the
criminal-investigation body or the court provides reasons demonstrating that this
measure is necessary in the interest of solving the case.
(3) Any person appearing by virtue of the warrant referred to in paragraphs 1 and 2
of this Article shall be available to the judicial or non-judicial authorities for only 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.
(4) A person brought before a judicial or non-judicial body on the basis of a warrant
to appear shall be heard immediately.”

Article 184
Enforcement of the warrant to appear
“(1) The warrant to appear is enforced by the police, gendarmerie or by community
officers. ...
(31) If the suspect or the accused refuses to obey the warrant or tries to run away,
he/she shall be taken by force.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

17. The applicant complained under Article 5 § 1 of the Convention that

he had been unlawfully deprived of his liberty for the period he spent under
the police officers’ control and at the T.N.A.D. prior to his placement in
police custody.
He further complained of the absence of a remedy in the form of judicial
review of his deprivation of liberty. The Court, being the master of the
characterisation to be given in law to the facts of the case, will examine this
complaint under Article 5 § 4 of the Convention.
The relevant parts of Article 5 read:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
 TIBA v. ROMANIA JUDGMENT 5

(b) the lawful arrest or detention of a person for non-compliance with the lawful
order of a court or in order to secure the fulfilment of any obligation prescribed by
law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shell be decided speedily
by a court and his release ordered if the detention is not lawful.”

A. Admissibility

18. The Government argued that the applicant had failed to exhaust the
domestic remedies available in his situation. More specifically, the applicant
could have lodged a complaint with the hierarchically superior prosecutor,
as provided by Articles 278 or 1401 of the Criminal Procedure Code. In
addition, they argued that the applicant had not lodged a civil action for
damages on the basis of the general tort law.
19. The Government also maintained that the applicant had wrongfully
asked the domestic courts to deduct from the twenty-four hours’ police
custody the period spent under the scope of the warrant to appear. Such
deduction was permitted by law only in respect of the administrative
measure of being taken to police premises, as provided by Law
no. 218/2002 on the organisation and functioning of the police.
20. The applicant contested those arguments.
21. The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires applicants first to
use the remedies provided by the national legal system, thus exempting
States from answering before the European Court for their acts before they
have had an opportunity to put matters right through their own legal system.
The rule is based on the assumption that the domestic legislative system
provides an effective remedy in respect of the alleged breach. The burden of
proof is on the Government claiming non-exhaustion to satisfy the Court
that an effective remedy was available both in theory and practice at the
relevant time, that is to say that the remedy was accessible, was capable of
providing redress in respect of the applicant’s complaints and offered
reasonable prospects of success. However, once this burden of proof has
been satisfied, it falls to the applicant to establish that the remedy advanced
by the Government was in fact exhausted or was for some reason inadequate
and ineffective in the particular circumstances of the case or that there
existed special circumstances absolving him or her from the requirement
(see, amongst many others, Akdivar and Others v. Turkey, 16 September
6 TIBA v. ROMANIA JUDGMENT

1996, § 68, Reports of Judgments and Decisions 1996-IV, and Parrillo v.

Italy [GC], no. 46470/11, § 87, 27 August 2015).
22. That said, the Court emphasises that the application of the rule must
make due allowance for the fact that it is being applied in the context of the
machinery for the protection of human rights that the Contracting Parties
have agreed to set up. Accordingly, it has recognised that Article 35 must be
applied with some degree of flexibility and without excessive formalism. It
has further recognised that the rule of exhaustion of domestic remedies is
neither absolute nor capable of being applied automatically; in reviewing
whether the rule has been observed, it is essential to take into account the
particular circumstances of the individual case. This means, amongst other
things, that the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting Party concerned but
also of the general legal and political context in which they operate, as well
as the personal circumstances of the applicant (see Akdivar and Others,
cited above, § 69; Salah Sheekh v. the Netherlands, no. 1948/04, § 121,
11 January 2007; and Hadžimejlić and Others v. Bosnia and Herzegovina,
nos. 3427/13, 74569/13 and 7157/14, § 45, 3 November 2015).
23. Turning to the present case, the Court notes that Article 278 of the
Criminal Procedure Code provides for a general procedure of complaints to
the hierarchically superior prosecutor against the investigative acts and
measures ordered by the case prosecutor. These complaints must be
resolved within a period of twenty days and do not trigger the suspension of
the measure complained about (see paragraph 15 above).
24. As regards the second possible remedy suggested by the
Government, the Court notes that Article 1401 of the Criminal Procedure
Code strictly refers to complaints against a prosecutor’s order for placement
in police custody and therefore does not appear to provide any basis for a
complaint in connection with an alleged deprivation of liberty under the
scope of the warrant to appear, such as the one raised by the applicant.
25. The Court reiterates that in general a hierarchical remedy cannot be
regarded as effective, because litigants are unable to participate in such
proceedings (see Baisuev and Anzorov v. Georgia, no. 39804/04, § 35,
18 December 2012). Moreover, from the text of the above-mentioned legal
provisions it is not apparent how complaints based on these articles of the
criminal procedure code could have offered redress in the applicant’s
situation, especially given that the Court is not convinced that the domestic
authorities perceived the restriction of the applicant’s liberty prior to
5.10 p.m. on 12 December 2008 as a deprivation of liberty and would have
been prepared to pursue any complaints opened by the applicant in that
regard (see similarly Iustin Robertino Micu v. Romania, no. 41040/11,
§ 109, 13 January 2015). In addition, the Government did not submit any
examples of complaints against a warrant to appear before a prosecutor
resolved by the hierarchically superior prosecutor.
 TIBA v. ROMANIA JUDGMENT 7

26. The Court further notes that no remedy was available to the
applicant before the domestic courts either, since the Timişoara Court of
Appeal considered on 13 December 2008 that it lacked competence to deal
with the applicant’s complaint.
27. With regard to the civil claim for damages, the Court notes that the
Government did not submit in support of their allegations any examples of
relevant domestic case-law. In any event, the Court has already found that in
a situation of allegations of abuse against State agents, a civil action for
damages based on the general tort law would in theory have been available
to the applicant but unlikely to have had any prospects of success since
it requires proof of negligence on the part of the person complained
against – which cannot be the case in the current applicant’s situation (see
Lazariu v. Romania, no. 31973/03, §§ 88 and 89, 13 November 2014; see
also, mutatis mutandis, Eugenia Lazăr v. Romania, no. 32146/05, § 90,
16 February 2010; and Kilyen v. Romania, no. 44817/04, § 26, 25 February
2014).
28. The Court therefore finds that, in the particular circumstances of the
case, the Government did not establish that a civil action for damages was
an effective remedy.
29. It follows that the Government’s preliminary objection as to the
exhaustion of domestic remedies must be rejected. The Court further notes
that this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 5 § 1 of the Convention

(a) The parties’ submissions
30. The applicant submitted that on 12 December 2008 he had been
unlawfully deprived of his liberty from 8 a.m. to 5.10 p.m. He further
contended that he had never been summoned to appear before the
prosecutor investigating the case and that the measure to bring him by force
had not been justified, as required by law.
31. The Government contended that the domestic legislation allowed for
a person to be brought before a prosecutor on the basis of a warrant to
appear, particularly in circumstances where – as in the applicant’s case – his
presence was necessary in order for him to be questioned for the first time
as a suspect. The criminal procedure rules did not make the issuance of a
warrant to appear conditional on a previous refusal to appear and to
cooperate with the investigating authorities.
32. The duration of the measure had not been excessive and had been
justified by the crime for which the applicant was being investigated, as
8 TIBA v. ROMANIA JUDGMENT

well as by the police-officer status of the co-suspect. As regards the fact that
the reasons for this measure had not been mentioned in writing on the
warrant, the applicant could have asked for this information once he found
himself in front of the prosecutor.
33. The Government also contended that no force had been exerted on
the applicant by the police officers in order to make him accompany them
and that, once on the premises of the prosecutor’s office, he could have
refused to give statements and asked to leave.
34. The Government concluded that – even if the Court were to consider
that the applicant had been deprived of his liberty – the warrant to appear
before the criminal-investigation authority had been issued in compliance
with national law, had been justified, and had been proportionate in its
scope.
(b) The Court’s assessment
35. The Court points out that in proclaiming the “right to liberty”,
paragraph 1 of Article 5 contemplates the physical liberty of the person; its
aim is to ensure that no one should be deprived of that liberty in an arbitrary
fashion (see Vittorio and Luigi Mancini v. Italy, no. 44955/98, § 16,
2 August 2001). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an
exhaustive list of permissible grounds on which persons may be deprived of
their liberty, and no deprivation of liberty will be lawful unless it is justified
on one of those grounds (see Iustin Robertino Micu, cited above, § 85).
36. The Court also reiterates that, in order to determine whether
someone has been “deprived of his liberty” within the meaning of Article 5,
the starting point must be his concrete situation, and account must be taken
of a whole range of criteria such as the type, duration, effects and manner of
implementation of the measure in question. The difference between the
deprivation of liberty and the restriction thereof is merely one of degree or
intensity, and not one of nature or substance (see Austin and Others v. the
United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57,
15 March 2012). Moreover, the characterisation or lack of characterisation
given by a State to a factual situation cannot decisively affect the Court’s
conclusion as to the existence of a deprivation of liberty (see Creangă
v. Romania [GC], no. 29226/03, § 92, 23 February 2012).
37. In the instant case the Court considers, along with both parties, that
the measure complained of started at 8.00 a.m. on 12 December 2008 and
ended at 5.10 p.m. on the same day, therefore lasting for nine hours and ten
minutes.
38. The Court further observes that the Government contended that the
applicant had willingly accompanied the police officers to the prosecutor’s
office and that they had not used force against him. The Government also
alleged that, once on the premises of the T.N.A.D., the applicant could have
refused to give statements and could have asked to leave. In this connection,
 TIBA v. ROMANIA JUDGMENT 9

the Court notes that the warrant to appear was shown to the applicant (see
paragraph 8 above) and also that the applicant’s allegation that he was
guarded by police officers continuously was not contradicted by the
Government. In addition, had the applicant refused to accompany them, the
police officers escorting him would have been authorised by law to take him
by force (see paragraph 15 above). Furthermore, in accordance with the
provisions of article 183 § 2 of the Criminal Procedure Code, the applicant
was obliged to remain available to the prosecutor for the time required for
his questioning. The applicant’s questioning started at 12 noon and lasted
until 4.50 p.m. and, according to his allegations, he was constantly under the
control of the police officers who were also holding his phone and wallet
(see paragraph 10 above). Under these circumstances the Court notes that
there is no evidence in the file to suggest that the applicant would have been
allowed to leave of his own free will or that he had been notified by the
police officers or the prosecutor that he could do so.
39. According to the Court’s established case-law, coercion is a crucial
element in its examination of whether or not someone has been deprived of
his or her liberty within the meaning of Article 5 § 1 of the Convention (see,
for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008, and
M.A. v. Cyprus, no. 41872/10, §§ 186-193, ECHR 2013 (extracts)). The
Court therefore considers that the applicant was under the authorities’
control throughout the entire period, and concludes that, despite the
relatively short period of time in question (compare Tomaszewscy
v. Poland, no. 8933/05, § 130, 15 April 2014; and Baisuiev and Anzorov,
cited above, § 55, where the applicants were held for even shorter periods of
time of two and three hours respectively) he was deprived of his liberty
within the meaning of Article 5 § 1 of the Convention.
40. The Court must now determine whether the applicant was deprived
of his liberty “in accordance with a procedure prescribed by law” within the
meaning of Article 5 § 1 of the Convention. The words “in accordance with
a procedure prescribed by law” in Article 5 § 1 essentially refer back to
national law and state the obligation to conform to the substantive and
procedural rules thereof. While it is normally, first and foremost, up to the
national authorities, especially the courts, to interpret and apply domestic
law, the position is different in relation to cases where failure to comply
with the law entails a breach of the Convention. This applies, in particular,
to cases in which Article 5 § 1 of the Convention is at issue and the Court
must then exercise a certain power to review whether national law has been
observed (see Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000-III).
In particular, it is essential, in matters concerning deprivation of liberty, that
the domestic law clearly defines the conditions for detention and that the
law be foreseeable in its application (see Zervudacki v. France,
no. 73947/01, § 43, 27 July 2006, and Creangă, cited above, § 101).
10 TIBA v. ROMANIA JUDGMENT

41. The Court notes that, in the present case, the legal basis for depriving
the applicant of his liberty was Article 183 of the former Romanian Code of
Criminal Procedure.
42. According to paragraph 1 of that Article, an individual could be
brought before a criminal-investigation body or a court on the basis of a
warrant to appear if, having been previously summoned, he or she had not
appeared and his or her questioning or presence was required. In this
connection, the Court notes that the parties agreed that the applicant had
never been summoned to appear before the T.N.A.D.’s prosecutors in
connection with criminal proceedings against him.
43. The Court further notes that, pursuant to paragraph 2 of the same
Article, a suspect or an accused could exceptionally be brought before the
authorities on the basis of a warrant to appear even before being summoned
if the criminal-investigation body or the court provided reasons explaining
why this measure was necessary in the interest of solving the case.
44. In this respect the Court observes that the prosecutor’s warrant of
11 December 2008 issued on the basis of Article 183 paragraph 2 of the
former Romanian Code of Criminal Procedure did not provide any reasons
as to why this measure was necessary for the questioning of the applicant as
an accused. While the Government contended that the measure had been
justified by the type of crime and the status of the other person accused in
the file, those reasons were not included in the warrant presented to the
applicant. Moreover, the Court considers that the fact that the co-suspect
was a police officer could have constituted a reason justifying that person’s
warrant, but not the applicant’s. The Government also alleged that the
applicant, when appearing before the investigating prosecutor, could have
asked the latter what the reasons were for the warrant issued in his name.
On this point the Court considers that the purpose of the requirement to
provide reasons for a warrant to appear issued directly ‒ without
summoning the accused ‒ is not only of a purely informative nature but also
serves the purpose of avoiding abuse of this legal provision. The Court
therefore concludes that by omitting to specify the reasons on which it was
based, the prosecutor’s warrant failed to conform to the rules applicable to
domestic criminal procedure (see Ghiurău v. Romania, no. 55421/10, § 85,
20 November 2012, and Iustin Robertino Micu, cited above, § 94).
45. The Court considers that the above circumstances prove that the
applicant was not deprived of his liberty in accordance with a procedure
prescribed by domestic law, thereby rendering the deprivation of the
applicant’s liberty from 8.00 a.m. to 5.10 p.m. on 12 December 2008
incompatible with the requirements of Article 5 § 1 of the Convention.
46. There has therefore been a violation of Article 5 § 1 of the
Convention.
 TIBA v. ROMANIA JUDGMENT 11

2. Alleged violation of Article 5 § 4 of the Convention

47. The applicant claimed that the domestic legislation did not provide
for judicial review or any other remedy for his complaint concerning the
breach of his right to liberty as guaranteed by Article 5 of the Convention.
48. The Government argued that the rather short duration of the
applicant’s alleged deprivation of liberty rendered impossible its review by
a court. In addition they contended that the applicant could have lodged
complaints with the hierarchically superior prosecutor as provided by
Articles 278 or 1401 of the Criminal Procedure Code.
49. The Court observes from the outset that the substance of the
applicant’s complaint under Article 5 § 4 is the absence of judicial review
for the period of nine hours and ten minutes in which he had been deprived
of his liberty under the scope of the warrant to appear. At the end of the
above-mentioned period, the applicant was officially placed under police
custody (see paragraph 11 above), a measure which he did not contest
before the Court.
50. The Court observes in this context that Article 5 § 4 of the
Convention deals only with those remedies which must be made available
during a person’s detention with a view to that person obtaining speedy
judicial review of the lawfulness of the detention capable of leading, where
appropriate, to his or her release. The provision does not deal with other
remedies which may serve to review the lawfulness of a period of detention
which has already ended, including, in particular, a short-term detention
such as in the present case (see Slivenko v. Latvia [GC], no. 48321/99,
§ 158, ECHR 2003‑X).
51. Accordingly, the Court does not find it necessary to examine the
merits of the applicant’s complaint under Article 5 § 4 of the Convention
(see Tomaszewscy, cited above, §§ 146-147; and Baisuiev and Anzorov,
cited above, §§ 69-70).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage

53. The applicant claimed 10,000 euros (EUR) in respect of

non-pecuniary damage on account of the physical and psychological
suffering to which he had been subjected.
12 TIBA v. ROMANIA JUDGMENT

54. The Government argued that the sum claimed by the applicant was
excessive.
55. The Court considers that the applicant must have suffered distress as
a result of the treatment he was subjected to by the authorities on
12 December 2008 prior to his placement in police custody. Consequently,
making an assessment on an equitable basis, the Court awards the applicant
EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

56. The applicant did not claim any costs or expenses.

C. Default interest

57. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, unanimously, that there has been a violation of Article 5 § 1 of

the Convention;

3. Holds, by six votes to one, that it is not required to deal with the merits
of the applicant’s complaint under Article 5 § 4 of the Convention;

4. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage, to
be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just

satisfaction.
 TIBA v. ROMANIA JUDGMENT 13

Done in English, and notified in writing on 13 December 2016, pursuant

to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó

Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the separate opinion of Judge Marko Bošnjak is annexed
to this judgment.

A.S.
M.T.
14 TIBA v. ROMANIA JUDGMENT – SEPARATE OPINION

PARTLY DISSENTING OPINION OF JUDGE BOŠNJAK

58. I respectfully disagree with the majority that the Court is not
required to deal with the merits of the applicant’s complaint under Article 5
§ 4 of the Convention.
59. The applicant inter alia claimed that the domestic legislation did not
provide for judicial review or any other remedy for his complaint
concerning the breach of his right to liberty as guaranteed by Article 5 of the
Convention. This complaint is to be separated from his claim that he had
been unlawfully deprived of his liberty for the period he spent under police
officers’ control and at the T.N.A.D. prior to his placement in police
custody. The Convention specifically empowers our Court not only to
review whether, in a particular case, the conditions of Article 5 § 1 were
met, but also and independently whether the person deprived of his or her
liberty was entitled to challenge the lawfulness of the deprivation of liberty
before a national court in conformity with the requirements of Article 5 § 4
of the Convention.
60. The wording of Article 5 § 4 indicates that it becomes operative
immediately after arrest or detention and is applicable to everyone who is
deprived of his liberty. Accordingly, in the case at hand this required that a
judicial remedy be available whereby the applicant could have challenged
his detention and obtained release (see Petkov and Profirov v. Bulgaria,
nos. 50027/08 and 50781/09, §§ 66-67, 24 June 2014). If an appropriate
remedy is not available, this in itself is a violation of the Convention, more
precisely of Article 5 § 4. Such an eventual violation is independent from
the question whether a particular case of deprivation of liberty met the
substantive criteria outlined in Article 5 § 1 of the Convention.
61. In our present case, the Chamber has rightfully ruled that there has
been a violation of Article 5 § 1 of the Convention. In examining that part
of the complaint, it has dismissed the Government’s preliminary objection
as to the applicability of the Articles 278 or 140 of the Romanian Code of
Criminal Procedure in the instant case. In addition, the Court has already
established the absence of an effective domestic remedy in a similar case
where the applicant was deprived of his liberty for twelve hours on the basis
of a warrant to appear (see Iustin Robertino Micu, cited in the judgment,
§§ 109-110). Moreover, the applicant in the present case had raised before
the domestic courts his complaint concerning unlawful deprivation of
liberty prior to his placement in police custody, but the courts had
considered that they were not competent to decide on this complaint.
Therefore, the Court should conclude that the applicant’s deprivation of
liberty from 8.00 a.m. to 5.10 p.m. on 12 December 2008 was not subject to
any judicial review and that there has accordingly been a breach of
Article 5 § 4 of the Convention.