A more advanced lesson on ECHR case-law.
CASE OF CREANGĂ v. ROMANIA 29226/03 23/02/2012 (Grand Chamber)
The applicant in this case is a police officer who, with a number of his colleagues, was invited by his superiors into a police building at 9:00 am to make a statement about a criminal investigation, and subjected to questioning by a prosecutor about corruption; he and some others were formally charged at 10:00 pm and ordered into pre-trial detention.
The relevance of this case to the Amanda Knox - Raffaele Sollecito case is that it gives some insights into the methods of reaching judgment by the Court, and it helps to understand how the Court may define the beginning of the period that Amanda was a suspect, or a person in custody.
That period would certainly commence when Amanda was invited or requested by a police officer to enter the interrogation room. Prior to that time, she had been, arguably, a visitor to the police station in a public area. For Raffaele, it began as soon as he entered the police station. If one considers Giobbi's testimony that he had ordered both to be brought in for questioning Nov. 5, then one could argue that for both the period under police control was when they entered the police station.
For Amanda, Giobbi's testimony on ordering both to be brought in and specifically the "invitation or request" to enter the interrogation room must be considered an official summons, because the police officer that asked her into the room stated in was to obtain further information from Amanda - to clear up some contradictions and to go over the list of people associated with Meredith. Amanda was not allowed any alternative at that moment but to enter that room; she was required to obey the police order.
In this case, the police had destroyed the log relating to the applicant's stay in the building, allegedly in accordance with their schedule for document retention. The Court states that in such matters, when the alleged violation of the Convention rights of an applicant are at issue, it is the responsibility of the respondent State to provide documentation, and the Court may make inferences if there is no production of such documentation.
If the applicant makes credible allegations of what occurred while he/she was under control of the police, as during an investigation, and the authorities do not produce an hour-by-hour or detailed account of the events during that period, the Court may make inferences. "Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations."
{Excerpts; emphasis added.}
(b) The burden of proof with regard to the alleged deprivation of liberty
88. The Court reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII).
89. Furthermore, the Court agrees with the Chamber’s reasoning that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. It reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 16 December 2008). The Court has already found that these considerations apply also to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII, and Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 9 October 2008). Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see Öcalan v. Turkey [GC], no. 46221/99, § 90, ECHR 2005‑IV).
90. The Court considers that these principles also apply in the instant case, on condition that the applicant provides prima facie concordant evidence capable of showing that he was indeed under the exclusive control of the authorities on the day of the events, that is to say, that he was officially summoned by the authorities and entered premises which were under their control. If that condition is satisfied, the Court will be able to consider that he was not free to leave, particularly when investigative measures were under way. It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time spent there by the applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations.