BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF ABABEI v. ROMANIA
(Application
no. 34728/02)
JUDGMENT
STRASBOURG
27
July 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ababei v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34728/02) 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 Ştefan Ababei (“the applicant”),
on 17 August 2002.
- The
applicant was represented by Ms Ecaterina Ababei, a lawyer practising
in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
16 March 2009 the
President of the Third Section decided to communicate the complaints
concerning the length of the criminal proceedings, the lack of access
to civil courts and the right to respect for possession to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
- The
applicant was born in 1946 and lives in Bucharest.
A. First set of proceedings
- On
8 February 1998 the applicant was arrested under suspicion of fraud
and remanded in custody until 12 February 1998. His detention was not
extended as it was already covered by the arrest warrant issued in
another proceeding (see paragraph 9 below).
- The
Bucharest County Court examined the facts of the case, heard evidence
– notably expert reports and witness testimony – proposed
by the parties, including the applicant.
On 3
March 2000 the County Court convicted the applicant of fraud
(înşelăciune) and sentenced him to fifteen
years' imprisonment; it also noted that the applicant was remanded in
custody in connection with another investigation (the proceeding
described below at paragraphs 9-15) and maintained his continued
detention.
- On
appeal, on 29 December 2000 the Bucharest Court of Appeal reduced the
sentence to ten years' imprisonment.
- Deciding
on the appeal on points of law, in a final decision of 10 April 2002
the Supreme Court of Justice reduced the sentence to eight years.
B. Second set of proceedings
- On
12 February 1998 the applicant was arrested under suspicion of having
falsified documents.
- On
22 June 1998 the prosecutor attached to the Bucharest Court of Appeal
indicted the applicant on several accounts of fraud and forgery.
- In
a judgment of 13 September 1999 the Bucharest County Court convicted
the applicant of fraud.
On 13
April 2000 the Bucharest Court of Appeal modified the sentence on
appeal, and on 24 October 2002 the Supreme Court of Justice quashed
both previous decisions and sent the case back to the first-instance
court. The Supreme Court considered that the lower courts had made
errors in their judgments and had examined superficially the facts
and evidence.
- The
County Court held some thirty hearings in the case, at steady
intervals of approximately one month. About six hearings were
postponed because defence counsel was absent or asked for more time
to prepare the defence. The other hearings were mainly postponed
because of errors in the summonsing procedure or absence of the civil
parties.
On 20
April 2006 the applicant was again convicted by the County Court and
sentenced to eight years, two months and thirteen days' imprisonment.
The court noted that he had already served the sentence and ordered
his release.
- On
the same day, he was released from detention.
- On
27 April 2006 the applicant lodged an appeal. The Court of Appeal
held almost thirty hearings, at steady intervals of approximately one
month; the defence requested about five postponements.
The
decision on appeal was adopted on 18 June 2008; the court upheld the
first instance judgment.
- On
3 December 2008 the High Court of Cassation and Justice adopted the
final decision in the case, upholding the previous decisions.
C. Winding up of the applicant's company (insolvency
proceedings)
- In
1991 the applicant and three other persons founded company A. On 7
March 1996 the applicant bought the shares from the other individuals
and became the sole owner of the company.
- While
the criminal proceedings described above were pending against the
applicant, company A.'s creditors initiated the insolvency
proceedings against it. It appears that the applicant empowered A.I.
to represent the company in some of the litigation with the
creditors.
A.I.
represented the company in the insolvency proceedings as well. He
hired counsel and on several occasions objected to the measures taken
by the liquidators.
- On
8 December 2000 the Bucharest County Court allowed the creditor's
request and started the insolvency proceedings. The company's
representative was present at the hearing. He did not appeal against
the interlocutory judgment rendered by the court at that date.
- On
21 March 2003 the County Court took account of the liquidator's final
report on the distribution of the sums obtained from the sale of the
company's assets. It ordered that the company be dissolved and that
notice of dissolution be entered in the Trade Record (Registrul
Comerţului). It then closed the proceedings. No objections
were raised.
- By
the same judgment of 21 March 2003 the County Court decided to
examine separately the action in tort lodged by one of the creditors
against the applicant and another individual. The applicant
participated in the proceedings and on 6 January 2004 he lodged a
defence.
On 12
March 2004 the action was rejected by the County Court as
inadmissible. In a final decision of 24 February 2005 the Bucharest
Court of Appeal upheld the judgment.
- On
16 February 2007 the Bucharest County Court dismissed the applicant's
request for the annulment of the 21 March 2003 decision (contestaţie
în anulare). The court noted that the applicant lost the
right to administer the company's assets when the insolvency
proceedings started, and therefore he no longer had standing in the
proceedings.
In a
final decision of 19 June 2007 the Bucharest Court of Appeal declared
the appeal lodged by the applicant null and void, as the latter
failed to submit the reasons for appeal within the time-limit set by
law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF PROCEEDINGS)
- The
applicant complained that the length of the second set of criminal
proceedings instituted against him had been incompatible with the
“reasonable time” requirement, laid down in Article 6 §
1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- Both
parties sent observations on the merits of the complaint.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- On
the facts of the case, it notes that the period to be taken into
consideration began on 12 February 1998 and ended on 3 December 2008.
It thus lasted almost eleven years for three levels of jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Stoianova and Nedelcu v. Romania, nos. 77517/01 and
77722/01, § 26, ECHR 2005 VIII; and Soare v.
Romania, no. 72439/01, § 29,
16 June 2009).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
In
particular, the Court notes that on 24 October 2002, after it had
been already pending for almost four years and had been examined by
three courts, the case was sent back to the first-instance court for
a fresh examination. This referral was not imputable to the
applicant. Furthermore, the protraction caused by the defence was not
significant in comparison to the delays caused by procedural faults
and does not render the applicant's behaviour abusive (see, a
contrario, Bican v. Romania, no. 37338/02, § 72,
22 September 2009).
- Having
regard to the above arguments and its case-law on the subject, the
Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 (ACCESS TO
COURT) AND 1 OF PROTOCOL No. 1
- Under
Article 6 § 1 of the Convention the applicant complained about
the lack of access to court in the insolvency proceedings initiated
against his company, arguing that the 21 March 2003 interlocutory
judgment had not been served on him and therefore he could not object
to it. He also complained that he had incurred loss as result of the
winding up of his company, in violation of Article 1 of Protocol No.
1 to the Convention.
- Both
parties presented observations on the matter.
- In
particular, the Government raised an objection of lack of victim
status, arguing that the applicant was not party to the insolvency
proceedings and was not the sole shareholder of the company.
- Based
on the evidence in the file, the Court considers that the objection
is not founded, in so far as the applicant was the only shareholder
and administrator of the company and there were no conflicting
interests between him and the company.
- As
for the merits of the complaint raised under Article 6, the Court
reiterates at the outset that limitations on the capacity of the
shareholder to take action during the winding up proceedings
represent a legitimate restriction of his right to a court, in so far
as it protected the rights of the company's creditors (see Marini
v. Albania, no. 3738/02, §§ 115-117, ECHR 2007 XIV
(extracts)).
On
the facts of the present case, the Court notes that the applicant
empowered A.I. to administer the company (see paragraph 17 above) and
that A.I. participated in the winding up proceedings. Moreover, an
appeal could have been lodged against the decision of 8 December 2000
by means of which the company was placed under judicial
administration and the applicant lost his administration rights.
However, neither the applicant nor A.I. or their counsel lodged that
appeal. After the decision of 8 December 2000 had become
final, the applicant lost all possibility to control the company
during the winding up process.
- As
for the alleged loss under Article 1 of Protocol No. 1, the Court
notes that the company's possessions were sold by the liquidator,
which is a normal step during the winding up, and it serves the
purpose of covering the company's debts. In any case, as the
applicant failed to contest the 8 December 2000 decision,
he lost any possibility to control the company's possessions. The
loss allegedly incurred is not imputable to the State.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Under
Article 5 of the Convention, the applicant complained about his
arrest and continuing detention for eight years without being
convicted by means of a final decision.
- Under
Articles 6 §§ 1 and 3 (a) and 13 of the Convention he
complained of lack of a fair trial and non respect of the rights of
the defence as well as about the length of the first set of criminal
proceedings; in particular he complained about the changes in the
composition of the courts and about the way the courts assessed the
evidence.
- Under
Article 1 of Protocol No. 4 to the Convention, the applicant argued
that he had been convicted and imprisoned for a commercial debt.
- The
Court has examined the remainder of the applicant's complaints.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 67,291,937 euros (EUR) in respect of pecuniary
damage, representing the value of his company's assets, his
investments from 1994 to 1998 and the loss of profit. He also claimed
EUR 900,000 in respect of non-pecuniary damage, representing his
salary during detention, reparation for the actual time spent in
detention and for the suffering caused by the death of his wife while
he was in detention.
-
The Government contested these claims and considered that they were
exaggerated and lacked the causal link with the alleged violations.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it acknowledges that the applicant suffered distress
as a result of the length of the criminal proceedings against him and
ruling on an equitable basis, it awards him EUR 4,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 110,000 for the costs and expenses
incurred before the Court. He produced invoices of
4,287.07 Romanian Lei (RON) paid for sending letters to the
Court, RON 1,787.6 for translations and RON 187.6 for copying
documents.
-
The Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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 UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the second set of criminal proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(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:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, for costs and expenses;
(b) that
the above amounts are to be converted into the respondent State's
national currency at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
