THIRD SECTION
CASE OF
SCHULLER v. ROMANIA
(Application no.
4801/04)
JUDGMENT
STRASBOURG
25 June 2013
This judgment is final but it may be subject to editorial
revision.
In the case of Schuller v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Committee composed of:
Alvina Gyulumyan, President,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 4 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 4801/04) 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 German national, Mr Hanspeter Schuller (“the applicant”), on
8 December 2003.
The applicant was
represented by Mr Eugen Ostrovschi and Mrs Beate Grün, lawyers practising
in Bucharest and in München, respectively. The Romanian Government (“the
Government”) were represented by their Agents, Mr Răzvan-Horaţiu Radu
and Ms Irina Cambrea, from the Ministry of Foreign Affairs.
On 16 September 2010 the application was
communicated to the Government. In accordance with Protocol No. 14, the
application was assigned to a Committee of three Judges.
The German Government, having been informed by
the Registrar of the right to intervene (Article 36 § 1 of the Convention and
Rule 44 § 2 (a) of the Rules of the Court), did not avail themselves of this
right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1943 and lives in Munich.
On 17 March 1995 during an investigation
undertaken by the tax authorities of Teleorman County, a contravention report
was issued against the applicant, suspected of smuggling, and in particular, of
having illegally imported into Romania agricultural equipment, which he
subsequently used for illicit activities. The report indicated that the matter
was to be brought before the prosecution.
Upon the same investigation, the authorities
summoned the applicant to the local tax office on 22 March 1995 to provide clarifications
in respect of a fake invoice allegation. On 21 March 1995 the applicant
presented himself at the tax office and tried to persuade two tax commissioners
not to issue a new report against him by offering them money. On the same day,
the tax authority issued a new report on the offences of smuggling and active
bribery, both of which were brought before the Public Prosecutor’s Office with
the County Court of Teleorman.
On 21 March 1995 the applicant
was remanded in detention.
On 12 April 1995 he was released under
supervision.
On 11 August 1995 the applicant was brought to
trial on charges of active bribery, smuggling and fraud-related offences in connection
with the importation of agricultural equipment, the seizure of which was
equally ordered.
From 1996 to 2000 the court listed at least nine
hearings at intervals ranging from five to nine months for failure to properly
summon the applicant at his residences in Germany and in Romania. Throughout the trial at first instance, the applicant’s legal representative or, in his
absence, a court-appointed lawyer, were present at most of the hearings.
On 14 November 2000 based on
contravention and in flagrante reports, customs papers, applicant’s
statements and ten witness testimonies, the County Court of Teleorman found the
applicant guilty of active bribery and smuggling and convicted him to a
two-year deferred prison sentence. He was acquitted of charges of fraud-related
offences. With regard to the offence of smuggling, the court applied a newly
entered into force law (Law no. 141/1997 which amended the Law no.
30/1978, in force at the commission of the offence) and stated that the act of
smuggling was incriminated in both laws, but the new one was more favourable in
respect of penalty provisions. The seizure of the agricultural equipment was
maintained in court.
On appeal, the Bucharest Court of Appeal listed a
total of seven hearings of which four were adjourned in the attendance of
documents and information from the Customs Office of Teleorman. Both the
applicant and his legal representative were present at all court hearings.
On 20 December 2001 the court rejected the
appeal and upheld the lower court’s judgment. The applicant appealed on points
of law.
On 11 June 2003 the High Court of Cassation and
Justice (the former Supreme Court of Justice) convicted the applicant to a
two-year deferred prison sentence for smuggling charges. With regard to the
active bribery charges, he was acquitted as the criminal liability had become
time-barred. The judgment became final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the length of the
proceedings 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...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The Government considered that the proceedings
had started on 11 August 1995 when the applicant was brought to court, and
ended on 11 June 2003 when the former Supreme Court of Justice had
rendered its final ruling, thus having lasted for a total of seven years and
ten months for three levels of jurisdiction. They further argued that while
most of this space of time was consumed at first instance, it took the higher courts
no more than two years and seven months to finalise the case.
The applicant did not submit any comments on the
matter.
The Court notes that on 17 March 1995 the
applicant was subjected to a tax investigation on suspicion of smuggling
activities. He was subsequently brought before the prosecuting authorities on
charges of smuggling and active bribery and fraud-related offences on 21 March
1995 (see paragraphs 6-8). Thus, the Court cannot agree with the Government on
the starting point of the period to be taken into consideration. It concludes
that the proceedings began on 21 March 1995 and reached their end on 11 June
2003. The total length of the proceedings was thus eight years and more than
two months for three levels of jurisdiction, of which five years and nearly
eight months ran only at the first level.
2. Reasonableness of the length of the proceedings
In the Government’s view, the case was of
exceptional complexity, as it involved the applicant’s failure to pay customs
duties on imported agricultural equipment and the examination of several
criminal charges related to it. Moreover, the Government points to the evidence
assessed in the case (the hearing of some ten witnesses) and to the service of
process to the applicant’s residence in Germany as facts which have prolonged
the proceedings at first instance.
Referring to the conduct of the relevant
authorities, the Government suggested that there had been no sign of inactivity
on their part. On the contrary, they showed due diligence in handling the case
by listing hearings within short periods of generally one month. They added
that, if several intervals between the hearings had been longer, this was
mainly due to the need to ensure the duly service of process and the parties’
presence at the hearings. The Government went on to underline that the courts
took constant measures to accelerate the proceedings in particular with regard
to establishing the applicant’s residence in order to be lawfully summoned.
Lastly, the applicant was deemed to have
significantly contributed to the length of the trial. The Government suggested
that several adjournments of the case before the court of first instance were
due to the service of process being effected in Germany, where the applicant
had elected domicile. It pointed to a persistent attitude of disregard toward
the progress of the proceedings from the part of either the applicant or his
lawyer, fact which had inevitably led to the delays accrued. Thus, the
“reasonable time” requirements were considered to have been complied with in
the present case.
The applicant refrained from making any
particular submissions in respect of these arguments, only reiterating his
allegations on the excessive length of the proceedings.
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 and what was at
stake for the applicant in the dispute (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
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 Pélissier and Sassi and Frydlender,
cited above, Abramiuc v. Romania, no. 37411/02, § 103-109, 24 February 2009, Matica v. Romania, no. 19567/02,
§ 24, 2 November 2006, Săileanu
v. Romania, no. 46268/06, § 50, 2 February
2010).
Turning to the facts of the present case, the
Court notes that the criminal proceedings did not raise issues able of
triggering a lengthy trial. They involved the hearing of some ten witness
testimonies and the examination of rather few documents, without any expert
studies conducted in the case (see paragraph 12). Thus, they were neither procedurally nor factually of exceptional
complexity.
The Court further observes that the proceedings
at first instance lasted five years and nearly eight months before the same
court, which scheduled no more than nine hearings inside this long span of
time. The adjournments of the case were mainly due to the defective service of
process in respect of the applicant and the witnesses to be heard, and to the
need to obtain documents from the relevant tax authorities.
In view of the present
case’s lack of complexity, the Court can find no sufficient justification for
such a long lapse of time, the responsibility for which lies entirely with the
authorities. It notes that the major source of delay was the courts’
failure to organise the examination of the case properly and to gather evidence
in a more effective manner.
As for the applicant’s
conduct, there is no evidence that at any stage of the proceedings he
showed dilatory conduct or otherwise upset the proper conduct of the trial. His requests did not exceed what was normally acceptable in
the exercise of his defence rights. He was present at most of the hearings
either in person of through a legal representative (of his own choice or
court-appointed) and he cannot be said to have contributed in any other manner
to the total length of the proceedings. The Government did not put
forward any fact or argument capable of persuading the Court to reach a
different conclusion.
To sum up, the Court considers that in the
instant case the length of the criminal proceedings was excessive and failed to
meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6
§ 1 as regards the length of criminal proceedings.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Relying on Article 6 § 1, the applicant further complained
about the outcome of the criminal proceedings against him, and in particular
about the authorities’ failure to duly serve the indictment to his address in
Germany, as well as subsequent documents to his Romanian address, the lack of
adequate time to prepare his defence and the lack of opportunity to have
witnesses heard in defence. Under Article 7, the applicant claimed that the
courts had extensively and retroactively applied the law, thus resulting in an
unlawful conviction for smuggling. Further, the applicant relied on Article 8
and on Article 2 of Protocol No. 4 to claim an interference with his right to
private life, home and freedom of movement as a result of the court-ordered
prohibition of leaving the country. Lastly, the applicant complained under
Article 1 of Protocol No. 1, alleging that the seizure of his farm equipment
and its subsequent depreciation had amounted to an infringement of his property
rights.
Having considered the applicant’s submissions in
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
must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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 1,779,390 German marks (DM)
in respect of pecuniary damage, equivalent to the value of the seized
agricultural equipment. In respect of the non-pecuniary damage, the applicant
claimed a sum that would cover the distress resulting from the excessive delays
in a satisfactory way, without indicating a specific amount.
The Government contested these claims. They
pointed out that there was no causal link between the violation found and the
pecuniary damage alleged. With regard to the non-pecuniary damage, they
suggested that no sum should be awarded since the applicant had failed to
indicate an amount in that respect. The Government claimed that the finding of
a violation would constitute sufficient just satisfaction.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore rejects
this claim.
The Court considers that the applicant must have
sustained non-pecuniary damage which is not sufficiently compensated by
the finding of a violation of the Convention. Ruling on an equitable basis, it
awards him 1,200 euros (EUR) under that head.
B. Costs and expenses
The applicant also claimed DM 3,374 for the
costs and expenses incurred before the domestic courts, of which DM 2,000 as
attorney’s fees and DM 1,374 for travel expenses. With regard to the costs and expenses
incurred before the Court, he claimed reimbursement of EUR 7,344.81 comprising
German attorney fees (EUR 4,594.81), translation costs (EUR 750) and
Romanian attorney fees (EUR 2,000). He documented his expenses only in part by
submitting transport tickets, whereas for the attorney fees he only submitted
legal representation agreements and bills, without any proof of the actual
payment of the sums.
The Government contested these claims, while
admitting that they were not opposed to the award of a sum as long as it had
been actually incurred and documented. With regard to the attorney fees, they
pointed out that the applicant had failed to submit proof of actual payment of
the attorney fees and of the translation costs. Moreover, the fees claimed to
have been paid to the Romanian attorney concerned a different set of
proceedings, and should therefore be disregarded by the Court. Lastly, no sum
should be awarded to reimburse travel expenses as, according to the Government,
the applicant had generated them by committing criminally liable acts.
According to the Court’s established case-law,
costs and expenses will not be awarded under Article 41 unless it is
established that they were actually incurred, were necessarily incurred and
were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, § 54, ECHR 2000-XI).
Regard being had to the documents in its
possession and to its case-law, the Court considers it reasonable to
award the sum of EUR 500 covering costs and expenses in the domestic
proceedings as well as for the proceedings before the Court.
C. Default interest
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 UNANIMOUSLY
1. Declares the
complaint concerning the excessive length of the criminal proceedings
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the length of criminal proceedings;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months, the following amounts, to be converted
into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 1,200 (one thousand two hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena
Tsirli Alvina
Gyulumyan
Deputy Registrar President
