CERNEA v. ROMANIA - 7486/12 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2018] ECHR 1023 (18 December 2018)

In the case of Cernea v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 7486/12) 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 Vasile Gavril Cernea ("the applicant"), on 3 November 2011.

2. The applicant was represented by Mr M.C. Jida, a lawyer practising in Oradea. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.

3. The applicant alleged under Article 6 § 1 of the Convention that the criminal proceedings opened against him had been unreasonably lengthy. Relying, in substance, on Article 1 of Protocol No. 1 to the Convention, the applicant alleged that he had incurred substantial losses because he had been unable to dispose freely of his property following the seizure of his assets.

4. On 8 February 2016 notice of the above-mentioned complaints was given 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 1954 and lives in Oradea.

A. Criminal proceedings against the applicant

6 . On 29 November 2000 the prosecutor's office attached to the Bihor County Court ("the prosecutor's office") discontinued the criminal proceedings which it had opened against the applicant on 24 November 2000 for bribe taking.

7 . On 10 January 2001 the prosecutor's office attached to the Bihor Court of Appeal quashed the above-mentioned decision of its own motion and ordered that the proceedings against the applicant be reopened.

8. On 5 February and 11 June 2001, respectively, the prosecutor's office reopened the criminal proceedings against the applicant for bribe taking and opened criminal proceedings against him for abuse of office.

9. On 29 July 2002 the State Agency for Capitalisation of Banking Assets ( Autoritate Pentru Valorificarea Activelor Bancare - "AVAB") joined the criminal proceedings against the applicant as a civil party. It sought the recovery of 27,863,805,105 Romanian lei (ROL) (approximately 1,758,753 US dollars (USD)), the damage that it had allegedly incurred as a result of the applicant's abuse of office.

10 . On 16 August 2002 the prosecutor's office ordered the seizure of the applicant's movable and immovable assets up to the value of the damage allegedly incurred by AVAB. The order was enforced by the Bihor Police Department on 19 December 2002 by seizing part of the immovable properties owned jointly by the applicant and his wife, in particular four plots of intra muros agricultural land, a home and annexes.

11. On 29 August 2002 the prosecutor's office indicted the applicant for bribe taking and for abuse of office and sent his case for trial.

B. First round of court proceedings

12. Between 7 October 2002 and 6 February 2006 the Bihor County Court ("the County Court") adjourned the proceedings twenty-four times to allow the parties to prepare their defence, for the court to summon the parties and the witnesses, to hear evidence, and for deliberations. Also, at a hearing on 10 February 2003, the court dismissed the applicant's challenge against the order of 16 August 2002 on the grounds that the measure was temporary and had been enforced correctly. This decision was upheld by the Oradea Court of Appeal ("the Court of Appeal") on 11 March 2003 following an appeal by the applicant.

13. On 13 February 2006 the County Court examined the applicant's case on the merits and acquitted him of abuse of office. However, it held that the applicant had to pay AVAB the damages it claimed because AVAB had suffered damage as a result of his actions. Consequently, the court maintained the measure imposed on the applicant's assets. It also convicted the applicant of bribe taking and sentenced him to three years' imprisonment, suspended.

14. The applicant appealed against the judgment to the Court of Appeal.

15 . Between 20 June and 11 July 2006 the Court of Appeal adjourned the proceedings twice to allow the parties to prepare their cases. On 19 September 2006 the court quashed the judgment of 13 February 2006 and referred the case back to the first-instance court for re-examination on procedural grounds.

C. Second round of court proceedings

16 . Between 30 November 2006 and 1 April 2010 the County Court adjourned the proceedings thirty-two times to allow the parties to prepare their defence, for the court-assigned expert to produce two expert reports, and for the court to summon the parties and the witnesses, to hear evidence, for deliberations, and to allow the judges to exercise their right to strike. Also, at a hearing on 4 June 2007 the court adjourned the examination of the applicant's request for the measure imposed on his assets to be lifted pending the court's determination of the case.

17. On 8 April 2010 the County Court examined the applicant's case on the merits, acquitted him of abuse of office and dismissed AVAB's civil claim. Consequently, it lifted the seizure measure from his assets. The court convicted the applicant, however, of receiving bribes and gave him a suspended sentence of three years' imprisonment.

18. The applicant and AVAB appealed against the judgment to the Court of Appeal.

19. Between 21 September and 16 November 2010 the Court of Appeal adjourned the proceedings twice to allow the parties to prepare their cases, to summon them, and for the court to deliberate. On 23 November 2010 the court dismissed the appeals of the parties and upheld the judgment of the first-instance court.

20. The applicant and AVAB appealed on points of fact and law against the judgment to the High Court of Cassation and Justice ("the Court of Cassation").

21. Between 23 February and 20 April 2011 the Court of Cassation adjourned the proceedings once to allow the applicant to prepare his case.

22 . By a final judgment of 4 May 2011 the Court of Cassation allowed the applicant's appeal on points of fact and law in part. It held that he was guilty of bribe taking, but his criminal liability for that offence had become time-barred. The court upheld the remaining parts of the judgments delivered by the lower courts.

23. On 4 March 2012, once the applicant had submitted certified copies of all the courts' judgments, the Bihor Land and Immovable Property Register removed the annotation concerning the seizure measure imposed on his immovable property from the above-mentioned register, which had prevented him from freely disposing of it.

II. RELEVANT DOMESTIC LAW

A. Former Code of Criminal Procedure

24. The relevant provisions of the former Code of Criminal Procedure concerning the seizure of assets during a criminal investigation and the available challenges, in particular Articles 163, 168 and 169, are described in Nedescu v. Romania (no. 70035/10, § 40, 16 January 2018).

25. Articles 370 and 385 5 provided that an ordinary appeal and an appeal on points of fact and of law had suspensive effect on the proceedings.

B. Law no. 7/1996 in respect of the land and immovable property register, in force at the relevant time

26. Articles 28 §§ 1 and 2 and 47 §§ 1 and 2 provided that the land register could be updated only if a notarised copy was provided of the final judgment which attested the legal fact being submitted for registration.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

27. The applicant complained of the unreasonable length of the criminal proceedings. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, 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

28. 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

29. The applicant submitted that the case had not been complex and that the authorities had been responsible for the delays in the proceedings.

30. The Government challenged the applicant's arguments, noting that the applicant had asked for repeated adjournments of the proceedings.

31. The Court reiterates the principles set out in its case-law concerning the assessment of the reasonableness of the length of proceedings (see, among many other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 143, 29 November 2016).

32. The Court notes that, in the current case, the criminal proceedings against the applicant had begun on 24 November 2000 and had ended with the final judgment of the Court of Cassation on 4 May 2011. Hence, they had lasted ten years, five months and ten days over three levels of jurisdiction.

33 . The Court further notes that neither the complexity of the case, nor the applicant's conduct could explain the overall length of the proceedings. In so far as the conduct of the relevant domestic authorities was concerned, the Court notes that the proceedings regarding the applicant were reopened repeatedly (see paragraphs 7 and 15 above) or were delayed (see paragraph 16 above) for reasons which could not be imputed to the applicant.

34 . Having regard to the available evidence, the parties' submissions, and to the relevant case-law on the matter (see Lupeni Greek Catholic Parish and Others , § 147, cited above), the Court takes the view that the length of the proceedings in the present case does not satisfy the "reasonable time" requirement.

There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOCL NO. 1 TO THE CONVENTION

35. The applicant complained that he had incurred substantial losses because he had been unable to freely dispose of his property for almost nine years following the seizure of his assets. He relied in substance on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

A. Admissibility

36. 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

37. The applicant submitted that the interference with his right of property had pursued a legitimate aim. However, it had lasted for an unreasonably long time, had concerned all the immovable assets owned by him and his wife and had prevented him from disposing of them or from mortgaging them. These restrictions, together with the fact that once the criminal proceedings had been opened against him he had remained unemployed, made the burden that had been imposed on him excessive.

38. The Government argued that the control of the use of the applicant's property was lawful and pursued a legitimate aim.

39. While an indefinite interference with the applicant's rights could not be justified by a mere reasonable suspicion, objective elements, such as the complexity of the case and his conduct, had to be considered when examining the proceedings. In addition, the applicant had failed to explain in what way the measure had affected him. Only part of his immovable property had been seized and the measure had not concerned any movable property which would have been necessary for the development of a professional activity. Also, he had been free either to farm the seized land or to build on it and had never claimed that he had intended to sell his properties or to carry out an activity that had been affected by the seizure.

40. The applicant had used the effective remedy available to him to challenge the measure and the courts had dismissed his challenge by providing reasonable grounds.

41. The Court reiterates the principles set out in its case-law in circumstances relating to instances of interference with the right to peaceful enjoyment of property (see, amongst other authorities, B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia , no. 42079/12, § 39, 17 January 2017).

42. In the instant case, the Court has no reason to doubt that the interference complained of - which constituted a control of the use of property - was in accordance with Romanian law since it had a clear basis in the former Code of Criminal Procedure, in particular Article 163 thereof, and that it pursued the legitimate aims of fighting crime and of securing the coverage of debt caused as a result of unlawful acts.

43. In remains to be determined whether the measure complained of was proportionate to the aim pursued.

44. The Court notes that the prosecutor's office ordered the seizure of the applicant's movable and immovable assets on 16 August 2002 and that the order was enforced only on 19 December 2002 and only with regard to the applicant's immovable assets. In addition, in spite of the applicant's arguments to the contrary, it seems that the enforcement concerned only part of his immovable assets. None of his movable property was seized.

45. The Court notes that there is no evidence in the file that the applicant was prevented from living on or renting out his property or from farming the land. Also, there is no indication that he was unable to make full use of his movable property. Moreover, the interference with his property stemmed from a criminal investigation opened against him on suspicion of an offence which had allegedly caused damage to others.

46. However, a reasonable suspicion at the beginning of the investigation cannot justify an indefinite interference with the applicant's rights. The ensuing investigation must be sufficiently diligent and speedy to ensure that the interference lasts only a limited time (see Benet Czech, spol. s.r.o. v. the Czech Republic , no. 31555/05, § 42, 21 October 2010).

47. In this connection, the Court observes that it has already established that the criminal investigation opened against the applicant was not very complex and was excessively lengthy (see paragraphs 33-34 above).

48. The Court further observes that the procedure enabling the applicant to complain before the courts against the measure taken against him was eventually successful and that the measure was formally lifted by the first-�instance court on 8 April 2010. However, in practice, given the suspensive effect of the ordinary appeals lodged by the parties against the above-mentioned judgment and the condition set out by Law no. 7/1996 for the land register to be updated, the applicant remained unable to freely dispose of his property pending a final judgment by the criminal court. He was therefore unable to freely use part of his immovable property, in particular to sell it or use it as collateral for loans, from 19 December 2002 to at least 4 May 2011, that is eight years, four months and fifteen days.

49. The Court acknowledges the importance of conducting investigations of suspected serious offences, as in the instant case, with due diligence in order to ensure that these offences are properly assessed and the proceedings duly terminated. Nevertheless, given the length of the proceedings and the apparent significant value of the applicant's seized immovable property, the Court finds that a fair balance was not struck in the instant case between the general interests of society and the interests of the applicant, as the latter was obliged to bear an excessive burden as a result of the continuing seizure.

50. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The applicant claimed 10,000 euros (EUR) in respect of non-�pecuniary damage as a result of the distress and mental suffering caused by the length of the proceedings against him and the seizure of his property.

53. The Government argued that the applicant's claim was excessive and he had failed to substantiate it. Moreover, there was no causal link between the alleged violation of his property rights and the damage claimed.

54. The Court accepts that the applicant suffered some non-�pecuniary damage as a result of the infringement of his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the applicant EUR 3,900 in respect of non-�pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

55. The applicant has not submitted any claim for costs and expenses. The Court is therefore not called upon to make any award in this respect.

C. Default interest

56. 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 application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred 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 the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President

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