AS TO THE ADMISSIBILITY OF
Application no. 70786/01
by Julian ROSENGREN
The European Court of Human Rights (Third Section), sitting on 4 May 2006 as a Chamber composed of
Mr J. Hedigan, President,
Mr L. Caflisch,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 17 August 2000,
Having regard to the partial decision of 27 April 2004 (Second Section),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows :
The applicant, Mr Julian Rosengren, is a national of both Romania and Sweden, who was born in 1954 and lives in Visby, Sweden. He is represented before the Court by Mr J. Dufvenmark, a lawyer practising in Visby. The Romanian Government (“the Government”) are represented by their Agents, Mrs Roxana Rizoiu succeeded by Mrs Beatrice Rămăşcanu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 February, 20 and 29 March 1993, the applicant was heard by the police, in connection with some criminal complaints lodged against him by his business partners concerning alleged fraud.
On 13 April 1993, criminal proceedings against the applicant were opened and he was placed in police custody on charges of fraud through his business transactions. The police accused the applicant of using his companies to the prejudice of his business partners. The same day, the prosecutor attached to the Supreme Court of Justice ordered the search of the applicant’s home and of his companies’ headquarters.
The next day, the prosecutor attached to the Supreme Court of Justice ordered the applicant’s remand in custody for 30 days, as of 14 April 1993. On 10 May 1993, the police seized the applicant’s property in order to ensure the payment of the damage allegedly caused by him.
On 1 November 1993, the prosecutor attached to the Supreme Court of Justice committed the applicant and two other persons for trial before the Bucharest County Court.
1. The criminal proceedings against the applicant
The Bucharest County Court held the first hearing in the case on 6 December 1993. The applicant’s lawyer asked for a reschedule in order to prepare the defence of his client. Several other hearings were scheduled for taking of evidence. On several occasions the County Court postponed the hearing of the case due to failure of the summoning procedure.
On 15 November a witness was heard, in the presence of the applicant and his lawyer.
In a judgment of 29 November 1994, the County Court convicted the applicant of fraud, sentenced him to 4 years’ imprisonment and awarded civil damages to the victims. It ordered the expulsion of the applicant, after serving the sentence, given his Swedish nationality. The County Court upheld the seizure of the assets belonging to the applicant and his companies, as well as of their accounts.
The applicant, through his lawyer, appealed against the judgment regarding both his conviction and the expulsion order. He claimed that he had never lost his Romanian citizenship and that his expulsion would thus be unconstitutional.
In a decision of 11 May 1995, the Bucharest Court of Appeal allowed the appeal and remitted the case to the County Court for a new trial on the merits. It found that the court of first instance had not clarified all the relevant facts of the case and that it had not analysed all the charges against the applicant, as formulated by the prosecutor on 1 November 1993.
Between 27 June 1995 and 21 January 2000 some forty hearings were scheduled before the Bucharest County Court, the case being repeatedly adjourned for failure in the summoning of the parties, absence of parties or absence of the prosecution file. On 30 April 1997, the case was adjourned in order to allow the applicant to hire a new lawyer.
The applicant filed motions for bias against the judges of the County Court on 20 November 1996, 18 June and 13 August 1997. They were all dismissed.
On 21 January 2000, the Bucharest County Court, after reassessing the evidence adduced to the case, again convicted and sentenced the applicant to 4 years’ imprisonment, with an obligation to pay civil damages. It also ordered his expulsion. The County Court maintained the decision to seize the assets belonging to the applicant and his companies, as well as their accounts.
The applicant appealed against this judgment to the Bucharest Court of Appeal, which delivered its decision on 16 October 2000. The court reiterated that business activities required honest dealings. However, the evidence adduced in the case demonstrated the lack of good faith of the applicant in his business transactions which were under review. Therefore, it concluded that his activity was illicit. However, since the criminal charges against the applicant had become time barred, the court ended the trial against the applicant insofar as its criminal aspects were concerned. After reassessing the evidence and based on its findings, the Court of Appeal recalculated the amount of civil damages to be awarded to the victims. It also maintained the seizure of the applicant’s assets and the expulsion order.
In a final decision of 12 March 2002, the Supreme Court of Justice, after reassessing the evidence in the case, dismissed the applicant’s new appeal against the decision of 16 October 2000.
On 25 October 2002, the Procurator-General lodged an application with the Supreme Court of Justice to have the final decision of 12 March 2002 quashed (recurs in anulare), in so far as it concerned the expulsion order.
In a final decision of 7 April 2003, the Supreme Court allowed the extraordinary appeal and quashed the final decision of 12 March 2002 only as far as the expulsion order was concerned and set aside the latter order on the ground that the applicant had never lost his Romanian citizenship, which made his expulsion unconstitutional.
2. Precautionary measures against the applicant
a) The obligation not to leave Bucharest
On 19 December 1995, the Bucharest County Court, upon the applicant’s request, revoked his arrest, but imposed on him an obligation not to leave the city.
On 27 February 1996, the applicant requested the Bucharest County Court to revoke this prohibition. He argued that, if allowed to travel abroad, he could negotiate more easily with the alleged victims and that the damages could be recovered more quickly. In a decision delivered on the same day, the County Court dismissed the request. It held that it was not necessary for the conduct of his business that the applicant travel abroad or to another town, since he could appoint a representative.
On 29 March 1996, the Bucharest Court of Appeal dismissed the applicant’s appeal against this decision. It held that, according to the Romanian Code of Criminal Procedure, the applicant could only challenge the prohibition in an eventual appeal against the decision on the merits of the case.
On 5 and 26 June, 11 September and 16 October 1996, the County Court rejected further requests from the applicant to lift the measure, without specifying reasons. On 18 December 1996, the County Court rejected a similar request on the basis of unchanged circumstances.
On 22 October 2001, the applicant left Romania of his own free will and established his residence in Sweden.
It appears from the documents submitted by the applicant that the criminal prosecution and the precautionary measures taken against him were registered in his criminal record (cazier) and with the Passport Service.
b) The seizure of the applicant’s possessions
On 10 May 1993, the police searched the applicant’ home and seized some of his possessions for the purpose of ensuring the payment of the alleged damage he had allegedly caused.
On 28 April 1993, and 4, 10 and 13 May 1993, the B. Bank, one of the applicant’s business partners and alleged victims, seized, using its own bailiff, the assets of the applicant’s companies in order to secure the reimbursement of a business loan made to the applicant. On 4 May 1993, the bank sent the police a list of the assets belonging to the applicant’s companies.
It appears from the applicant’s submissions that, later on, the bank sold some of the seized assets.
On 4 September 2000, the applicant filed with the prosecutor attached to the Supreme Court of Justice a criminal complaint against the representatives of the B. Bank for selling his possessions whilst he was in custody. He sought compensation for the alleged damage caused to him by the representatives of the bank.
The applicant did not submit any further information concerning this complaint.
On 2 October 2000, the applicant filed a criminal complaint against D.B., the prosecutor in charge of the investigations against him. He accused D.B. of having allowed, on 10 May 1993, the B. Bank to sell some of his, and his companies’ seized assets. He requested compensation for the alleged damage.
It appears from the applicant’s submissions that this investigation is still pending.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure:
“ 1. ... the following precautionary measures can be imposed on the accused person: ...
b) the obligation not to leave town ... ”
“ The precautionary measures shall cease to exist ex officio ...
b) ... when the criminal trial ends. ”
“ An indicted or charged person ... may complain about a preventive measure to the criminal investigation body which ordered it or to State Counsel in charge of the investigation, until the case is brought to court; thereafter, the complaint shall be addressed to the court.
If the person concerned has not disputed the enforcement of the preventive measure before the criminal proceedings have ended and become final, they may be challenged in accordance with the civil law. ”
“ ... Any other person who maintains that he has a right over the seized property may apply, in accordance with Article 168, for a ruling on the existence of that right and for an order for the return of the property ... ”
“ When ... the court ends the criminal trial, it shall decide by the same decision on the matter of civil damages ... ”
1. Scope of the case
The Court notes that in his observations on the merits of the case, the applicant reiterated his complaints based on Articles 3, 5 §§ 1 (c), 3, 4 and 5 and on Articles 8 and 10 of the Convention concerning various aspect of his arrest and the treatment by the authorities while in detention on remand. However, these complaints had been declared inadmissible as out of time or manifestly ill-founded by the Court in its partial decision of 27 April 2004. At that time the Court had communicated to the Government only the complaints concerning the lack of fair hearing and the length of the criminal proceedings against him (Article 6 § 1), the presumption of innocence (Article 6 § 2), the seizure of property (Article 8 and Article 1 of Protocol No. 1), freedom of movement and the prohibition on the expulsion of nationals (Article 2 §§ 1 and 2 and Article 3 § 1 of Protocol No. 4).
2. The complaints under Article 6 §§ 1 and 2 of the Convention
a) The applicant’s first complaint relates to the length of the criminal proceedings, which began on 4 February 1993 and ended on 12 March 2002 with the final decision of the Supreme Court of Justice. They therefore lasted 9 years and one month, out of which 7 years and 9 months after the ratification of the Convention by the respondent State, on 20 June 1994. Article 6 § 1 of the Convention reads as follows in so far as relevant:
“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] tribunal.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ”
According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1. The Government rejected the allegation.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention.
b) The applicant then complained that the criminal proceedings against him had been unfair and had violated the presumption of his innocence particularly in so far as precautionary measures had been taken against him, his assets had been seized and mention of the criminal pursuits had been made in his criminal record and with the Passport service.
The Government contested the allegations and submitted that the principle of equality of arms had been observed throughout the proceedings; the applicant had been entitled to take part in the hearings, he had been assisted by a lawyer, evidence had been produced in his presence and the trial and pronouncement of the final decisions had been public. Furthermore, they recalled that the applicant had not specified which guarantees of the fair trial would have been infringed nor had he invoked any specific conduct of the authorities that would have violated the presumption of his innocence. They also recalled that the practice of bringing to the knowledge of the court the mentions registered in the criminal record concerning previous convictions did not violate Article 6 § 2 of the Convention (see X. v. Austria, no. 2676/65, Commission decision of 3 April 1967, Decisions and Reports (DR) 23, pp. 31-37).
In his observations on the merits of the case, the applicant further specified his Article 6 complaint, alleging that he had not been assisted by a lawyer in the domestic proceedings and that the accusation had used fake evidence against him.
From the outset, the Court recalls that it is for the domestic courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety were fair (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34). In the present case, the Court notes with the Government that the examination of the application does not disclose any indication that the proceedings in the applicant’s case were unfair. In particular, it appears from the evidence produced by the parties that the applicant was represented by a lawyer in the domestic proceedings.
Furthermore, the Court recalls that, according to its case-law, the presumption of innocence, which represents one of the elements of the fair criminal trial that is required by paragraph 1, will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see, among other authorities, Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, p. 18, § 37, Böhmer v. Germany, no. 37568/97, § 54, judgment of 3.10.02, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 30, § 56, and Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36).
However, nothing in the present case indicates that such decision or attitudes had occurred before the final decision was adopted in the case. Furthermore, the precautionary measures taken against the applicant are regulated by the Code of Criminal Procedure. The law in question, or the way it was interpreted by the courts when applying the said measures, do not seem to violate the presumption of innocence.
Lastly, the Court recalls that the registration of the prosecution and precautionary measures in the applicant’s criminal record has only the function of indicating that criminal proceedings are carried out against the person in question. It does not suggest that the person is guilty (see Corsi v. Italy (dec.), no. 42210/98, 15 March 2001). Moreover, as the precautionary measure concerned the obligation not to leave the country, the Court finds it sensible that notice of it would be given to the passport service, the authority responsible with issuing the travelling documents to the applicant. Moreover, the Court recalls that the applicant encountered no difficulty whatsoever when he left the country, of his own will, on 22 October 2001. Nothing in the file suggests that the applicant did suffer negative consequence from the registration in question.
Therefore, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
c) In his observations of 14 December 2004, the applicant complained that the police had sent, on 24 March 1993, a letter to the Chamber of Commerce and Industry of Romania asking for information on the applicant’s business situation in Sweden. This letter was intended to create a negative image for the applicant, whose name was, in this way, associated with the commission of crimes.
The Court considers that it is not necessary to examine whether the authorities infringed the applicant’s Article 6 rights by the said letter, in so far as the proceeding in the case ended on 12 March 2002, which makes this complaint to be introduced out of time. It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The complaint under Article 2 §§ 1 and 2 of Protocol No. 4
The applicant complains that the prohibition on leaving Bucharest imposed on him by the Bucharest County Court on 19 December 1995 violated his freedom of movement.
The Government recalled that it was at the applicant’s request that this precautionary measure had been imposed on him in place of his incarceration and that the measure had ended with the judgment of the Bucharest County Court of 21 January 2000, by virtue of Article 357 of the Code of Criminal Procedure.
While not disputing that the measure represented an interference with the applicant’s freedom of movement, the Government stated that the measure was provided by law, followed the legitimate aim of ensuring the good administration of justice and was proportionate to the aim pursued, in so far as it served exclusively as a temporary preventive measure to ensure the applicant’s attendance before a competent legal authority pending the judgment of the case by the first instance.
Lastly they claimed that the fact that the applicant had been absent from several hearings after release from custody reinforced the conclusion that the prohibition of leaving town had been justified in the circumstances of the case.
In the applicant’s view the interdiction to leave town had created for him a harsher situation than that in which he had lived during his detention on remand.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
4. The complaint under Article 8 of the Convention and Article 1 of Protocol No. 1
The applicant complained that the searches conducted at his home and the headquarters of his companies during the investigation, the seizure of property belonging to himself and his companies and its partial sale while he was in custody, with the approval of the prosecutor in charge of the criminal investigations against him, violated his rights under Article 8 of the Convention and Article 1 of Protocol No. 1.
The Government contended that the Court was not competent ratione temporis to examine the Article 8 complaint in so far as it related to the search measure that had been taken in 1993, thus before the entry into force of the Convention in respect of Romania.
They further considered that the applicant lacked victim status in so far as the complaint raised under Articles 8 and 1 of Protocol No. 1 concerned the seizure of the property belonging to the applicant’s companies (see Credit and Industrial Bank and Moravec v. Czech Republic, no. 29010/95, Commission decision of 20 May 1998). Lastly, the Government raised the plea of non-exhaustion of domestic remedies in so far as the applicant had not contested before the domestic courts the seizure of his property, although Articles 168-169 of the Code of Criminal Procedure provided for such an action, which in their view constituted a remedy that is effective, sufficient and accessible to the applicant (see G. v. Belgium, no. 12604/86, Commission decision of 10 July 1991, DR. 70, p. 125, Byloos v. Belgium, no. 14545/89, Commission decision of 9 October 1990, (DR) 66, p. 238).
The Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).
Under Article 35, normal recourse should be had by an applicant to effective remedies, that is remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001 and Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27).
The Court notes that Articles 168-169 of the Code of Criminal Procedure do indeed institute a procedure by which the applicant could have complained before the domestic courts against the preventive measures taken by the prosecutor against him. However, the case-file indicates that he had not done so, but preferred to file criminal complaints against the prosecutor and the representatives of the Bank. Moreover, he presented no evidence that the Articles 168-169 procedure would not be effective in his particular case.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Having found that the applicant did not exhaust the effective domestic remedies with respect to this complaint, the Court does not need to look into the other pleas of inadmissibility raised by the Government.
5. The complaint under Article 3 of Protocol No. 4
The applicant complained that the decision of the Bucharest Regional Court of 21 January 2000 to expel him from Romania, upheld by the final decision of 12 March 2002, had violated his rights guaranteed by Article 3 § 1 of Protocol No. 4, since he held Romanian nationality in addition to Swedish citizenship.
The Government considered that the applicant had lost the victim status in so far as the decision to expel him had been quashed by the final decision of 7 April 2003 of the Supreme Court of Justice. They recalled that, in any event, the applicant had left the country by his free will while the criminal case was still pending and that the decision to expel the applicant had never been enforced by the authorities.
The Court recalls that according to Article 34 of the Convention, it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Cataldo v. Italy (dec.), no. 45656/99, ECHR 2004-VI, and Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002).
In the present case, the Supreme Court of Justice, in its decision of 7 April 2003, quashed the expulsion order against the applicant, acknowledging its unlawfulness. The Court is satisfied that by this decision the Supreme Court acknowledged in substance the breach of the Convention. Furthermore, the expulsion order was never enforced. The applicant left the country on 22 October 2001 of his own free will. There is nothing in the file that would indicate that he would have been at any moment either forced to leave, or prevented from returning to Romania.
In these circumstances, the Court concludes that the alleged violation of the applicant’s right has been remedied by the quashing of the deportation order. It follows that in this respect the applicant may no longer claim to be a victim of a violation of the Convention within the meaning of Article 34 (see, mutatis mutandis, Pancenko v. Latvia (dec.), no. 40772/98, 28 October 1999, Gorizdra, cited above, and Micheyeva v. Lithuania (dec.), no. 50029/99, 12 September 2002).
It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares admissible, without prejudging the merits, the applicant’s complaint under Article 6 § 1 of the Convention relating to the length of the criminal proceedings instituted against him and the complaint concerning the prohibition on leaving the city, based on Article 2 §§ 1 and 2 of Protocol No. 4 ;
Declares inadmissible the remainder of the application.
Vincent Berger John Hedigan
ROSENGREN v. ROMANIA DECISION
ROSENGREN v. ROMANIA DECISION