CASE OF S.C. ECOREC S.A. AND DOMBROVSCHI v. ROMANIA
(Application no. 31237/14)
24 January 2023
This judgment is final but it may be subject to editorial revision.
In the case of S.C. Ecorec S.A. and Dombrovschi v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 31237/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 April 2014 by a Romanian national, Mr Victor Dombrovschi (“the applicant”), born in 1953 and living in Bucharest, and by a Romanian company, S.C. Ecorec S.A. (“the applicant company”), registered in 2001 and based in Popeşti Leordeni (“the applicants”), who were represented by Mr G. Liotti, a lawyer practising in Trapani (Italy);
the decision to give notice of the complaints concerning the alleged violation of the applicants’ rights of access to court (Article 6), of enjoyment of possessions (Article 1 of Protocol No. 1) and to an effective remedy (Article 13) to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant company is a waste management enterprise which operated a major landfill near Bucharest. The applicant was the applicant company’s general manager and one of its owners.
2. Italian anti-Mafia prosecutors opened a criminal investigation against the applicant and other private persons for alleged attempts to launder money generated by Mafia-type activities.
3. On 4 June 2013 Rome County Court (“County Court”) allowed a motion by the above-mentioned prosecutors and ordered that the applicant company’s movable and immovable assets – including its banking transactions and accounts, capital and shares – be seized preventively pending the investigation. It held that the applicant company was used for the alleged unlawful acts, that it was difficult to establish the exact participation in the company of those under investigation and that all seized assets were open to confiscation. The court appointed an Italian judicial trustee to administer the seized immovable assets and capital.
4. A challenge lodged by the applicants against the measure was dismissed by the County Court on 23 September 2013.
5. On 25 June 2013 the Italian prosecutors asked the Directorate for Investigating Organised Crime and Terrorism (“DIICOT”) of the prosecutor’s office attached to the High Court of Cassation and Justice (“Court of Cassation”) in Romania to enforce the County Court’s decision by means of rogatory commission. At a later date, after an express query by the DIICOT, they indicated that the estimated damage in the case was over 16 million Euros (EUR).
6. On 7 August 2013 the DIICOT enforced the County Court’s decision. It held that the existing and future sums of money on the company’s accounts were to be placed at the trustee’s disposal and that, apart from its shares, all the other remaining assets of the applicant company were to be left in the company’s custody. The applicants were informed that they could not trade, destroy, damage, modify, dispose or change the destination of the assets left in the company’s custody.
7. The applicants contested the lawfulness of the measure imposed on them and of its enforcement before both the DIICOT and the Romanian courts. As to the measure’s enforcement, the applicants argued that only a court was competent to enforce it since it was a court order.
8. Furthermore, the enforcement was allegedly incompatible with Romanian law because under the said law: (i) only assets of persons who were accused, defendants or civilly liable in criminal proceedings could be seized; (ii) it was not possible to appoint a judicial trustee or entrust him with a company’s money; (iii) there was no correspondent to the kind of seizure measure ordered in Italy in terms of nature and effects and (iv) the DIICOT had to appraise the company’s assets and could not seized them if they valued more than EUR 16 million or if some of them were obtained before the events under investigation.
9. The applicants also argued that the DIICOT overstepped its competencies and the mandate given by the County Court’s decision because: (i) it found that there was a reasonable suspicion that the offences under investigation were committed and (ii) it determined itself the estimated value of the damage caused by the acts under investigation after corresponding with the Italian prosecutors.
10. On 30 August 2013 the DIICOT dismissed the challenge. It held that the complaints concerning the seizure itself could be examined only by the Italian authorities, and the complaints concerning the enforcement of the measure were ill-founded. The DIICOT had not altered the measure ordered by the County Court and was competent to enforce it given that the trial proceedings had not started in Italy. Also, the measure was enforced in line with the requirements of the relevant national and international legal framework.
11. By a final judgment of 16 October 2013 the Bucharest Court of Appeal (“the Court of Appeal”) reiterated the findings of the first-instance court and dismissed the challenge as inadmissible. It confirmed the DIICOT’s findings above concerning the measure’s enforcement (see paragraph 10). In addition, the court held that according to the Court of Cassation’s case-law, seizure measures and their enforcement ordered at the pre-trial stage of criminal proceedings could be contested only before a prosecutor.
12. The Court of Appeal dismissed the applicants’ argument that they could not contest the measure before the County Court because they lacked standing in the criminal proceedings, on the ground that the applicant was a suspect in those proceedings. Lastly, it held that the applicants’ argument that a seizure measure enforced abroad could not be contested before a court in Italy could be examined only on the basis of an advisory opinion requested from the impugned authorities.
13. On 31 January 2019 the County Court convicted the applicant and the other private parties and sentenced them to prison sentences. In addition, it confiscated all the assets seized during the criminal proceedings. The applicant’s appeal against this judgment appears to be still pending before the Italian courts.
14. In their observations the Government submitted that according to the criminal procedure rules in force in Romania since 1 February 2014, seizure measures ordered and enforced at the pre-trial stage of proceedings are open to review by a court.
THE COURT’S ASSESSMENT
I. preliminary objection and observations
15. As far as the Government’s submissions above (see paragraph 14) could be considered a plea of inadmissibility of the application on grounds of non-exhaustion of domestic remedies, the Court notes that the avenue in question could be pursued as of 1 February 2014 only for measures taken or enforced for less than three days (see Credit Europe Leasing Ifn S.A. v. Romania, no. 38072/11, § 83, 21 July 2020, and Călin v. Romania, no. 54491/14, § 79, 5 April 2022). Moreover, nothing in the case-file suggests that in their specific case the applicants could reasonably expect that a court would examine their arguments on the merits.
16. The Government’s inadmissibility plea must therefore be dismissed.
17. Nonetheless, the Court notes that part of the applicants’ complaints under Articles 6 and 13 of the Convention concern an alleged lack of access to court and to an effective remedy in Romania for challenging the lawfulness of the seizure measure itself. It also notes that the relevant authorities considered that a challenge of the measure could be examined only by the Italian authorities (see paragraphs 10 and 11 above). Since the measure was imposed in Italy and the applicants have pursued a challenge (see paragraph 4 above), such a finding does not appear arbitrary or manifestly unreasonable.
18. In this context the Court cannot accept the applicants’ allegation that the Romanian authorities were responsible for a violation of their above‑mentioned rights (see paragraph 17) as far as the seizure measure itself was concerned.
19. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
II. Additional ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
20. The applicants alleged that the Romanian authorities violated their right of access to court because they could contest the lawfulness of the seizure measure’s enforcement only before a prosecutor who ignored their arguments, and their attempt to bring a court challenge was dismissed on grounds of lack of jurisdiction without an examination of the substantive arguments raised by them.
21. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
22. The general principles concerning the right of access to court have been summarized in Zubac v. Croatia ([GC] no. 40160/12, §§ 76-79, 5 April 2018).
23. In the present case, the applicants contested the lawfulness of the measure’s enforcement before both the DIICOT and the national courts by relying on similar arguments. Both authorities examined and dismissed part of these arguments, while failing to address the remaining ones. In its assessment the Court of Appeal eventually concluded that the applicants’ overall challenge was inadmissible because, according to the Court of Cassation’s practice, the review of the measure’s enforcement was reserved only to DIICOT since the seizure had been imposed on the applicants at the pre-trial stage of the criminal proceedings opened in Italy.
24. The Court considers that decisions on seizures, or on their enforcement, reserved only to prosecutors during the pre-trial stage of criminal proceedings, cannot be considered to offer sufficient procedural guarantees under the Convention (see, mutatis mutandis, Forminster Enterprises Limited v. the Czech Republic, no. 38238/04, § 70, 9 October 2008). It further recalls the importance attached by its case-law to procedural fairness and to the opportunity to challenge effectively before courts measures seizing assets imposed and enforced during the pre-trial stage of criminal proceedings (see Credit Europe Leasing Ifn S.A., cited above, § 87, and Călin, cited above, 84).
25. In the light of the above, the Court finds that the respondent State impaired the very essence of the applicants’ right of access to a court in so far as the enforcement of the measure imposed on them was concerned.
26. There has accordingly been a violation of Article 6 of the Convention.
III. Other complaints
27. The applicants complained under Article 1 of Protocol No. 1 to the Convention that their property rights were violated because the Romanian authorities enforced the seizure measure unlawfully and affected their financial well-being as the seized assets could no longer be used for a long time. The applicants complained further under Article 13 of the Convention that the proceedings brought by them in Romania against the enforcement of the seizure measure did not provide them with an effective remedy for the alleged violations of their Convention rights.
28. The Court notes that these complaints are closely connected to the one above (see paragraph 20). Having regard to its findings in paragraphs 21‑26 above, the Court considers that these complaints must be declared admissible, but that there is no need to rule on their merits (see, mutatis mutandis, Ruianu v. Romania, no. 34647/97, § 75, 17 June 2003).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. The applicant and applicant company claimed, respectively, EUR 140,700,797 and EUR 210,161,364 in respect of pecuniary damage, covering alleged current and future losses, and EUR 47,000 and EUR 105,000 in respect of costs and expenses incurred before the domestic authorities and the Court. In addition, the applicants claimed EUR 1,000,000 each in respect of non-pecuniary damage.
30. The Government considered that the claims were unjustified and excessive. Also, the finding of a violation would constitute sufficient just satisfaction as regards the applicants’ claim for non-pecuniary damage.
31. The Court does not discern a causal link between the violation found and the pecuniary damage alleged. Also, given the circumstances of the case, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicants may have suffered on account of the lack of access to court to contest the enforcement of the seizure measure. The Court therefore dismisses the applicants’ claims in these respects.
32. Given the documents in its possession and the absence of the applicant’s name on the invoices supporting the applicants’ claim in respect of costs and expenses, the Court finds it reasonable to award the applicant company EUR 10,000, plus any tax that may be chargeable to it. The applicant’s claim in respect of costs and expenses, however, is dismissed.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the enforcement of the seizure measure imposed on the applicants admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 of the Convention;
3. Holds that there is no need to examine the merits of the remaining complaints;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants on account of the lack of access to court to contest the enforcement of the seizure measure;
(a) that the respondent State is to pay the applicant company, within three months, EUR 10,000 (ten thousand euros) plus any tax that may be chargeable to the applicant company, in respect of costs and expenses, 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 24 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President