Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 17500/15
Elisabeta MĂRGĂRIT against Romania
and 3 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 9 April 2015,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, who are all Romanian nationals, and the applicant company, which is registered in Romania, is set out in the appendix. Ms Elisabeta Mărgărit is M.C.’s mother, Ms Luiza Mărgărit is his former wife, and Mr Ion Bogdan Mărgărit is his son.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. By a decision of the prosecutor’s office attached to the High Court of Cassation and Justice of 29 September 2005, nine people, including M.C., were tried for tax evasion and conspiracy to commit money laundering in the context of the privatisation of several State-owned companies.
4. On 28 November 2011 the Bucharest County Court convicted the defendants, including M.C., of several counts of tax evasion and money laundering. Jointly with four other co-defendants, M.C. was ordered to pay the equivalent of several billion euros in respect of damage caused to the State budget by their criminal activity. In order to recover the damages, the court decided to uphold seizure measures previously put in place in respect of the defendants’ assets by a prosecutor’s decision of 12 January 2005 and a court order of 20 May 2010. All defendants appealed against that judgment.
5. The proceedings on appeal started before the Bucharest Court of Appeal.
6. At a hearing on 15 September 2014 the Bucharest Court of Appealallowed an application by the prosecutor and, on the basis of Article 249 §§ 1 and 4 of the Code of Criminal Procedure (“the CCP”), extended the seizure measures so that they related to all the direct proceeds of crime derived from the crimes which had been considered in the trial, including those assets belonging to relatives of the defendants or to other third parties. The court held that, in view of the large amount of damage allegedly caused by the crimes which had been considered in the trial, those preventive measures were necessary to avoid the hiding, destruction or selling of assets which might serve to cover that damage. The court further ordered that assets which might be subject to seizure be identified, and that their owners be summoned to appear before the court in order to protect their rights under the civil limb of Article 6 § 1 of the Convention.
7. At the next hearing on 19 September 2014 the court allowed an application by M.C. and ordered the investigators to draw up a separate list identifying all assets which might be seized to cover the damage caused by him in the event that his conviction was upheld.
8. At the hearing on 1 October 2014 the applicants in applications nos. 17501/15 (Luiza Mărgărit v. Romania) and 17502/15 (Ion Bogdan Mărgărit v. Romania) were present as third-party interveners, and they submitted, both orally and in writing, complaints against the seizure measures adopted at the hearing of 15 September 2014 (see paragraph 6 above).
9. The Bucharest Court of Appealordered that a list of the immovable property which had been seized be sent to the National Property Registration Office, in order for the security measures to be registered in the land registry. The list included numerous industrial buildings, houses, apartments and plots of land, including an apartment building located at no. 17-23 Catedralei Street in Bucharest, and an apartment owned by the applicant Ion Bogdan Mărgărit. The seizure measures also concerned various bank accounts and shares in commercial companies, some of which belonged to the applicant Luiza Mărgărit, and a car belonging to the applicant Ion Bogdan Mărgărit. The court scheduled another hearing for 9 October so that the security measures could be registered in the land registry and all those with an interest in the relevant property could come forward and be heard. The court also ordered that the applicant in application no. 17500/15 (Elisabeta Mărgărit v. Romania), who was not present at the hearing on 1 October 2014, be summoned to appear at the next hearing.
10. At the hearing on 9 October 2014 the applicants Luiza Mărgărit, Elisabeta Mărgărit and Ion Bogdan Mărgărit were present as third-party interveners and were represented by lawyers of their choice. They submitted additional written and oral complaints against the seizure measures adopted on 15 September 2014 (see paragraph 6 above). They argued that all the seized property had been acquired lawfully, and that their right to defend themselves had been breached because they had been involved in the proceedings only at the appeal phase. They also argued that Article 249 § 4 and Article 250 §6 of the CCP were unconstitutional: firstly because they introduced the presumption that property had been acquired unlawfully; and secondly because they provided that complaints against seizure measures were to be lodged with the same court which had implemented the disputed measures. The applicants submitted that these provisions breached their right of property and their right of access to a court as guaranteed by the Constitution. Their representative submitted documents in support of the claim that the property in issue had been acquired lawfully, and mentioned that all their submissions also referred to the property belonging to the applicant company in application no. 17604/15 (Consult Imobiliare Nord S.R.L. v. Romania), where Ms Luiza Mărgărit was the sole associate. With regard to the apartment building located at no. 17-23 Catedralei Street in Bucharest (see paragraph 9 above), the representative submitted that some of the apartments in the building had been sold to other people in the past year, and the remaining apartments were no longer the property of the applicant company Consult Imobiliare Nord S.R.L., since on 18 September 2014 they had been transferred to other people in order to pay a debt.
11. The court adjourned the pronouncement of the judgment until 14 October 2014.
12. On 14 October 2014 the Bucharest Court of Appeal adopted the final judgment in the case. The court upheld the defendants’ convictions for the crimes with which they had been charged in an extensively reasoned judgment of 276 pages, in which all the evidence – including expert reports, documents, numerous witness statements and transcripts of phone conversations – was thoroughly examined.
13. The court also decided to maintain the seizure measures. In this regard, the court observed that the defendant M.C. had committed crimes which had resulted in serious financial losses to the State budget. It held that there was ample evidence proving that M.C. had invested the direct proceeds of those crimes in various properties bought in the name of his parents, his son and his former wife, with whom he still lived. The court further held that M.C.’s parents, his son and his former wife, who were present before the court, could not justify their contention that they had lawfully acquired the seized assets. In reply to the arguments raised during the proceedings (see paragraph 10 above), the court held that the procedure for putting in place the seizure measures had been in accordance with the law and that the procedural rights of all interested parties had been respected. Moreover, the relevant land registration authorities had been notified of the measures, and the owners of the seized property had been summoned to appear before the court and had made full use of their procedural rights. In addition, the court held that the seizure of direct proceeds of crime, like the seizure in the current proceedings, was in full compliance with the Constitution.
14. In addition, considering that there was ample evidence that the applicant company Consult Imobiliare Nord S.R.L. was in fact controlled by M.C., who was also the real beneficiary of its profits, on the basis of Article 33 §§ 1 and 3 of Law no. 656/2002, and Article 112 §§1 (e) and 6 of the Criminal Code (“the CC”), the court ordered the confiscation of the building located at no. 17-23 Catedralei Street in Bucharest (see paragraphs 9 and 10 above), which was considered to form part of the direct proceeds of M.C.’s crimes. In this regard, the court observed that during the proceedings,ownership of the building had been transferred to M.C.’s parents in the context of a debt recovery contract concluded with them. However, neither the initial owner (the applicant company Consult Imobiliare Nord S.R.L.) nor the subsequent owners (M.C.’s parents) had succeeded in proving that they had lawfully earned the amount of money necessary to cover the cost of that building.
B. Relevant domestic law and international documents
15. A detailed description of the domestic law and practice and international documents concerning the seizure and confiscation of proceeds of crime can be found in Telbis and Viziteu v. Romania (no. 47911/15, §§ 35-44, 26 June 2018).
COMPLAINTS
16. The applicants complained under Article 6 § 1 of the Convention that the proceedings which had culminated in the seizure and confiscation of their assets had been unfair. Under the same Article, the applicants Elisabeta Mărgărit and Luiza Mărgărit also complained that the appeal bench dealing with their case had not been impartial.
17. Relying on Article 13 of the Convention, the applicants complained that they did not have two levels of jurisdiction in the proceedings which had resulted in the seizure and confiscation of their assets.
18. The applicants also complained that the seizure and confiscation of their property without sufficient procedural guarantees had been in breach of Article 1 of Protocol No. 1 to the Convention.
19. Under Article 17 of the Convention, the applicants complained that the Bucharest Court of Appeal had relied on the provisions of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in order to justify the lawfulness of the seizure and confiscation measures, which had in fact been unlawful.
THE LAW
A. Joinder of the applications
20. Given the factual and legal similarities of the applications, the Court decides to order their joinder (Rule 42 § 1 of the Rules of Court).
B. Application no. 7604/15 (Consult Imobiliare Nord S.R.L. v. Romania)
21. The applicant company Consult Imobiliare Nord S.R.L. complained that the proceedings that had resulted in the confiscation of its building located at no. 17-23 Catedralei Street in Bucharest had not been fair and had unlawfully deprived it of its property, and that it had not had access to an effective domestic remedy, in breach of Articles 6 § 1, 13 and 17 of the Convention, as well as of Article 1 of Protocol No.1.
22. The Court observes that the applicant company’s property rights in respect of the building in question were transferred to other persons before the final judgment on confiscation was adopted (see paragraph 14 above). Moreover, the applicant company itself argued before the Bucharest Court of Appealthat it no longer had property rights in respect of the building in question (see paragraph 10 above).
23. In view of the above, the Court considers that the applicant company’s property rights were not interfered with as a result of the proceedings complained of. It follows that it cannot claim to be a victim of a violation of its rights under Articles 6 § 1, 13 and 17 of the Convention and under Article 1 of Protocol No. 1 by reason of the outcome of those proceedings and/or of the manner in which they were conducted. Therefore, these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and application no. 7604/15 must be rejected in accordance with Article 35 § 4.
C. Remaining applications (nos. 17500/15 (Elisabeta Mărgărit v. Romania), 17501/15 (Luiza Mărgărit v. Romania) and 17502/15 (Ion Bogdan Mărgărit v. Romania))
1. Complaints under Article 6 § 1 of the Convention
24. The applicants complained of a breach of their rights under Article 6 § 1 of the Convention the relevant parts of which read as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an … impartial tribunal …”
(a) Fairness of the proceedings
25. The applicants complained that the proceedings finalised with the judgment of 14 October 2014 (see paragraphs 12-14 above) had not been fair because the Bucharest Court of Appealhad ordered the seizure and confiscation of their assets without their being informed of the evidence or elements justifying those measures, and without their having an opportunity to defend their rights in the framework of the criminal proceedings against M.C.
26. The Court reiterates its well-established case-law to the effect that in cases involving the confiscation of applicants’ property in the framework of criminal proceedings against third parties, confiscation measures constitute an interference with the applicants’ right to the peaceful enjoyment of their possessions. As property rights are civil rights within the meaning of Article 6 § 1 of the Convention, that provision is applicable under its civil head (see Silickienė v. Lithuania, no. 20496/02, §§ 45-46, 10 April 2012, and Yldirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV).
27. The Court has previously examined the Romanian legal framework on the issue of seizure and confiscation from third parties and found it to be in compliance with the fair trial guarantees set out in Article 6 § 1 of the Convention (see Telbis and Viziteu v. Romania (no. 47911/15, §§ 53-58, 26 June 2018). In this regard, the Court has held that the domestic legislation gives third parties the opportunity, if they so wish, to fully participate in the proceedings in which a seizure or confiscation measure is decided (ibid., § 54).
28. Turning to the current case, all applicants were summoned to appear before the Bucharest Court of Appeal (see paragraphs 6-9 above) and were accepted as parties to the criminal proceedings against M.C. (see paragraph 10 above and compare Silickienė,cited above, § 48, where the applicant was not a party to the criminal proceedings at all). Moreover, the Court notes that the documents in the file indicate that the applicants were represented by lawyers of their choice and had ample opportunity to present their arguments on points of fact and law before the court, both in writing and orally at hearings (see paragraphs 8 and 10 above). The domestic court duly examined and responded to the applicants’ arguments in the light of the supporting evidence available in the case file and concluded that the seized and confiscated assets formed part of the direct proceeds of M.C.’s criminal activity, and that the applicants had not shown that those assets had been lawfully acquired (see paragraphs 12-14 above).
29. In the light of the above, the Court considers that the Romanian authorities afforded the applicants reasonable and sufficient opportunity to adequately protect their interests. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) Impartiality of the Court of Appeal
30. The applicants Elisabeta Mărgărit and Luiza Mărgărit also alleged that the trial panel who ordered the seizure and confiscation of their assets had lacked impartiality. The Court notes that there is no evidence in the file that the above-mentioned applicants have exhausted the domestic remedies on this issue, more specifically there is no evidence that they ever submitted to the Bucharest Court of Appeal an application for the recusal of the panel in question.
31. In view of the above, the Court finds that this complaint is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(c) Lack of two levels of jurisdiction
32. Relying on Article 13 of the Convention, the applicants also complained that they did not have two levels of jurisdiction in the proceedings which had resulted in the seizure and confiscation of their assets.
33. The Court reiterates that by virtue of the jura novit curia principle it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). Having regard to the nature and the substance of the applicants’ complaints, the Court considers that they fall to be examined under Article 6 § 1 of the Convention.
34. The Court recalls that the Convention does not guarantee a right to a double degree of jurisdiction in civil matters. In fact, since it does not provide any right to an appeal in civil cases, Article 6 § 1 does not require States to set up courts of appeal or of cassation (see Mugliett v. Malta (dec.), no. 46661/12, § 37, 28 May 2013).
35. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, and must be rejected under Article 35 §§ 3 and 4 of the Convention.
2. Complaint under Article 1 of Protocol No. 1 to the Convention
36. The applicants argued that the seizure and confiscation of their property without their being convicted of anything, and without sufficient procedural guarantees, had been in breach of 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.”
37. The Court firstly recalls that it has already examined similar complaints and found them to be in compliance with the provisions of Article 1 of Protocol No. 1 to the Convention (see Telbis and Viziteu,cited above, §§ 72-82).
38. In the current case, the measures adopted with respect to the applicants’ assets constituted control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention (ibid., §§ 69 and 72). The Court notes that the measures were prescribed by law, since they were ordered under Article 249 §§ 1 and 4 of the CCP, and Article 112 §§1 (e) and 6 of the CC (see paragraphs 6 and 14 above). Furthermore, the Court considers that the measures in question, namely the seizure and confiscation of property obtained through crime, were in line with the general interest of the community (see Veits v Estonia, no. 12951/11, § 73, 15 January 2015).
39. The Court therefore needs to examine whether a fair balance was struck between the legitimate aim and the applicants’ fundamental rights, and whether there were sufficient procedural guarantees in place.
40. In this connection, the Court firstly notes that the proceedings in which the seizure and confiscation measures were decided clearly formed part of a policy aimed at the prevention of crime, in relation to which the States enjoy a wide margin of appreciation both with regard to the existence of a problem affecting the public interest which requires measures of control and the appropriate way to apply such measures (see Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001-VII).
41. The Court considers that its findings in respect of Article 6 § 1 (see paragraphs 26-29 above) are also relevant in the context of Article 1 of Protocol No. 1 as regards the question of whether the domestic proceedings afforded the applicants a reasonable opportunity to put their case to the authorities in order to effectively challenge the measures in question (see Telbis and Viziteu, cited above, § 78). On this point, the Court attaches importance to the fact that all applicants were summoned to appear in the proceedings, and they were able to present their arguments in person and through legal representatives of their choice. In addition, the domestic court dealt with – and rejected with sufficient reasoning – the applicants’ arguments to the effect that the property in question had not been obtained through crime.
42. The Court thus finds that there is nothing in the conduct of the proceedings to suggest either that the applicants were denied a reasonable opportunity to put forward their case or that the domestic court’s findings were tainted with arbitrariness. The seizure and confiscation measures were applied by the domestic court on the basis of evidence that the assets in question had illicit origins and the applicants’ inability to prove the contrary (see paragraphs 12-14 above; see also, mutatis mutandis, Telbis and Viziteu,cited above, § 79).
43. Having regard to all the above considerations, and in particular the way in which the domestic court fairly assessed the case, the Court finds that the proceedings in the present case cannot be considered to have been arbitrary. Having regard to the wide margin of appreciation enjoyed by States in the pursuit of a policy designed to combat crime, and to the fact that the domestic court afforded the applicants a reasonable opportunity to put their case through adversarial proceedings, the Court concludes that the interference with the applicants’ right to the peaceful enjoyment of their possessions was not disproportionate to the legitimate aim pursued (see, mutatis mutandisTelbis and Viziteu,cited above, § 81, and Bongiorno and Others v. Italy, no. 4514/07, §§ 44-51, 5 January 2010).
44. It follows that this complaint must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Complaint under Article 17 of the Convention
45. The applicants lastly complained that the Bucharest Court of Appeal had relied on the provisions of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in order to justify the lawfulness of the seizure and confiscation measures, in breach of Article 17 of the Convention, which reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
46. The Court observes that Article 17 of the Convention can only be applied in conjunction with the substantive provisions of the Convention. In so far as it refers to the State, Article 17 has been relied on in alleging that a State has acted in a manner aimed at destroying any of these rights and freedoms or limiting them to a greater extent than is provided for in the Convention (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 226, 23 February 2016).
47. The Court considers that the complaint, as formulated by the applicants, alleging a breach of Article 17 on account of the respondent State’s verification of the compliance of the measures adopted at domestic level with Articles of the Convention, falls outside the scope of that Article. In any case, the Court finds no evidence to suggest that the respondent State set out to deliberately destroy any of the rights relied on by the applicants in the present case, or to limit any of these rights to a greater extent than is provided for in the Convention.
48. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 24 October 2019.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
_____________
APPENDIX
| No. | Application no. | Lodged on | Applicant’s
Date of Birth/ Date of Registration Place of Residence |
Represented by |
| 1 | 17500/15 | 09/04/2015 | Elisabeta MĂRGĂRIT
17/01/1947 Bucharest |
|
| 2 | 17501/15 | 09/04/2015 | Luiza MĂRGĂRIT
20/05/1966 Bucharest |
|
| 3 | 17502/15 | 09/04/2015 | Ion Bogdan MĂRGĂRIT
19/02/1991 Bucharest |
|
| 4 | 17604/15 | 09/04/2015 | CONSULT IMOBILIARE NORD S.R.L.
22/06/2007 Bucharest |
Luiza MĂRGĂRIT,
unique associate |
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