{"id":20389,"date":"2023-01-24T10:19:01","date_gmt":"2023-01-24T10:19:01","guid":{"rendered":"https:\/\/laweuro.com\/?p=20389"},"modified":"2023-01-24T10:19:01","modified_gmt":"2023-01-24T10:19:01","slug":"case-of-voskanyan-v-armenia-european-court-of-human-rights-31237-14","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=20389","title":{"rendered":"CASE OF VOSKANYAN v. ARMENIA (European Court of Human Rights) 31237\/14"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF S.C. ECOREC S.A. AND DOMBROVSCHI v. ROMANIA<\/strong>
\n(Application no. 31237\/14)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n24 January 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of S.C. Ecorec S.A. and Dombrovschi v. Romania,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
\nTim Eicke, President,
\nFaris Vehabovi\u0107,
\nBranko Lubarda, judges,
\nand Crina Kaufman, Acting Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a031237\/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 16 April 2014 by a Romanian national, Mr Victor Dombrovschi (\u201cthe applicant\u201d), born in 1953 and living in Bucharest, and by a Romanian company, S.C. Ecorec S.A. (\u201cthe applicant company\u201d), registered in 2001 and based in Pope\u015fti Leordeni (\u201cthe applicants\u201d), who were represented by Mr G. Liotti, a lawyer practising in Trapani (Italy);<\/p>\n

the decision to give notice of the complaints concerning the alleged violation of the applicants\u2019 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 (\u201cthe Government\u201d), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
\nthe parties\u2019 observations;
\nHaving deliberated in private on 13 December 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The applicant company is a waste management enterprise which operated a major landfill near Bucharest. The applicant was the applicant company\u2019s general manager and one of its owners.<\/p>\n

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.<\/p>\n

3. On 4 June 2013 Rome County Court (\u201cCounty Court\u201d) allowed a motion by the above-mentioned prosecutors and ordered that the applicant company\u2019s movable and immovable assets \u2013 including its banking transactions and accounts, capital and shares \u2013 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.<\/p>\n

4. A challenge lodged by the applicants against the measure was dismissed by the County Court on 23 September 2013.<\/p>\n

5. On 25 June 2013 the Italian prosecutors asked the Directorate for Investigating Organised Crime and Terrorism (\u201cDIICOT\u201d) of the prosecutor\u2019s office attached to the High Court of Cassation and Justice (\u201cCourt of Cassation\u201d) in Romania to enforce the County Court\u2019s 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\u00a0million Euros (EUR).<\/p>\n

6. On 7 August 2013 the DIICOT enforced the County Court\u2019s decision. It held that the existing and future sums of money on the company\u2019s accounts were to be placed at the trustee\u2019s disposal and that, apart from its shares, all the other remaining assets of the applicant company were to be left in the company\u2019s 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\u2019s custody.<\/p>\n

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\u2019s enforcement, the applicants argued that only a court was competent to enforce it since it was a court order.<\/p>\n

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\u2019s 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\u2019s 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.<\/p>\n

9. The applicants also argued that the DIICOT overstepped its competencies and the mandate given by the County Court\u2019s decision because: (i)\u00a0it found that there was a reasonable suspicion that the offences under investigation were committed and (ii)\u00a0it determined itself the estimated value of the damage caused by the acts under investigation after corresponding with the Italian prosecutors.<\/p>\n

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.<\/p>\n

11. By a final judgment of 16 October 2013 the Bucharest Court of Appeal (\u201cthe Court of Appeal\u201d) reiterated the findings of the first-instance court and dismissed the challenge as inadmissible. It confirmed the DIICOT\u2019s findings above concerning the measure\u2019s enforcement (see paragraph 10). In addition, the court held that according to the Court of Cassation\u2019s case-law, seizure measures and their enforcement ordered at the pre-trial stage of criminal proceedings could be contested only before a prosecutor.<\/p>\n

12. The Court of Appeal dismissed the applicants\u2019 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\u2019 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.<\/p>\n

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\u2019s appeal against this judgment appears to be still pending before the Italian courts.<\/p>\n

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.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. preliminary objection and observations<\/strong><\/p>\n

15. As far as the Government\u2019s 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.\u00a0Romania, no. 38072\/11, \u00a7 83, 21 July 2020, and C\u0103lin v.\u00a0Romania, no.\u00a054491\/14, \u00a7 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.<\/p>\n

16. The Government\u2019s inadmissibility plea must therefore be dismissed.<\/p>\n

17. Nonetheless, the Court notes that part of the applicants\u2019 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\u00a04 above), such a finding does not appear arbitrary or manifestly unreasonable.<\/p>\n

18. In this context the Court cannot accept the applicants\u2019 allegation that the Romanian authorities were responsible for a violation of their above\u2011mentioned rights (see paragraph 17) as far as the seizure measure itself was concerned.<\/p>\n

19. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a04 of the Convention.<\/p>\n

II. Additional ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/strong><\/p>\n

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\u2019s 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.<\/p>\n

21. The Court notes that this part of the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

22. The general principles concerning the right of access to court have been summarized in Zubac v. Croatia ([GC] no. 40160\/12, \u00a7\u00a7 76-79, 5\u00a0April 2018).<\/p>\n

23. In the present case, the applicants contested the lawfulness of the measure\u2019s 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\u2019 overall challenge was inadmissible because, according to the Court of Cassation\u2019s practice, the review of the measure\u2019s 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.<\/p>\n

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.\u00a0the Czech Republic, no. 38238\/04, \u00a7 70, 9\u00a0October 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, \u00a7\u00a087, and C\u0103lin, cited above, 84).<\/p>\n

25. In the light of the above, the Court finds that the respondent State impaired the very essence of the applicants\u2019 right of access to a court in so far as the enforcement of the measure imposed on them was concerned.<\/p>\n

26. There has accordingly been a violation of Article 6 of the Convention.<\/p>\n

III. Other complaints<\/strong><\/p>\n

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.<\/p>\n

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\u201126 above, the Court considers that these complaints must be declared admissible, but that there is no need to rule on their merits (see, mutatis\u00a0mutandis, Ruianu v.\u00a0Romania, no. 34647\/97, \u00a7 75, 17 June 2003).<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

29. The applicant and applicant company claimed, respectively, EUR\u00a0140,700,797 and EUR 210,161,364 in respect of pecuniary damage, covering alleged current and future losses, and EUR 47,000 and EUR\u00a0105,000 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.<\/p>\n

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\u2019 claim for non-pecuniary damage.<\/p>\n

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\u2019 claims in these respects.<\/p>\n

32. Given the documents in its possession and the absence of the applicant\u2019s name on the invoices supporting the applicants\u2019 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\u2019s claim in respect of costs and expenses, however, is dismissed.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

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;<\/p>\n

2. Holds that there has been a violation of Article 6 of the Convention;<\/p>\n

3. Holds that there is no need to examine the merits of the remaining complaints;<\/p>\n

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;<\/p>\n

5. Holds<\/p>\n

(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;<\/p>\n

(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;<\/p>\n

6. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 24 January 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Crina Kaufman \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Tim Eicke
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

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FOURTH SECTION CASE OF S.C. ECOREC S.A. AND DOMBROVSCHI v. ROMANIA (Application no. 31237\/14) JUDGMENT STRASBOURG 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…<\/p>\n

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