FOURTH SECTION
\nDECISION<\/p>\n
Application no. 70621\/16
\nB.A.A.
\nagainst Romania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 26\u00a0March\u00a02019 as a Committee composed of:<\/p>\n
Paulo Pinto de Albuquerque, President,
\nFaris Vehabovi\u0107,
\nCarlo Ranzoni, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 24 November 2016,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr B.A.A., is a German national who was born in\u00a01978 and lives in London. He was represented before the Court by Ms\u00a0Diana-Elena\u00a0Dragomir, a lawyer practising in Bucharest.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0At the material time, the applicant and his father were well-known businessmen; they made multiple investments in Romania. The National Anti-Corruption Prosecutor\u2019s Office (Direc\u021biaNa\u021bional\u0103Anticorup\u021bie; \u201cthe prosecutor\u2019s office\u201d) started investigations against them and other individuals for several acts of corruption. On 24 June 2014 the prosecutor\u2019s office decided to indict the applicant\u2019s father and other individuals in that regard. By the same decision the prosecutor decided to continue the investigation against the applicant for several related crimes, including giving bribes to judges and embezzlement.<\/p>\n 1.\u00a0\u00a0Prosecutor\u2019s request for arrest and pre-trial detention<\/em><\/p>\n 4.\u00a0\u00a0On 25 March 2016, relying on the provisions of Articles 202-203 and 223-224 of the Code of Criminal Procedure (\u201cthe CCP\u201d), the prosecutor\u2019s office sought an order, in the applicant\u2019s absence, for his arrest and pre-trial detention. The prosecutor put forward evidence to indicate that the applicant might have tried to bribe judges in order to obtain preferential treatment for the companies in which he and his father had had financial interests, and also that the applicant might have committed acts of embezzlement. He relied on the evidence gathered, consisting of thirty-seven volumes of documents, notably witness statements, official documents attesting to both the applicant\u2019s position and commercial relations between companies relevant to the investigation, the court case file concerning the applicant\u2019s and his father\u2019s companies, and recordings of telephone conversations.<\/p>\n 5.\u00a0\u00a0The prosecutor averred that, although the applicant had been aware of the investigation against him and had received the prosecutor\u2019s notifications, he had not appeared before the prosecutor to give evidence. The prosecutor provided a detailed account of all the attempts that had been made to contact the applicant either directly at his last known address in Monaco, or indirectly through his companies. Notification in several formats had been sent to the applicant\u2019s email address but, according to his employee, who had forwarded him those documents, he had been unable to open any of the attachments. Moreover, the applicant\u2019s father had been aware of the investigation and could have been in contact with the applicant. The applicant was not present before the court, but was represented by hired counsel who had opposed the prosecutor\u2019s request, on his behalf. The said counsel argued that there was no evidence in the file that the prosecutor had attempted to contact the applicant and thus he complained about the service of the notification. He also indicated that the applicant was living with his wife and two children in London.<\/p>\n 2.\u00a0\u00a0The arrest warrant<\/em><\/p>\n 6.\u00a0\u00a0In an interlocutory judgment of 19 May 2016, a judge of the Bucharest Court of Appeal ordered the applicant\u2019s pre-trial detention for thirty days, after hearing the prosecutor and the applicant\u2019s hired counsel. On the basis of the evidence in the file and the oral submissions, the judge found that there was a reasonable suspicion that the applicant had committed acts of corruption, in particular that he had known about and consented to the offering of bribes to judges who had been examining applications for his father\u2019s companies (over which the applicant exercised control) to be declared insolvent.<\/p>\n 7.\u00a0\u00a0The judge further established, on the basis of witness statements, that the applicant had been aware of the criminal investigation against him and of the notifications that had been sent to him by the prosecutor\u2019s office. The judge noted that when the applicant had been contacted by telephone by the Monegasque police about the prosecutor\u2019s notification, he had discontinued the call and had then permanently disconnected his telephone. The judge further noted that the prosecutor\u2019s attempts to contact the applicant in London had been fruitless. He concluded that the applicant had absconded. Relying on Article 223 \u00a7\u00a7 1 (a) and 2 of the CCP, which allowed the arrest of an accused on the grounds that he had absconded and that there was reasonable suspicion that he had committed a crime of a certain severity, the judge considered that ordering pre-trial detention was the only measure that would allow the normal course of the criminal trial.<\/p>\n 8.\u00a0\u00a0The applicant\u2019s counsel lodged an objection against the interlocutory judgment. On 25 May 2016 the High Court of Cassation and Justice (hereinafter \u201cthe High Court\u201d) attempted to contact the applicant on two telephone numbers and at two email addresses which were believed to belong to him, but could not reach him. It was possible to inform only his counsel of the date of the hearing. His counsel explained to the court that he had been hired by the applicant\u2019s father to represent the applicant but had had no direct contact with him. In addition, notice of the hearing scheduled to take place on 26May 2016 was published at the courthouse on the day before the hearing took place. The applicant did not attend the hearing. His counsel reiterated that he had had no contact with his client, who had presumably left the country in 2013.<\/p>\n 9.\u00a0\u00a0The High Court examined the procedure used for notification. It considered that, given the circumstances \u2013 the efforts made by the authorities and the applicant\u2019s attitude \u2013 the display of a public notice at the courthouse, an option which was allowed by law in special situations, such as that in the case against the applicant, satisfied the legal requirements. It went on to examine the merits of the applicant\u2019s objection, lodged on his behalf by his counsel, and dismissed it, upholding the reasoning set out by the judge of the Bucharest Court of Appeal (see paragraphs 6 and 7 above). The High Court also considered that a lesser preventive measure would not be sufficient in the circumstances of the case.<\/p>\n 3.\u00a0\u00a0The applicant\u2019s arrest and the extradition proceedings<\/em><\/p>\n 10.\u00a0\u00a0On 6 June 2016 a European Arrest Warrant (\u201cthe EAW\u201d) was issued in respect of the applicant by the Romanian authorities. On 13\u00a0June\u00a02016 the applicant was arrested in London, before being released on bail on 19\u00a0June\u00a02016. He was arrested again on 2 March 2018 and he remained in detention, pending extradition, until 14 November 2018, the date of the latest communication from his representative.<\/p>\n 11.\u00a0\u00a0On 25 January 2017 the Bucharest Court of Appeal dismissed an objection lodged by the applicant\u2019s counsel against the EAW as unfounded.<\/p>\n 12.\u00a0\u00a0The request for extradition as contained in the EAW was examined by the Westminster Magistrates\u2019 Court. The applicant argued that he was the victim of a politically-motivated prosecution by the respondent State. The court heard evidence from the applicant and from expert witnesses put forward by both parties, examined in detail the arguments put forward by the applicant and dismissed them. Consequently, on 13 April 2018 the Westminster Magistrates\u2019 Court allowed the extradition request made by the Bucharest Court of Appeal.<\/p>\n 13.\u00a0\u00a0On 20 August 2018 the High Court of England and Wales refused the applicant leave to pursue an appeal lodged against the decision of 13\u00a0April\u00a02018 allowing his extradition. He appealed against the refusal, and the appeal hearing is planned to take place in 2019.<\/p>\n COMPLAINTS<\/strong><\/p>\n 14.\u00a0\u00a0The applicant complained under Article 5 \u00a7\u00a7 1 (c) and 3 of the Convention about the \u201cdiscretionary\u201d manner in which the Romanian authorities had ordered his arrest. He argued that the authorities had not had sufficient evidence to suspect him of the commission of the crimes of which he had been accused. Moreover, he contended that there had been no real need to arrest him two years after the start of the criminal investigation. He averred that given the volume of documents presented in the case file, it would have been impossible for the judges to thoroughly examine the prosecutor\u2019s request in such a short time. Lastly the applicant argued that the domestic courts had not examined the possibility of taking a less strict preventive measure.<\/p>\n 15.\u00a0\u00a0Under Article 6 \u00a7\u00a7 1 and 2 of the Convention, the applicant complained about the manner in which the prosecutor\u2019s request for the taking of the preventive measure had been examined by the courts, arguing that he had not been properly notified of the proceedings or given sufficient time to properly examine the case given the complexity of the file, and that the reasoning of the decision indicated that the courts had started from the premise that he was guilty.<\/p>\n 16.\u00a0\u00a0Lastly, the applicant complained, under Article 18 taken together with Article 5 \u00a7\u00a7 1 and 3 and Article 6 \u00a7\u00a7 1 and 2 of the Convention, that the State authorities had abused their power in order to restrict his and his father\u2019s rights and to eliminate their companies from the market.<\/p>\n