FOURTH SECTION
DECISION
Application no. 70621/16
B.A.A.
against Romania
The European Court of Human Rights (Fourth Section), sitting on 26 March 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Faris Vehabović,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 24 November 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr B.A.A., is a German national who was born in 1978 and lives in London. He was represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. At the material time, the applicant and his father were well-known businessmen; they made multiple investments in Romania. The National Anti-Corruption Prosecutor’s Office (Direcția Națională Anticorupție; “the prosecutor’s office”) started investigations against them and other individuals for several acts of corruption. On 24 June 2014 the prosecutor’s office decided to indict the applicant’s 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.
1. Prosecutor’s request for arrest and pre-trial detention
4. On 25 March 2016, relying on the provisions of Articles 202-203 and 223-224 of the Code of Criminal Procedure (“the CCP”), the prosecutor’s office sought an order, in the applicant’s 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’s position and commercial relations between companies relevant to the investigation, the court case file concerning the applicant’s and his father’s companies, and recordings of telephone conversations.
5. The prosecutor averred that, although the applicant had been aware of the investigation against him and had received the prosecutor’s 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’s 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’s 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’s 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.
2. The arrest warrant
6. In an interlocutory judgment of 19 May 2016, a judge of the Bucharest Court of Appeal ordered the applicant’s pre-trial detention for thirty days, after hearing the prosecutor and the applicant’s 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’s companies (over which the applicant exercised control) to be declared insolvent.
7. The 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’s office. The judge noted that when the applicant had been contacted by telephone by the Monegasque police about the prosecutor’s notification, he had discontinued the call and had then permanently disconnected his telephone. The judge further noted that the prosecutor’s attempts to contact the applicant in London had been fruitless. He concluded that the applicant had absconded. Relying on Article 223 §§ 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.
8. The applicant’s counsel lodged an objection against the interlocutory judgment. On 25 May 2016 the High Court of Cassation and Justice (hereinafter “the High Court”) 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’s father to represent the applicant but had had no direct contact with him. In addition, notice of the hearing scheduled to take place on 26 May 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.
9. The High Court examined the procedure used for notification. It considered that, given the circumstances – the efforts made by the authorities and the applicant’s attitude – 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’s 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.
3. The applicant’s arrest and the extradition proceedings
10. On 6 June 2016 a European Arrest Warrant (“the EAW”) was issued in respect of the applicant by the Romanian authorities. On 13 June 2016 the applicant was arrested in London, before being released on bail on 19 June 2016. 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.
11. On 25 January 2017 the Bucharest Court of Appeal dismissed an objection lodged by the applicant’s counsel against the EAW as unfounded.
12. The request for extradition as contained in the EAW was examined by the Westminster Magistrates’ 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’ Court allowed the extradition request made by the Bucharest Court of Appeal.
13. On 20 August 2018 the High Court of England and Wales refused the applicant leave to pursue an appeal lodged against the decision of 13 April 2018 allowing his extradition. He appealed against the refusal, and the appeal hearing is planned to take place in 2019.
COMPLAINTS
14. The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention about the “discretionary” 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’s 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.
15. Under Article 6 §§ 1 and 2 of the Convention, the applicant complained about the manner in which the prosecutor’s 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.
16. Lastly, the applicant complained, under Article 18 taken together with Article 5 §§ 1 and 3 and Article 6 §§ 1 and 2 of the Convention, that the State authorities had abused their power in order to restrict his and his father’s rights and to eliminate their companies from the market.
THE LAW
A. Complaints under Articles 5 and 6 of the Convention
17. The applicant complained about the manner in which the warrant for his arrest had been issued by the Romanian courts (see paragraphs 14 and 15 above).
18. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 5 § 1 (c) alone (see, mutatis mutandis, Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 128, 26 March 2009). This provision reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
19. The Court notes that the applicant was arrested in London on 13 June 2016 and released on bail three days later, on 19 June. He was arrested again on 2 March 2018 and was, at the date of the latest information available to the Court (14 November 2018), still deprived of his liberty pending extradition (see paragraph 10 above). The applicant was thus under the control and authority of the British authorities during his deprivation of liberty. However, in so far as the alleged unlawfulness of his arrest and detention is concerned, it cannot be overlooked that the applicant’s deprivation of liberty had its sole origin in the EAW issued by the Romanian authorities. Therefore, consistent with the approach adopted in similar cases (see, mutatis mutandis, Stephens v. Malta (no. 1), no. 11956/07, §§ 51-52, 21 April 2009, and Vasiliciuc v. the Republic of Moldova, no. 15944/11, §§ 20-25, 2 May 2017), the deprivation of liberty complained of must be attributed to Romania notwithstanding that the act was executed in the United Kingdom.
20. The Court makes reference to the general principles that it has developed under Article 5 § 1 (c) as they have been recently reiterated in the case of Merabishvili v. Georgia ([GC], no. 72508/13, §§ 181-86, 28 November 2017). In particular, it reiterates that in order to be compatible with the requirements of Article 5 § 1 (c) of the Convention, detention pending trial must be based on a “reasonable suspicion” that the person concerned has committed an offence, must be ordered with the purpose of bringing the person concerned before a “competent legal authority”, and must be lawful (ibid., §§ 184-86). When the authorities order the detention of an individual pending trial on the grounds of his or her failure to appear before them when summoned, they should make sure that the individual in question has been given adequate notice and sufficient time to comply and take reasonable steps to verify that he or she has in fact absconded (see Vasiliciuc, cited above, § 40).
21. Turning to the facts of the present case, the Court notes that the suspicion about the applicant’s criminal activity was based on an extensive body of evidence gathered by the prosecutor and presented to the court (see paragraphs 4 and 6 above). That evidence was sufficient to satisfy an objective observer that the applicant may have committed the offences of bribery and embezzlement. Nothing in that material appears to cast doubt on the reasonableness of that suspicion (see, mutatis mutandis, Merabishvili, cited above, § 187).
22. There is, moreover, nothing to suggest that the arrest warrant was issued for any other purpose than to bring the applicant before a competent Romanian court. The fact that that had not yet happened and that there had been delays in issuing the arrest warrant was mainly due to the applicant not having been present in Romania, a situation which could not be imputed to the Romanian authorities.
23. The Court further notes that the arrest warrant was issued by the judge on the basis of relevant domestic law (see paragraph 7 above, in fine). In so far as the justification of the order is concerned, the Court notes that both the prosecutor and the courts relied not only on the existence of the reasonable suspicion, but also on the fact that the applicant was absconding (see paragraphs 5, 7 and 9 above). The Court acknowledges the efforts made by the authorities to identify the applicant. Notification was sent to his last known address in Monaco and to his companies’ headquarters, and attempts were also made to contact him by means of his email addresses and telephone numbers, but to no avail. The Court notes that the applicant appears to have disconnected his telephone once he was informed by the Monegasque police that the Romanian authorities were attempting to serve him with notification of the proceedings (see paragraph 7 above). The Court also observes that the applicant was represented by hired counsel who presumably received his instructions from the applicant’s father (see paragraph 8 above).
24. The applicant’s allegations of unlawful service of the notifications were examined in detail by the courts (see paragraph 9 above). There is no reason for the Court to substitute its assessment for that of the domestic courts in this matter.
25. Furthermore, the Court has no reason to depart from the domestic court’s conclusion, based on the established circumstances of the case, that another, more lenient, measure would not have been effective (see paragraphs 7 and 9 above, both in fine).
26. In the light of the above, the Court is satisfied that the domestic authorities took reasonable steps to inform the applicant of the proceedings against him and to verify that he was absconding (see, in contrast, Vasiliciuc, cited above, § 40). The applicant was given a possibility to appear and defend himself in person or, as he chose to do, through hired counsel (see paragraph 5 above). Nothing in the case-file shows that the latter’s ability to represent his client and to put forward arguments in his favour before the Romanian authorities was limited or restricted.
27. The Court concludes that the material in its possession does not disclose any appearance of a violation of the rights guaranteed by Article 5 § 1 (c) of the Convention. This complaint is thus manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint under Article 18 of the Convention
28. The applicant complained, under Article 18 taken together with Articles 5 and 6 of the Convention, that the State authorities had abused their power in order to restrict his and his father’s rights and to eliminate their companies from the market (see paragraph 16 above). Article 18 reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
29. The general principles concerning Article 18 have been recently reiterated by the Court in Merabishvili (cited above, §§ 287-317).
30. In the present case, the Court notes that the predominant purpose for the applicant’s arrest was to bring him before a competent judicial authority (see paragraph 22 above and Merabishvili, cited above, §§ 305 and 318). The applicant has not proven “beyond reasonable doubt” that his arrest had been ordered as a means of eliminating his family’s companies from the market.
31. Therefore, the matters complained of do not disclose any appearance of a violation of the rights guaranteed by Article 18 of the Convention.
32. Accordingly, 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,
Declares the application inadmissible.
Done in English and notified in writing on 18 April 2019.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy