CASE OF FLORIN IONESCU v. ROMANIA

THIRD SECTION

CASE OF FLORIN IONESCU v. ROMANIA

(Application no. 24916/05)

JUDGMENT

STRASBOURG 

24 May 2011

FINAL

28/11/2011

This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision.

In the case of Florin Ionescu v. Romania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 3 May 2011

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24916/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Florin Ionescu (“the applicant”), on 5 July 2005.

2. The applicant was represented by Mr G. Ionescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.

3. The applicant alleged that his right of access to court had been denied, as the prosecutors and the criminal courts had made their decisions with respect to all the offences mentioned in his criminal complaint, except for the offence of fraud. This had as a consequence the dismissal of his civil claims. He also alleged that he did not benefit from a trial within a reasonable time, as the criminal proceedings initiated by him had lasted more than eight years.

4. On 23 January 2008 the President of the Third Section decided to give notice of the application to the Romanian Government and the German Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5. The German Government did not express an intention to intervene in the proceedings.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The general context

6. The applicant is a German citizen, born in 1947, who lives in Moosthenning, Germany.

7. In 1993, the applicant and M.G., a Romanian citizen, decided to set up a commercial company.

8. The envisaged company was registered in Romania on 9 November 1993 under the name Fivarog Impex SRL (hereinafter called “the company”).

9. In September 1993, the two associates bought in Germany a truck and merchandise on behalf of the company to be registered. The vehicles and the merchandise were registered on the name of a company belonging to M.G (“company P.”) and should have been registered in the accounting books of the company after its setting up.

10. In March 1994, the applicant bought a trailer for the company that was registered by M.G. in the name of his company P.

11. M.G. used both vehicles to carry out the activity of company P. and did not register the counter value of the rendered transport services in any accounting books.

12. In 1995, the applicant transferred the majority of his shares to M.G., who became the main shareholder and administrator of the company. By an act under private signature, the latter undertook the obligation to deliver to the applicant the truck and the trailer.

B. The criminal proceedings against M.G.

13. In 13 August 1996, the applicant filed a criminal complaint against M.G., accusing him of forgery, use of forged items, fraud, fraudulent management of the company and selling goods placed under judicial seizure. He maintained that M.G. used the money obtained by commercial operations performed on behalf of the company for his personal use, without registering them in the accounting books of the company. He added that the truck and the trailer bought for the company and mostly paid for by him were never registered in the name of the company and were used by the company P., which belonged to M.G.

14. On 11 March 1998, the police opened a criminal investigation against the applicant and M.G., on suspicion of several offences of an economic nature, namely fraud, fraudulent management of the company and intellectual forgery related to the accounting books of the company.

15. The applicant joined a civil complaint to the criminal proceedings, asking for the return of the trailer and the truck and damages. He evaluated the damages only on 25 March 1998, after an accounting report had been prepared.

16. On 5 March 1999, the prosecutor attached to the Buftea District Court decided to terminate the investigation against the applicant and M.G.

17. The applicant lodged a complaint against this decision, which was allowed by the prosecutor attached to the Bucharest Court of Appeal on 26 August 1999. He decided to continue the criminal investigation against M.G.

18. By a bill of indictment of 17 October 2001 the prosecutor attached to the Buftea District Court accused M.G. of fraudulent management, smuggling and fiscal evasion. In respect of the offences of use of forged documents and fraud, the prosecutor decided to terminate the investigation. The prosecutor also decided to terminate the investigation related to all the offences of which the applicant was accused.

19. By a judgment of 26 March 2002, the Buftea District Court convicted M.G. of smuggling, fraudulent management and fiscal evasion, and sentenced him to two years’ imprisonment, suspended, and placed him on probation. He was also ordered to award pecuniary damages to the company, while the applicant’s request for damages was dismissed on the ground that there was no causal link between the prejudice stated and the offences committed by M.G.

20. M.G. and the applicant lodged an appeal. The applicant argued, inter alia, that the court was wrong when deciding to dismiss his request for damages. He added that neither the prosecutor nor the court of first instance had analysed or decided on the alleged fraud whose victim he was.

21. By a decision rendered on 6 December 2002, the Bucharest County Court upheld the judgment of Buftea District Court without providing reasons for the dismissal of the applicant’s appeal.

22. On 17 April 2003, the Bucharest Court of Appeal allowed the appeal on points of law filed by M.G., on the ground that the defendant’s right to defence had been infringed, as neither he nor his lawyer had been present at the previous hearing. It also allowed the appeal on points of law lodged by the applicant on the ground that the Bucharest County Court did not provide any reason for dismissing his appeal. It quashed the decision of 6 December 2002 and remitted the file to the Bucharest County Court.

23. On 26 April 2004, the Bucharest County Court partially allowed the appeal lodged by M.G., holding that in respect of fiscal evasion and fraudulent management the criminal liability had become statute-barred. It dismissed the applicant’s appeal as unfounded.

24. The applicant lodged an appeal on points of law on the same grounds as those raised before the county court. By a final decision rendered on 8 June 2004, the Bucharest Court of Appeal partially allowed the appeal in respect of the request for damages, on the ground that the county court had not provided reasons for dismissing it.

25. By a decision rendered on 17 December 2004, the county court dismissed the applicant’s appeal again, on the ground that the prejudice experienced by the applicant was not connected with the offences in the charges against M.G. It pointed out that the applicant had the opportunity to bring a separate civil action for damages in which the contractual liability of M.G might be established.

26. By a final decision rendered on 4 March 2005, the Bucharest Court of Appeal upheld the decision of the county court dismissing the applicant’s appeal on points of law.

C. The civil proceedings against M.G.

27. On 6 February 1996, the applicant lodged a civil action against M.G. seeking recognition of his property right in respect of the truck and trailer bought in 1993 and 1994 respectively.

28. By a separate action, lodged on the same day, he requested the judicial seizure of the vehicles.

29. On 1st March 1996 the Bucharest District Court ordered the seizure of the vehicles and decided to join the two actions in a single file.

30. Despite the seizure order on the vehicles, on 29 February 1996 M.G. sold them to a third party. Therefore, on 5 May 1996 the applicant added a new claim to the joined action, namely for the cancellation of the sale­purchase agreement between M.G. and the third party.

31. On 5 April 1996, the Bucharest District Court decided to hear separately the action regarding the seizure of vehicles from the action regarding the recognition of the ownership right over the vehicles and the cancellation of the sale-purchase agreement.

32. M.G. lodged an appeal against the order of 1 March 1996 for the seizure of the vehicles, dismissed by the Bucharest County Court on 5 June 1996.

33. On 17 October 1996 the Bucharest District Court dismissed the action as ill-founded. It held that from the analysis of the agreement’s clauses concluded between the applicant and M.G. there had been no transfer of ownership rights over the truck and trailer to the applicant. Furthermore, it dismissed the applicant’s request for the cancellation of the sale-purchase agreement concluded between M.G. and the third party, on the ground that there were no reasons for the cancellation.

34. The applicant lodged an appeal with the Bucharest County Court. The applicant relied on the fact that the agreement interpreted by the court of first instance as a loan agreement had in fact three different clauses, namely the first one was indeed a loan agreement, the second allowed M.G. to use the vehicles until the date of reimbursement of the loan (understood as a favour granted to M.G. for obtaining the money for reimbursement of the loan) and the third one provided for the transfer of ownership title over the vehicles to him on the date of reimbursement of the loan.

35. On 20 January 1998 the proceedings were stayed at the request of the applicant until the delivery of a final decision in the criminal proceedings, to which the civil proceedings were closely related.

36. On 28 September 1999 the civil proceedings were reopened to determine whether the reason for staying them persisted. The applicant was present at the hearings. The hearings were adjourned until 9 November 1999, in order for the parties to be able to prove that the criminal proceedings were still pending.

37. On 9 November 1999, the Bucharest County Court decided to maintain the suspension of the case on the same legal basis, namely Article 244 point 1 of the Code of Civil Procedure (CCP).

38. On 30 November 2000 the proceedings were reopened in order to determine whether the criminal proceedings had been finalised. The parties were summoned for 23 January 2001. Noting the applicant’s absence, the court adjourned the hearings until 20 February 2001.

39. On 20 February 2001, both parties were absent. Therefore, the Court suspended the civil proceedings on another legal ground, that of the absence of the parties, under Article 244 point 2 of the CCP.

40. On 24 February 2002, the Bucharest County Court reopened the civil proceedings. The applicant was again summoned at the two addresses indicated by him in the file.

41. On the ground of the parties’ lack of interest in the appeal, indicated by their absence from the hearing without submitting any request for the adjournment of the case, the court decided to extinguish (a constatat perimarea) the applicant’s appeal on 2 April 2002. From the analysis of the documents submitted by the parties it seems that the applicant did not lodge any appeal against the decision.

42. On 4 May 2005, the applicant requested the reopening of the civil proceedings before the Bucharest District Court on the ground that the criminal proceedings had been completed on 4 March 2005.

43. On 11 July 2005, the applicant was informed about the decision of 24 February 2002 to dismiss his civil action.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure

44. The provisions of Articles 19 and 20 of the Criminal Code of Procedure regarding the joining of a civil action to criminal proceedings are mentioned in Forum Maritime S.A. v. Romania, nos. 63610/00 and 38692/05, §§ 64 and 65, 4 October 2007

B. Code of Civil Procedure

45. Article 242 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action can suspend the proceedings:

“1. if all the parties ask for the suspension;

2. if none of the parties are present at the hearing”.

46. Article 244 of the same code provides for another reason for suspending the civil proceedings:

“...2. if criminal proceedings have been instituted in relation to a crime, the determination of which is decisive for the outcome of the civil dispute.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

47. Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied his right of access to court and also of excessive length of the proceedings.

48. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”

The right of access to court

A. Admissibility

49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

50. The applicant alleged that he was denied the right of access to court as the prosecutors and the criminal courts gave decisions on all charges in his criminal complaint except for the offence of fraud. This had as a consequence the dismissal of his civil action joined to the criminal proceedings.

51. The Government contended that the right of access to court is not absolute, mentioning in this respect the judgements pronounced by the Court in Golder v. the United Kingdom (21 February 1975, § 38, Series A no. 18), and Bellet v. France (4 December 1995, § 31, Series A no. 333‑B). They added that the domestic courts are the first to interpret domestic legislation, making reference to the judgments pronounced in Bulut v. Austria, (22 February 1996, § 26, Reports of Judgments and Decisions 1996‑II), and Tejedor García v. Spain, (16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII).

52. With regard to the present case, the Government averred that after an individual has lodged a criminal complaint with the judicial authorities, only they are competent to decide with respect to the legal classification of the facts indicated in the complaint. They added that after an analysis of the criminal complaint submitted by the applicant, the bill of indictment and all the decisions rendered by the domestic criminal courts in the instant case, it was clear that the relevant bodies had made their decisions with respect to all the matters set out in the initial complaint, although they had given the facts a different legal classification.

53. Moreover, the Government contended that the civil action joined to the criminal proceedings had been dismissed on the ground that the alleged damage relied on by the applicant had no connection with the offences retained in the charge against M.G. It also stressed that the applicant had the opportunity to lodge a separate civil action in the civil courts, and that he had done so.

2. The Court’s assessment

(a) General principles

54. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. The right of access to court in civil matters constitutes one aspect of the “right to a court” embodied in Article 6 § 1 (see, amongst many other authorities, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 92; Waite and Kennedy v. Germany [GC], no. 26083/94, § 50, ECHR 1999-I; and Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18, p. 18, § 36).

55. The Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence. To fall within the scope of the Convention such right must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Therefore, Article 6 applies to proceedings involving civil-party complaints from the moment the complainant is joined as a civil party, unless he or she has waived the right to reparation in an unequivocal manner (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 25, ECHR 2009‑).

56. The right of access to court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see Waite and Kennedy, cited above, § 59).

57. Furthermore, the Court recalls that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, inter alia, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports of Judgments and Decisions 1998‑VIII).

(b) Application of these principles in the present case

58. The Court notes that the applicant complained that neither the prosecutor nor the courts had decided in respect of the offence of fraud mentioned in his criminal complaint and the civil action joined to it.

59. Once a criminal complaint is referred to the judicial bodies, they have the obligation to analyse all the matters mentioned in the complaint but also the right to give a new legal classification to the facts. Moreover, the Court reiterates that it is not its task to substitute itself for the domestic judicial bodies in respect of the assessment of the facts and their legal classification, based on their interpretation of the domestic legislation.

60. Analysing the bill of indictment of 17 October 2001, the Court notes that the prosecutor analysed all the matters referred to in the applicant’s criminal complaint. With respect to the applicant’s allegation that M.G. had used the company’s vehicles and money for personal use, the prosecutor decided to analyse it under the provisions of the Criminal Code concerning fraudulent management. Moreover, the courts to which the complaint had been referred, after an assessment of the facts on the basis of the evidence presented before them, did not deem it necessary to expand their analysis to other offences than those mentioned in the bill of indictment.

61. Therefore, in the light of the above mentioned the Court considers that the investigating body as well as the domestic courts have analysed all matters set out by the applicant in his criminal complaint.

62. Moreover, the Court notes that the domestic courts also analysed the applicant’s civil complaint and indicated their reasons for dismissing it. Thus, the appeal court which rendered the final decision stressed that the civil litigation between the applicant and M.G. was of a mainly contractual nature, and suggested that the applicant recover his damages by lodging a separate civil action.

63. The Court reiterates that in other cases in which the domestic courts did not analyse the civil complaint on the ground of the inadmissibility of the criminal complaint to which it was joined (see Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 119-122, ECHR 2005‑VII (extracts), and Forum Maritime S.A., cited above, § 91), it stressed the importance of the existence of other effective remedies for the civil claims. If such remedies existed, it did not find a violation of the right of access to court (see also Assenov and Others v. Bulgaria, 28 October 1998, § 112, Reports of Judgments and Decisions 1998‑VIII, and Ernst and Others v. Belgium, no. 33400/96, §§ 53­55, 15 July 2003).

64. In the instant case, the Court notes that the applicant had lodged a separate civil action even before he lodged the criminal complaint. It had been analysed on the merits by the first-instance court, which had dismissed it as ill­founded. On 20 January 1998 the appeal lodged by the applicant was suspended at his request until the delivery of a final decision in the criminal proceedings. On 2 April 2002 the appeal was dismissed due to the applicant’s lack of response to repeated summons by the court (see § 40 in the facts section). Thus, although he had repeatedly been summoned to the addresses indicated to the court, he was absent when the appeal court reopened the civil proceedings. Furthermore, the Court also notes that the applicant did not lodge any appeal against the decision of 2 April 2002.

65. The Court considers that the separate civil action represented an effective remedy in respect of the applicant’s civil claims. The negligence of the applicant in periodically checking the status of the civil proceedings and in indicating another address to the court in case of change is not imputable to the domestic courts. Moreover, he did not exhaust domestic remedies, since he did not challenge the decision which dismissed his appeal

66. In these circumstances, it cannot be said that he was denied access to court or deprived of a fair hearing in the determination of his civil rights. Thus there has been no violation of Article 6 § 1 of the Convention in this respect.

The length of the proceedings

A. Admissibility

67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

68. The applicant complained that the length of the criminal proceedings had been excessive. He contended that the proceedings had lasted more than eight years at three levels of jurisdiction.

69. The Government submitted that there had been no periods of inactivity attributable to the authorities and that the case was rather complex. They maintained that the applicant had joined his civil complaint to the criminal proceedings only on 25 March 1998. Therefore, the period to be taken into consideration began on 25 March 1998 and ended on 4 March 2005. It thus lasted almost seven years (less twenty-one days).

70. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Foley v. the United Kingdom, no. 39197/98, § 36, 22 October 2002).

71. The Court does not agree with the Government’s submissions, according to which the civil action was joined to the criminal proceedings only on 25 March 1998. The Court notes that the applicant requested compensation for damages in his initial complaint lodged on 13 August 1996, but mentioned the exact amount only on 25 March 1998 after an expert report had been produced. Therefore, it considers that the period to be taken into consideration began on 13 August 1996 and ended on 4 March 2005. It thus lasted almost nine years at three levels of jurisdiction.

72. In particular, the Court notes that the bill of indictment was drafted and the file remitted to the court only on 17 October 2001, approximately five years after the criminal complaint had been lodged by the applicant. Moreover, the Court notes that on 17 April 2001 and 8 June 2004 respectively the Bucharest Court of Appeal allowed appeals on points of law and quashed the decisions rendered on appeal and remitted the file to the Bucharest County Court for a fresh examination.

73. The Court has already found that, although it is not in a position to analyse the juridical quality of the case-law of the domestic courts, the repeated remittal of cases for re-examination discloses a serious deficiency in the judicial system, since it is usually ordered as a result of errors committed by lower courts. This deficiency is imputable to the authorities and not to the applicants (see Matica v. Romania, no. 19567/02, § 24, 2 November 2006).

74. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01, § 26, ECHR 2005-VIII, and Soare v. Romania, no. 72439/01, § 29, 16 June 2009).

75. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

77. In respect of pecuniary damage the applicant claimed 176,813.31 euros (EUR), representing the value of the truck, the trailer, the merchandise and the dividends to which he was entitled for the years 1993­96. He claimed EUR 100,000 in compensation for non-pecuniary damage.

78. The Government stressed that the present application had been communicated to them only in respect of the complaint raised under Article 6 § 1 of the Convention and no complaint has been raised under Article 1 of Protocol no. 1. They also argued that the applicant’s claims were unfounded, as they were not supported by evidence. Therefore, they asked the Court to reject the claim for compensation for pecuniary damage. With regard to non-pecuniary damage, they submitted that a judgment finding that there had been a violation of the Convention would in itself constitute sufficient just satisfaction.

79. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

80. As to non-pecuniary damage, the Court considers it likely that the applicant suffered frustration on account of the excessive length of proceedings.

81. Ruling on an equitable basis, the Court considers that the applicant should be awarded EUR 2,400 in compensation for non-pecuniary damage.

B. Costs and expenses

82. The applicant also claimed 98,250 Romanian lei (RON) (equivalent to EUR 27,832.86) for costs and expenses incurred, as follows: RON 2,642 for fees paid to his lawyers, RON 1,000 for fees paid to the expert, RON 922.25 for fees paid for translation of the documents submitted to the Court and the rest of the amount for the expenses incurred when he travelled from Germany to Romania in order to attend the hearings in the period 1996-2005. He submitted invoices and contracts for legal representation in this respect.

83. The Government contested the claim for the fees paid to the lawyers on the ground that the applicant had not submitted invoices related to all contracts for legal representation. Furthermore, they stressed that the applicant’s presence in Romania to attend the hearings was not necessary, taking into account that he was represented by his lawyers.

84. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of RON 3,074.25 (equivalent to EUR 750) for costs and expenses incurred before the Court.

C. Default interest

85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention as regards the access to a court;

3. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of proceedings;

4. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage, and EUR 750 (seven hundred and fifty euros) in respect of costs and expenses;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
              Section Registrar President

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