THIRD SECTION
CASE OF SCHULLER v. ROMANIA
(Application no. 4801/04)
JUDGMENT
STRASBOURG
25 June 2013
This judgment is final but it may be subject to editorial revision.
In the case of Schuller v. Romania,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alvina Gyulumyan, President,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 4 June 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 4801/04) 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 Hanspeter Schuller (“the applicant”), on 8 December 2003.
2. The applicant was represented by Mr Eugen Ostrovschi and Mrs Beate Grün, lawyers practising in Bucharest and in München, respectively. The Romanian Government (“the Government”) were represented by their Agents, Mr Răzvan-Horaţiu Radu and Ms Irina Cambrea, from the Ministry of Foreign Affairs.
3. On 16 September 2010 the application was communicated to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
4. The German Government, having been informed by the Registrar of the right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of the Court), did not avail themselves of this right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1943 and lives in Munich.
6. On 17 March 1995 during an investigation undertaken by the tax authorities of Teleorman County, a contravention report was issued against the applicant, suspected of smuggling, and in particular, of having illegally imported into Romania agricultural equipment, which he subsequently used for illicit activities. The report indicated that the matter was to be brought before the prosecution.
7. Upon the same investigation, the authorities summoned the applicant to the local tax office on 22 March 1995 to provide clarifications in respect of a fake invoice allegation. On 21 March 1995 the applicant presented himself at the tax office and tried to persuade two tax commissioners not to issue a new report against him by offering them money. On the same day, the tax authority issued a new report on the offences of smuggling and active bribery, both of which were brought before the Public Prosecutor’s Office with the County Court of Teleorman.
8. On 21 March 1995 the applicant was remanded in detention.
9. On 12 April 1995 he was released under supervision.
10. On 11 August 1995 the applicant was brought to trial on charges of active bribery, smuggling and fraud-related offences in connection with the importation of agricultural equipment, the seizure of which was equally ordered.
11. From 1996 to 2000 the court listed at least nine hearings at intervals ranging from five to nine months for failure to properly summon the applicant at his residences in Germany and in Romania. Throughout the trial at first instance, the applicant’s legal representative or, in his absence, a court-appointed lawyer, were present at most of the hearings.
12. On 14 November 2000 based on contravention and in flagrante reports, customs papers, applicant’s statements and ten witness testimonies, the County Court of Teleorman found the applicant guilty of active bribery and smuggling and convicted him to a two-year deferred prison sentence. He was acquitted of charges of fraud-related offences. With regard to the offence of smuggling, the court applied a newly entered into force law (Law no. 141/1997 which amended the Law no. 30/1978, in force at the commission of the offence) and stated that the act of smuggling was incriminated in both laws, but the new one was more favourable in respect of penalty provisions. The seizure of the agricultural equipment was maintained in court.
13. On appeal, the Bucharest Court of Appeal listed a total of seven hearings of which four were adjourned in the attendance of documents and information from the Customs Office of Teleorman. Both the applicant and his legal representative were present at all court hearings.
14. On 20 December 2001 the court rejected the appeal and upheld the lower court’s judgment. The applicant appealed on points of law.
15. On 11 June 2003 the High Court of Cassation and Justice (the former Supreme Court of Justice) convicted the applicant to a two-year deferred prison sentence for smuggling charges. With regard to the active bribery charges, he was acquitted as the criminal liability had become time-barred. The judgment became final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
A. Admissibility
17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
18. The Government considered that the proceedings had started on 11 August 1995 when the applicant was brought to court, and ended on 11 June 2003 when the former Supreme Court of Justice had rendered its final ruling, thus having lasted for a total of seven years and ten months for three levels of jurisdiction. They further argued that while most of this space of time was consumed at first instance, it took the higher courts no more than two years and seven months to finalise the case.
19. The applicant did not submit any comments on the matter.
20. The Court notes that on 17 March 1995 the applicant was subjected to a tax investigation on suspicion of smuggling activities. He was subsequently brought before the prosecuting authorities on charges of smuggling and active bribery and fraud-related offences on 21 March 1995 (see paragraphs 6-8). Thus, the Court cannot agree with the Government on the starting point of the period to be taken into consideration. It concludes that the proceedings began on 21 March 1995 and reached their end on 11 June 2003. The total length of the proceedings was thus eight years and more than two months for three levels of jurisdiction, of which five years and nearly eight months ran only at the first level.
2. Reasonableness of the length of the proceedings
21. In the Government’s view, the case was of exceptional complexity, as it involved the applicant’s failure to pay customs duties on imported agricultural equipment and the examination of several criminal charges related to it. Moreover, the Government points to the evidence assessed in the case (the hearing of some ten witnesses) and to the service of process to the applicant’s residence in Germany as facts which have prolonged the proceedings at first instance.
22. Referring to the conduct of the relevant authorities, the Government suggested that there had been no sign of inactivity on their part. On the contrary, they showed due diligence in handling the case by listing hearings within short periods of generally one month. They added that, if several intervals between the hearings had been longer, this was mainly due to the need to ensure the duly service of process and the parties’ presence at the hearings. The Government went on to underline that the courts took constant measures to accelerate the proceedings in particular with regard to establishing the applicant’s residence in order to be lawfully summoned.
23. Lastly, the applicant was deemed to have significantly contributed to the length of the trial. The Government suggested that several adjournments of the case before the court of first instance were due to the service of process being effected in Germany, where the applicant had elected domicile. It pointed to a persistent attitude of disregard toward the progress of the proceedings from the part of either the applicant or his lawyer, fact which had inevitably led to the delays accrued. Thus, the “reasonable time” requirements were considered to have been complied with in the present case.
24. The applicant refrained from making any particular submissions in respect of these arguments, only reiterating his allegations on the excessive length of the proceedings.
25. 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 and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
26. 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 Pélissier and Sassi and Frydlender, cited above, Abramiuc v. Romania, no. 37411/02, § 103-109, 24 February 2009, Matica v. Romania, no. 19567/02, § 24, 2 November 2006, Săileanu v. Romania, no. 46268/06, § 50, 2 February 2010).
27. Turning to the facts of the present case, the Court notes that the criminal proceedings did not raise issues able of triggering a lengthy trial. They involved the hearing of some ten witness testimonies and the examination of rather few documents, without any expert studies conducted in the case (see paragraph 12). Thus, they were neither procedurally nor factually of exceptional complexity.
28. The Court further observes that the proceedings at first instance lasted five years and nearly eight months before the same court, which scheduled no more than nine hearings inside this long span of time. The adjournments of the case were mainly due to the defective service of process in respect of the applicant and the witnesses to be heard, and to the need to obtain documents from the relevant tax authorities.
29. In view of the present case’s lack of complexity, the Court can find no sufficient justification for such a long lapse of time, the responsibility for which lies entirely with the authorities. It notes that the major source of delay was the courts’ failure to organise the examination of the case properly and to gather evidence in a more effective manner.
30. As for the applicant’s conduct, there is no evidence that at any stage of the proceedings he showed dilatory conduct or otherwise upset the proper conduct of the trial. His requests did not exceed what was normally acceptable in the exercise of his defence rights. He was present at most of the hearings either in person of through a legal representative (of his own choice or court-appointed) and he cannot be said to have contributed in any other manner to the total length of the proceedings. The Government did not put forward any fact or argument capable of persuading the Court to reach a different conclusion.
31. To sum up, the Court considers that in the instant case the length of the criminal proceedings was excessive and failed to meet the “reasonable time” requirement.
32. There has accordingly been a breach of Article 6 § 1 as regards the length of criminal proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33. Relying on Article 6 § 1, the applicant further complained about the outcome of the criminal proceedings against him, and in particular about the authorities’ failure to duly serve the indictment to his address in Germany, as well as subsequent documents to his Romanian address, the lack of adequate time to prepare his defence and the lack of opportunity to have witnesses heard in defence. Under Article 7, the applicant claimed that the courts had extensively and retroactively applied the law, thus resulting in an unlawful conviction for smuggling. Further, the applicant relied on Article 8 and on Article 2 of Protocol No. 4 to claim an interference with his right to private life, home and freedom of movement as a result of the court-ordered prohibition of leaving the country. Lastly, the applicant complained under Article 1 of Protocol No. 1, alleging that the seizure of his farm equipment and its subsequent depreciation had amounted to an infringement of his property rights.
34. Having considered the applicant’s submissions in light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
35. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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
37. The applicant claimed 1,779,390 German marks (DM) in respect of pecuniary damage, equivalent to the value of the seized agricultural equipment. In respect of the non-pecuniary damage, the applicant claimed a sum that would cover the distress resulting from the excessive delays in a satisfactory way, without indicating a specific amount.
38. The Government contested these claims. They pointed out that there was no causal link between the violation found and the pecuniary damage alleged. With regard to the non-pecuniary damage, they suggested that no sum should be awarded since the applicant had failed to indicate an amount in that respect. The Government claimed that the finding of a violation would constitute sufficient just satisfaction.
39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
40. The Court considers that the applicant must have sustained non‑pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Ruling on an equitable basis, it awards him 1,200 euros (EUR) under that head.
B. Costs and expenses
41. The applicant also claimed DM 3,374 for the costs and expenses incurred before the domestic courts, of which DM 2,000 as attorney’s fees and DM 1,374 for travel expenses. With regard to the costs and expenses incurred before the Court, he claimed reimbursement of EUR 7,344.81 comprising German attorney fees (EUR 4,594.81), translation costs (EUR 750) and Romanian attorney fees (EUR 2,000). He documented his expenses only in part by submitting transport tickets, whereas for the attorney fees he only submitted legal representation agreements and bills, without any proof of the actual payment of the sums.
42. The Government contested these claims, while admitting that they were not opposed to the award of a sum as long as it had been actually incurred and documented. With regard to the attorney fees, they pointed out that the applicant had failed to submit proof of actual payment of the attorney fees and of the translation costs. Moreover, the fees claimed to have been paid to the Romanian attorney concerned a different set of proceedings, and should therefore be disregarded by the Court. Lastly, no sum should be awarded to reimburse travel expenses as, according to the Government, the applicant had generated them by committing criminally liable acts.
43. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
44. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 500 covering costs and expenses in the domestic proceedings as well as for the proceedings before the Court.
C. Default interest
45. The Court considers it appropriate that the default interest rate 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 complaint concerning the excessive length of the criminal proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of criminal proceedings;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy