MAN AND OTHERS v. ROMANIA

FOURTH SECTION

DECISION

Application no. 39273/07
Liviu Aurel MAN and Others
against Romania

The European Court of Human Rights (Fourth Section), sitting on 19 November 2019 as a Chamber composed of:

Jon Fridrik Kjølbro, President,
Faris Vehabović,
Iulia Antoanella Motoc,
Branko Lubarda,
Carlo Ranzoni,

Georges Ravarani,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 31 August 2007,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1.  The applicants are two Romanian nationals, Mr Liviu Aurel Man and Ms Milena Man (“the first and second applicants”), as well as three Romanian companies, S.C. Exploziv Media S.R.L., S.C. Loretto Press S.R.L. and S.C. Token Media S.R.L. (“the applicant companies”). They were represented before the Court by Mr R. L. Chiriţă, a lawyer practising in Cluj-Napoca.

2.  The Romanian Government (“the Government”) were represented by their Agent, most recently Ms S.-M. Teodoroiu, from the Ministry of Foreign Affairs.

3.  As the applicants submitted their observations and claims for just satisfaction outside the time-limit set by the Court, they were not included in the case file (Rule 38 § 1 of the Rules of Court).The circumstances of the case

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The first and second applicants were born in 1965 and 1967 respectively and live in Cluj-Napoca. The first applicant is a journalist and the president of the Gazeta press group, which publishes several investigative newspapers and weekly magazines targeting high-level corruption. The second applicant is the first applicant’s wife.

6.  The applicant companies are commercial companies located in Cluj. They ensured the publication of the newspapers belonging to the Gazeta press group. At the time of the facts giving rise to the present application, the first and second applicants owned and/or administered those companies.Criminal investigation against the journalists of the Gazeta press group

7.  On 9 December 2005 the department for the investigation of organised crime and crimes of terrorism of the prosecutor’s office (“the prosecutor’s office”) started a criminal investigation against the first applicant and five other journalists who were members of the management of the Gazeta press group on suspicion of blackmail and organised crime. According to the prosecutor’s office, local politicians and businessmen had complained that the journalists had been collecting compromising information about them with a view to disclosing it unless they bought advertising space from the newspapers belonging to the Gazeta press group. The investigation was subsequently extended against other persons, including the second applicant.Searches and seizure

8.  On 30 October 2006 the prosecutor’s office sought the Cluj County Court’s authorisation to conduct a search-and-seizure operation at the homes of five suspects, including the first applicant, and at the headquarters of two of the newspapers belonging to the Gazeta press group: Gazeta de Cluj and Bună ziua, Ardeal. In the request, the prosecutor’s office referred to the accusations of blackmail and organised crime brought against the suspects and explained in detail the alleged criminal activity and how the blackmailing network operated, based on the evidence already gathered. The prosecutor’s office also explained that the search would be aimed at finding and seizing relevant advertisement contracts, accounting books and databases of the potential victims of blackmail, as well as objects obtained through blackmail or used for blackmail, and other documents which could prove the commission of criminal acts.

9.  On the same day, the Cluj County Court, sitting in camera, allowed the request. It noted the accusations brought by the prosecutor’s office and considered, based on the elements presented by the prosecutor, that the request was justified as it would benefit the investigation. The court identified the homes and premises concerned by the measure and indicated that the order was valid for ten days starting from 8 a.m. on 30 October 2006. The court stated as follows:

“The court considers that the search is necessary in order to find and collect evidence, as there are strong indications that the following items concerning the accused persons’ criminal activities could be found at the respective addresses: advertisement contracts signed by the victims under duress, accounting documents which could prove that those contracts had not been recorded or had been only partially recorded, as well as a compromising database concerning persons in public offices who had been used by members of the blackmailing network.”

10.  The court issued search warrants in respect of each suspect and the two newspapers, in identical terms:

“In accordance with the interlocutory judgment of 30 October 2006, rendered by this court at the request of the [prosecutor’s office], after examination of the documents in the file, the court authorises the search of the home of [name of the suspect and address is given by the court].

The search will take place as provided for by Articles 101, 103-105, 107-108 and 111 of the Code of Criminal Procedure.

This authorisation is valid for ten days, starting from 8 a.m. on 30 October 2006.

The outcome of the search will be transmitted without delay to the court which issued the authorisation.”

(a)   Search of the first and second applicants’ home

11.  At about 8 a.m. on the morning of 30 October 2006, police officers wearing masks started a search at the home of the first and second applicants. The operation lasted until 11.45 a.m. It then continued from 12.45 p.m. in another flat owned by the first applicant.

12.  According to the search report drafted on that occasion
(proces-verbal de percheziţie), a number of items belonging to the applicants were seized, including two notebooks, several compact discs (CDs), floppy disks and contracts. They were all placed in sealed envelopes. The report indicated that the searches had been carried out in the presence of the first applicant, his lawyer and two attesting witnesses. It was signed by the first applicant without any objections.

(b)   Search of the newspapers’ premises

13.  At about 9 a.m. on the same day, two searches were conducted on the premises of the Gazeta de Cluj and Bună ziua, Ardeal newspapers.

14.  According to the search report drafted by the police officers, the search carried out at the headquarters of the Bună ziua, Ardeal newspaper lasted until 5.45 p.m. Police officers seized and sealed the following items: a file containing 127 advertising contracts; an unidentified file containing 220 pages; a box containing documents, including accounting books, belonging to the applicant company S.C. Exploziv Media S.R.L.; sixteen files; and five personal diaries. They also seized seventy-nine CDs, fifteen floppy disks, one memory card and twelve computers.

One of the accused journalists was present during the search together with her lawyer, but refused to sign the report, stating that she could not act as the legal representative of the company.

15.  The search carried out at the headquarters of the Gazeta de Cluj newspaper lasted until 7.25 p.m. Part of the search was carried out in the presence of the second applicant. According to the search report, all documents found at the headquarters, including photographs, tax invoices, financial documents and accounting books of S.C. Loretto Press S.R.L. and S.C. Token Media S.R.L., were seized and sealed. All of the computers found were also seized. The search was conducted in the presence of the second applicant and two attesting witnesses.

16.  The seized documents were placed in three boxes and twenty-one plastic sacks.

(c)   Return of the confiscated assets

17.  On 10 December 2009 the Cluj Napoca police returned the seized items to the applicants. Forty computers, fifteen floppy disks, seventy‑nine CDs and documents were returned to the applicants.Preventive measures against the first applicant

(a)   Detention pending trial

18.  On 30 October 2006 the first applicant was handcuffed and taken to the prosecutor’s office for questioning. According to his statements, he was arrested by eleven police officers from the special intervention forces, who were wearing masks. Newspaper and television crews, allegedly invited by the prosecutor, were present during the arrest, and the events were given widespread media coverage. Footage of the journalist’s arrest was broadcast live and shown on the main channels’ evening news programmes.

19.  The first applicant was interviewed by the prosecutor’s office from 5.30 p.m. to 6.15 p.m. He denied having committed any criminal act.

20.  At 6.30 p.m. that evening, the prosecutor applied for an arrest warrant in the name of the first applicant. On the same day the Cluj County Court granted the application and the first applicant was remanded in custody in Gherla prison. He alleged that for sixty days he had been completely isolated from other detainees and that the sole contact he had had with the outside world was with his family for one hour per week. He had been able to take a solitary walk in the prison yard for only thirty minutes per day.

21.  According to the information submitted by the Government, during his stay in Gherla prison the first applicant always shared the cell with other individuals, and his contact with the outside world was never severed.

22.  On 23 March 2007 the Brăila County Court replaced the first applicant’s detention with a prohibition on leaving the town.

(b)   Forfeiture of assets

23.  On 8 November 2006, relying on Articles 163 to 166 of the Code of Criminal Procedure (“the CCP”; see paragraph 50 below), the prosecutor’s office ordered the forfeiture of all assets and the freezing of bank accounts belonging to the first and second applicants and the applicant companies. The measure was taken to ensure that the compensation claimed by the alleged victims could be paid.

24.  Between 14 and 27 November 2006 the police proceeded to draw up, in the second applicant’s presence, an inventory of all the assets belonging to the applicants. Detailed reports were drafted about all the assets concerned by the measure and the second applicant was informed that she was not allowed to sell any of the assets listed in the reports. Two cars were taken from the first applicant and from S.C. Exploziv S.R.L. Cluj.

25.  On 25 April 2012 the Brăila Court of Appeal dismissed an appeal lodged by the applicant company S.C. Loretto Press S.R.L. seeking the lifting of the forfeiture measure in respect of its assets. The court considered that the measure was justified and that if lifted, it would leave the victims without any possibility of obtaining compensation for the damage sustained at the hands of the accused persons.Media reports on the criminal proceedings

26.  On 30 and 31 October 2006 the prosecutor’s office issued two press releases informing the public that it had started a criminal investigation on suspicion of blackmail and organised crime, and that several individuals belonging to the Gazeta press group – including the first applicant – identified only by their initials, were concerned.

27.  On 8 November 2006 the prosecutor’s office issued another press release, in which more details were given about the alleged crimes committed and the alleged methods employed by the accused, as the facts were reconstructed based on the evidence gathered. The press release included for each of the accused individuals (including the first applicant): their full names, whether they had been arrested (which was the case for the first applicant) and the crimes allegedly committed. The prosecutor’s office also informed the public that the case had been sent to the Cluj County Court for examination.

28.  The case attracted coverage from several media outlets. Articles were published presenting descriptions of the alleged blackmailing network. Some articles contained statements from witnesses or other persons connected with the Gazeta press group, and gave as the source of their information “judicial sources”, “the prosecutors”, “the evidence in the case file” or “the prosecutor’s request for the extension of the pre-trial detention”.

29.  On 18 December 2006 the Realitatea Românească newspaper published transcripts of two conversations which had taken place between the first applicant and other journalists about work-related matters. It explained that the transcripts had been obtained by the “M.” news agency. The relevant excerpts from the article read as follows:

“The prosecutors investigating the ‘Gazeta’ case presented before the court recordings of intercepted telephone conversations, notably discussions between the president of the press group, Liviu Man (photo), and one of his employees. Some of these recordings [the most compromising] were accepted as evidence and will be used in the trial.

The [intercepted] conversations show how the journalists were approaching their victims; they also show that those journalists were afraid that the authorities would start a criminal investigation against them.

The transcripts of the telephone conversations which were obtained by [the ‘M.’ news agency] show that those running the ‘Gazeta’ press group had been concerned about the rumours that the prosecutors had had criminal accusations against them in the pipeline.

In a conversation of 14 October between Liviu Man, the president of the press group, and [D.V.], the director for advertising of ‘Gazeta de Bistriţa’, a potential criminal investigation was regarded with optimism. That optimism was influenced by the [member of parliament] D.B., who was the lawyer representing ‘Gazeta de Cluj’ and ‘Buna ziua, Ardeal’.:

Liviu Man: I spoke with our friend, [D.B.]

[D.V.] Yes...

L.M. And he said we should [ignore them]

D.V.: Yes??

L.M.: And I will see him this afternoon. Very friendly.

D.V.: Then OK.

L.M. So relax.

D.V.: No, [I was not so worried], but see how they will not rest?

L.M. No, no.

D.V.: Because I’ve seen other people fall into the trap in this thing.

In another telephone conversation between the two, ..., [D.V.] reports to Liviu Man that he has a scoop about the manager of the Bistriţa branch of Bank T.

[D.V.]: Sir, I have a sensitive scoop about B.T. Bistriţa.

Liviu Man: No... I told him I would sort that one out.

D.V.: But I can shake him a bit (...) because he is very insolent, that manager. We will see what we will do about him.

So, you know what we will do? [G.H.] (editor of ‘Gazeta de Bistriţa’ [text added by the Realitatea editors] will call him and take his [statement]...

L.M.: That, yes. But nobody will publish the material. You take his point of view and then I call him and act like a peace maker.”

30.  On 27 January and 2 February 2007 two more articles containing excerpts from the journalists’ conversations and from a recorded telephone conversation between the first applicant and the mayor of Cluj, a former prime minister, were published. They mainly concerned discussions about local politicians and businesses and their advertising in the newspapers.Criminal proceedings against the first applicant

31.  On 19 January 2007 the prosecutor’s office issued an indictment in respect of nine individuals, including the first applicant, on charges of repeated counts of blackmail and organised crime. The case was registered with the Cluj County Court on 13 March 2007.

32.  The prosecutor decided to sever the proceedings against the second applicant in order to complete the evidence against her.

33.  On 6 March 2007 the case was transferred to the Brăila County Court, at the defendants’ request.

34.  Relying on Article 197 of the CCP (see paragraph 49 below), the first applicant complained, among other things, of the unlawfulness of the searches carried out at the headquarters of the Gazeta de Cluj and Bună ziua, Ardeal newspapers, the interception of his telephone calls and the seizure of the newspapers’ assets and accounts.

35.  A hearing took place on 22 March 2007. On that occasion, the Brăila County Court examined a request made by several media companies about reporting on the proceedings. The court imposed limits on what the media was allowed to report from the court room. The applicant and a lawyer appointed by him were present at the hearing.

36.  In a decision of 7 May 2008 the Brăila County Court considered that the criminal investigation had been marred by procedural irregularities and that the case should be remitted to the prosecutor’s office. The court dismissed an objection concerning the search-and-seizure operation carried out at the newspapers’ premises, as it could find no breach of the legal requirements in the matter. The court also allowed the complaints lodged by the first and second applicants and the applicant companies concerning the forfeiture of their assets and the freezing of their bank accounts, and ordered the lifting of those measures. It held that, while the measures had been taken in accordance with the legal requirements, they were no longer justified and were causing a major disruption to the exercise of the applicants’ property rights.

37.  In a final decision of 6 November 2009, the Galaţi Court of Appeal allowed an appeal on points of law lodged by the prosecutor’s office, quashed the judgment of 7 May 2008 and sent the file back to the County Court to continue the proceedings. It held that the investigation had complied with the requirements of Article 6 of the Convention. It also held that the forfeiture of the applicants’ assets and the freezing of the bank accounts were still justified, for the same reasons as those which had led to the taking of those measures. In reaching that conclusion, the court took into account the high amount of damages sought by the victims in the proceedings.

38.  By a judgment of 15 April 2016 the Brăila County Court convicted the first applicant of belonging to a criminal group and blackmail, and sentenced him to three years’ imprisonment, suspended on probation. Most of his co-defendants were convicted of the same offences. It also awarded damages to some of the victims. Consequently, the court lifted the measure of forfeiture of assets taken on 8 November 2006 (see paragraph 23 above) but maintained the freeze on the applicants’ bank accounts (ibid.), indicating the maximum amounts that could be frozen.

39.  Following an appeal lodged by the parties, on 20 December 2017 the Galaţi Court of Appeal acquitted the first applicant and his co-defendants. It held that the accusations brought against them had not been proven. Making its own assessment of the evidence, the court concluded that the defendants’ actions could be characterised as a legitimate journalistic approach aimed at bringing matters of public interest to the attention of the public.

40.  The appellate court decided not to examine the civil actions joined to the criminal proceedings and to maintain the forfeiture of assets and the freezing of the bank accounts.Recent developments

41.  On 19 June 2018 the first applicant lodged an action with the Cluj County Court, seeking damages from the State for the length of the criminal proceedings against him. He also complained about the forfeiture measures in respect of both his assets and his bank accounts as well as those belonging to the applicant companies. He argued that because of those measures, the applicant companies had been unable to conduct their economic activities.

42.  On 1 November 2018 the first applicant extended the initial action to include a claim for damages for his detention pending trial; in his view, that measure had been unlawful.

43.  On 31 January 2019, following an objection of unconstitutionality raised by the first applicant, the Cluj County Court sent the objection to the Constitutional Court and suspended the examination of the case.

44.  At the time of the latest communication received from the applicants (23 July 2019), the case was still pending with the Constitutional Court.Relevant domestic law and practice

45.  Excerpts from the relevant legislation concerning the use of handcuffs and other means of restraint are set out in Costiniu v. Romania ((dec.), no. 22016/10, §§ 14-17, 19 February 2013).

46.  The relevant regulations concerning the cooperation of courts and prosecutor’s offices with the media are set out in Căşuneanu v. Romania, (no. 22018/10, §§ 39-40, 16 April 2013).

47.  Article 12 § 1 (e) and (f) of Law no. 544/2001 on free public access to information provided for the exclusion of the following two types of information from those to which the public had free access: (1) information concerning the procedure during a criminal investigation, when the result of the investigation could be affected, confidential sources could be revealed or a person’s life, personal integrity or health could be endangered after or during the investigation; and (2) information concerning judicial procedures, if its publication might impede the guarantee of a fair trial or the legitimate interests of anyone involved in the proceedings.

48.  Law no. 275/2006 on the execution of sentences provides for the possibility of lodging an appeal before the courts against any measures taken by the prison authorities in connection with a prisoner’s rights provided for by law. The law regulates the procedure to be followed and the possible outcome of the appeal. The same provisions were present in Emergency Ordinance no. 56/2003 on the rights of prisoners, which regulated the matter before the entry into force of Law no. 275/2006.

49.  Article 197 of the Code of Criminal Procedure (“the CCP”), as in force at the relevant time, provided for the mechanism whereby a procedural act could be annulled during the course of the relevant proceedings.

50.  Under Article 163 of the CCP, as in force at the relevant time, a preventive measure of forfeiture could be ordered by a prosecutor or court to prevent the disposal or disappearance of assets, to cover any possible damage caused by an offence or to guarantee the enforcement of a criminal fine. In order to repair the damage, a preventive measure could only be ordered in respect of the assets of the accused or indicted person and the person bearing civil liability, up to the probable value of the damage sustained.

51.  Articles 100 to 111 of the CCP concerning home searches, in force at the material time, are set out in Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania (no. 27153/07, § 46, 17 January 2017).

52.  Articles 275 to 2781 of the CCP set out the procedure for any person wanting to challenge any of the measures or decisions taken during a criminal investigation, in the event that these had harmed his or her legitimate interests (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 50, ECHR 2014).

COMPLAINTS

53.  Relying on Article 3 of the Convention, the first applicant complained that after his arrest he had been kept in solitary confinement for sixty days (see paragraph 20 above).

54.  Relying on the same Article, as well as, in substance, on Article 8 of the Convention, the first applicant further complained that he had been arrested by eleven police officers from the special intervention forces, and had been handcuffed and publicly exposed in a degrading manner (see paragraph 18 above), treatment which had not been made necessary by the criminal investigation.

55.  Relying on Article 8 of the Convention, all the applicants complained that the searches at their home and premises had been ordered and carried out in an unlawful manner. They argued that the search warrants had been drafted in very general terms, and that their assets had been seized without a proper itemised inventory having been drawn up.

56.  Still under Article 8 of the Convention, the first applicant complained that private telephone conversations not connected to the case had been intercepted by the authorities and leaked to the press.

57.  Under Article 10 of the Convention the first applicant and the applicant companies complained that the arrest of the entire management team of the Gazeta press group and the seizure of all technical devices and material needed for editing their newspapers had represented an infringement of their right to freedom of expression. They contended that after the events of 30 October 2006, some of their publications had ceased to appear and others had been suspended for a certain period of time.

58.  Under Article 1 of Protocol No. 1 to the Convention the applicants complained that the indiscriminate forfeiture of all their assets and the freezing of their bank accounts, for an unlimited period of time, had infringed their right to peaceful enjoyment of their possessions. They claimed that the domestic law, namely Article 163 of the CCP (see paragraph 50 above), did not offer sufficient guarantees against arbitrary measures.

59.  Under Article 5 § 3 of the Convention the first applicant complained that his pre-trial detention between 30 October 2006 and 24 March 2007 (see paragraphs 20-22 above) had not been justified and that the Cluj District Court had not provided sufficient reasons for keeping him in detention.

60.  Under Article 5 § 4 of the Convention the first applicant complained that the courts which had rendered decisions concerning his pre-trial detention had not been impartial. In this connection, he pointed out that immediately after the case had been transferred to the Brăila County Court, he had been released from detention (see paragraph 22 above).

61.  Under Article 6 § 1 of the Convention the first applicant complained that the criminal investigation against him had not been conducted in accordance with the applicable legal provisions.

62.  Relying on Article 6 § 2 of the Convention, the first applicant complained that the press releases issued by the prosecutor’s office had breached his right to be presumed innocent.

63.  Relying on Article 13 of the Convention, the applicants complained that they had not had an effective remedy for their complaints raised under Articles 3, 8 and 10 of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAWComplaints under Article 3 of the Convention

64.  The first applicant complained that he had been kept in solitary confinement for about sixty days in Gherla Prison, immediately after his arrest (see paragraph 20 above). He also alleged that on 30 October 2006 he had been subjected to degrading treatment because he had been taken into a public place handcuffed, surrounded by masked police officers, and exposed before many journalists who had photographed and filmed him and then widely disseminated information about his arrest (see paragraph 18 above).

He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Solitary confinement

65.  The Government contended that the first applicant had not exhausted the domestic remedies. In their view, he should have lodged a complaint before the domestic authorities under Law no. 275/2006 (see paragraph 48 above) concerning his alleged placement in solitary confinement.

66.  The Court makes reference to the general principles that it has developed in its case-law concerning the exhaustion of domestic remedies (see Gherghina v. Romania ((dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015).

67.  Turning to the facts of the present case, the Court has previously found that a complaint based on the provisions of Ordinance no. 56/2003 constituted an effective remedy for complaints concerning solitary confinement (see Geanopol v. Romania, no. 1777/06, § 48, 5 March 2013). As Law no. 275/2006 provided for a similar appeal system (see paragraph 48 above), the Court takes the view that this must be considered an effective remedy for the alleged placement in solitary confinement. It was therefore in the first applicant’s interest to lodge a complaint with the courts in order to allow the domestic authorities to assess the situation and to put an end to it as quickly as possible.

68.  Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.Conditions of arrest

69.  As regards the first applicant’s complaint about the manner in which he was arrested and exposed in public wearing handcuffs, the Government argued that in addition to bringing an action as provided for by Law no. 275/2006 (see paragraph 65 above), the first applicant could also have lodged a criminal complaint against the police officers who had exposed him to the press for abuse of office or ill‑treatment.

70.  In the present case, the Court observes that the first applicant did not complain to any national authority that the prosecutor had invited the media to photograph and film him in a degrading situation, handcuffed and surrounded by masked police officers, thus giving the impression that he was a dangerous criminal. Moreover, the first applicant could not claim to be certain that a criminal or civil complaint in that respect lacked any prospect of success (see, mutatis mutandis, Stoian v. Romania, no. 33038/04, § 103, 8 July 2014).

71.  As for the wearing of handcuffs in public, the Court examined an identical complaint in the case Căşuneanu v. Romania, (no. 22018/10, §§ 44-48, 16 April 2013). In that case, it found that the interested parties had had at their disposal effective remedies with which to complain that they had been exposed to the public wearing handcuffs.

72.  The Court has no reason to depart from those findings in the present case, and reaffirms that the first applicant should have complained to the authorities about the fact that he had been kept handcuffed in public places.

73.  For the reasons set out above, the Court considers that this complaint must also be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.Complaints under Article 8 of the Convention

74.  The applicants complained that their right to respect for their home and correspondence under Article 8 of the Convention had been infringed. They alleged that the searches carried out on 30 October 2006 had not been lawful and that the search warrants had been drafted in very broad terms. They also complained of the way in which the searches had been carried out. Their assets had been seized without a proper itemised inventory having been drawn up. Relying on the same provision, the first applicant complained that excerpts from the prosecution file, in particular, transcripts of telephone conversations intercepted by the authorities during a surveillance operation, had been published in the press (see paragraphs 28‑30 above). He also alleged that the prosecutor had called the media in order to report on his arrest and the search performed at his home.

75.  Article 8 of the Convention reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”The searches and seizure

(a)   The parties’ submissions

76.  The Government raised an objection of non-exhaustion of domestic remedies. In particular, they submitted that the applicants had not challenged the manner in which the search had been conducted under Articles 275 to 278 of the CCP (see paragraph 52 above). They could also have lodged either criminal or civil actions against the police officers.

77.  Furthermore, the Government argued that the applicant companies, except for S.C. Loretto Press S.R.L., could not claim to be victims of an infringement of Article 8 of the Convention in connection with the search, as their headquarters had not been searched.

78.  In addition, the Government submitted that the interference with the applicants’ rights had been justified. It had a legal basis in Articles 100 to 111 of the CCP (see paragraph 51 above) and a legitimate aim, namely the prevention of crime.

79.  According to the Government, the items and documents that were expected to be found at the newspapers’ headquarters were specified in the application for the search warrants which the prosecutor had lodged with the court (see paragraph 8 above) and in the interlocutory judgment by which the court had authorised the searches (see paragraph 9 above). The items sought by the investigators were work-related documents and computers allegedly used for committing the offences.

80.  The applicants’ submissions were not included in the file (see paragraph 3 above).

(b)   The Court’s assessment

81.  The Court notes at the outset that the Government raised several objections of inadmissibility (see paragraphs 76 and 77 above). However, it considers that it is not necessary to examine them because the complaint is in any event inadmissible for the following reasons.

82.  The Court observes that the search and seizure of various items ordered by the judge concerned the applicants’ homes and premises (see paragraph 9 above). In line with its case-law on the matter, the Court considers that there has been an interference with the applicants’ right to respect for their home in the present case (see, for instance and mutatis mutandis, Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, § 39, 18 April 2013, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 43, ECHR 2007‑IV).

83.  Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” (see Saint-Paul Luxembourg S.A., cited above, § 40).

84. Turning to the present case, the Court notes that the search was regulated by Articles 100 to 111 of the CCP, as in force at the relevant time (see paragraph 51 above). As the parties did not contest that the search had been carried out “in accordance with the law”, the Court sees no reason to reach another conclusion.

85.  The Court observes that the searches were ordered in the context of a criminal investigation opened following allegations of blackmail and organised crime. They therefore served a legitimate aim, namely to prevent crime and protect the rights of others.

86.  The main issue in the case is whether the interference was “necessary in a democratic society”. In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness. Consequently, the Court will take into consideration the following elements: whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; the circumstances in which the search warrant was issued; whether the scope of the warrant was reasonably limited; and the manner in which the search was carried out, including the presence of independent observers during the search in order to ensure that materials subject to professional secrecy were not removed (see Wieser and Bicos Beteiligungen GmbH, cited above, § 57, with further references, and Smirnov v. Russia, no. 71362/01, § 44, 7 June 2007).

(i)  The granting and terms of the search warrant

87.  The Court notes at the outset that the search-and-seizure operations complained of were based on warrants issued by a court at the request of the authority in charge of the investigation, namely the prosecutor’s office (see paragraphs 8-10 above). The Court does not consider that the fact that the warrant was obtained in an ex parte procedure was problematic in itself (see, for instance, Iliya Stefanov v. Bulgaria, no. 65755/01, § 39, 22 May 2008).

88.  However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not, in itself, necessarily amount to a sufficient safeguard against abuse. Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004).

89.  The Court observes that the prosecutor’s application was formulated in the context of criminal proceedings which had been initiated against the first applicant following accusations of blackmail and organised crime; it contained reasons and referred to specific evidence which was to be located and seized (see paragraphs 7 and 8 above). The Cluj County Court examined the application and the evidence relied on by the prosecutor, and concluded that it had a proper basis and was necessary; it therefore allowed it as formulated (see paragraph 9 above). In this context, it is noteworthy that the relevant legislation at the time, namely Article 100 of the CCP, did not specify the nature of the documents that could be seized by the authorities and did not require a warrant to include a list of objects which were presumed to exist at a search location and which needed to be seized (see paragraph 51 above).

90.  In such circumstances, the Court finds no valid reason to question the domestic courts’ assessment of the case and their conclusion that, at the material time, the search warrant had been based on a reasonable suspicion. The fact that the first applicant was eventually acquitted years later (see paragraph 39 above) cannot change that assessment (see, for instance, Robathin v. Austria, no. 30457/06, § 46, 3 July 2012).

91.  The Court notes that the search warrant was drawn up in rather broad terms (see paragraph 10 above). However, it cannot but observe that the warrant made specific reference to the interlocutory judgment of 30 October 2006, which referred to specific items, connected to the advertisement contracts and/or to the alleged blackmailing activity, to be seized (see paragraph 9 above). It can thus be inferred that the authorities gave sufficient reasons for taking that measure (see, in contrast, Robathin, cited above, § 52).

92.  In addition, the warrant was issued for a short period of time, notably ten days.

93.  Consequently, the Court considers that the scope of the warrant was reasonably limited (see, in contrast, Smirnov, cited above, § 47).

(ii)  The execution of the search warrant

94.  The Court notes that the searches were carried out in the presence of the first and second applicants, two attesting witnesses and defence counsel, the seized items were placed in sealed envelopes, search reports were drafted and no objections to the search were made by the applicants (see paragraphs 12, 14 and 15 above).

95.  The Court also notes that the applicants had a remedy in the form of an ex post facto judicial review claim in respect of the manner in which the search orders had been executed (see, by way of contrast, Iliya Stefanov, cited above, § 44). However, the first and second applicants did not complain to any national authority about the searches carried out at their home on 30 October 2006. They could have lodged a complaint with the chief prosecutor under Articles 275 to 278 of the CCP (see paragraph 52 above) or during the criminal proceedings. The first applicant did raise such a complaint, but only as regards the applicant companies (see paragraph 34 above), basing his complaint on Article 197 of the CCP (see paragraph 49 above). Although dismissed as ill-founded, his complaint was examined by the domestic court, which gave reasons for its decision (see paragraph 36 above).

(iii)  Conclusion

96.  The Court concludes that the decision authorising the search of the applicants’ homes and premises was based on relevant and sufficient reasons, and was attended by adequate safeguards against abuse and arbitrariness. It therefore does not regard either the search measure itself or the manner in which it was carried out, including the seizure of various items, as disproportionate to the aim pursued or otherwise disclosing any appearance of violation of Article 8 of the Convention.

97.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Disclosure to the press of excerpts from the first applicant’s intercepted telephone conversations

(a)   The parties’ submissions

98.  The Government contended that the first applicant had not lodged any complaints with the prosecutor’s office or the courts concerning the disclosure of his telephone conversations to the press. In their view, he could have lodged a criminal complaint for abuse of office or disclosure of professional secrets, or could have lodged an action in tort either under the Audiovisual Law (no. 504/2002) or under Articles 998 and 999 of the former Civil Code.

99.  The Government argued that no information concerning the investigation had been made public and the investigators had not provided the media with copies of the transcripts of the intercepted telephone conversations or with any other documents from the file. The only statements to the public had been those made by the prosecutor’s office in four press releases (see paragraphs 26-27 above). In their view, none of them had infringed the applicants’ rights.

100.  Moreover, the Government pointed out that the prosecutor had indicted the applicants on 19 January 2007 (see paragraph 31 above) and the case had been referred to the competent court for trial. From that time onwards, the file had become public and therefore it could have been seen by anyone justifying an interest in the case, including journalists.

101.  The applicants’ submissions were not included in the file (see paragraph 3 above).

(b)   The Court’s assessment

102.  The Court notes that the essence of the applicant’s complaint was not about the publication of excerpts from the criminal file by the press, but rather about the fact that the authorities had allowed that information to leak to the press. It further notes that the Government raised an objection of non‑exhaustion of domestic remedies (see paragraph 98 above). However, it considers that it is not necessary to examine it because the complaint is anyway inadmissible for the following reasons.

103.  The Court points out that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see, among other authorities, Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82; Kruslin v. France, 24 April 1990, § 26, Series A no. 176‑A; and Kopp v. Switzerland, 25 March 1998, § 53, Reports of Judgments and Decisions 1998‑II).

104.  The Court notes that the criminal investigation against the journalists of the Gazeta press group drew media attention. Excerpts from conversations between the first applicant and other parties, obtained through telephone tapping and included in the prosecution file, were published (see paragraphs 28-30 above). In this connection, the Court reiterates that in circumstances such as those of the present case, public interest in receiving information only covers facts which are connected with the criminal charges brought against the accused (see, mutatis mutandis, Craxi v. Italy (no. 2), no. 25337/94, § 65, 17 July 2003).

105.  The Court observes that the first applicant was accused, inter alia, of blackmail committed against local politicians and businessmen by forcing them to buy advertising space from the newspaper belonging to the Gazeta press group (see paragraph 7 above). The excerpts published in the Realitatea Românească newspaper concerned discussions about the first applicant’s work, local politicians and businesses and their advertising in the newspapers (see paragraphs 29-30 above). These conversations were neither of a strictly private nature nor clearly unconnected with the criminal charges brought against the first applicant (contrast Craxi, cited above, § 66). Moreover, the Court is not convinced that the interference complained of could be imputed to the State.

106.  In this respect, it first notes that the publication was made by private newspapers. It has not been suggested by the applicants that these newspapers were in some way under the control of the public authorities (see, mutatis mutandis, Craxi, cited above, § 69).

107.   As concerns the way in which the press had access to the transcripts of the intercepted telephone conversations, the Court observes that the publication of transcripts of the excerpts took place after the case file had been lodged with the court (contrast Căşuneanu, cited above, §§ 9‑10 and 23, in which leaks to the press occurred three weeks before the applicant was first brought before a judge). In particular, the first publication of transcripts of telephone conversations was on 18 December 2006 (see paragraph 29 above). At that date the case had already been examined by a domestic court, notably the Cluj County Court, which, on 30 October 2006, had decided on the first applicant’s pre-trial detention (see paragraph 20 above). The other publications of transcripts took place on 27 January and 2 February 2007 (see paragraph 30 above), thus after the prosecutor’s office had indicted the first applicant and had sent the file to the court on 19 January 2007 (see paragraph 31 above; contrast Căşuneanu, cited above, § 83).

108.  In these circumstances, the Court accepts that the case file could have been accessed by the media during the court proceedings.

109.  In this context, the Court observes that under Romanian law, free public access to information concerning judicial procedures is excluded only if the publication of the information at issue might impede the guarantee of a fair trial or the legitimate interests of anyone involved in the proceedings (see paragraph 47 above). Moreover, under the applicable regulations, public access to files lodged with a court is subject to judicial control, insofar as it must be approved by the spokesperson of the court or the court itself (see Căşuneanu, cited above, §§ 39-40 and paragraphs 35 and 46 above). In the present case the Brăila County Court exercised such control on at least one occasion, 22 March 2007, when it restricted the scope of the media reporting on the case (see paragraph 35 above). The Court considers that the applicants themselves could also have requested that public access to their criminal case file be restricted in order to protect their privacy, or could have sought clarifications about the scope of the access the criminal file granted to the press by the court.

110.  As for the content of the other articles published about the criminal investigation (see paragraph 28 above), there is nothing to indicate that journalists had access to the prosecution file. There is no evidence that the information published was other than the result of journalistic investigation, such as, for instance, the interviews with individuals from the Gazeta press group’s circles. Moreover, at the time of their publication, the prosecutors’ office had already issued two press releases announcing the start of the criminal investigations against journalists from the Gazeta press group, the charges brought and the methods allegedly employed by the accused in the alleged blackmail (see paragraphs 26 and 27 above). Those press releases, which were not contested by the applicants, can legitimately be referred to by the press as “judicial sources”, “the prosecutors” or “the evidence in the case file” (see paragraph 28 above).

111.  In the light of all the material in its possession, the Court finds that the publication of excerpts of the telephone conversations was not proven to be imputable to the authorities. Moreover, the system provided the applicants with the means to protect their privacy and to seek to restrict public access to the case file and court proceedings.

112.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Prosecutor’s invitation to the media to take photographs during the first applicant’s arrest and search of his home

(a)   The parties’ submissions

113.  The Government contended that the first applicant had not exhausted domestic remedies. They submitted that he could have lodged a criminal complaint for the offence of abuse of office under Article 246 of the Criminal Code. Alternatively, a civil claim based on Articles 998 and 999 of the former Civil Code in conjunction with Article 54 of Decree No. 31/1954 would have constituted an effective remedy, as would a claim under Article 18 of Law no. 677/2001 and Article 22 of Law no. 544/2001.

114.  The applicants’ submissions were not included in the file (see paragraph 3 above).

(b)   The Court’s assessment

115.  The Court has already found that the applicant had failed to exhaust effective domestic remedies concerning his alleged exposure in public wearing handcuffs (see paragraphs 70-73 above). The same findings are also relevant for the examination of this complaint from the standpoint of Article 8 of the Convention.

116.  Consequently, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.Complaint under Article 10 of the Convention

117.  Relying on Article 10 of the Convention, the first applicant and the applicant companies complained that the arrest of the entire management team of a press group and the seizure of all the technical devices and materials which were necessary for editing their newspapers represented an infringement of their freedom of expression. In this connection, they contended that after the events of 30 October 2006 some of their publications had ceased to appear and others had been suspended for a certain period.

Article 10 of the Convention reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”The parties’ submissions

118.  The Government admitted that the searches of 30 October 2006 and the seizure of documents and assets on that occasion had interfered with the applicants’ freedom of expression as provided for under Article 10 of the Convention. That interference, they argued, was prescribed by law as it was intended to prevent crime and to protect the reputation of others.

119.  The Government also submitted that the measures taken had been justifiable and proportionate, emphasising that the criminal offences of which the applicants had been accused had had a direct connection with their journalistic activity. They insisted on the complexity of the case file and the seriousness of the crimes, which had allegedly been committed by an organised criminal group.

120.  As regards the procedural measures taken against the applicants, such as the seizure of their technical devices and material necessary for editing the newspapers, the Government contended that they could not be deemed as censorship of the applicants’ freedom of expression as long as the devices and material in issue represented the means by which the applicants had committed the crimes and thus constituted material pieces of evidence.

121.  The Government concluded by submitting that Article 10 of the Convention had not been infringed in the present case, as freedom of expression should not be interpreted as a boundless right that might shelter breaches of the rule of law.

122.  The applicants’ submissions were not included in the file (see paragraph 3 above).The Court’s assessment

123.  The Court makes reference to the general principles it has developed in its case-law concerning the protection of freedom of expression in a democratic society (see, notably, Pentikäinen v. Finland [GC], no. 11882/10, §§ 87-91, ECHR 2015).

124.  The Court reiterates, in particular, that the protection afforded to journalists by Article 10 of the Convention is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (ibid., § 90). Furthermore, the concept of responsible journalism is not confined to the contents of information which is collected and/or disseminated by journalistic means. It also embraces, inter alia, the lawfulness of journalists’ conduct, including their public interaction with the authorities when exercising journalistic functions (see Brambilla and Others v. Italy, no. 22567/09, § 53, 23 June 2016).

125.  In the present case, the Court considers that the searches at the home of the first applicant and the applicant companies’ premises, followed by the seizure of several assets, at least some of which could have been necessary for continuing their activity (see paragraphs 12, 14 and 15 above), amounted to an interference with their rights under paragraph 1 of Article 10. The Court has already found that the search was prescribed by law and served a legitimate aim (see paragraphs 84 and 85 above).

126.  The main issue is whether the impugned interference was “necessary in a democratic society” to achieve that aim, from the standpoint of Article 10 of the Convention.

127.  It should be noted at the outset that, unlike other cases where journalists have applied to the Court under Article 10 of the Convention (see, for instance, Saint-Paul Luxembourg S.A., cited above, §§ 51-52, with further references), the present case does not concern measures taken for the purpose of identifying civil servants who had provided the journalists with confidential information, but rather the taking of measures for actions that, under Romanian law, contravened criminal law (see Brambilla and Others, cited above, § 57). Indeed, the searches in question were carried out with the aim of seeking evidence of offences allegedly committed by the first applicant and his colleagues in their capacity as journalists (see paragraph 9 above).

128.  The Court has already found that the authorities gave relevant and sufficient reasons for conducting the search and that the measure was attended by adequate safeguards against abuse and arbitrariness (see paragraphs 86-96 above).

129.  The Court must also take into account the extent of the possible repercussions on the work of the persons affected by the search (see, mutatis mutandis and under Article 8 of the Convention, Smirnov, cited above, § 44 in fine). In this connection, it notes that the applicants were never prohibited from bringing news items to the public’s attention (see Brambilla and Others, cited above, § 61). The only consequence was that, according to the applicants, the seizure of documents and computers prevented the newspapers from continuing their normal activity. However, the confiscated assets were eventually returned to them, on 10 December 2009 (see paragraph 17 above). Moreover, the applicants had complained about the measure to the relevant authorities, and their complaint was examined by the domestic courts (see paragraphs 34 and 36 above).

130.  In addition, the inconvenience which the applicants complained of before the Court was rather caused by the ongoing criminal investigation of complex crimes, involving several accused persons and victims. The seizure of the assets was a mere consequence of the criminal investigation, and there is nothing in the case file to indicate that the criminal investigations pursued an illegitimate purpose, such as an unlawful restriction of the journalists’ freedom to impart information. On this point, the Court cannot but note that the first applicant and the other journalists on trial were accused of a crime which essentially consisted of refraining from imparting information of public interest in exchange for personal gain (see paragraph 7 above).

131.  The Court is mindful that journalists should enjoy a broad scope of protection, including a range of freedoms that are of functional relevance to the pursuit of their activities, such as: protection of confidential sources; protection against searches of professional workplaces and private domiciles and the seizure of materials; protection of news and information-gathering processes; and editorial and presentational autonomy (see paragraph 30 of the Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors, adopted by the Committee of Ministers on 13 April 2016). However, it reiterates that, because of the nature of the criminal acts under investigation, the current case differs essentially from cases where journalists’ right to impart information had been breached because of searches and seizures aimed at identifying their journalistic sources (see, among many others, Nagla v. Latvia, no. 73469/10, §§ 101 and 103-04, 16 July 2013; Görmüş and Others v. Turkey, no. 49085/07, §§ 71-75, 19 January 2016; and Ernst and Others v. Belgium, no. 33400/96, §§ 91-92, 15 July 2003). The fact that in the present case the first applicant was eventually acquitted does not change the Court’s conclusion.

132.  Having regard to the above factors, the Court considers that the applicants did not suffer a disproportionate restriction of their freedom of expression and that the facts of the present case do not disclose any appearance of a violation of Article 10 of the Convention.

133.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaint under Article 1 of Protocol No. 1 to the Convention

134.  The applicants complained that the indiscriminate forfeiture of all their assets and the freezing of their bank accounts for an unlimited period of time had infringed their right to peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”The parties’ submissions

135.  The Government submitted that under domestic law the authorities were entitled to seize the assets of defendants in order to secure the payment of damages to the injured parties, and could maintain the seizure measures until a final decision was delivered by the criminal courts. In the present case, given the State’s wide margin of appreciation, the confiscation of the applicants’ assets had not constituted a disproportionate interference with their right to peaceful enjoyment of their possessions.

136.  The Government pointed out that the applicants had been provided with opportunities to contest the measures and the court had carefully examined their claims. They had also had the possibility to challenge the measures if they considered that the prosecutor had overstepped his powers or that the prosecution had been unlawful. Moreover, at the end of the criminal proceedings, the applicants had had the possibility to seek compensation for any depreciation of the value of their assets.

137.  The applicants’ submissions were not included in the file (see paragraph 3 above).The Court’s assessment

138.  The Court notes that, although not presented as such, the Government’s observations pertain to an objection of non-exhaustion of domestic remedies (see paragraph 136 above). The Court will examine it accordingly and in the light of the general principles it has developed in its case-law concerning exhaustion of domestic remedies (see paragraph 66 above).

139.  Turning to the facts of the present case, the Court notes that in his action for compensation lodged with the authorities after the completion of the criminal proceedings, the first applicant also complained of the damage suffered as a consequence of the forfeiture of his assets and the freezing of his bank accounts (see paragraph 41 above). He explicitly included in his complaint the loss incurred by the applicant companies. Those proceedings were still pending on 23 July 2019, which is the date of the most recent communication received by the Court from the applicants (see paragraph 44 above).

140.  Accordingly, this complaint must be rejected as premature under Article 35 §§ 1 and 4 of the Convention.Other complaints

141.  The first applicant raised several complaints under Article 5 §§ 3 and 4 of the Convention concerning his arrest and pre-trial detention. He also complained, under Article 6 §§ 1 and 2 of the Convention, of irregularities in the domestic criminal proceedings, which had supposedly occurred mainly during the investigation phase. The applicants also complained jointly that they had not had an effective remedy at their disposal to complain of the violations of Articles 3, 8 and 10 of the Convention and of Article 1 of Protocol No. 1 to the Convention (see paragraphs 59-63 above).

142.  However, in the 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.

143.  It follows that these complaints are 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 12 December 2019.

Andrea TamiettiJon Fridrik Kjølbro
Deputy RegistrarPresident

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