Communicated on 1 September 2015
THIRD SECTION
Application no. 43190/10
OFFICE OF ASSOCIATED PUBLIC NOTARIES ‘ETICA’
against Romania
lodged on 17 June 2010
STATEMENT OF FACTS
The applicant company, Office of Associated Public Notaries “Etica”, is a Romanian legal person, which has its main office in Bucharest. It is represented before the Court by its legal representative, Mr Dumitru Octavian Rădulescu.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 December 2007 approximately thirty police officers entered the premises of the applicant company, which is a public notary’s office. They informed a receptionist that they were clients. The receptionist asked them to leave the premises, but they refused.
After some time two of the police officers disclosed their identity and proceeded to seize an original sale contract that had been signed between two third parties and had been notarised by the applicant company’s legal representative. They also seized a number of documents, including original documents, which had concerned the aforementioned third parties and the sale contract. Moreover, the police officers seized the fees and taxes that had been paid by the third parties for the services rendered by the applicant company.
According to the report produced by the police officers on the same date, they had seized 8,943 euros (EUR) representing income tax paid by the third party selling the immovable property and EUR 15,735 representing public notary fees and the tax for the registration of the sale in the immovable property register.
On 23 April 2008 the applicant company brought criminal proceedings against the two police officers for unlawful home intrusion (violare de domiciliu) and abuse of office against private interests (abuz ȋn serviciu contra intereselor personale).
On 31 August 2009 the Bucharest Prosecutor’s Office discontinued the criminal investigations against the police officers on the ground that no unlawful act had been committed.
The applicant company appealed against the decision before the domestic courts. It argued amongst other things that the police officers had entered its premises in breach of Article 27 § 2(b) of the Romanian Constitution. The police officers had not sought to protect other people’s property and in any event they could have done that by taking measures to preserve property (indisponibilizarea bunului). Also the police officers had entered its premises and had remained there outside working hours. Moreover, they had unlawfully seized the public notaries’ professional fees. Furthermore, they had failed to include in the report produced on the day of the incidents its representatives’ objections regarding the police officers’ presence on its premises, the seizure of fees and the questioning of its staff members.
By a final judgment of 25 January 2010 the Court of Cassation dismissed the applicant company’s appeal. It held amongst other things that the police officers had acted within the context of a criminal investigation initiated against third parties for immovable property fraud and in their professional capacity. They had entered the applicant company’s premises, had declined their identity and had asked its representative to turn over all documents related to the sale contract signed by the third party under investigation. The applicant company’s representative had signed without any objections the report produced on the day of the incident by the officers containing a detailed description of the documents and the amounts seized. According to Articles 96, 97 and 202 of the Romanian Code of Criminal Procedure the police officers had been entitled to carry out the operation seeking to identify and investigate unlawful acts and had a duty to gather and seize the relevant evidence. Also any natural and legal person had a duty to turn over the impugned evidence. Consequently, the police officers had acted lawfully. The applicant company’s submissions that the police officers had entered its premises outside working hours and had unlawfully seized documents, taxes and fees had been unsubstantiated. Also the applicant company’s arguments that the statements taken by the police officers from its staff members had breached the rules on professional confidentiality had been unfounded as long as the information they had provided had not amounted to their hearing as witnesses.
B. Relevant domestic law
Article 27 of the Romanian Constitution provides amongst other things that no one can enter or remain in someone’s home or residence without his or her consent except in circumstances where someone’s life, physical integrity or property was threatened.
Articles 96, 97, 99 and 202 of the former Romanian Code of Criminal Procedure provided amongst other things that the investigating authorities had to seize the objects and documents that could have served as evidence in a criminal trial. Any legal or natural person had a duty to turn over any such objects or documents upon request by the investigating authorities. If the object or document was confidential or secret, the evidence in question had to be turned over in circumstances that would preserve its secrecy or confidentiality. The investigating authorities had the power to forcefully seize the object or document sought after if it had not been turned over voluntarily. The investigating authorities had to gather all the information and evidence necessary for solving a case.
Article 29 of the Rules of Law no. 36/1995 on public notaries provided that public notaries and staff members of public notary office had to preserve professional secrecy and were prohibited from providing information and access to documents to other individuals except for the parties, their heirs or legal representatives or to those justifying a right or a legitimate interest.
COMPLAINTS
1. The applicant company complains under Article 8 of the Convention that the unlawful entry of police officers on its premises and the seizure of documents, public notary fees and taxes and the questioning of its staff members breached its right to private life, home and correspondence. Moreover, it impinged on its duty of professional secrecy.
2. The applicant company complains under Article 1 of Protocol No. 1 to the Convention that the unlawful seizure by the police officers of the public notary fees and taxes received for the work produced by its staff members amounted to a breach of its property rights.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant company’s right to respect for its private life, home or correspondence, contrary to Article 8 of the Convention? In particular was the entry of the police officers on its premises; the seizure of professional documents, fees and taxes; and the questioning of its staff members proportionate to the legitimate aim pursued?
2. Has there been an interference with the applicant company’s right to peaceful enjoyment of its possessions within the meaning of Article 1 of Protocol No. 1 to the Convention on account of the seizure by the police officers of the professional fees and taxes received for the work produced by its staff members?
If so, was that interference in compliance with the conditions set out in Article 1 of Protocol No. 1 to the Convention, as interpreted in the Court’s jurisprudence?
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