SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 70786/01
by Julian ROSENGREN
against Romania
The European Court of Human Rights (Second Section), sitting on 27 April 2004 as a Chamber composed of:
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 17 August 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Julian Rosengren, is a national of both Romania and Sweden, who was born in 1954 and lives in Visby, Sweden.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 April 1993, the applicant was placed in police custody on charges of fraud through his business transactions. The police accused the applicant of using his companies to the prejudice of his business partners. The next day, the prosecutor attached to the Supreme Court of Justice ordered the applicant's remand in custody for 30 days, as of 14 April 1993. On 10 May 1993, the police seized the applicant's property in order to ensure the payment of the damage allegedly caused by him.
By a letter of 1 November 1993, the prosecutor attached to the Supreme Court of Justice committed the applicant for trial before the Bucharest Regional Court.
1. The criminal proceedings against the applicant
By a judgment of 29 November 1994, the Bucharest Regional Court convicted the applicant of fraud, sentenced him to 4 years' imprisonment and awarded civil damages to the victims. It ordered the expulsion of the applicant, after serving the sentence, given his Swedish nationality. The Regional Court upheld the seizure of the assets belonging to the applicant and his companies, as well as of their accounts, without specifying reasons.
The applicant appealed against the judgment regarding both his conviction and the expulsion order. He claimed that he had never lost his Romanian citizenship and that, therefore, his expulsion would be unconstitutional.
By a decision of 11 May 1995, the Bucharest Appellate Court allowed the appeal and remitted the case to the Regional Court for a new trial on the merits. It found that the court of first instance had not clarified all the relevant facts of the case and that it had not analysed all the charges against the applicant, as formulated by the prosecutor on 1 November 1993.
The applicant filed motions for bias against the judges of the Regional Court on 20 November 1996, and 18 June and 13 August 1997. They were all dismissed.
On 21 January 2000, the Bucharest Regional Court, after reassessing the evidence adduced to the case, again convicted and sentenced the applicant to 4 years' imprisonment, with an order to pay civil damages. It also ordered his expulsion. The Regional Court maintained the decision to seize the assets belonging to the applicant and his companies, as well as their accounts.
The applicant appealed against this judgment to the Bucharest Appellate Court, which delivered its decision on 16 October 2000. The court reiterated that business activities required honest dealings. However, the evidence adduced in the case demonstrated the lack of good faith of the applicant in his business transactions which were under review. Therefore, it concluded that his activity was illicit. However, since the criminal charges against the applicant had become time barred, the court ended the trial against the applicant insofar as its criminal aspects were concerned. After reassessing the evidence and based on its findings, the appellate court recalculated the amount of civil damages to be awarded to the victims. It also maintained the seizure of the applicant's assets and the expulsion order.
By a final decision of 12 March 2002, the Supreme Court of Justice dismissed the applicant's appeal on points of law against the decision of 16 October 2000.
On 25 October 2002, the Procurator‑General, pursuant to the applicant's request, lodged an application with the Supreme Court of Justice to have the final decision of 12 March 2002 quashed (recurs in anulare), insofar as it concerned the expulsion order. The case is apparently still pending before the Supreme Court of Justice.
The applicant submitted to the Court a certificate, issued by the Romanian Ministry of Interior on 20 December 2000, confirming his Romanian nationality.
2. Precautionary measures against the applicant
a) The arrest of the applicant
On 14 April 1993, the prosecutor attached to the Supreme Court of Justice placed the applicant in custody for 30 days, a period repeatedly prolonged thereafter by the Bucharest Regional Court.
At several hearings, the applicant requested the revocation of his arrest, arguing that the initial grounds for this measure no longer existed. His requests were rejected by the court. Finally, on 19 December 1995, the Bucharest Regional Court allowed the request, imposing on the applicant an obligation not to leave the city.
It appears from the documents in the case that he formulated several criminal complaints against the Romanian State through various Ministries, from which he claimed compensation for his allegedly illegal arrest. On 10 February 1997, he sent such a complaint to the prosecutor attached to the Supreme Court of Justice, the President of the Republic and certain other institutions. The applicant informed the Court that these complaints went unanswered.
b) The obligation not to leave Bucharest
On 27 February 1996, the applicant requested the Bucharest Regional Court to revoke the prohibition on leaving the city, imposed on 19 December 1995. He argued that, if allowed to travel abroad, he could negotiate more easily with the alleged victims and that the damages could be recovered more quickly. By a decision delivered on the same day, the Regional Court dismissed the request. It held that it was not necessary for the conduct of his business that the applicant travel abroad or to another town, since he could appoint a representative.
On 29 March 1996, the Bucharest Appellate Court dismissed the applicant's appeal against this decision. It held that, according to the Romanian Code of Criminal Procedure, the applicant could only challenge the prohibition in an eventual appeal against the decision on the merits of the case.
On 5 and 26 June, 11 September and 16 October 1996, the Regional Court rejected further requests from the applicant to lift the measure, without specifying reasons. On 18 December 1996, the Regional Court rejected a similar request on the basis of unchanged circumstances.
On 22 October 2001, the applicant left Romania of his own free will and established his residence in Sweden.
It appears from the documents submitted by the applicant that the criminal prosecution and the precautionary measures taken against him were registered in his criminal record (cazier) and with the Passport Service.
c) The seizure of the applicant's possessions
On 10 May 1993, the police searched the applicant' home and seized some of his possessions for the purpose of ensuring the payment of the alleged damage he had caused.
On 28 April 1993, and 4, 10 and 13 May 1993, the B. Bank, one of the applicant's business partners and alleged victims, seized, using its own bailiff, the assets of the applicant's companies in order to secure the reimbursement of a business loan made to the applicant. On 4 May 1993, the bank sent the police a list of the assets belonging to the applicant's companies.
It appears from the applicant's submissions that, later on, the bank sold some of the seized assets.
On 4 September 2000, the applicant filed with the prosecutor attached to the Supreme Court of Justice a criminal complaint against the representatives of the B. Bank for selling his possessions whilst he was in custody. He sought compensation for the alleged damage caused to him by the representatives of the bank.
The applicant did not submit any further information concerning this complaint.
On 2 October 2000, the applicant filed a criminal complaint against D.B., the prosecutor in charge of the investigations against him. He accused D.B. that, on 10 May 1993, he had allowed the B. Bank to sell some of his, and his companies' seized assets. He requested compensation for the alleged damage.
It appears from the applicant's submissions that this investigation is still pending.
B. Relevant domestic law
1. The provisions of the Romanian Criminal Code concerning expulsion
Article 111
“2. Security measures shall be imposed on persons who have committed acts prohibited by the criminal law.
3. Security measures can be imposed even if the person is not convicted (acuzatului nu i se aplica o pedeapsa).”
Article 112
“The security measures are: ...
e) the expulsion of foreigners; ...”
2. The relevant provisions of the Romanian Code of Criminal Procedure:
Article 136
“1. ... the following precautionary measures can be imposed on the accused person: ...
b) the obligation not to leave town ...”
Article 140
“The precautionary measures shall cease to exist ex officio ...
b) ... when the criminal trial ends.”
Article 346
“When ... the court ends the criminal trial, it shall decide by the same decision on the matter of civil damages ...”
COMPLAINTS
1. The applicant complains that his arrest on 14 April 1993 and the prolongation of his detention by the courts did not correspond to the requirements of lawfulness laid down in Article 5 § 1 (a) of the Convention.
2. The applicant complains under Article 5 §§ 3 and 4 of the Convention that, after his arrest, he was not brought promptly before a judge or other officer authorised by law to exercise judicial power who could assess the lawfulness of his detention.
3. Invoking Article 5 § 5 of the Convention, the applicant complains that his request for compensation from the State because of his illegal arrest was left unanswered by the Romanian authorities.
4. The applicant considers that the conditions of his detention, the fact that, allegedly, he did not receive adequate medical treatment in custody and that he had no possibility to contact various authorities or the media while in custody, violated his rights under Articles 3, 8 and 10 of the Convention.
5. He complains under Article 6 § 1 of the Convention of an unfair trial in the criminal proceedings against him.
6. He considers that the Romanian authorities violated the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, by taking precautionary measures against him, by seizing his property during the trial and by registering the criminal prosecution against him in his criminal record and with the Passport Service.
7. The applicant considers that the length of the criminal proceedings against him did not respect the “reasonable time” requirement of Article 6 § 1 of the Convention.
8. The applicant claims that the searches of his home and company headquarters during the investigations, the seizure of his property and that of his companies, and the fact that part of his possessions was sold, with the approval of the prosecutor, while he was in custody, violated his rights under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
9. He considers that the prohibition on leaving town, imposed by the Bucharest Regional Court on 19 December 1995, infringed his freedom of movement, as guaranteed by Article 2 §§ 1 and 2 of Protocol No. 4 to the Convention.
10. The applicant claims that the decision of the Romanian courts to expel him, despite his Romanian nationality, constituted a violation of Article 3 § 1 of Protocol No. 4 to the Convention.
THE LAW
1. The applicant complains that he was deprived of a fair hearing, contrary to Article 6 § 1 of the Convention, during the criminal proceedings against him. He considers that the length of the said proceedings did not comply with the “reasonable time” requirement of Article 6 § 1. He claims that the presumption of innocence was infringed by the national authorities, in violation of Article 6 § 2 of the Convention, in the course of those proceedings.
Furthermore, he considers that the seizure of his and of his companies' assets, and the fact that some of the seized possessions were subsequently sold while he was in custody, violated his rights under Article 8 of the Convention and Article 1 of Protocol No. 1.
The applicant next contends that the prohibition on leaving town constituted a violation of his freedom of movement as guaranteed by Article 2 §§ 1 and 2 of Protocol No. 4 to the Convention. He also complains that the decision of the domestic courts to expel him, despite his Romanian nationality, violated his rights under Article 3 § 1 of Protocol No. 4 to the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant claims that his arrest on 14 April 1993, and the prolongation of his detention on remand by the courts, did not comply with the lawfulness requirement of Article 5 § 1 (a) of the Convention. The Court notes that, although the applicant invoked Article 5 § 1 (a), his complaint falls to be considered under Article 5 § 1 (c), the relevant part of which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”
However, the Court notes that the applicant was released from detention on 19 December 1995 and that all the complaints he made to the domestic courts on this matter had been rejected before that date. Thus, the six months time-limit imposed by Article 35 § 1 of the Convention for lodging complaints with the Court started, at the latest, on 19 December 1995, when the impugned situation ended. The applicant did not lodge this complaint with the Court until more than six months later, on 17 August 2000.
It follows that the complaint has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
3. The applicant next complains under Article 5 §§ 3 and 4 of the Convention that, after his arrest, he was not brought promptly before a judge who could assess the lawfulness of his detention.
The Court notes that this complaint is in fact limited to the provisions of Article 5 § 3 of which reads as follows:
“ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
However, this state of affairs ended with the applicant's release on 19 December 1995, and he had no further remedy at his disposal which he could have pursued thereafter (see Pantea v. Romania, no. 33343/96, § 239, 3 June 2003). The six month time-limit imposed by Article 35 § 1 of the Convention thus ran from that date, but the applicant lodged his complaint to the Court out of time on 17 August 2000.
It follows that this part of the application must also be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
4. The applicant next complains under Article 5 § 5 of the Convention that his request for compensation for his allegedly illegal arrest has remained unanswered by the Romanian authorities. Article 5 § 5 reads as follows:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
The Court recalls that the right to compensation under this provision presupposes that a violation of one of the other paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 14, § 38 and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X). However, the Court observes that no domestic authority has so far declared the applicant's arrest to have been illegal and the Court is unable to examine the applicant's Article 5 complaints due to his failure to observe the six month time-limit under Article 35 § 1. Consequently, there is no basis on which the Court could examine the applicant's complaint about compensation.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
5. Finally, the applicant alleges that the conditions of his detention on remand violated his rights under Articles 3, 8 and 10 of the Convention, in particular as regards medical treatment and contacts with the media. These Articles guarantee, inter alia, freedom from severe ill-treatment, the right to respect for private and family life and freedom of expression, respectively.
However, in respect of his Article 8 complaint, the Court again notes that this state of affairs ended with the applicant's release on 19 December 1995, and that he had no further remedy at his disposal which he could have pursued thereafter (see Petra v. Romania, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2854, § 38). Moreover, the applicant did not raise his complaints under Articles 3 and 10 of the Convention before any domestic court, as required by Article 35 § 1 of the Convention. If it were argued that such a channel of complaint would have been ineffective, the six-month rule, with which the applicant did not comply, would come into operation once more.
It follows that this part of the application must also be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning a fair hearing and the length of the criminal proceedings against him (Article 6 § 1), the presumption of innocence (Article 6 § 2), the search and seizure of property (Article 8 and Article 1 of Protocol No. 1), freedom of movement and the prohibition on the expulsion of nationals (Article 2 §§ 1 and 2 and Article 3 § 1 of Protocol No. 4);
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy