THIRD SECTION
Application no. 45879/09
S.C. RED CREDIT S.R.L.
against Romania
lodged on 19 June 2009
STATEMENT OF FACTS
The applicant, S.C. Red Credit S.R.L., is a Romanian legal person with its main office located in Constanța.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant company is a small company limited by guarantee and is authorised to operate as a pawn shop and to hold precious metals.
On 3 October 2007 the Constanța Consumer Protection Agency produced a contravention report fining the applicant company 7,000 lei (RON) (approximately 2,100 euros (EUR)) because on 26 September 2007 it displayed golden jewellery for sale without holding a licence to sell precious metals. In addition, it ordered that the golden jewellery displayed for sale, weighing 2,528 grams of gold, worth RON 111,683 lei (approximately EUR 33,400) be confiscated.
The representative of the applicant company who signed the report objected to it on the ground that the measures taken were abusive.
The applicant company challenged the report of 3 October 2007 before the domestic courts. It submitted documents substantiating its arguments inter alia that the quantity of confiscated jewellery represented the company’s entire stock of jewellery not only the stock displayed for sale and that the representatives of the Constanța Consumer Protection Agency had not taken part in the operation to identify and weigh the jewellery displayed for sale as the said operation had been carried out by the Constanța Tax Agency which had not taken any punitive measures against it.
By a judgment of 4 July 2008 the Constanța District Court, relying on the evidence submitted by the applicant company, allowed its action and quashed the report of 3 October 2007 and ordered the return of the confiscated jewellery. It held that according to the Court’s case law in respect of similar circumstances the burden of proof with regard to the applicant company’s guilt was on the Consumer Protection Agency. However, the said agency did not submit any evidence to prove the applicant company’s guilt. Lastly, it dismissed the witness evidence requested by the applicant as unnecessary. The Constanța Consumer Protection Agency appealed on points of law (recurs) against the judgment.
By a final judgment of 23 December 2008, and without administering any additional evidence, the Constanța County Court allowed the Constanța Consumer Protection Agency’s appeal on points of law, quashed the judgment of the lower court and upheld the report of 3 October 2007. It held that according to the Court’s case law the burden of proof would have been on the Consumer Protection Agency and the report could have been quashed only if its representatives had not been present when the displayed jewellery was identified and weighed. Or the representatives of the said agency had been present when the contravention was committed and the report reflected their own perceptions. Consequently, the burden of proof was reverted to the applicant company and its arguments and evidence did not prove that the report had been unlawful.
COMPLAINTS
1. Relying on Article 6 of the Convention the applicant company complains of the unfairness of the proceedings insofar as the domestic courts failed to properly examine the arguments and evidence adduced by it and breached its right to be presumed innocent by reverting the burden of proof to it without administering any additional evidence.
2. Relying on Article 1 of Protocol No. 1 to the Convention the applicant company complains of a breach of its right of property insofar as the judgment of the last instance court allowed the confiscation of all the jewellery the company had in stock, which almost led to its bankruptcy.
QUESTIONS TO THE PARTIES
1. Did the applicant company have a fair hearing in the determination of the criminal charge brought against it, in accordance with Article 6 of the Convention?
In particular, did the domestic courts conduct a proper examination of the arguments and evidence raised by it? Also, was the presumption of innocence respected in the present case?
2. Did the confiscation of all the gold held by the applicant company constitute an interference with the peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?
If so, did that interference strike a fair balance between the demands of the general interest and the interests of the applicant company?
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