FOURTH SECTION
DECISION
Application no. 60432/15
TENDER S.A. against Romania
and 3 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 9 November 2021 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Iulia Antoanella Motoc,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications against Romania lodged on the various dates indicated in the appended table,
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. On 8 June 2015 the Bucharest Court of Appeal convicted the applicants Ovidiu Lucian Tender, Bogdan Lucian Sălăjean and Cicilia Dumitrescu of fraud, abuse of office, incitement to abuse of office, conspiracy to commit crime and money laundering, for crimes that caused millions of euros in damage to the State budget. In the same proceedings, all applicants’ assets were confiscated as proceeds of crime and in order to cover the damage caused by the crimes on trial.
2. The applicants lodged an objection before the court of appeal to the participation in the case of M.A.M., one of the judges on the trial bench who they considered biased because, in a previous set of proceedings, he had convicted other people than the applicants of similar crimes. Their objection was dismissed by the Bucharest Court of Appeal on 3 June 2015 in a reasoned decision as the reason put forward was not provided by Article 64 of the Code of Criminal Procedure governing the disqualification of judges on incompatibility grounds.
3. Relying on Article 6 § 1 the applicants complained about the alleged lack of impartiality of the appeal bench dealing with their criminal case. Under Article 1 of Protocol No. 1 the applicants in applications nos. 60432/15, 60651/15 and 760/16 also complained that the confiscation of their assets had been excessive and had been ordered without sufficient procedural guarantees owing mostly to the lack of impartiality of one of the judges on the appeal bench.
THE COURT’S ASSESSMENT
4. Given the factual and legal similarities of the applications, the Court decides to join them (Rule 42 § 1 of the Rules of Court).
Complaint under Article 6 § 15. The applicants alleged that the appeal bench that had delivered the conviction judgment in their case had lacked impartiality because one of the two judges in the composition had previously delivered a conviction judgment in a case raising similar legal issues.
6. The applicants challenged the judge in question for bias and the appeal bench of the Bucharest Court of Appeal examined this challenge and adopted a reasoned decision on 3 June 2005 in compliance with the provisions of the applicable law (see Alexandru Marian Iancu v. Romania, no. 60858/15, § 38, 4 February 2020), according to which the situation complained of was not listed among the grounds provided by law for disqualification of judges in criminal proceedings (see paragraph 2 above).
7. Having regard to its well-established case-law (see, among other authorities, Morice v. France [GC], no. 29369/10, §§ 73-78, ECHR 2015) and to the material in the case file, the Court considers that the mere fact that judge M.A.M. had previously sat in another set of criminal proceedings concerning similar charges against third persons which had led to the latter’s conviction, does not suffice to disclose any appearance of a lack of subjective or objective impartiality on the part of the judge in question. Therefore, the appeal bench proceeded correctly in examining and rejecting the applicants challenge for bias. Moreover, the Court has already examined a complaint similar to that in the present case lodged by another co‑defendant in the same proceedings and found no violation of Article 6 § 1 (see Alexandru Marian Iancu, cited above, §§ 64-74).
8. 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. 19. The applicants in applications nos. 60432/15, 60651/15 and 760/16 complained that their assets had been confiscated without sufficient procedural guarantees owing to the various procedural decisions taken by the appeal bench which they perceived as lacking impartiality.
10. The confiscation measures adopted with respect to the applicants’ assets amounted to an interference with their possessions. This interference was provided by law and was in line with the general interest of the community because the forfeiture of money or assets obtained through illegal activities or paid for with the proceeds of crime is a necessary and effective means of combating criminal activities (see Veits v. Estonia, no. 12951/11, § 71, 15 January 2015).
11. The proceedings for imposing and challenging the measures did not fall short of the requirements of Article 1 of Protocol No. 1. All the applicants were summoned to appear in the proceedings, and they were able to present their arguments in person and through legal representatives of their choice. The domestic court dealt with – and rejected with sufficient reasoning – all the applicants’ arguments to the effect that the property in question had not been obtained through the proceeds of crime. The Court thus finds that there is nothing in the conduct of the proceedings to suggest either that the applicants were denied a reasonable opportunity to put their case or that the domestic court’s findings were tainted with arbitrariness. The confiscation measures were applied by the domestic court on the basis of evidence that the assets in question had been acquired through the crimes on trial and due to the applicants’ inability to prove the contrary and on the necessity to cover the damage caused by those crimes (see, mutatis mutandis, Telbis and Viziteu v. Romania, no. 47911/15, § 79, 26 June 2018). The findings in respect of Article 6 § 1 above are also relevant in the context of the present Article, in that the Court has already found no appearance of a lack of impartiality on the part of the trial bench that ordered the measures under dispute (see paragraphs 6-8 above).
12. Having regard to the wide margin of appreciation enjoyed by States in the pursuit of a policy designed to combat crime, and to the fact that the domestic court afforded the applicants a reasonable opportunity to put their case through adversarial proceedings, the Court concludes that the interference with the applicants’ right to the peaceful enjoyment of their possessions was not disproportionate to the legitimate aim pursued and does not disclose any appearance of a violation of Article 1 of Protocol No. 1 (see Balsamo v. San Marino, nos. 20319/17 and 21414/17, §§ 89-95, 8 October 2019).
13. It follows that this complaint must be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 and 4 of the Convention.
Remaining complaints14. The applicants also raised other complaints under various Convention provisions.
15. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
16. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications,
Declares the applications inadmissible.
Done in English and notified in writing on 2 December 2021.
{signature_p_2}
Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President
APPENDIX
No.
Application no.
Lodged on
Applicant
Year of birth
Place of residence
Represented by
1.
60432/15
02/12/2015
TENDER S.A.
commercial company located in Timișoara
Corneliu-Liviu POPESCU,
lawyer practising in Bucharest
2.
60651/15
02/12/2015
Ovidiu Lucian TENDER
1956
Arad
Corneliu-Liviu POPESCU,
lawyer practising in Bucharest
3.
61768/15
05/12/2015
Bogdan Lucian SĂLĂJAN
1957
Ploiești
4.
760/16
23/12/2015
Cicilia DUMITRESCU
1958
Onești
Ion CHIRIŢĂ,
lawyer practising in Bucharest