THIRD SECTION
DECISION
Application no. 2228/04
Adrian VLAD BELLAMY
against Romania
The European Court of Human Rights (Third Section), sitting on 24 September 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 21 November 2003,
Having regard to the decision of 13 September 2011,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Adrian Vlad Bellamy, is an American and Romanian national, who was born in 1943 and lives in Braşov.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unspecified date in 2000 the Vrancea Public Finance Agency brought criminal proceedings against the applicant for carrying on banking activities without the authorisation of the National Bank of Romania and for fraud, on the ground that he had been providing financial loans to third parties which were secured by the third parties’ immovable properties, and had been charging them interest on the loans.
5. By a judgment of 26 June 2002 the Focşani District Court dismissed the case against the applicant, basing its decision on documents and witness statements. The court held that the certified loan agreements signed between the applicant and several third parties did not contain any clauses concerning interest being charged and that witness statements read out in court could not rebut the contents of an agreement certified by a public notary in the absence of any other supporting evidence. The Focşani Prosecutor’s Office appealed against the judgment.
6. At a hearing before the Vrancea County Court on 16 September 2002 the applicant raised a preliminary objection against the Focşani Prosecutor’s Office’s appeal and argued that the appeal was time-barred. He submitted that, although the prosecutor had attended the proceedings before the first-instance court on the date of the judgment, the appeal had been lodged more than ten days after the date on which the judgment had been delivered, in breach of the applicable rules of criminal procedure. The Focşani Prosecutor’s Office challenged the applicant’s preliminary objection and argued that the office had lodged its appeal within the lawfully allowed time-limit.
7. By a judgment delivered on the same date, the Vrancea County Court decided that the applicant’s preliminary objection would be examined at the same time as the merits of the case, and invited the parties to present oral submissions in respect of the merits of the case. The court subsequently dismissed the Focşani Prosecutor’s Office’s appeal and upheld the judgment of the first-instance court. The court failed to expressly examine the preliminary objection raised by the applicant. The Focşani Prosecutor’s Office appealed on points of law (recurs) against the judgment.
8. On 23 September 2002 the applicant appealed on points of law against the judgment of 16 September 2002. On the same date he stated that the reasons for his appeal on points of law would be submitted to the final‑instance court within the lawfully allowed time-limit.
9. The applicant submitted to the Court a copy of the written submission allegedly made to the final-instance court in support of his appeal on points of law. The document is addressed to the Galaţi Court of Appeal and bears the applicant’s signature, but is undated and it has no registration number. In his submissions the applicant argued, inter alia, that the County Court had failed to examine his preliminary objection to the Focşani Prosecutor’s Office’s appeal. The copy of the criminal file concerning the criminal proceedings opened against the applicant submitted to the Court by the Government does not include that document, nor is any reference made to it.
10. Between 11 December 2002 and 14 April 2003 the Galaţi Court of Appeal adjourned the proceedings seven times, for failure to summon the applicant, in order to allow him to retain the services of a legal representative, and pending the outcome of transfer proceedings initiated by the applicant.
11. The parties presented oral submissions to the Galaţi Court of Appeal at a hearing on 13 May 2003. The applicant was not present at the hearing, although he had been lawfully summoned. He was represented by a lawyer of his choosing. In his oral submission to the final-instance court, the applicant’s legal representative did not make any express reference to the failure of the lower court to examine the preliminary objection raised by the applicant in respect of the Prosecutor’s Office’s appeal being time-barred. No witnesses were heard by the court.
12. By a final judgment of 23 May 2003 the Galaţi Court of Appeal allowed the Focşani Prosecutor Office’s appeal on points of law, quashed the judgments of the lower courts, and sentenced the applicant to one year’s imprisonment for carrying on banking activities without the authorisation of the National Bank of Romania. However, the court conditionally discharged him, as a result of the entry into force of Law no. 543/2002 concerning pardons for certain convictions. The court held that according to the witness statements available in the file it was clear that the applicant had carried on banking activities without the authorisation required by law. Although the certified agreements signed between the applicant and third parties had expressly stated that no interest would be charged on the loaned amounts, the agreements were contradicted by witness statements. His intention to obtain an income from the loans was also proved by his modus operandi, in particular advertisements published in newspapers stating that he was willing to award loans secured on immovable properties, and that the loans were taken out by individuals from various parts of the country and whom the applicant had never met before.
13. At the same hearing the court dismissed the applicant’s appeal on points of law as ill-founded, and upheld the remaining parts of the judgment delivered by the second-instance court. It failed to examine the applicant’s complaint concerning the preliminary objection he had raised against the Focşani Prosecutor’s Office’s appeal.
B. Relevant domestic law
14. The relevant provisions concerning the appeal on points of law of the Romanian Code of Criminal Procedure, as in force at the material time, are described in Constantinescu v. Romania, (no. 28871/95, § 37, ECHR 2000-VIII); Dănilă v. Romania, (no. 3897/00, § 26, 8 March 2007); and Popa and Tănăsescu v. Romania, (no. 19946/04, § 33, 10 April 2012).
COMPLAINT
15. Relying on Article 6 of the Convention, the applicant complained about the unfairness of the criminal proceedings opened against him because the domestic authorities had failed to examine the preliminary objection raised by him against the Focşani Prosecutor’s Office’s appeal and because he had been convicted by the last-instance court without a direct assessment of the evidence and of the witness statements which had led the lower courts to acquit him.
THE LAW
16. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant had not raised a complaint with the Galaţi Court of Appeal that the second-instance court had failed to examine the preliminary objection raised by him with regard to the Focşani Prosecutor’s Office’s appeal being belated. They argued that the document containing the applicant’s reasons for appeal on points of law submitted to the Court, which suggests that he raised his complaint before the domestic courts, does not have a registration number and cannot be found among the documents contained in the domestic case file. The domestic case file contains a letter from the applicant dated 23 September 2002, which does not contain any reasons for his appeal on points of law, only the statement that he will submit the said reasons at a later date. However, there is no evidence in the domestic case file to suggest that the applicant submitted those reasons to the final-instance court, or that he or his chosen legal representative asked that court to examine his complaint.
17. In addition the Government asked the Court to reassess all the materials in its possession in order to determine whether the manner in which the applicant raised his complaint falls short of any of the admissibility criteria.
18. The applicant did not submit any observations on this point within the required time-limit.
19. The Court reiterates that according to Rule 47 § 6 of the Rules of Court, applicants, acting in person or through their legal representatives, are under the obligation to keep the Court informed of all important circumstances regarding their applications. It recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Vasilevskiy v. Latvia (dec.), no. 73485/01, 10 January 2012, Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006 and Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009; Bekauri v. Georgia (preliminary objection), no. 14102/02, § 24, 10 April 2012 and Alboreo v. France (dec.), no. 56022/10, 15 May 2012).
20. Turning to the circumstances of the instant case the Court notes that on 23 September 2002 the applicant appealed on points of law against the Vrancea County Court judgment and notified the authorities that he would submit the reasons for his appeal at a later date. On an unspecified date he submitted to the Court a copy of a document containing written submissions in support of his appeal on points of law, signed by him and addressed to the Galaţi Court of Appeal. That document raised the matter of the allegedly late submissions of the Prosecutor’s Office’s appeal. At the same time, the Court observes that the document does not have a registration number, is undated, and cannot be found among the copies of the documents available to the domestic case file which the Government submitted to the Court. In addition, the applicant’s chosen legal representative did not expressly address the issue of the allegedly late submission of the Prosecutor’s Office’s appeal in his oral submissions to the final-instance court.
21. In addition, the Court notes that the applicant failed to submit observations on the admissibility and merits of the case within the imparted time-limit in spite of the clear instructions received by him.
22. The Court further observes that the applicant did not furnish any plausible explanation for this misleading information, which in its opinion relates to the very core of the subject matter of the present application.
23. Having regard to the importance of the information at issue for the proper determination of the present case, the Court finds that the applicant’ conduct was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention. The application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy