FOURTH SECTION
DECISION
Application no. 502/15
Camelia Rodica VOICULESCU against Romania
and 3 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 22 February 2022 as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein, represented by Mr C. Libotean, a lawyer practising in Bucharest;
the decision to give notice of the applications to the Romanian Government (“the Government”) represented by their Agent most recently, Ms O.F. Ezer, of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case mainly concerns the seizure of the applicants’ assets in proceedings against third parties that had allegedly lacked the procedural guarantees set forth by Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
2. On 26 September 2013 the Bucharest County Court convicted D.V. and several other people of money laundering in connection with corruption offences. In order to recover the millions of euros of damage caused by the crimes on trial to the State budget, the court ordered the confiscation of amounts of money given by D.V. to the first and second applicants and upheld the seizure ordered by the prosecutor in connection with various amounts of money and property belonging to D.V. and other defendants. All parties appealed against the judgment.
3. The proceedings on appeal took place before the Bucharest Court of Appeal. During these proceedings, the court extended the seizure measures so that they related to all the direct proceeds of crime derived from the crimes which had been considered in the trial, including those assets belonging to relatives of the defendants or to other third parties. The seizure was imposed also in connection with assets belonging to the applicants in the present case, who are the daughters of D.V. and two commercial companies in which he was the major shareholder. The court held that, in view of the large amount of damage allegedly caused, the seizure was necessary to avoid the hiding, destruction or selling of assets which might serve to cover that damage. The measure was based on the provisions of Article 10 of Law no. 78/2000 on the fight against corruption and Article 32 of Law no. 656/2002 on the fight against money laundering and the financing of terrorism that provided, among others, that seizure was a mandatory measure in cases of money laundering.
4. The assets subject to seizure were identified and their owners, including the applicants, were summoned to appear before the court and were present at hearings, represented by lawyers of their choice. Several complaints raised by the applicants through their representatives and arguing that all the seized property had been acquired lawfully, and that their right to defend themselves had been breached because they had been involved in the proceedings only at the appeal phase, were rejected by the court in reasoned decisions. The court found that all elements required by law for the seizure had been met and all interested parties, including the applicants had had the opportunity to raise their complaints and submit evidence before the court.
5. Subsequently, D.V. and the applicants lodged numerous complaints and petitions for the recusal of the judges sitting on the appeal trial bench arguing that the decisions concerning the seizure had been based on those judges’ bias against them. These petitions were rejected by reasoned decisions based on the applicable legal framework (Article 67(5) of the Code of Criminal Procedure) as there were no subjective or objective reasons put forward capable of raising any suspicions of bias and all legal requirements had been observed in respect of the decision ordering the seizure.
6. On 8 August 2014 the Bucharest Court of Appeal adopted the final judgment in the case. The court upheld the defendants’ convictions in an extensively reasoned judgment of 225 pages, in which all the evidence – including expert reports, documents and numerous witness statements – was thoroughly examined. In addition, based on the evidence and the arguments raised before it, the court upheld the seizure measures ordered in the case considering that seizure of direct proceeds of crime, like in the current proceedings, was in full compliance with the criminal law and the Constitution.
THE COURT’S ASSESSMENT
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).
Complaints under article 6 § 1 of the Convention8. The applicants alleged that the trial panel which ordered the seizure of their assets had lacked impartiality in breach of the guarantees set forth by Article 6 § 1.
9. The Court notes that the applicants challenged the judges for bias, arguing that they had taken unlawful decisions in the case (see paragraph 5 above). The Court further notes that those challenges had been examined and rejected in reasoned decisions, in compliance with the provisions of Article 67(5) of the Code of Criminal Procedure since the situation complained of was not listed among the grounds for disqualification of judges in criminal proceedings as provided by law (see Alexandru Marian Iancu v. Romania, no. 60858/15, § 38, 4 February 2020).
10. Therefore, on the basis of the file, the Court considers that there is no appearance of any objective or subjective lack of impartiality on the part of the judges in the appeal bench. 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.
Complaints under Article 7 of the Convention and Article 2 of Protocol No. 7 to the Convention11. The applicants complained that the seizure of their assets had constituted a penalty imposed on them without a basis under domestic law in breach of Article 7 of the Convention and that this penalty had not been reviewed by a higher tribunal as provided by Article 2 of Protocol No. 7.
12. The Court must first determine whether the measure in question constituted a “penalty” within the meaning of Article 7 § 1 of the Convention. The wording of that provision indicates that the starting point in any assessment of the existence of a penalty is whether the measure in issue is imposed following conviction for a “criminal offence” (see Welch v. the United Kingdom, 9 February 1995, § 28, Series A no. 307‑A).
13. In the present case the applicants had not previously been found guilty of any criminal offence by the Romanian courts. Moreover, the Court has previously found that similar proceedings relating to seizure of assets from third parties did not concern a “criminal charge” against the applicants (see Telbis and Viziteu v. Romania, no. 47911/15, § 49, 26 June 2018).
14. Accordingly, it cannot be concluded that the seizure in issue involved a finding of guilt subsequent to a criminal charge; it therefore did not constitute a “penalty” within the meaning of Article 7 of the Convention (see Yildirim v. Italy (dec.), no. 38602/02, § 3, ECHR 2003‑IV). That provision is accordingly not applicable in the case. Consequently, the provisions of Article 2 of Protocol No. 7 to the Convention are not applicable either in the present case.
15. It follows that this part of the applications is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4 of the Convention.
Complaints under Article 1 of Protocol No. 1 to the Convention16. The applicants further argued that the seizure of their property without their having been convicted of any offence, and without sufficient procedural guarantees, had been in breach of Article 1 of Protocol No. 1 to the Convention.
17. The Court has already examined similar complaints and found the measures complained of to be in compliance with the provisions of Article 1 of Protocol No. 1 to the Convention (see Telbis and Viziteu, cited above, §§ 72-82).
18. In the current case, the measures adopted with respect to the applicants’ assets constituted control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention (ibid., §§ 69 and 72). The Court notes that the measures were prescribed by law (see paragraph 3 above). Furthermore, it considers that the measures in question, namely the seizure of property obtained through crime, were in line with the general interests of the community (see Veits v. Estonia, no. 12951/11, § 73, 15 January 2015).
19. The Court therefore needs to examine whether a fair balance was struck between the legitimate aim and the applicants’ fundamental rights, and whether there were sufficient procedural guarantees in place.
20. In this connection, the Court firstly notes that the proceedings in which the seizure measures were decided formed part of a policy aimed at the prevention of crime, in relation to which the States enjoy a wide margin of appreciation both with regard to the existence of a problem affecting the public interest which requires measures of control and the appropriate way to apply such measures (see Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001-VII).
21. The Court further considers that the domestic proceedings afforded the applicants a reasonable opportunity to put their case to the authorities in order to effectively challenge the measures in question. On this point, the Court attaches importance to the fact that all those applicants who owned property subject to seizure at the time of the adoption of the measures were able to present their arguments in person and through legal representatives of their choice (see paragraph 4 above). In addition, it results from the file that the domestic court dealt with – and rejected with sufficient reasoning – the applicants’ arguments to the effect that the property in question had not been obtained through the proceeds of crime.
22. The Court thus finds that there is nothing in the proceedings to suggest either that the applicants were denied a reasonable opportunity to put forward their case or that the domestic court’s findings were tainted with arbitrariness.
23. Having regard to the above considerations, and in particular the way in which the domestic court assessed the case, the Court finds that the proceedings in the present case cannot be considered to have been arbitrary. 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 (see, mutatis mutandis, Telbis and Viziteu, cited above, § 81, and Bongiorno and Others v. Italy, no. 4514/07, §§ 44-51, 5 January 2010).
24. It follows that this complaint must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 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 17 March 2022.
Ilse Freiwirth Tim Eicke
Deputy Registrar President
Appendix
No.
Application no.
Lodged on
Applicant
Year of birth
Place of residence
Nationality
1.
502/15
24/12/2014
Camelia Rodica VOICULESCU
1974
Petrești
Romanian
2.
1559/15
29/12/2014
Corina Mirela VOICULESCU
1976
Bucharest
Romanian
3.
2836/15
31/12/2014
COMPANIA DE CERCETĂRI APLICATIVE ȘI INVESTIȚII S.A.
Bucharest
Romanian
4.
2839/15
31/12/2014
GRUPUL INDUSTRIAL VOICULESCU ȘI COMPANIA S.A.
Bucharest
Romanian