ÎCCJ, decizie (scj.ro #86528)

ÎCCJ, decizie (scj.ro #86528) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE

DES

DROITS DE

L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

THIRD SECTION

CASE OF

ROSENGREN

v.

ROMANIA

(Application no.

70786/01)

JUDGMENT

STRASBOURG

24 April

2008

FINAL

24/07/2008

This judgment may be

subject to editorial revision.

In the case of Rosengren v.

Romania

,

The European Court of Human Rights (Third Section), sitting as a

Chamber composed of:

Josep Casadevall,

President,

Elisabet Fura-Sandström,

Corneliu Bîrsan,

Alvina Gyulumyan,

Egbert Myjer,

Ineta Ziemele,

Ann Power,

judges,

and

Santiago

Quesada

,

Section Registrar

,

Having deliberated in private on

27 March

2008

,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

an

application (no. 70786/01)

against

Romania

lodged

with the

Court under Article 34

of the Convention

for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)

by

a national of both

Romania

and

Sweden

, Mr Julian Rosengren

(“the applicant”), on

17 August 2000

.

2.

The applicant, who had been

granted legal aid, was represented by Mr J. Dufvenmark, a lawyer

practising in

Visby

,

Sweden

.

The Romanian Government (“the Government”)

were represented by their Agent, Mr R.‑H. Radu, from the Ministry

of Foreign Affairs. The Swedish Government, to whom a copy of the application

was transmitted, under Rule 44 § 1 (a) of the Rules of

Court, did not exercise their right to intervene in the proceeding.

4 May 2006

the Court

declared the application admissible in so far as it concerned the length of the

criminal proceedings instituted against the applicant and the alleged

infringement of his right to freedom of movement by the prohibition on leaving

Bucharest

. It

declared the remainder of the application inadmissible.

6 July 2006

the applicant

requested that an oral hearing be held in the case. However, based on the

evidence in its possession, the Court considers that an oral hearing is not

needed in the case. It therefore rejects the applicant's request.

THE FACTS

Visby

,

Sweden

. At the

time of the events he was living in

Romania

.

29 March

1993

the Romanian police took a statement from the applicant in

connection with criminal complaints lodged against him by his business partners

concerning alleged fraud.

13 April 1993

criminal proceedings

against the applicant were opened and he was placed in police custody on

charges of fraud through his business transactions.

The next day, the prosecutor attached to the Supreme Court of

Justice ordered the applicant's remand in custody.

1 November 1993

the prosecutor

attached to the Supreme Court of Justice committed the applicant for trial

before the Bucharest County Court.

6 December 1993

the

Bucharest

County Court

held the first hearing in the case. The applicant's lawyer

asked for a rescheduling in order to prepare the defence. Several other

hearings were scheduled for the taking of evidence. On several occasions the

County Court postponed the case due to shortcomings in the summoning procedure.

On

15 November 1994

a witness's testimony was heard, in

the presence of the applicant and his lawyer.

29

November 1994

, the County Court convicted the applicant of fraud, sentenced

him to four years' imprisonment and awarded civil damages to the victims. It

also ordered the applicant's expulsion, after having served the sentence, given

his Swedish nationality.

11 May 1995

the Bucharest Court

of Appeal allowed an appeal by the applicant and remitted the case to the

County Court for a new trial on the merits. It found that the court of first

instance had not clarified all the relevant facts and that it had not examined

all the charges against the applicant, as formulated by the prosecutor on

1 November 1993

.

27 June

1995

and

21 January 2000

some forty hearings were scheduled

before the Bucharest County Court, the case being repeatedly adjourned for failure

to properly summon the parties, the absence of the parties or the absence of

the prosecution file. On

30 April 1997

the case was

adjourned in order to allow the applicant to hire a new lawyer.

The applicant filed motions for bias against the judges of the

County Court on

20 November 1996

, 18 June and

13 August 1997

. They were

all dismissed.

21 January 2000

the

Bucharest

County Court

, after reassessing the evidence adduced in the case, again

convicted and sentenced the applicant to four years' imprisonment, with an

obligation to pay civil damages.

16 October

2000

, upon an appeal by the applicant, the Bucharest Court of Appeal

ended the trial, as the criminal charges against the applicant had become

time-barred. After reassessing the evidence and based on its findings, the

Court of Appeal recalculated the amount of civil damages to be awarded to the

victims.

12 March 2002

, the

Supreme Court of Justice, after reassessing the evidence in the case, dismissed

an appeal on points of law by the applicant against the decision of

16 October 2000

.

lodged an application with the Supreme Court of Justice to have the part of the

final decision of

12 March 2002

concerning the

expulsion order quashed (

recurs în anulare

).

In a final decision of

7 April

2003

, the Supreme Court allowed the extraordinary appeal, quashed

the part of the final decision of

12 March

2002

concerning the expulsion order and set aside that order on the

ground that the applicant had never lost his Romanian citizenship, which would

make his expulsion unconstitutional.

Bucharest

19

December 1995

the

Bucharest County Court

, upon the applicant's

request, revoked the order for his arrest, but imposed on him an obligation not

to leave the city, a precautionary measure provided for by the Romanian Code of

Criminal Procedure (the “CCP”).

27 February 1996

the applicant lodged

with the Bucharest County Court a request to have this prohibition revoked. He

argued that, if allowed to travel abroad for business purposes, the funds to

pay the damages could be recovered more quickly. In a decision delivered on the

same day, the County 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.

29 March 1996

the Bucharest Court

of Appeal dismissed an appeal by the applicant against this decision. It held

that, according to the CCP, the applicant could only challenge the prohibition when

appealing against the decision on the merits of the case.

16 October 1996

the County

Court rejected further requests from the applicant to have the measure lifted,

without specifying reasons. On

18 December 1996

the County Court

rejected a similar request on the ground that the circumstances that had led to

the taking of the measure had not changed.

22 October

2001

the applicant left

Romania

of his own free will

and took up residence in

Sweden

.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE

CONVENTION

proceedings instituted against him had been incompatible with the “reasonable

time” requirement laid down in Article 6 § 1 of the Convention, which reads as

follows:

“In

the determination of ... any criminal charge against him, everyone is entitled

to a ... hearing within a reasonable time by [a] ... tribunal...”

rather complex and that the applicant had contributed significantly to its

protraction, in particular by his absence from several hearings. Significant

delays had been caused by the fact that witnesses had not appeared before the

courts. On the other hand, there had not been long periods of inactivity

attributable to the authorities.

only on

20 June 1994

, when the recognition by

Romania

of the

right of individual petition took effect. However, in assessing the

reasonableness of the time that elapsed after that date, account must be taken

of the state of the proceedings at the time. Accordingly, at that date, sixteen

months after the date of the first notification of the criminal investigation

against the applicant, the case was pending before the court of first instance.

The period in question ended on

12 March

2002

. The proceedings in the extraordinary appeal lodged

subsequently by the Procurator-General and which aimed to have the final

decision of 12 March 2002 quashed by the Supreme Court of Justice should not

count towards the determination of the period relevant for the length

complaint, as they do not concern “criminal charges” against the applicant, in

so far as the appeal only concerned the expulsion order and not the merits of

the charges against the applicant (see,

mutatis mutandis,

Raimondo v.

Italy

, judgment of 22 February 1994, Series A no. 281‑A,

p. 20, § 43)

.

The proceedings thus lasted nine years for three levels of

jurisdiction, of which eight years are within the Court's

ratione temporis

competence. Five courts heard the case throughout this period.

the length of proceedings must be assessed in the light of the circumstances of

the case and with reference to the following criteria: the complexity of the

case, and the conduct of the applicant and the relevant authorities (see, among

many other authorities,

Pélissier and Sassi v. France

[GC], no.

25444/94, § 67, ECHR 1999-II).

Article 6 § 1 of the Convention in cases raising issues similar to the one in

the present case (see

Pélissier and Sassi

, cited above).

Moreover, the Court has already found that, although it is not

in a position to analyse the juridical quality of the case-law of the

domestic courts, since the remittal of cases for re-examination is usually

ordered as a result of errors committed by lower courts, the repetition of

such orders within one set of proceedings discloses a serious deficiency in the

judicial system. Moreover, this deficiency is imputable to the authorities

and not the applicants (see

Wierciszewska v. Poland

, no.

41431/98, § 46,

25 November 2003

, and

Matica

v. Romania

, no. 19567/02, § 24,

2 November

2006

)

.

the Court considers that the Government have not put forward any fact or

argument capable of persuading it to reach a different conclusion in the

present case. Having regard to its case-law on the subject, the Court considers

that in the instant case the length of the proceedings was excessive and failed

to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4

TO THE CONVENTION

leaving

Bucharest

imposed on him by the Bucharest County Court

on

19 December 1995

had violated his right to freedom of movement

guaranteed by Article 2 of Protocol No. 4 to the Convention, which reads as

follows:

“1.  Everyone

lawfully within the territory of a State shall, within that territory, have the

right to liberty of movement and freedom to choose his residence.

shall be free to leave any country, including his own.

restrictions shall be placed on the exercise of these rights other than such as

are in accordance with law and are necessary in a democratic society in the

interests of national security or public safety, for the maintenance of

ordre

public

, for the prevention of crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.

rights set forth in paragraph 1 may also be subject, in particular areas, to

restrictions imposed in accordance with law and justified by the public

interest in a democratic society.”

A.  The parties' submissions

applicant's request that the precautionary measure had been imposed on him after

his release from pre-trial detention and that the measure had ended with the

judgment of the Bucharest County Court of

21 January

2000

, by virtue of Article 357 of the CCP.

an interference with the applicant's freedom of movement, the Government stated

that the measure was provided by law, followed the legitimate aim of ensuring

the good administration of justice and was proportionate to the aim pursued, in

so far as it had served exclusively as a temporary preventive measure to ensure

the applicant's appearance before a competent legal authority pending the

judgment of the case by the first-instance court.

Moreover, the fact that the applicant had been absent from

several hearings after his release from custody reinforced the conclusion that

the prohibition on his leaving

Bucharest

had been justified in

the circumstances of the case.

leaving

Bucharest

had put him in a harsher situation than that

in which he had been while in detention during the judicial proceedings.

B.  The Court's assessment

dispute between the parties as to the fact that the prohibition on leaving

Bucharest

imposed on

the applicant constituted an interference with his freedom of movement.

No. 4 unless it is “in accordance with law”, pursues one of the legitimate aims

set out in Article 2 §§ 3 and 4 of Protocol No. 4 and is, in

addition, necessary in a democratic society to achieve the aim or aims in

question (see

Fedorov and Fedorova v. Russia

, no.

31008/02, § 36, 13 October 2005;

and

Ivanov v. Ukraine

,

no. 15007/02, § 86, 7 December 2006

). The Court reiterates

that

it is not in itself questionable that the State may apply

various preventive measures restricting the liberty of an accused in order to

ensure the efficient conduct of a criminal prosecution, in so far as such a measure,

and in particular its duration, is proportionate to the aims sought (see,

mutatis

mutandis

,

Nagy v. Hungary

(dec.), no. 6437/02, 6 July 2004;

Fedorov

and Fedorova

, cited above, § 41; and

Petre v. Romania

,

no. 71649/01, § 47, 27 June 2006).

accordance with law (Article 136 of the CCP; for a summary of the relevant law

see

Rosengren v. Romania

(dec.), no. 70786/01, 4 May 2006) and

pursued the legitimate aims set out in Article 2 § 3 of Protocol No. 4, in

particular, the prevention of crime and the protection of the rights and

freedoms of others.

interference was proportionate to the aims sought.

Article 2 of Protocol No. 4 of obligations restricting the applicant's

freedom of movement in a series of cases where criminal proceedings were at

stake. In particular, in the

Antonenkov and

Others

case (see

Antonenkov and

Others v. Ukraine

, no. 14183/02, §§ 59-67, 22 November

2005), where the length of such a restriction within the course of criminal

proceedings was four years and ten months, the Court found no violation of

Article 2 of Protocol No. 4. In the

Fedorov

and Fedorova

case cited above (§§ 32-47), where the impugned

obligation was imposed on the applicants for four years and three months, the

Court found that in the circumstances of the case the restriction on the

applicants' freedom of movement was not disproportionate.

However, in the

Ivanov

case (also cited above, § 96), the

Court considered that a nearly eleven-year-long prohibition, of which about

nine years were within the Court's

ratione temporis

jurisdiction,

constituted a violation of the freedom of movement by its mere duration.

closer to the

Ivanov

case than to the

Antonenkov

and Others

and

Fedorov and Fedorova

cited above, in terms of both the duration of the impugned measure and the factual

circumstances.

leaving

Bucharest

was imposed on the applicant on

19 December

1995

and lasted until the end of the proceedings, on

13 March 2002

, although

the charges against the applicant became time‑barred on

16 October

2000

.

Moreover, although it appears from the file that the applicant

did not encounter any difficulties in leaving Bucharest on 22 October 2001 (see

paragraph 21 above), he was at no point informed by the authorities of a

revocation of the prohibition (see also

Ivanov

, cited above, § 85). Moreover,

the Court reiterates that in the case of

Raimondo v. Italy

it

found a violation of Article 2 of Protocol No. 4 with regard to a

five-month delay in drafting the grounds for a decision by means of which the

domestic court revoked a measure that affected the applicant's rights under this

Article, as well as an eighteen-day delay in communicating that decision to the

applicant (see

Raimondo

,

cited above, p. 19, § 39).

The measure in the present case thus lasted for six years and

three months, a duration that can constitute in itself a violation of Article 2

of Protocol No. 4.

domestic

courts did not give relevant reasons for taking or prolonging the measure,

although the applicant repeatedly challenged it (see,

mutatis mutandis

,

Labita

v. Italy

[GC], no. 26772/95, §§ 152‑153, ECHR 2000‑IV).

The Court considers that the absence of reasons in the domestic courts'

decisions is increasingly jeopardising for the applicant's rights, as the

necessity

for imposing the restriction will inevitably diminish with the passage of time

(see

Luordo v. Italy

,

no. 32190/96,

mutatis mutandis

,

Labita

, cited

above, § 159).

fair balance between the demands of the general interest and the applicant's

rights has not been struck.

There has accordingly been a violation of Article 2 of Protocol

No. 4 to the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If

the Court finds that there has been a violation of the Convention or the

Protocols thereto, and if the internal law of the High Contracting Party

concerned allows only partial rep

ara

tion to be made, the Court shall, if necessary, afford just

satisfaction to the injured party.”

A.  Damage

claimed the following sums in respect of pecuniary and non-pecuniary damage:

–  850,000 American dollars (USD) representing the loans

he had to take in order to cover his daily expenses during the proceedings;

–  USD 3,000,000 representing the damage caused to his

business by the prohibition on leaving

Bucharest

;

–  USD 800,000 to compensate for physical and mental

suffering (including for diseases contracted), while in detention during the

judicial proceedings;

–  USD 4,000,000 in respect of non-pecuniary damage

caused by his illegal arrest and the destruction of his reputation as a businessman

in

Romania

;

–  USD 100,000 in respect of non-pecuniary damage caused

by his inability to see his family in

Sweden

during the

prohibition on travelling; and

–  USD 637,500 in respect of the damage caused to him,

in his capacity as a foreign national, by the restriction on his freedom of

movement.

considered that there was no causal link between the just satisfaction sought

and the measures taken by the State against the applicant. In any case they

considered that the applicant had failed to substantiate his claims and had

requested exorbitant amounts for non-pecuniary damage.

Article 6 of the Convention in respect of the length of the criminal

proceedings and of Article 2 of Protocol No. 4 in so far as the prohibition on

leaving the city unjustifiably infringed the applicant's right to freedom of

movement. It does not discern any causal link between the violations found and

the pecuniary damage alleged; it therefore rejects this claim. On the other

hand, it awards the applicant EUR 3,000 in respect of non-pecuniary damage.

B.  Costs and expenses

costs and expenses incurred before the domestic courts or before the Court. The

Court recalls that the lawyer received EUR 701 in legal aid.

Court does not make an award under costs and expenses.

C.  Default interest

default interest should be based on the marginal lending rate of the European

Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.

Holds

that there has been a violation of

Article 6 § 1 of the Convention;

2.

Holds

that there has been a violation of

Article 2 of Protocol No. 4 to the Convention;

3.

Holds

(a)  that the respondent State is to pay the applicant,

within three months from the date on which the judgment becomes final in

accordance with Article 44 § 2 of the Convention, EUR 3,000

(three thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary

damage, to be converted into the respondent State's national currency at the

rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three

months until settlement simple interest shall be payable on the above amount at

a rate equal to the marginal lending rate of the European Central Bank during

the default period plus three percentage points;

4.

Dismisses

the remainder of the applicant's

claim for just satisfaction.

Done in English, and notified in writing on

24 April 2008

, pursuant

to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago

Quesada

Josep

Casadevall

Registrar                                                                         President