CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAAD669EE { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 6 November 2016   FOURTH SECTION Application no. 47911/15 Luminița TELBIS and others against Romania lodged on 2 November 2015 STATEMENT OF FACTS 1.     The applicants are Ms Luminiţa Telbis (“the first applicant”), Ms   Laura Andreea Telbis (“the second applicant”) and Ms Maria-Agata Viziteu (“the third applicant”). They are born in 1964, 1991 and 1982 respectively. The first and second applicants reside in Timişoara. The third applicant resides in France. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     The applicants are the wife, the daughter and the niece of S.T. respectively. 4.     On an unspecified date a criminal investigation was opened against S.T., a medical doctor, on suspicions of bribe-taking. 5.     By prosecutor’s decisions of 17 March and 17 April 2014 assets belonging to S.T. and his family, more specifically the applicants, had been seized. 6.     On 26 May 2014 S.T. was indicted on 291 accounts of bribe-taking committed between 3 February 2014 and 13 March 2014 in his position of expert on matters regarding capacity to work and invalidity at the Caraş ‑ Severin County State Pension Office ( Casa Judeţeană de Pensii Caraş-Severin ). S.T. admitted his guilt and accepted to benefit from special expedient criminal proceedings provided by the criminal procedure code for situations where the suspect confessed to all charges against him. 7.     On 6 November 2014 the Arad District Court found S.T. guilty on all accounts of bribe-taking and convicted him to three years’ imprisonment, the minimum sentence applied in the light of his admission of guilt. 8.     On the basis of the provisions of Article 289 paragraph 3 of the Criminal Code the court also ordered the confiscation of various amounts of money and goods received by S.T. as bribe during the above-mentioned period and seized during the investigation. 9.     In addition, the court decided to apply the provisions of Article 112 1 paragraph   1, letter (m) and paragraphs 2 and 3 of the Criminal Code and confiscate, on the ground that they had been acquired as a result of S.T.’s criminal activity, additional money and property belonging jointly to S.T. and the first applicant (the equivalent of 124,000 euros (EUR), a dentist practice, an apartment and one vehicle) as well as property belonging to the second applicant (an apartment and two vehicles). An amount of EUR   40,400 found in S.T.’s apartment had also been confiscated on the basis of the same legal provision. All confiscated property had been previously seized by the prosecutor’s decisions of 17 March and 17   April 2014. 10 .     S.T. alleged that the property in question had been acquired with funds obtained from the selling of several other properties in 2007 and 2013. In this respect the court held that the confiscated property amounted to a total value which could not be justified by the actual income gained by S.T. together with the first applicant in the five years before the commission of the crimes in question, having in mind that the second applicant was a student and did not have revenues. It was further analysed that, in accordance with the documents and expert reports submitted to the file, the annual income of S.T. and his wife, the second applicant, amounted to EUR   35,000 while the value of the assets acquired by the family in the last five years, more specifically: the equivalent of EUR 300,000 in bank accounts or in cash, fifteen apartments and plots of land, five garages and four vehicles, exceeded grossly their lawful income. In its assessment, the district court also took into account the decision no. 356 of 25 June 2014 of the Romanian Constitutional Court and confiscated only the assets acquired after April 2012. The court also decided to lift the seizure in respect of the rest of the immovable properties, one vehicle and several bank savings accounts belonging to the family as they did not fall under the scope of the case having been acquired before April 2012. 11 .     The applicants represented by a lawyer of their own choice appealed against the above-mentioned judgment and became parties in the appeal proceedings which took place before the Timişoara Court of Appeal. 12 .     It appears from the judgment of the Timişoara Court of Appeal that five hearings where all parties were present or represented were held before this court. On 16 March 2015 in the final hearing closing the debates the applicants’ lawyer requested that four witnesses be heard on the applicants’ behalf. One of the witnesses had lent money to the second applicant and the others could bring information about the relationship between S.T. and the applicants. With respect to the first applicant the lawyer also requested an accounting report to be drafted in order to establish the exact amount of her income and the value of the property confiscated from her. 13 .     The requests were discussed in public hearing, in the presence of the parties including the prosecutor. The prosecutor argued that the requests should be rejected since S.T. had confessed to the accusations brought against him. Moreover, the confiscated property had been identified and frozen by two decisions adopted by the prosecutors during the criminal investigation, decisions that could have been cont ested at the relevant time. 14.     The court of appeal rejected the requests holding that there were enough elements in the file allowing for the exact calculation of both the family’s income and the value of their assets. An accounting report on the income and assets of the first applicant had already been submitted to the file. In any case, four hearings have been held in the appeal proceedings and the applicants had had at their disposal enough time to prepare their defence and submit written testimonies or reports. 15 .     On the merits of their appeal the applicants’ lawyer argued that all property confiscated had been acquired from the legal income gained jointly by S.T. and the first applicant, who was a judge. In this respect an evaluation report had been submitted to the file. As regards the amount of EUR   40,400 the lawyer explained that it had been confiscated by mistake since it belonged in fact to the third applicant who had just asked her uncle, S.T. to keep it for her. The amount came from the selling of an apartment belonging to the third applicant. A copy of a purchasing contract signed in private, not registered with a notary or in the official property register, had been submitted in support of this allegation. The lawyer concluded that the confiscation of property belonging to the applicants had been an unlawful and excessive measure. 16 .     The first and second applicants also complained in a written submission that the second applicant had never been summoned to appear before the Arad District Court and she had never been asked by the courts to submit evidence on how she had acquired the confiscated property. They also claimed that all their assets had been acquired through an efficient administration of the family’s lawful income. 17 .     On 24 March 2015 the Timişoara Court of Appeal rejected the applicants’ appeal. The court held that from the high number of criminal acts committed by S.T. it could be inferred that he had established a habit in taking bribe which could have dated long before the beginning of the investigation in his case. In the same time, S.T. and his family, the first and second applicants, had accumulated a considerable fortune in the last five years before the beginning of the investigation. It was clear from the evidence in the file that part of the confiscated goods were direct proceeds of S.T.’s crimes while another part of the assets belonged to the first and second applicants. On this point the court of appeal concluded that by analysing the lawful income gained by the first applicant and the lack of income of the second applicant it could also be inferred that the assets found on their name had been acquired through S.T.’s criminal activity. 18 .     The court further decided that there was a considerable discrepancy between the family’s lawful income and their assets and that S.T. and the applicants had not supplied proof that the confiscated assets had been lawfully acquired. 19.     As regards the second applicant the court held that she was currently a student and there was no proof in the file to show that she had ever had an income. Her allegations that the property found on her name had been acquired from donations from other members of the family had not been proved. Therefore, the assumption of the first instance court that the vehicle and the immovable property she owned had been purchased with money from her parents had been considered correct. 20.     As regards the allegations made by the first and the second applicant that the lower court had miscalculated the difference between the family’s income and the value of their assets, the court noted that even without deducting any living expenses the value of their assets grossly exceeded their lawful income, including the profit made from real estate transactions as declared by S.T. 21.     As regards the appeal submitted by the third applicant the court held that the “secret contract” submitted did not have legal power before a court. Even assuming that the contract could be taken into consideration, it mentioned an amount of EUR 30,000 which was different from the EUR   40,400 which had been found in S.T.’s house and had been confiscated. Moreover, there was no kind of proof submitted to the file to show that the amount of money of EUR 40,400 had been given to S.T. for preservation. 22 .     The Timişoara Court of Appeal concluded that the first instance court had correctly applied the legal provisions in the case and had even decided to lift the seizure in respect of certain items. B.     Relevant domestic law and practice 23.     The relevant provisions of the Romanian Criminal Code are as follows: Article 289 – Bribe-taking “(1)     The act committed by a public servant who, directly or indirectly, for himself or for another person, requests or receives money or other services to which he is not entitled or accepts the promise of such services, in connection with the fulfillment, non-fulfillment, giving priority or delaying the fulfillment of an act which falls within his duties or in connection with the commission of an act against his duties, is sanctioned with imprisonment from three to ten years ... (3)     The money, valuables or other goods received shall be confiscated, and when they cannot be found the equivalent shall be confiscated.” Article 112 1 – Extended confiscation “(1)     Other items than the ones listed in Article 112 shall be confiscated when the person is convicted for one of these crimes, if the crime may generate a financial gain and the sanction is four years imprisonment or more:... m)     crimes of corruption and the crimes assimilated to them, ... (2)     Extended confiscation shall be ordered where the following conditions are fulfilled cumulatively: a)     the value of the goods acquired by the convicted person, within a period of five years before, and if there is the case, after the commission of the crime and until the date of the indictment, clearly exceeds the person’s lawful income; b)     the court is convinced that the goods in question are the proceeds of criminal acts such as the ones mentioned in paragraph (1). (3)     In the enforcement of paragraph (2) the value of the goods transferred by the convicted person, or a third person, to a member of the family, or to a legal entity controlled by the convicted person, shall also be taken into account.” 24 .     The relevant provisions of the Criminal Procedure Code as modified by Law no. 255/2013 which entered into force on 1 February 2014 read as follows: Article 366 The participation of the injured party and of other parties to the trial and their rights “(3)     Those whose goods are subject to confiscation in the criminal proceedings may be represented by a lawyer, submit requests, raise exceptions and submit arguments in connection with the confiscation measure.” 25.     In its decision no.   356 of 25 June 2014 the Romanian Constitutional Court held that the provisions of Article 112 1 of the Criminal Code concerning extended confiscation were fully compatible with the Constitution and more specifically with the principle that property is presumed to have been acquired lawfully. However, in order to respect the principle of non-retroactivity of the criminal law, paragraph (2) letter a) of the said Article shall not apply to goods acquired before 22 April 2012, the date of the entry into force of the paragraph in question. The Constitutional Court concluded that: “... the provisions concerning extended confiscation ...provide for the guarantees mentioned in the case-law of the European Court of Human Rights. Accordingly, the extended confiscation is ordered by a court, on the basis of its conviction that the assets subject to confiscation derive from illicit activities. This conviction is formed following public judicial proceedings which allow access to the file and to the arguments of the accusation to all interested persons, who then have the possibility to submit evidence as they deem necessary.” COMPLAINTS 26.     The applicants complain under Article 6 § 1 of the Convention of the unfairness of the proceedings in which the confiscation measure had been ordered. They allege that they had not had the possibility to defend their rights in the framework of the criminal proceedings against S.T., which resulted in the confiscation of their property. They claim that they had not been invited to take part in the proceedings and the domestic courts had wrongfully rejected their requests to submit evidence. 27.     They also complain that they have been deprived of their property in breach of Article 1 of Protocol No. 1 to the Convention. QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did they have the possibility to effectively participate in the proceedings in which the confiscation measure had been ordered?   2.     Have the applicants been deprived of their possessions in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?   If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference strike the fair balance between the protection of the applicants’ right to property and the requirements of the general interest?