CASE OF VASILESCU v. ROMANIA
Preliminary objection rejected (estoppel);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
7. Mrs Elisabeta Vasilescu, a Romanian national born in 1897, lives at Potgoli (county of Dâmboviţa). 8. On 23 June 1966, police officers from the Argeş miliţia searched the applicant’s house without a warrant, in connection with a police investigation that had been started in respect of her husband for unlawful possession of valuables, an offence under the legislation then in force (Decree no. 210/1960). They seized 327 gold coins, most of which were pierced for use in jewellery, two of them having been made into ear-rings. 9. On 4 July 1966 these items were deposited at the Argeş branch of the National Bank of Romania and that fact was officially recorded. 10. On 8 July 1966 Argeş miliţia headquarters decided not to press charges against the applicant’s husband and discontinued the investigation of the case in accordance with Article 261 of the former Code of Criminal Procedure (see paragraph 25 below). The police concluded that the offence committed in the case was not likely to constitute a threat to society, but they nevertheless decided to keep the items in question. 11. On 24 May 1990 State Counsel for the county of Argeş, of whom the applicant had enquired what had happened to her property, informed her that there was nothing in the archives of State Counsel’s office at the Argeş Court of First Instance which made it possible to establish that an investigative measure of that kind had been ordered in the case. 12. The applicant subsequently lodged an application for restitution with the Procurator-General of Romania (“the Procurator-General”). On 11 October 1990 the Procurator-General replied that no seizure order or search warrant had been issued in respect of her or her husband, either in 1966 or thereafter. 13. At an unspecified date in 1991 the Ministry of the Interior confirmed to the applicant that an investigative measure had indeed been ordered in 1966 in respect of the property she was claiming and that subsequently charges against her husband had been dropped. According to the Ministry, the seizure had, however, been kept in force by State Counsel at the Argeş Court of First Instance. 14. In 1991 the applicant brought an action for recovery of possession of forty gold coins that had been made into a necklace and a pair of ear-rings against the National Bank, with which they had been deposited. In the Găeşti Court of First Instance she argued that these items had been unlawfully confiscated by the police without any order from a competent judicial authority. In support of her claim, she relied on the Procurator-General’s reply of 11 October 1990 (see paragraph 12 above). 15. On 21 February 1992 the court, basing its decision on the witness evidence gathered and documents in the case file, found for the applicant and ordered the National Bank to return the items claimed. The court also found that the Argeş police had seized, in all, 327 gold coins belonging to the applicant. 16. The National Bank appealed to the Dâmboviţa County Court (tribunalul judeţean), which dismissed the appeal on 7 October 1992. The court found that at the end of the police investigation in respect of the applicant’s husband, a decision had been taken on 8 July 1966 not to prosecute and that, at all events, there was no statutory provision prohibiting the applicant from recovering possession of the items in issue. 17. In 1993, since the applicant considered that she was entitled to have returned to her all the items kept by the miliţia, she requested the Procurator-General to lodge with the Supreme Court of Justice (curtea supremă de justiţie) a special appeal against the judgment of 21 February 1992 (see paragraph 15 above and paragraph 27 below). 18. On 10 June 1993 the Procurator-General informed the applicant that he did not intend to grant that request. In his view, the judgment of 21 February 1992 was lawful and well-founded. 19. On 19 August 1993 the Procurator-General informed the applicant that if she was not satisfied with the decisions in her case, she could avail herself of the new appeal created by Law no. 59 of 1993 amending the Code of Civil Procedure. 20. As a consequence both the applicant and the National Bank appealed to the Ploieşti Court of Appeal (curtea de apel) against the judgment of 21 February 1992. The applicant sought the return of all the coins in issue, while the bank sought to have the earlier decisions quashed. The bank argued that the courts had no jurisdiction to rule in the case as all complaints about investigative measures came within the exclusive competence of State Counsel, as provided in Articles 275 to 278 of the Code of Criminal Procedure (“the CCP” – see paragraph 26 below). 21. In a judgment of 22 February 1994 the Court of Appeal dismissed both appeals. As regards the applicant, it pointed out that she had initially claimed only the forty coins and the pair of gold ear-rings and that she was consequently not entitled to amend the claim on appeal. With respect to the defendant bank, the court laid emphasis on the decision not to prosecute that had been taken during the criminal investigation in respect of the applicant’s husband. It noted, further, that the Procurator-General had taken no action on Mrs Vasilescu’s application for restitution and that he had done no more than persuade her to take legal proceedings. As to the charge of unlawful possession of gold objects, the court said that there had been no basis in law for their retention by the police and that consequently the courts below had been right to order that they should be returned. That judgment became final. 22. In 1994 the Procurator-General made an application to the Supreme Court of Justice under Article 330 of the Code of Civil Procedure (see paragraph 27 below) to have the judgments of 21 February and 7 October 1992 and 22 February 1994 quashed. In his pleading he reiterated the argument that in trying the case in question, the civil courts had exceeded their jurisdiction ratione materiae and encroached on State Counsel’s exclusive competence in the matter (see paragraph 26 below). He consequently applied for the case to be transferred to the appropriate authority. The applicant complained of a breach of Article 21 of the Constitution, which guaranteed free access to the courts (see paragraph 24 below) and submitted that the appeal should be dismissed. 23. On 20 October 1994 the Supreme Court of Justice allowed the Procurator-General’s application and quashed all the judgments concerned, holding that under Article 275 of the CCP, State Counsel for the county of Argeş had sole jurisdiction to entertain Mrs Vasilescu’s application for return of the items in issue. 24. Article 21 of the Constitution provides: “Everyone shall be entitled to apply to the courts for the protection of his rights, liberties and legitimate interests. The exercise of this right shall not be restricted by any statute. …” 25. The relevant provisions of the Code of Criminal Procedure before the revision of 1 January 1969 provided: Article 115 § 4 “Metal objects and precious stones … shall be deposited with the nearest branch of the National Bank within forty-eight hours…” Article 187 “The bodies responsible for criminal investigation shall seek permission from State Counsel to carry out the following: (a) house searches, other than in cases of offences discovered while they are being committed or immediately thereafter; … Permission shall be given in writing on the basis of a reasoned order issued by the body in charge of the investigation. …” Article 261 “If, during the course of inquiries, a factor supervenes which prevents the institution or continuation of criminal proceedings, the body responsible for the investigation may drop the proceedings. … Termination of criminal proceedings shall be effected by means of a reasoned order…” 26. As amended by the Law of 12 November 1968, which came into force on 1 January 1969, the relevant provisions of the Code of Criminal Procedure are worded as follows: Article 168 “An indicted or charged person … may complain about a preventive measure to the criminal investigation body which ordered it or to State Counsel in charge of the investigation, until the case is brought to court; thereafter, the complaint shall be addressed to the court. … If the person concerned has not disputed the enforcement of the preventive measure before the criminal proceedings have ended and become final, they may be challenged in accordance with the civil law.” Article 169 “… Any other person who maintains that he has a right over the seized property may apply, in accordance with Article 168, for a ruling on the existence of that right and for an order for the return of the property…” Article 220 “Where State Counsel finds that a procedural step or measure taken by the body responsible for the criminal investigation is not in conformity with the provisions of law, he shall revoke it in a reasoned order.” Article 275 “Any person whose legitimate interests have been infringed may lodge a complaint against any measures and decisions taken during a criminal investigation. … The complaint must be made to State Counsel supervising the work of the body responsible for the criminal investigation and may be lodged either directly with State Counsel or with the said criminal investigation body. …” 27. The relevant Articles of the Code of Civil Procedure, as amended by Law no. 59/1993, provide: Article 330 “The Procurator-General may, either of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice to quash any final judicial decision on any of the following grounds: (1) where the judicial authority has exceeded its jurisdiction; …” Article 399 “Any enforcement may be challenged by any aggrieved person or other person concerned…” Article 400 “Interlocutory applications and any disputes arising between the parties … over the meaning, scope or application of the operative provisions of a judicial decision which is being executed shall be made to the judicial authority which issued the authority to execute…”