CASE OF TELBIS AND VIZITEU v. ROMANIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani
5. The applicants were born in 1964, 1991 and 1982 respectively. The first and second applicants live in Timişoara, while the third applicant lives in Lantosque (France). The applicants are the wife, the daughter and the niece of S.T. respectively. 6. On 13 March 2014 a criminal investigation was opened by the prosecutor’s office attached to the High Court of Cassation and Justice (“the prosecutor”) against S.T., a medical doctor and employee of a State pension office, on suspicion of bribe-taking. On the same day a search was conducted at the common residence of S.T. and the first applicant, in the first applicant’s presence, accompanied by her lawyer. Documents and money found on that occasion were seized. The first applicant objected to that measure, claiming that some of the assets seized did not concern the ongoing investigation. The objection was included in the search record drawn up by the police on the spot and signed by the first applicant and her lawyer. 7. According to the prosecutor’s decision of 17 March 2014 the movable assets taken away at the search of 13 March, as well as other movable and immovable assets belonging to S.T. and his wife (the first applicant), had been seized under Article 249 of the Criminal Procedure Code (see paragraph 36 below) for the purpose of subsequent special and extended confiscation provided for by Article 1121 of the Criminal Code (see paragraph 35 below). The decision listed, among the assets found during the searches conducted in the case, the sum of 107,915 euros (EUR) found in cash. Cash in other currencies had also been seized as well as several items belonging to the second applicant. The prosecutor based the decision on the nature of the crimes under investigation and the need to recover the damages, as well as on the need to investigate possible money-laundering crimes. 8. On 19 March 2014 S.T. was handed a copy of the seizure decision of 17 March 2014 in the presence of his lawyer. On that occasion, after he had been informed of his rights and obligations, he stated that he had no observations or objections in connection with the seizure. 9. On 20 March 2014 the second applicant, represented by her lawyer, was informed of her rights and obligations in connection with the seizure of her property and received a copy of the decision of 17 March 2014. 10. On 25 March 2014 the second applicant, represented by two lawyers of her choice, lodged a complaint with the Caraş-Severin County Court against the prosecutor’s decision of 17 March 2014. She claimed that the seizure of assets for the purpose of subsequent special or extended confiscation provided for by Article 249 of the Criminal Procedure Code, taken together with Articles 112 and 1121 of the Criminal Code, could be ordered only with respect to assets belonging to a suspect or accused. She further explained that the assets listed in the prosecutor’s seizure decision included two flats, two garages and two cars, which had been lawfully acquired by her with money lent by members of her family and should not have been seized. She joined copies of sale contracts and a written statement given by a member of the family. 11. On 10 April 2014 the Caraş-Severin County Court decided with final effect that the seizure decision of 17 March 2014 had been in compliance with the provisions of Article 249 § 4 of the Criminal Procedure Code (see paragraph 36 below), which clearly stipulated that measures such as seizure may be ordered with respect to assets belonging not only to the suspect or accused, but also to any other person. Furthermore, the second applicant had not proved that she had an income or that she had purchased the assets in question with her own money. Therefore, taking into account also the fact that the prosecutor mentioned in the impugned decision that there were suspicions of money laundering, the court concluded that the seizure measure had been lawful and justified for all the assets concerned. 12. On 26 May 2014 S.T. was indicted on 291 counts of bribe-taking committed between 3 February and 13 March 2014 in his capacity as an employee in a public institution, more specifically the chief expert on matters regarding capacity to work and invalidity at the Caraş-Severin County State Pension Office (Casa Judeţeană de Pensii Caraş-Severin). 13. On 23 October 2014 S.T. admitted his guilt in a statement before the Arad County Court. He chose to benefit from the special fast-track procedure provided for by the Criminal Procedure Code for such situations. 14. In his written plea submitted to the court, S.T. explained that some of the assets seized by the prosecutor belonged to his wife and daughter (the first and second applicants), who had not committed any criminal acts. In addition, he alleged that his family’s assets had been acquired with funds obtained from real-estate transactions in 2007 and 2013, and that the prosecutor had failed to prove that the seized assets had been unlawfully acquired. He also mentioned that out of the money seized in cash, the sum of EUR 40,400 had come from the sale of a flat in 2013. A copy of a contract had been submitted in support of that allegation, showing that a flat owned jointly by S.T. together with the first and third applicants had been sold for EUR 40,400. In conclusion, he asked the court to exclude the assets belonging to his family from the confiscation order. 15. On 6 November 2014 the Arad County Court found S.T. guilty on all counts of bribe-taking and sentenced him to three years’ imprisonment, the minimum sentence applicable in the light of his admission of guilt. 16. On the basis of the provisions of Article 289 § 3 of the Criminal Code (see paragraph 35 below), the court also ordered the confiscation of various amounts of money and goods received by S.T. as bribes during the above-mentioned period and which had been seized during the investigation. 17. In addition, the court decided to apply the provisions of Article 1121 §§ 1 (m), 2 and 3 of the Criminal Code (see paragraph 35 below) and to confiscate, on the grounds 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 EUR 124,000 in cash in various currencies, a dental practice, a flat and a vehicle), as well as property belonging to the second applicant (a flat and two vehicles). All confiscated property had been previously seized by virtue of the prosecutor’s decision of 17 March 2014. 18. In reply to S.T.’s arguments concerning the assets belonging to his family, the court held that the total value of the seized property could not be justified by the lawful income earned by S.T. together with the first applicant in the five years before the commission of the crimes in question. In addition, the second applicant was a student and did not have any income. An analysis of the documents and expert reports included in the file showed that the annual income of S.T. and his wife, the first applicant, amounted to EUR 35,000, whereas the value of the assets acquired by the family in the preceding five years – the equivalent of EUR 300,000 in bank accounts or in cash, fifteen flats and plots of land, five garages and four vehicles – grossly exceeded their lawful income. However, referring to Decision no. 356 of 25 June 2014 of the Constitutional Court (see paragraph 37 below), the District Court explained that the confiscation measure would apply only to the assets acquired after April 2012. The court therefore decided to lift the seizure order in respect of the assets belonging to the family which did not fall within the scope of the case, having been acquired before April 2012. 19. S.T. and all the applicants lodged appeals against the judgment of 6 November 2014. 20. In her reasons for appeal, the third applicant explained that she had asked her uncle, S.T., to keep for her the EUR 40,400 she had obtained from the sale of her flat in 2013. She claimed that that amount had been found in S.T.’s residence during the search of 13 March 2014 and had been wrongfully confiscated by the Arad County Court. 21. The first two hearings were scheduled for 19 January and 16 February. The applicants’ lawyer requested the postponement of the trial because she could not be present. The next hearing was scheduled for 16 March 2015. 22. On 10 March 2015 the prosecutor submitted to the file a report prepared by the National Integrity Agency (Agenţia Naţionala de Integritate), verifying the assets statements submitted by the first applicant, on the basis of Law no. 176/2010 on integrity in the exercise of functions in public office. The report concluded that there were serious discrepancies between the first applicant’s lawful income and her assets, and said that the information would be sent to the commission for the verification of assets of the Timişoara Court of Appeal for a decision on the further steps to be taken. 23. The applicants submitted to the file an accountant’s report which provided a calculation of the net income earned by S.T. and the first applicant from their salaries between 1991 and 2014. The total amount determined by the accountant was EUR 281,071. They also submitted numerous copies of sale contracts for various properties, as well as a written statement from C.T., a family member who declared that he had lent money to the second applicant. 24. At the hearing of 16 March 2015 the applicants’ lawyer requested that another person be invited to testify as a witness before the court that he had also lent money to the second applicant. With respect to the first applicant, the lawyer applied to the court for an accountant’s report in order to establish the exact difference between her lawful income and the value of the property confiscated from her, taking into account the family’s expenses. 25. The requests were discussed during the hearing, in the presence of all parties. The prosecutor argued that the request to hear a witness should be rejected, since the family’s income could not be established with witness statements. 26. The court of appeal decided to refuse 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. In any case, the court held that several hearings had taken place in the appeal proceedings and the applicants had had enough time at their disposal to prepare their defence and submit written evidence. 27. On the merits of their appeal, the applicants’ lawyer argued that all property confiscated had been acquired from the legal income earned jointly by S.T. and the first applicant. In this connection, he referred to the accountant’s report included in the file. As regards the sum 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 asked her uncle, S.T., to keep it for her. The money had come from the sale of a flat belonging to the third applicant. The lawyer concluded that the confiscation of property belonging to the applicants had been an unlawful and excessive measure. 28. The court postponed the pronouncement of the judgment to 24 March 2015. 29. In the meantime, the first and second applicants submitted written pleadings complaining that the second applicant had never been summoned to appear before the Arad District Court and 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 the efficient management of the family’s lawful income. 30. On 24 March 2015 the Timişoara Court of Appeal dismissed 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 bribes which could have started long before the period that had been investigated. At the same time, S.T. and his family, the first and second applicants, had accumulated a considerable fortune in the past five years. The Court of Appeal further observed that it was clear from the evidence in the file that part of the confiscated goods were the direct proceeds of S.T.’s crimes, whereas other assets belonged to the first and second applicants. The court concluded that it could be inferred from an analysis of the lawful income of the first applicant and the lack of income of the second applicant that the assets found in their names had also been acquired through S.T.’s criminal activity. 31. The Court of Appeal observed that there was a considerable discrepancy between the family’s lawful income and its assets, and that S.T. and the applicants had not supplied proof that the confiscated assets had been lawfully acquired. The court reasoned as follows: “Between 03.02.2014 and 13.03.2014 while the defendant was under surveillance he received various sums of money and other goods from 291 people who had come to his office for a medical examination in order to obtain a decision on retirement due to loss of capacity to work or to obtain an official certification of their degree of disability in order to benefit from social security benefits. As the lower court also held, the defendant has confessed to all the charges against him and he has been convicted to three years’ imprisonment. As a result of this criminal conviction, the first-instance court considered that the requirements of Article 1121 of the Criminal Code had been fulfilled and ordered the extended confiscation of money, flats and vehicles, items which had a value exceeding the income of the defendant and his family in the last five years .... As regards the income of the defendant and his family, the court observes that he submitted an accountant’s report showing the family’s income starting with January 1991, but without mentioning their expenses for the same period. In order to establish whether there was a discrepancy between the family’s income and their properties and other goods acquired, the court must compare the amounts of money spent during the period of the acquisition of the properties in question with the income. Based on the documents submitted to the file, including an evaluation report submitted by the National Integrity Agency on 10 March 2015, the court concludes that there is a significant difference between the income and the assets accumulated. The above-mentioned report evaluated especially the assets acquired by the defendant’s wife [the first applicant] mostly from her salary. Even if this salary had been higher than the defendant’s and even assuming that they also had earnings from real-estate transactions, they could not have accumulated enough money to acquire such a large number of properties and vehicles.” 32. 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 in her name had been acquired from donations from other members of the family had not been proved. Therefore, the conclusion of the first-instance court that the property she owned had been purchased with money from her parents was considered correct. 33. As regards the appeal submitted by the third applicant, the court held that no evidence had been submitted to the file to show that EUR 40,400 belonged to her and had been given to S.T. for safekeeping. 34. The Timişoara Court of Appeal concluded with final effect that the first-instance court had correctly applied the legal provisions in the case and had even decided to lift the seizure order in respect of certain items.