CASE OF ABABEI v. ROMANIA
Violation of Art. 6-1
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1946 and lives in Bucharest. 5. On 8 February 1998 the applicant was arrested under suspicion of fraud and remanded in custody until 12 February 1998. His detention was not extended as it was already covered by the arrest warrant issued in another proceeding (see paragraph 9 below). 6. The Bucharest County Court examined the facts of the case, heard evidence – notably expert reports and witness testimony – proposed by the parties, including the applicant. On 3 March 2000 the County Court convicted the applicant of fraud (înşelăciune) and sentenced him to fifteen years' imprisonment; it also noted that the applicant was remanded in custody in connection with another investigation (the proceeding described below at paragraphs 9-15) and maintained his continued detention. 7. On appeal, on 29 December 2000 the Bucharest Court of Appeal reduced the sentence to ten years' imprisonment. 8. Deciding on the appeal on points of law, in a final decision of 10 April 2002 the Supreme Court of Justice reduced the sentence to eight years. 9. On 12 February 1998 the applicant was arrested under suspicion of having falsified documents. 10. On 22 June 1998 the prosecutor attached to the Bucharest Court of Appeal indicted the applicant on several accounts of fraud and forgery. 11. In a judgment of 13 September 1999 the Bucharest County Court convicted the applicant of fraud. On 13 April 2000 the Bucharest Court of Appeal modified the sentence on appeal, and on 24 October 2002 the Supreme Court of Justice quashed both previous decisions and sent the case back to the first-instance court. The Supreme Court considered that the lower courts had made errors in their judgments and had examined superficially the facts and evidence. 12. The County Court held some thirty hearings in the case, at steady intervals of approximately one month. About six hearings were postponed because defence counsel was absent or asked for more time to prepare the defence. The other hearings were mainly postponed because of errors in the summonsing procedure or absence of the civil parties. On 20 April 2006 the applicant was again convicted by the County Court and sentenced to eight years, two months and thirteen days' imprisonment. The court noted that he had already served the sentence and ordered his release. 13. On the same day, he was released from detention. 14. On 27 April 2006 the applicant lodged an appeal. The Court of Appeal held almost thirty hearings, at steady intervals of approximately one month; the defence requested about five postponements. The decision on appeal was adopted on 18 June 2008; the court upheld the first instance judgment. 15. On 3 December 2008 the High Court of Cassation and Justice adopted the final decision in the case, upholding the previous decisions. 16. In 1991 the applicant and three other persons founded company A. On 7 March 1996 the applicant bought the shares from the other individuals and became the sole owner of the company. 17. While the criminal proceedings described above were pending against the applicant, company A.'s creditors initiated the insolvency proceedings against it. It appears that the applicant empowered A.I. to represent the company in some of the litigation with the creditors. A.I. represented the company in the insolvency proceedings as well. He hired counsel and on several occasions objected to the measures taken by the liquidators. 18. On 8 December 2000 the Bucharest County Court allowed the creditor's request and started the insolvency proceedings. The company's representative was present at the hearing. He did not appeal against the interlocutory judgment rendered by the court at that date. 19. On 21 March 2003 the County Court took account of the liquidator's final report on the distribution of the sums obtained from the sale of the company's assets. It ordered that the company be dissolved and that notice of dissolution be entered in the Trade Record (Registrul Comerţului). It then closed the proceedings. No objections were raised. 20. By the same judgment of 21 March 2003 the County Court decided to examine separately the action in tort lodged by one of the creditors against the applicant and another individual. The applicant participated in the proceedings and on 6 January 2004 he lodged a defence. On 12 March 2004 the action was rejected by the County Court as inadmissible. In a final decision of 24 February 2005 the Bucharest Court of Appeal upheld the judgment. 21. On 16 February 2007 the Bucharest County Court dismissed the applicant's request for the annulment of the 21 March 2003 decision (contestaţie în anulare). The court noted that the applicant lost the right to administer the company's assets when the insolvency proceedings started, and therefore he no longer had standing in the proceedings. In a final decision of 19 June 2007 the Bucharest Court of Appeal declared the appeal lodged by the applicant null and void, as the latter failed to submit the reasons for appeal within the time-limit set by law.