European Court of Human Rights

THIRD SECTION

DECISION

Application no. 38510/05
by Florin SERAFIM
against Romania

The European Court of Human Rights (Third Section), sitting on 2 June 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 17 October 2005,

Having regard to the declaration submitted by the respondent Government on 16 June 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Florin Serafim, is a Romanian national who was born in 1955 and lives in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 March 1997 the police received information concerning the applicant’s activities at work. In June-July 1997 they ordered two expert reports. The applicant declared that he had no objection to the reports.

The criminal investigation started on 11 February 1998. The applicant’s house was searched in his presence and on 12 May 1998 he raised objections to the accounting expert report.

On 14 May 1998 the applicant was informed in a police report of the classification of the offences as aiding and abetting embezzlement, forgery and use of forgery; he was also informed of the legal basis for the offences and his right to a defence.

During the investigations the applicant made statements on 9 January 1998, 21 May 1999 and 25 April 2001. In the last two statements he also contested the expert reports. The police confronted him with two witnesses in July 1998 and September 1999, and ordered a scientific and technical expert report in July 1999.

The criminal investigation ended on 27 October 1999. The police proposed that the applicant be committed for trial for aiding and abetting embezzlement, forgery and use of forgery.

On 25 April 2001 the prosecutor showed the applicant the investigation file, in the presence of his lawyer, and by an indictment of 17 December 2001 he committed the applicant for trial for aiding and abetting embezzlement and for forgery of documents under private signature, together with two other persons.

During the trial the first-instance court allowed a request by the applicant for a graphological expert report, but dismissed his request for a new accounting expert report as unnecessary.

On 20 March 2003 the Bucharest Court of First Instance convicted the applicant of these two offences, sentenced him to imprisonment and further noted that, in accordance with Law no. 137/1997, he had been granted a pardon. The court also held him jointly liable for civil damages.

The applicant appealed and contested, inter alia, the expert reports. At his request, the court ordered a new accounting expert report. The applicant also raised objections when the new accounting report had been completed.

On 17 December 2003 the applicant challenged the entire bench of judges, but his challenge was dismissed.

At a hearing of 9 February 2005 both the applicant and the prosecutor stated that they wished to examine the witness B.I., who had been summoned on 11 November 2003. On the basis of a police report, the court considered that it was impossible to hear evidence from the witness in question, since he was a TIR lorry driver and had left for Italy on 31 January 2005, and it was therefore not certain that he would be able to attend a hearing.

On 25 February 2005 the Bucharest County Court allowed the appeal and varied the previous judgment, terminating the criminal proceedings in respect of the offence of forgery of documents under private signature, as the limitation period in respect of that offence had expired since the date of the first-instance judgment.

The applicant lodged a further appeal complaining, inter alia, that the courts had refused to take into account documentary evidence produced by him, had not ruled on one expert report, had refused to hear evidence from witness B.I. and had not considered the statements of other witnesses.

On 19 May 2005 the Bucharest Court of Appeal, by a final decision, dismissed the appeal as groundless.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings.

Under the same Article, he complained that the proceedings and the outcome had been unfair and that the domestic courts had failed to assess the facts correctly and had not been impartial.

The applicant complained under Article 6 § 3 (a) of the Convention that he had not been informed promptly and in detail of the charges against him.

He also complained under Article 6 § 3 (b) that he had not been called upon by the experts to clarify the facts mentioned in their reports, and that the courts had refused to take into account documentary evidence produced by him and had rejected one expert report without giving reasons.

Lastly, the applicant complained under Article 6 § 3 (d) that the court had refused to hear evidence from witness B.I., without giving reasons.

THE LAW

A.  Length of proceedings

The applicant’s first complaint relates to the length of the proceedings.

By letter dated 16 June 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“Le Gouvernement déclare – au moyen de la présente déclaration unilatérale – qu’il reconnaît la durée excessive de la procédure interne engagée à l’encontre de la partie requérante.

Le Gouvernement déclare être prêt à verser à la partie requérante au titre de satisfaction équitable la somme de 1 500 EUR, montant qu’il considère comme raisonnable au vu de la jurisprudence de la Cour. Cette somme qui couvrira tout préjudice matériel et moral ainsi que les frais et dépens, ne sera soumise à aucun impôt. Elle sera versée en lei roumains au taux applicable à la date du paiement sur le compte bancaire indiqué par la partie requérante, dans les trois mois suivant la date de la notification de la décision de la Cour rendue conformément à l’article 37 § 1 de la Convention européenne des droits de l’Homme. A défaut de règlement dans ledit délai, le Gouvernement s’engage à verser, à compter de l’expiration de celui-ci et jusqu’au règlement effectif de la somme en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque centrale européenne, augmenté de trois points de pourcentage.

Le Gouvernement invite respectueusement la Cour à dire que la poursuite de l’examen de la requête n’est plus justifiée et à la rayer du rôle en vertu de l’article 37 § 1 (c) de la Convention.”

In a letter of 26 August 2008 the applicant requested that examination of the case be continued, since he had also raised other complaints.

The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular Tahsin Acar v. Turkey, ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); WAZA Spółka z o.o. v. Poland ((dec.) no. 11602/02, 26 June 2007); and Lazar v. Romania ((dec.), no. 30159/03, 25 November 2008).

The Court has established in a number of cases, including cases brought against Romania, its practice concerning complaints about the violation of the right to a hearing within a reasonable time (see, for example, Temesan v. Romania, no. 36293/02, 10 June 2008, and Crăciun v. Romania, no. 5512/02, 30 September 2008).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). Furthermore, the fact that the Government did not address the other complaints raised by the applicant is not sufficient to invalidate the unilateral declaration, bearing in mind, in particular, that those complaints are inadmissible in the circumstances of the case (see below).

In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, it should be struck out of the list.

B.  Remaining complaints

The applicant further invoked Articles 6 §§ 1 and 3 (a), (b) and (d) of the Convention.

The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention (length of proceedings) and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint, in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stanley Naismith Josep Casadevall
Deputy Registrar President