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Cite as: [2010] ECHR 1505

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THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4488/03
by E.M.B.
against Romania

The European Court of Human Rights (Third Section), sitting on 28 September 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs E.M.B., is a Romanian national living abroad. She is represented before the Court by Mr Ioan Mustaţă, a lawyer practising in Bucharest.

The President of the Chamber granted the applicant’s request for anonymity as well as her request for confidentiality of the case file documents (Rules 33 and 47 § 3 of the Rules of Procedure). Furthermore, the President of the Chamber decided not to communicate to the responding Government the applicant’s current address.

A. The circumstances of the case

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

1. Background information

The applicant retired from her position as director of a private refinery in March 2002. In April 2002 she left Romania for the United States. While she was away from Romania, on 18 and 22 July 2002, she was summoned to her home address to present herself to the Police Inspectorate for questioning.

As she did not comply with the summons, on 25 July 2002, the prosecutor attached to the Prahova Court of Appeal issued a pre-trial arrest warrant for thirty days for alleged fraud and incitement to forgery. The reasoning for the arrest warrant was the following: “the accused is absconding, the sentence provided by law for the alleged crime is a prison sentence of longer than two years and her release would disturb public order.” According to the applicant, on 2 August 2002, an international arrest warrant was issued in her name.

2. The complaints against the pre-trial arrest warrant

While remaining outside Romania, the applicant, through her legal representative, several times contested the legality of the arrest warrant.

On 26 August 2002 her first complaint was lodged. By an interlocutory judgment of 28 August 2002 Prahova County Court dismissed the complaint, stating in part:

“As may be noted, the pre-trial detention of the accused had been ordered because of the commission of crimes giving rise to high public danger, considering that the accused concluded a sale contract of oil products disadvantageous for the company that she was managing and which caused that company a loss of over sixty-three billion lei, actions which created within the public community a sense of indignation and disapproval, these crimes receiving extensive media coverage.”

On 27 September 2002, the Ploieşti Court of Appeal confirmed the above-mentioned judgment, considering that “from the criminal investigation file it appeared without any doubt that there were strong indications that the accused had committed the crimes which led to the inception of the criminal proceedings and the issue of the arrest warrant.”

Several other similar complaints had been dismissed during 2003.

On 11 November 2003, Braşov County Court granted her application, concluding that the arrest warrant had been issued unlawfully. The following reasons were put forward: the accused left Romania in April 2002, prior to the inception of the criminal proceedings against her in July 2002; therefore at that time she was free to leave the country and the fact that she exercised her right to freedom of movement could not be interpreted as an intention to abscond. On the prosecutor’s appeal, the Braşov Court of Appeal, by a final decision of 18 November 2003, reversed the solution and confirmed the legality of the warrant, by holding that the applicant had tried to abscond from the proceedings.

Further complaints by the applicant were dismissed by an interlocutory judgment of 3 February 2004, as confirmed by a final decision of the Braşov Court of Appeal delivered on 13 February 2004, and by a final decision of 17 January 2005. In the interlocutory judgment of 3 February 2004, the Braşov County Court indicated that there were reasonable suspicions that the applicant committed the alleged facts and the arrest warrant was valid taking into account that even though aware of the proceedings against her, the applicant chose not to return to Romania. The final decision of 13 February 2004 states: “releasing the applicant would give rise to a real danger to public order, taking into account the method and circumstances in which the acts were committed, the effective contribution of each person, and the consequences and social resonance which such acts create in the citizens’ consciousness.”

In the framework of the proceedings on the merits of the case, on 3 May 2005, the Braşov County Court delivered the first-instance judgment, by which it referred the case back to the prosecutor to review and complete the criminal investigations, because of procedural irregularities affecting this initial phase of the proceedings. Considering that the entire criminal investigation had been marred by major procedural deficiencies, the county court ordered the quashing of all procedural decisions taken in the framework of these investigations, including the contested arrest warrant. Nevertheless, on an appeal by the prosecutor, by a final decision of the Braşov Court of Appeal of 6 March 2006 the validity of the arrest warrant was again confirmed. The appellate court held that given the fact that the applicant has been absconding all the time, there could be no equality between her and the other accused persons in the same proceedings who had already been in pre-trial detention.

On 22 August 2007 Bucharest County Court allowed the applicant’s request to have the mandate revoked. It considered that the measure was no longer justified, taking into account that it had been ordered five years previously, three months after the applicant had left the country. The county court considered that the state of the proceedings, still under investigation by the prosecutor, and the lack of any evidence regarding any danger the applicant might pose to the public justified revoking the arrest warrant. On an appeal by the prosecutor, the Bucharest Court of Appeal (with one dissident opinion), by a final decision of 3 September 2007 reversed the decision and confirmed once again the legality of the warrant. It took note of the fact that the warrant had never been executed, given the absence of the applicant, and decided that the reasons which had justified its issuance in 2002 were still valid.

3. The criminal proceedings on the merits

Following the start of the criminal investigation against the applicant and other co-accused on different dates during 2002, on 20 March 2003 the prosecutor attached to the Supreme Court of Justice issued an indictment against twelve persons, including the applicant, for various offences of fraud related to trade in oil products. The file was first registered with Prahova County Court. Later it was assigned to Bacău County Court and subsequently to Braşov County Court, by virtue of final decisions of the Supreme Court of Justice of 9 May and 11 September 2003 respectively, allowing requests of the accused for removal of jurisdiction from the competent courts for alleged bias. Following the transfer of the file to Braşov County Court, in various hearings held up to April 2004 statements were taken from all the accused, besides the applicant, who was always absent but was represented by a chosen lawyer.

By a decision of 3 May 2005 the county court referred the case back to the prosecutor. It considered that the criminal investigation had been marred by procedural irregularities and the investigation had to be redone and completed in compliance with all procedural requirements. The decision was partly upheld by the Braşov Court of Appeal on 6 March 2006, thus dismissing the prosecutor’s appeal against the remittal order. Nevertheless, the decision to declare void the arrest warrant was reversed (see paragraph 12 above)

According to the applicant, after the file was transferred back to the prosecutor’s office, she could not find any information pertaining to it until August 2007, when through internet research she found out the number of the case file. On 5 December 2007 she had been summoned at her home address in Romania to present herself to the National Anti-Corruption Directorate.

The interlocutory judgment of 22 August 2007 (see paragraph 13 above) mentioned that the case was still with the prosecutor’s office at that date and that a financial expert report had been ordered for estimating the alleged damages caused to the company that the applicant had managed.

From the information available in the case file it does not appear that any judgment has yet been delivered on the merits of the case.

COMPLAINTS

Relying on the provisions of Article 5 §§ 1, 3 and 4 of the Convention, the applicant complains that the arrest warrant in her name was not lawfully issued and that the domestic courts wrongly dismissed her different requests to have the arrest mandate revoked or declared void. She put forward the following reasons for the alleged violations:

a) the prosecutor who issued the arrest warrant did not fulfil the criteria of “a judge or other officer authorised by law to exercise judicial power”;

b) one of the reasons for the arrest warrant was her alleged absconding; nevertheless when she left the country, the investigation against her had not even been initiated and therefore it was unlawful to consider that she was absconding;

c) one of the conditions for the issue of the arrest warrant is the existence of a reasonable suspicion that she committed a crime, while in her case there are no such reasonable suspicions;

d) her complaints regarding the validity of the arrest warrant were not decided upon within a reasonable time;

e) the validity of the arrest warrant was not regularly and automatically reviewed by the domestic courts.

The applicant further argues that even though she has not been arrested, all the legal steps for proceeding with her arrest have been completed and her arrest is imminent.

With regards to all the domestic decisions concerning the legality of the arrest warrant, relying on Article 6 §§ 1 and 3 (a)-(c), the applicant complains of the alleged lack of impartiality of the domestic courts, of the fact that she was not promptly informed of the charges against her, her lawyers were prevented from effectively representing her interests and no lawyer had been appointed for her when the arrest warrant had been issued and during the first three hearings on the merits of the case. She further complains under the same provisions that some judges ruled on her complaints against the arrest warrant several times, thus revealing a lack of impartiality.

Relying on Article 6 § 2 of the Convention, she complains that the judges who reviewed her request to have the arrest warrant declared void or revoked pre-judged her case on the merits by making statements reflecting the opinion that she was guilty. She refers in this respect to the interlocutory judgment of Prahova County Court of 28 August 2002 and the final decision of the Ploieşti Court of Appeal of 27 September 2002, to the interlocutory judgment of Braşov County Court of 3 February 2004, as upheld by the final decision of the Braşov Court of Appeal of 13 February 2004, as well as to various decisions delivered during 2003.

Relying on Article 6 § 1 of the Convention the applicant considers that the proceedings against her exceeded a reasonable duration. She notes that the criminal investigations against her started on 25 July 2002, the case was referred to the first-instance court on 23 March 2003, but it was only on 3 May 2005 that a first-instance judgment was delivered, referring the case back to the prosecutor due to procedural irregularities affecting the criminal investigation phase. She considers that the completion of the criminal investigation and the judicial phase will still take a long time.

Under Article 3 of the Convention the applicant complains that the Romanian authorities, through their persistence in maintaining the arrest warrant in force for such a long time, had caused her great psychological distress. She considers that the authorities tried to intimidate her and induce in her feelings of fear of returning to Romania.

Under Article 8 of the Convention, the applicant complains that the very existence of the arrest warrant prevents her from returning to her home country and her family and friends. She is completely isolated in a new country, with limited financial resources. Her husband cannot receive a tourist visa to visit her, because she has asked for political asylum. Under the same article, she complains that in Romania and abroad she has acquired a negative image, being presented by the press as a dangerous criminal. Her family is under surveillance and they are treated with suspicion because of her negative image.

Invoking Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the applicant complains that because she was away from Romania when the investigations started she was labelled as a fugitive and subjected to discriminatory treatment during the proceedings.

Relying on Article 1 of Protocol No 4 to the Convention, the applicant alleges that the arrest warrant in her name was issued in respect of civil damage resulting from the non-execution of a contractual obligation.

Invoking Articles 2 and 3 of the Protocol No 4 to the Convention, she complains that because of the arrest warrant in her name she cannot leave her current host country (non-signatory State) to return to her home country, her freedom of movement thus being restricted.

THE LAW

A. Complaints under Article 5 of the Convention

Invoking the provisions of Article 5 §§ 1, 3 and 4 of the Convention, the applicant complained that the arrest warrant in her name had been issued unlawfully, that it had been maintained in force for an unreasonably long time, that her complaints against it had been unlawfully dismissed and that she did not have available an effective remedy to review the legality of the arrest warrant. In support of her allegations, she referred to various alleged breaches of both the Romanian legislation and the Convention guarantees deriving from Article 5 of the Convention. She maintained that even if she had not been actually deprived of liberty, all the procedural steps defined by domestic law had been taken and she could be arrested at any time.

Relying on Article 6 §§ 1 and 3, the applicant complains of the alleged unfairness of the proceedings concerning the validity of the arrest warrant. Being the master of the characterisation to be given in law to the facts of the case (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172, and Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I), the Court considers that these complaints fall to be examined under Article 5 §§ 2 and 4 of the Convention.

The Court must first examine whether there was in the instant case a deprivation of liberty to which Article 5 applies. In this respect, it reiterates that in proclaiming the “right to liberty”, Article 5 § 1 of the Convention is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39).

Extensive case-law of the Court stresses that Article 5 is not concerned with mere restrictions on liberty of movement; such restrictions being governed by Article 2 of Protocol No. 4. The same case-law established that in order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria, such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi, cited above; Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22.; Foka v. Turkey, no. 28940/95, 24 June 2008, and others)

In the present case the Court notes that it is an established fact that the applicant was not effectively deprived of liberty, since the arrest warrant in her name was never enforced due to her absence from Romania. Nevertheless, the applicant maintains that she is subject to a restriction of her liberty of movement because she needs to hide and cannot leave the country hosting her for fear of being arrested.

The Court considers that the said restriction of movement stems from the applicant’s own wish not to return to Romania for fear of being arrested on the basis of a mandate that she considers unlawful. In the given circumstances, the alleged restriction of movement represents a personal choice of the applicant not to make use of her right to freedom of movement in order to avoid confronting the justice system.

The Court therefore concludes that the applicant cannot be considered to have been subjected to any restriction of freedom of movement, and even more so to any deprivation of liberty, falling within the meaning of Article 5 of the Convention.

The Court considers that it needs to analyse further the applicant’s argument that even though she had not been effectively deprived of liberty, the danger that she will be arrested on the basis of the contested arrest warrant is imminent and that this triggers the applicability of Article 5.

The Court reiterates that it accepted the notion of a potential victim in the following cases: where the applicant was not in a position to demonstrate that the legislation he complained of had actually been applied to him because of the secret nature of the measures it authorised (see Klass and Others v. Germany, §§ 33, 6 September 1978); where a law punishing homosexual acts was likely to be applied to a certain category of the population, to which the applicant belonged (see Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45); and lastly where the forced removal of aliens had already been decided on but not yet carried out and enforcement of the measure would have exposed the persons concerned to the risk of treatment contrary to Article 3 in the country of destination (see Soering v. the United Kingdom, 7 July 1989, Series A no. 161) or would have infringed the right to respect for family life (see Beldjoudi v. France, 26 March 1992, Series A no. 234).

The Court notes that the applicant’s case does not fall into any of these categories. Moreover, given that the arrest warrant has not been enforced for almost eight years, one may seriously question the argument that arrest is imminent.

In any event, the Court further notes that if she returned to Romania, should the applicant be arrested on the basis of the contested arrest warrant, nothing would prevent her from lodging a new request with the domestic courts to have the measure revoked (see, mutatis mutandis, A.R. v. United Kingdom (dec.), no. 25527/94). At that stage, it would be open to the applicant to make a fresh application if she were to consider that circumstances placed her at risk of a violation of her Convention rights.

Moreover, the Court recalls that the domestic courts repeatedly reviewed the applicant’s requests to have the arrest mandate declared void or revoked. They consistently confirmed the validity of the mandate, one of the main arguments being that she had absconded. It is not for the Court to establish whether at the moment when the mandate had been issued there existed reasonable suspicion that she was attempting to abscond. Nevertheless, the Court cannot refrain from observing that immediately after she became aware of the proceedings, the applicant decided not to return to Romania in order to avoid facing the justice system. Thus, the domestic courts never had the chance to review the validity of the arrest warrant with the applicant present before them and demonstrating by her attitude that she was not absconding.

In the light of all the above considerations, the Court finds that this part of the application must be rejected as manifestly ill-founded as a whole, pursuant to Article 35 §§ 3 and 4.

B. Complaints under Article 6 §§ 1 and 3 of the Convention

In respect of the criminal proceedings on the merits of the case the applicant complains of a series of violations of her procedural rights: lack of independence and impartiality of the domestic judges, not being informed promptly of the charges against her, breaches of her right of defence and unreasonable duration.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint regarding the length of the criminal proceedings and that it is therefore necessary in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

Furthermore, the Court observes that the criminal proceedings against the applicant are still pending. The remaining complaints under Article 6 §§ 1 and 3 are therefore premature. Consequently, these parts of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Georgescu v. Romania, no. 25230/03, § 99, 13 May 2008).

C. Complaints under Article 6 § 2 of the Convention

The applicant complains that the grounds for the domestic courts’ decisions confirming the validity of the arrest warrant contained suggestions that she had committed the offences in question. In the initial application form submitted on 20 December 2002, the applicant raised this complaint in respect of the interlocutory judgment of 28 August 2002, confirmed by the final decision of 27 September 2002. By a letter of 10 August 2004, she raised this complaint in respect of decisions delivered between 13 January 2003 and 4 June 2003 and to the interlocutory judgment of 3 February 2004 and the final decision of 13 February 2004.

The Court considers that in respect of the decisions delivered during 2003 the complaints have been lodged outside the six-month time limit and this part of the application must be rejected pursuant to Article 35 § 1 of the Convention.

Furthermore, the reasoning in the interlocutory judgment of 3 February 2004 did not amount to finding the applicant guilty of the charges brought against her in violation of the presumption of innocence set out in Article 6 § 2 of the Convention and the complaint in this respect must be rejected as manifestly ill-founded, pursuant to Article 35 § 3 of the Convention.

In respect of the remaining decisions, the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint, and that it is therefore necessary in accordance with Rule 54 § 2 (b) of the Rules of the Court to give notice of this part of the application to the respondent Government.

D. Remaining complaints

Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the breach of her right to be tried within a reasonable time as guaranteed by Article 6 § 1 of the Convention and concerning the breach of her right to the presumption of innocence as guaranteed by Article 6 § 2 of the Convention with respect to the interlocutory judgment of 28 August 2002, as upheld by the final decision of 27 September 2002, and the final decision of 13 February 2004.

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President