European Court of Human Rights

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2228/04
by Adrian VLAD BELLAMY
against Romania

The European Court of Human Rights (Third Section), sitting on 13 September 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 21 November 2003,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Adrian Vlad Bellamy, is a Romanian and American national who was born in 1943 and lives in Braşov.

A.  The circumstances of the case

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

3.  On an unspecified date in 2000 the Vrancea Public Finance Agency brought criminal proceedings against the applicant for (i) carrying on banking activities without the authorisation of the National Bank of Romania and (ii) fraud, on the grounds that he had been providing financial loans to third parties which were secured by the third parties’ immovable properties and had been charging them interest on the loans.

4.  By a judgment of 26 June 2002 the Focşani District Court dismissed the criminal proceedings brought against the applicant. The court held that the certified loan agreements signed between the applicant and several third parties had not contained any clauses concerning interest being charged and that witness statements read out in court could not rebut the contents of an agreement certified by a Public Notary in the absence of any other supporting evidence. The Focşani Prosecutor’s Office appealed the judgment.

5.  At a hearing before the Vrancea County Court on 16 September 2002 the applicant raised a preliminary objection against the Focşani Prosecutor’s Office’s appeal and argued that the appeal was time-barred. He submitted that, although the prosecutor had attended the proceedings before the first instance court on the date of the judgment, the appeal had been lodged more than ten days from the date on which the judgment had been delivered, in breach of the applicable rules of criminal procedure.

6.  By a judgment delivered on the same date, the Vrancea County Court decided that the applicant’s preliminary objection would be examined at the same time as the merits of the case and invited the parties to present their oral submissions in respect of the merits of the case. The court subsequently dismissed the Focşani Prosecutor’s Office’s appeal and upheld the judgment of the first-instance court. The court failed to examine the preliminary objection raised by the applicant. Both parties appealed the judgment. In his written submissions before the last-instance court, the applicant argued, inter alia, that the County Court had failed to examine his preliminary objection concerning the Focşani Prosecutor’s Office’s appeal.

7.  The parties presented their oral submissions before the Galaţi Court of Appeal at a hearing on 13 May 2003. The applicant was not present at the hearing, although he had been lawfully summoned. He was represented by a lawyer of his choice. No witnesses were heard by the court.

8.  By a final judgment of 23 May 2003 the Galaţi Court of Appeal allowed the Focşani Prosecutor’s Office’s appeal and convicted the applicant of carrying on banking activities without the authorisation of the National Bank of Romania. However, the court conditionally pardoned him as a result of the entry into force of Law no. 543/2002 concerning the pardoning of certain convictions. The court held that according to the witness statements available in the file it was clear that the applicant had carried on banking activities without the authorisation required by law. Although the certified agreements signed between the applicant and third parties had expressly stated that no interest would be charged on the loaned amounts, the agreements had been contradicted by the witness statements.

9.  At the same time, the court dismissed the applicant’s appeal as ill founded and failed to examine the applicant’s complaint concerning the preliminary objection he had raised against the Focşani Prosecutor’s Office’s appeal.

B.  Relevant domestic law

10.  Excerpts from the relevant domestic legal provisions of the Romanian Code of Criminal Procedure are set out in Constantinescu v. Romania, no. 28871/95, § 37, 27 June 2000 and Spinu v. Romania, no. 32030/02, §§ 38-39, 28 April 2008.

11.  Section 74 of the Banking Act (Law no. 58/1998) provides that carrying on banking activities by any natural person without the Romanian National Bank’s authorisation is a crime and is punishable by imprisonment or fine.

COMPLAINTS

12.  The applicant complained under Article 5 of the Convention that he had been unlawfully arrested on remand by the Focşani Prosecutor’s Office during the criminal investigation initiated against him.

13.  Relying on Article 6 of the Convention, the applicant complained that the domestic authorities had lacked impartiality, that he had been denied access to his file on 25 September 2002, that the domestic courts had failed to examine the preliminary objection raised by him against the Focşani Prosecutor’s Office’s appeal and that he had been convicted by the last instance court without a direct assessment of the evidence and of the witness statements which had led the lower courts to conclude that he had to be acquitted.

14.  Citing Article 7 of the Convention, the applicant alleged that the act that he had allegedly committed had not constituted a criminal offence under domestic law.

15.  Relying on Article 8 of the Convention, the applicant complained that during the criminal investigation initiated against him his home had been searched, his phone had been tapped and his correspondence had been opened unlawfully.

16.  Citing Article 9 of the Convention, the applicant alleged interference with his freedom of thought in so far as the criminal proceedings brought against him had been designed to compromise him and his family.

17.  Relying on Article 13 of the Convention, the applicant complained of the lack of an effective remedy in so far as he had not been able to appeal the final judgment of the Court of Appeal.

THE LAW

A.  Complaints under Article 6 of the Convention

18.  The applicant complained that the criminal proceedings brought against him had been unfair, inter alia, because, on the one hand, the domestic courts had failed to examine the preliminary objection raised by him against the appeal lodged by the Focşani Prosecutor’s Office and, on the other hand, the last-instance court had convicted him without a direct assessment of the evidence and the witness statements which had led the lower courts to acquit him. He relied on Article 6 of the Convention which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal...”

19.  The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the applicant’s complaints under Article 6 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B.  Remainder of the applicant’s complaints

20.  The applicant complained under Article 5 of the Convention that he had been unlawfully arrested on remand by the Focşani Prosecutor’s Office during the course of the criminal investigation initiated against him. Moreover, he also complained under Article 6 of the Convention that the domestic authorities had lacked impartiality and that he had been denied access to his file on 25 September 2002. Furthermore, he complained under Article 7 of the Convention that the act allegedly committed by him had not constituted a criminal offence under national law. He further complained under Article 8 of the Convention that over the course of the criminal investigation the Police and the Prosecutor’s Office had unlawfully searched his home, had tapped his phone and had opened his correspondence. At the same time, he complained under Article 9 of the Convention that the criminal proceedings brought against him had interfered with his right to freedom of thought in so far as they had been designed to compromise him and his family. Lastly, he complained under Article 13 of the Convention that he had lacked an effective remedy in respect of his criminal conviction in so far as he had been unable to appeal the final judgment of the Court of Appeal.

21.  The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints 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 as being 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 part of the applicant’s complaints under Article 6 § 1 concerning the unfairness of the criminal proceedings brought against him in that he was convicted by the last instance court without a direct assessment of the evidence and of the witness statements which had led the lower courts to conclude that he had to be acquitted and that the domestic courts failed to examine the preliminary objection raised by him against the Focşani Prosecutor’s Office’s appeal;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President