CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIA
(Application no. 27153/07)
17 January 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 29 November 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 27153/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Floare Cacuci (“the first applicant”), and by S.C. Virra & Cont Pad SRL (“the second applicant”), a single-member private Romanian company owned by the first applicant, on 19 April 2007.
2. The applicants were represented by Mr S.A. Kolozsi, a lawyer practising in Oradea. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. The applicants alleged, in particular, a violation of their rights under Article 8 of the Convention as regards the circumstances in which a search at the first applicant’s home and the second applicant’s business premises had been performed. They also claimed that they did not have an effective remedy in respect of this complaint.
4. On 18 October 2012 this part of the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant, Ms Floare Cacuci, was born on 2 March 1939 and lives in Oradea. She is an accounting expert and the owner and general manager of the second applicant, S.C. Virra & Cont Pad SRL, a single-member company based in Oradea. Both applicants were members of the Romanian Institute of Accounting Experts and Certified Accountants (Corpul experților contabili și contabililor autorizați din România).
A. The criminal investigation against the first applicant
1. The first forensic accounting report
6. On 30 July 2001 the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with. The first applicant was appointed to produce this report, which concerned pecuniary damage to the State budget in the sum of 22,143,258,699 Romanian lei (ROL), allegedly caused by S.C. T.P. SRL, a private company. The first applicant’s fees in relation to that expert report amounted to ROL 497,250,000.
Claiming that she had not been fully paid for the report, on 25 January 2004 the first applicant submitted to the county police only approximately ninety-five pages of the report, which actually consisted of more than five hundred pages. She only submitted the conclusions of the report. The annexes justifying the conclusions were thus not appended on that occasion, but at a later date (see paragraph 22 below).
The first applicant alleged that, when asked by the Police to hand in the remaining pages of the report, she had replied that the report was on her computer, and that, since she had not received any payment for it, she was not able to print it, as it was extremely long.
2. The second forensic accounting report
7. On 25 March 2005 the first applicant, together with two other accounting experts, was appointed by the Oradea District Court to produce a forensic accounting report in a criminal case concerning tax fraud, forgery and the use of forged documents - offences allegedly committed by two third parties, M.G.S. and C.V.C, in their capacity as managers of two private companies. A fourth expert, who was assisting M.G.S. and C.V.C., was also appointed to participate in producing the report.
The conclusions of the report, which was submitted on 15 September 2005 by the three experts and with which the assisting expert agreed, noted that no damage had been caused to the State budget by the managerial activities of M.G.S.
M.G.S. and C.V.C were acquitted on 7 December 2005 by the Oradea District Court. That judgment was later upheld by the Bihor County Court on 28 May 2007 on appeal, and by the Oradea Court of Appeal on 22 May 2008 in an appeal on points of law.
3. The prosecutor’s decision to initiate criminal proceedings in connection with the second forensic accounting report
8. On 18 October 2005 the prosecutor’s office attached to the Oradea District Court proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery (fals intelectual, defined by Article 289 of the Criminal Code) in connection with the second forensic accounting report. The prosecutor noted that the report was based solely on documents provided by M.G.S., in spite of the fact that it stated that the district court’s case file had been consulted. In the case file, there was no request from any of the experts to either consult the file or obtain copies of it. The conclusions of the report were therefore not based on all the documents on file, in spite of what the report stated.
10. The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor’s office on 19 October 2005.
B. The search of the first applicant’s home and the second applicant’s registered office
The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report, in order to help one of the defendants, M.G.S, avoid investigation. The grounds for this suspicion were: the report’s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation; the report objectives proposed by M.G.S. had most likely been copied and pasted into the report itself, the two documents having the same page settings, wording, spelling and grammar mistakes; and there was no proof that the first applicant had ever studied the case file in the court’s archives or requested copies of the documents in order to produce the expert report, therefore the report was probably based solely on information provided by M.G.S.
The prosecutor also stated that, in accordance with the decision of 19 October 2005, a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery.
The prosecutor further submitted that important evidence relating to the production of the second expert report - such as a computer, a printer, files and documents (whether on paper or on disc) - could be obtained from the first applicant’s home.
12. On the same day the Oradea District Court - sitting as a single judge, Judge F.P. - allowed the prosecutor’s application and issued a warrant to search the first applicant’s home, with the aim of discovering evidence concerning the alleged offence of intellectual forgery. In accordance with the relevant domestic law, the decision was taken in camera, in the presence of the prosecutor and without summoning the parties.
The warrant was to last three days, the court stating that the search was to be carried out in compliance with Articles 101, 103-108 and 111 of the Romanian Code of Criminal Procedure (hereafter “the RCCP” - see paragraph 46 below). It was formulated as follows:
“Based on Article 100 of the RCCP, in view of the prosecutor’s application issued on 20 October 2005 and the investigative work which has been presented, namely: the minutes attesting to the decision of the prosecutor to initiate criminal investigations ex officio, confirmation of the proposal to initiate criminal investigations against Cacuci Floare in relation to the offence of intellectual forgery as set out in Article 289 of the Criminal Code, and the forensic reports included in the file, [the court] authorises that a home search (percheziție domiciliară) be performed at the suspect’s place of residence, [the suspect being] Cacuci Floare, daughter of ..., born on ..., in Oradea, ..., in the Bihor District.
The search shall be performed in compliance with Articles 101, 103-108 and 111 of the RCCP.
This warrant is to last three days from the day of issue.
Given in camera on 20 October 2005 at 3 p.m.”
13. According to the first applicant, on 21 October 2005, while she was in the street, having just left her house, she was stopped by a police officer, who told her that he had a search warrant for her home. The first applicant asked to be assisted by her lawyer. The police officer then searched her bag, from which he seized some personal documents, including an orange notebook containing various phone numbers. Subsequently, a prosecutor entered the first applicant’s home in order to perform the home search, accompanied by three police officers, one of whom was an information technology (IT) specialist.
14. According to the Government’s version of events - supported by the documents in the file, as issued by the criminal investigating authorities (see paragraph 42 below) - the search of the bag was carried out inside the first applicant’s home.
15. The first applicant’s lawyer arrived at the beginning of the search, namely around ten minutes after the first applicant had been stopped in the street (see paragraph 13 above); two assistant witnesses, who were neighbours of the first applicant, were also present during the search.
16. The prosecutor’s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery, namely the computer, the printer, and the documents on which the second expert report was based (Articles 96-99 of the RCCP, see paragraph 45 below). The first applicant confirmed the existence of such items at her place of residence.
According to the search report, the first floor of the building was occupied by the first applicant’s office, where she claimed to keep the objects which had been requested and other objects essential to her professional duties.
Several items and documents were found, the first applicant claiming that everything belonged to the second applicant. She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of one half of the immovable property.
According to the report, the following objects were seized: the computer’s central processing unit, one printer, four files and documents concerning various forensic accounting reports, one CD, forty-two floppy discs, an orange notebook containing several notes written by the first applicant and telephone numbers - one of which belonged to M.G.S., see paragraph 7 above - and an empty printer cartridge box.
17. The applicants argued that, while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed, the copy in the criminal file contained supplementary information on page 4, mentioning that the objects had been put in a sealed cardboard box labelled MAI (the Ministry of Internal Affairs) 15980.
18. At the end of the search the first applicant declared, in the presence of her lawyer, that she would submit written objections at a later stage. The witnesses had no objections concerning the manner in which the search had been carried out.
20. On 18 November 2005, at the request of the prosecutor, the Oradea District Court issued a warrant for a search of the computer system and IT data seized from the applicants on 21 October 2005, namely one CD and forty-two floppy discs. The court gave reasons for its decision, accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by M.G.S (see paragraph 11 above).
The warrant was to last three days, starting on 21 November 2005.
21. According to the applicant, on 18 November 2005 she was summoned to the Cluj District police headquarters to participate in the unsealing of the computer on 21 November 2005. She went there with her lawyer, where they noted that the sealed box was different to the box which had been used at her house during the search (see paragraphs 16-17 above). She therefore asked that the two witnesses who had been present at the search be summoned to attest that the box was different, but the request was refused. Consequently, together with her lawyer, she decided to leave the police headquarters without attending the unsealing and search procedure.
C. Complaints concerning the search
23. On 8 November 2005, pursuant to Articles 275-2781 of the RCCP (see paragraph 47 below), the first applicant filed a complaint against the search carried out on 21 October 2004 (see paragraphs 13-19 above). She contested both the search itself and the manner in which it had been carried out.
The first applicant submitted that the warrant had been issued only in respect of her home, and not in respect of the registered office of the second applicant. In spite of that, a search of the whole house had been carried out, including the space used by the second applicant. The seized items and documents belonged to the second applicant.
The first applicant also submitted that the search had not been necessary, and could have been avoided if she had been asked to submit the relevant items and documents, as set out in Article 98 of the RCCP (see paragraph 45 below). Furthermore, no reasons had been given to justify the search measure.
She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse, which constituted a body search (percheziţie corporală), and by the fact that she had been prevented from using her mobile phone during the search.
She complained of the manner in which the electronic devices seized had been sealed on that occasion.
She further referred to the seizure of various items from her home, namely “personal documents and personal notebooks which had no connection to the criminal charge against her”, concluding that all the above circumstances constituted evidence of a breach of her right to a private life, personal inviolability, professional secrecy, and right of property.
24. On 24 November 2005 the head prosecutor of the prosecutor’s office attached to the District Court of Oradea dismissed the first applicant’s claims, finding that the complaint against the search measure itself was inadmissible, given the lack of specific legal provisions allowing for such an appeal, while the complaint concerning the carrying out of the search was ill-founded.
25. Concerning the appeal against the search measure itself, the prosecutor gave reasons for his inadmissibility decision, stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings, as such a procedure would impede the very purpose of the search, namely the discovery and collection of specific evidence from a specific place without prior notice.
The prosecutor stated that the search at the applicant’s home had been conducted in accordance with the law. The warrant had been issued in respect of her residence as stated on her identification documents. The prosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies. In the impugned forensic expert report, the first applicant had given her identification details, including her place of residence, without mentioning that the report had been issued by or on behalf of the second applicant. Moreover, during the search, the first applicant had submitted a lease contract concluded between herself and the second applicant concerning one half of the immovable property, without specifying or determining which half belonged to which party.
The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location, irrespective of who owned them, and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial.
26. Concerning the body search, namely the search of the first applicant’s bag, the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search, “so as to preclude any potential act of aggression against the authorities or self-aggression, but also so as to locate and collect any potential corpora delicti thus hidden by the searched person (in [this] case, documents)”.
The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside, whether by phone or otherwise, which justified the fact that the first applicant had been temporarily prevented from using her mobile phone.
27. In respect of the manner in which the seized electronic devices had been sealed, the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer, and no objections had been raised. As mentioned in the report, the central processing unit of the computer had been sealed in a cardboard box with the MAI seal. In any event, the manner in which the seized objects had been sealed could not affect the legality of the search, but possibly their use as evidence in the criminal proceedings.
28. The first applicant contested that decision before both the prosecutor’s office attached to the County Court of Bihor and the Oradea District Court.
29. It is unclear whether any response to that complaint was given by the prosecutor’s office. In any event, the same complaint was assessed by the domestic courts in two separate sets of proceedings, as detailed below.
30. In the first set of proceedings, started by the first applicant on 23 December 2005, the Oradea District Court gave its judgment on 29 June 2006, dismissing the first applicant’s complaint as inadmissible in respect of the search measure itself, and ill-founded in respect of the manner in which the search had been carried out. The court stated that, in the event that she was indicted, the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor.
31. The first applicant appealed. On 28 November 2006 the Bihor County Court dismissed her appeal, upholding the first instance court’s decision. It considered that the search had been lawful and in compliance with the warrant issued by the Oradea District Court. Furthermore, at the material time, the first applicant, assisted by her lawyer, had not objected to either the search or the manner in which it had been carried out.
The court considered that it would be “abusive” to have an adversarial procedure for debating the necessity of a search, either before or after it was carried out.
32. In the second set of proceedings, a complaint lodged by the first applicant on 4 January 2006 reiterated the same main arguments as those presented in the proceedings described above. In particular, it referred to the fact that the limits of the search warrant had been exceeded as follows: the warrant had only been issued in respect of her home, and not in respect of the registered office of the second applicant; no warrant had existed in respect of her purse or mobile phone; certain items, like her personal notebooks, had been seized even though they had no connection with the criminal charge. The computer had been seized without being appropriately sealed, therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered. The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the 497 pages of annexes to the first accounting expert report (see paragraph 6 above).
In any event, the search had not been necessary, as she would have surrendered all required items and documents if she had been asked to.
33. The complaint was allocated to a single judge for determination, Judge F.P., who on 21 February 2006 asked to recuse herself from the case, as it had been she who had examined and approved the application for a search warrant on 20 October 2005 (see paragraph 12 above).
That request was dismissed by the President of the Oradea District Court on the same day. It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself, but the manner in which it had been carried out. In such circumstances, there was no reason for Judge F.P. to withdraw from the case.
34. In the context of the second set of proceedings, on 28 June 2006 the first applicant lodged an application calling into question the constitutionality of the provisions of Article 100 § 4 of the RCCP (see paragraph 46 below). She claimed that the impugned provisions breached a claimant’s defence rights, right to a fair trial and right to an effective remedy, as he or she was denied the right to participate in proceedings and contest a search measure.
35. The application was dealt with by the Romanian Constitutional Court (“the Constitutional Court”), which gave its judgment on 30 November 2006, dismissing the objection as ill-founded. The Constitutional Court firstly found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the Constitution (the court referred to its decision of 21 October 2004, detailed in paragraph 52 below). The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure.
Furthermore, the Constitutional Court held that the issuing of a search warrant was a procedural measure and not a trial in itself, and that therefore the summoning of parties was not obligatory, especially as a search was conducted in the presence of the interested parties and/or their representative. Moreover, interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial.
36. The case was sent back to the Oradea District Court, which gave its judgment on 31 January 2007, dismissing the first applicant’s complaint. The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment (see paragraph 31 above).
The court further stated that the search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor, the applicant and her lawyer, and no objections had been raised at the material time.
It appears that the decision was not appealed against by the first applicant.
D. The criminal proceedings against the first applicant
37. In January 2006 the second applicant was struck off the list of the Romanian Institute of Accounting Experts and Certified Accountants; the first applicant was removed from the list from January 2006 until 7 April 2010, allegedly as a result of the criminal investigations against her.
38. The first applicant was indicted on 27 September 2009, charged with perjury as a witness in a criminal trial, aiding and abetting a perpetrator (with specific reference to the criminal trial concerning M.G.S. and C.V.C.), and spoliation (the material alteration, thereby invalidation) of evidence.
The indictment referred to the items seized during the search of 21 October 2005, namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects (C.V.C., A.D., F.K., G.P.); the prosecutor considered that such documents had been withheld by the first applicant for the purpose of obstructing justice.
The indictment stated that the criminal proceedings against the two other accounting experts (see paragraph 9 above) were to be terminated (scoatere de sub urmărire penală).
In relation to the charge of perjury, the court held that such a charge was relevant where an expert had been called before a court to give oral evidence, which had not been the case with regard to the first applicant. In relation to the written evidence given by the first applicant in the form of the forensic accounting report, the court held that the report was a collective piece of work produced by the three experts appointed in the case. Even if evidence had been adduced proving that only one of the experts had personally studied the file in the court’s archives, it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts.
The court further stated that there was insufficient proof that the first applicant had favoured M.G.S. The accounting expert report had been produced with the other experts appointed in the case. The first applicant had been selected as an expert in the impugned criminal proceedings from a list of six experts, and it had therefore been impossible for her to plan to help M.G.S in any way.
With reference to the documents found at the first applicant’s residence during the search carried out on 21 October 2005, the court stated that they had not been in her possession unlawfully, as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports. It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice. The court ordered that all IT equipment seized from the first applicant should be returned to her once the judgment became final.
40. By a judgment of 21 April 2011 the Oradea Court of Appeal dismissed an appeal lodged by the prosecutor and upheld the first-instance court’s judgment, stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted. The only dissenting opinion of the Oradea Court of Appeal considered that the case should have been remitted to the first-instance court for a re-trial, as the first-instance judgment had lacked appropriate reasoning.
E. Criminal complaints lodged by the first applicant against third parties
41. The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of 21 October 2005 with various domestic authorities (the Romanian Senate, the High Council of the Judiciary and the Ministry of Internal Affairs), accusing them of abuse of office for carrying out the search in breach of Articles 100-111 of the RCCP (see paragraph 46 below). She reiterated her arguments: a special warrant and a separate report had been needed for the body search (Article 106), and another warrant had been necessary for the search of the company’s registered office (Article 111).
42. Those complaints were joined and assessed in a unique case file, being dismissed as ill-founded by the Oradea Court of Appeal on 20 September 2006. The court upheld the prosecutor’s decision. In respect of the complaint concerning the body search, it found that the search of the applicant’s bag had been carried out inside her house, as a preliminary step of the actual search measure. Furthermore, the home search warrant had been issued in respect of an address, not in respect of a person or company. The court concluded that all the complaints were ill-founded.
That decision was upheld by the High Court of Cassation and Justice on 10 November 2006.
43. The first applicant also submitted to the Court a copy of another undated criminal complaint, which was addressed to the prosecutor’s office attached to the High Court of Cassation and Justice. In the complaint, the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed (see paragraphs 16-17 above). She also stated that, at some point after the search, she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters, so as to provide evidence to incriminate her.
In the absence of any registration number or reference to a domestic file number, it is unclear if and when that complaint was lodged with the domestic authorities; assuming that it was, it is equally unclear whether the first applicant received any response.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic legislation
44. The relevant Articles of the RCCP, as in force at the relevant time, were as follows:
45. Articles 96-99 essentially provided that investigating authorities or a court had to seize items and documents which could serve as evidence in a criminal trial. Any legal or natural person was obliged to surrender any such items or documents at the request of the investigating authorities or the court. If the item or document was confidential or secret, the evidence in question had to be surrendered in circumstances which would preserve its secrecy or confidentiality. In so far as their role was to collect and discover all the information and evidence essential to a criminal case, the investigating authorities were entitled to seize the relevant items or documents by force if they were not voluntarily surrendered.
“(1) Where a person who is asked to surrender an object or document as referred to in Article 98 denies its existence or denies having it, or where it [the object or document] is essential to the discovery and collection of evidence, a search may be ordered.
(2) A body search or a home search may be carried out.
(3) A home search may only be ordered by a judge in a reasoned decision, during a criminal investigation, at the request of a prosecutor, or during a criminal trial...
(4) A home search requested during a criminal investigation is ordered in camera, without the parties being summoned. The presence of a prosecutor is mandatory.
(5) Depending on the circumstances, a body search may be ordered by an investigating authority, a prosecutor or a judge.
(6) A home search may not be ordered prior to a criminal investigation being started.”
“In accordance with Article 100, a search ordered during a criminal investigation is carried out by a prosecutor or an investigating authority, accompanied - depending on the circumstances - by investigating officers...”
“(1) Before starting a search, the authorities in charge of an investigation are obliged to disclose their identity and, in the cases provided for by law, present authorisation from a judge.
(2) Items or documents are seized and searches are carried out in the presence of the person whose home is searched, or, in the event that he or she is absent, in the presence of a representative, family member or neighbour with full capacity.
(3) These operations carried out by the authorities in charge of an investigation require the presence of witnesses...”
“(1) The authorities in charge of an investigation have the right to open rooms or any other repositories where items or documents which are the subject of a search may be found, if the person authorised to open those [rooms or repositories] refuses to do so.
(2) The authorities in charge of an investigation shall seize only the items and documents related to the criminal act [in question]. The authorities shall always seize items and documents whose distribution and possession are forbidden ...”
“(1) A body search is carried out by the investigating authority which ordered it, in compliance with the provisions of Article 104 § 1, or by a person [to whom responsibility has been] delegated by this authority.
(2) A body search is only carried out by a person of the same gender as the person being searched ...”
“(1) Seized objects and documents are firstly shown to the person from whom they have been seized and to those who assist, so that those people can identify and sign for the items to confirm their state, in order to prevent them from being changed at a later stage. Thereafter, the items are labeled and sealed.
(2) Objects which cannot be signed for, labeled or sealed are wrapped up or packaged together and subsequently sealed ...”
“(1) An official report is drawn up, describing how a search was carried out and how items and documents were seized ...”
“...(3) Until a case is concluded, physical evidence is kept by the criminal investigating authority or the court which is dealing with the [case] file ...”
“The provisions set out above also apply to a search carried out in respect of a legal entity; the provisions are supplemented as follows:
a) the authorities in charge of an investigation are obliged to disclose their identity and, in the cases provided for by law, present to the legal entity’s representative authorisation from a judge;
b) Objects or documents are seized, and searches are carried out in the presence of the legal entity’s representative;
c) when the presence of witnesses is necessary, they can be members of the legal entity’s staff;
d) a copy of the search report is given to the legal entity’s representative.”
47. Articles 275-2781 set out the procedure for any person wanting to challenge any of the measures or decisions taken during a criminal investigation, in the event that these had harmed his or her legitimate interests (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 50, ECHR 2014).
48. The current version of the RCCP, in force since 1 February 2014, sets out the procedure for a home search in Articles 157-164. Both a prosecutor’s application for a search warrant, as well as a court’s decision itself, must contain descriptions of the location to be searched and the perpetrator or suspect who it is assumed will be present at the search location, in addition to an indication of any signs that the offence in question has been committed or of other items which are presumed to exist at the search location.
Article 158 § 9 expressly provides that a judgment authorising a search cannot be appealed.
Articles 165-166 set out in detail the procedure for a body search, enumerating that the authorities in charge of an investigation, in addition to any authority in charge of maintaining public order and security, are entitled to perform a body search if they reasonably suspect that evidence relevant to a criminal investigation is to be found. At the end of a body search, a detailed report must be written and one copy given to the person who has been searched.
Article 168 refers to a search involving IT equipment, which is to be authorised by a judge at the request of a prosecutor. The details of the procedure are essentially similar to those relevant to a home search.
49. Article 289 of the Romanian Criminal Code, as in force at the time, read:
Article 289 - Intellectual forgery
“The act of forging an official document when it is issued, committed by a civil servant (functionar) while on duty or by a person exercising a service in the public interest, by certifying untrue acts or circumstances or by intentionally omitting to insert certain data or circumstances, shall be punishable by a term of imprisonment from six months to five years.”
50. The provisions concerning the duty of professional secrecy in relation to activities carried out by accounting experts are to be found in Professional Standard No. 35: Accounting Reports, the relevant parts of which read:
II4. Professional secrecy and confidentiality of the accounting expert
“The accounting expert must respect the secrecy and confidential nature of the information to which he or she had access when producing an accounting report; he or she must refrain from disclosing such information to third parties, except when he or she has prior authorisation to do so, or if he or she has a legal or professional obligation to make such a disclosure.”
B. Decision of the Constitutional Court of 21 October 2004
51. On 10 June 2004 the Constitutional Court was seised of an application lodged by the prosecutor’s office attached to the Olt County Court challenging the constitutionality of Article 100 § 4 of the RCCP (see paragraph 46 above). It was submitted that the fact that a decision given by a judge following an application for a search warrant was not open to any appeal was in breach of Article 129 of the Romanian Constitution, which stated:
“Relevant parties and the Public Ministry may appeal against court decisions in accordance with the law.”
The prosecutor’s office submitted that a prosecutor should be entitled to challenge a court decision dismissing an application for a search warrant.
52. On 21 October 2004 the Constitutional Court dismissed the application as inadmissible. It held that a search was ordered by a judge, in accordance with the conditions and forms stipulated by the RCCP, and thus in compliance with Article 27 § 3 of the Constitution on the inviolability of domicile, stating that searches could only be ordered by a judge and carried out under the terms and forms stipulated by the law.
It held that Article 129 of the Constitution stipulated the existence of appeals, which, however, could be entertained subject to the conditions prescribed by the law, namely, in the circumstances of the case, prescribed by the RCCP; it was the exclusive power of the legislative branch to establish the rules on procedure and the jurisdiction of the domestic courts. The Constitutional Court further considered that the prosecutor’s office was not contesting the content of the impugned legal text, but rather its lack of content, namely the fact that it did not include the possibility of an appeal against a decision taken by a judge in respect of an application for a search warrant. In so far as the Constitutional Court’s role was not to amend existing legal provisions or make proposals on how to improve such texts, the application appeared inadmissible.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
53. The Government contended that the second applicant had not complied with the six-month rule as required by Article 35 § 1 of the Convention. They stated that the application addressed to the Court on 9 January 2006 had been made in the name of the first applicant and had been signed only by her. Only on 11 September 2007 had a form of authority signed by the first applicant and carrying the seal of the second applicant been appended to the case.
Furthermore, the Government argued that the second applicant had not lodged any complaints with the domestic courts.
54. The applicants disagreed. They contended that the complaints raised before the Court in respect of both the first applicant and the second had also been submitted to the domestic courts. The final national judgment had been issued on 20 October 2005 and the application had been submitted to the Court on 9 January 2006, thus within the six-month time-limit.
55. The Court observes at the outset that, in the application form, the first applicant complained of the unlawfulness of the search conducted at her home, which was also the registered office of the company she owned (the second applicant). She invoked breaches of both her rights and the rights of the company.
56. The Court notes that, according to the case file, the first document confirming the second applicant’s intention to pursue complaints before it is the form of authority of 11 September 2007, submitted more than six months after 31 January 2007, the date the Oradea District Court dismissed the last domestic complaint concerning the lawfulness of the searches (see paragraph 36 above). However, in the circumstances of the present case, the Court does not consider it necessary to examine whether the second applicant complied with the time-limit set out in Article 35 § 1 of the Convention. In this respect, it observes that both applicants are so closely linked to each other that it would be artificial to regard each as an applicant in her or its own right. In reality, the second applicant is the first applicant’s company and the vehicle for her business projects. On that basis, the Court will consider the alleged violations of the Convention from only the perspective of the first applicant (hereafter “the applicant”), there being no doubt that she can be considered a “victim” within the meaning of Article 34 (see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, §§ 29-30, Series A no. 251-B; see also Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no. 16163/90, § 21, 31 July 2003; and Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, no. 27013/10, §§ 79-80, 3 September 2015).
57. The Court further considers that there is no doubt that the applicant’s complaints were filed within the six-month time-limit set out in Article 35 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
58. The applicant complained that the search carried out at her home and business premises had infringed Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his ... home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
59. The applicant contended that the search of her home, the seizure of various items, such as “personal documents and personal notebooks which had no connection to the criminal charge against her”, and the fact that she had been prohibited from using a mobile phone during the search had breached her right to private life and correspondence, including her right to professional secrecy. She claimed that the interference had not been “in accordance with the law” for two reasons.
60. Firstly, the applicant contended that the national courts had failed to justify the necessity of the measure. Secondly, she argued that the search had not been carried out lawfully, as the limits of the warrant had been exceeded. Items belonging to the second applicant - in respect of which no warrant had been issued - had been seized, the seized computer had not been put in a sealed box, and the computer files had been falsified.
She also complained that the body search which had been carried out in respect of her purse had not been authorized.
61. The Government, for their part, submitted that if the search carried out at the applicant’s home had constituted an interference, it had been in accordance with the law, namely Articles 100-110 of the RCCP (see paragraph 46 above). The measure had been necessary, as it had related directly to the needs of the investigation, and proportionate to the legitimate aim of the prevention of crime. It had also involved appropriate procedural safeguards, being issued by a judge and therefore subjected to judicial scrutiny. The search had been based on a reasonable suspicion and its scope had been reasonably limited. Furthermore, it had been carried out in the presence of independent observers (the Government cited Iliya Stefanov v. Bulgaria, no. 65755/01, § 38, 22 May 2008).
The Government reiterated that, in the present case, the criminal investigation had been initiated against the applicant in relation to intellectual forgery charges relating to the drafting of a forensic accounting report which had proved to be essential to the outcome of a criminal case. The search had been authorised by a judge for a three-day period and had been issued on the basis of there being sufficient grounds to believe that there were items or documents possibly relevant to the criminal investigation at the applicant’s residence. The court judgment had specified which items and documents relevant to the investigation were expected to be found at the applicant’s residence.
62. Concerning the manner in which the search had been carried out, the Government argued that the limits of the search warrant had not been exceeded. The documents seized were witness statements and accounting documents related to various judicial investigations, including the investigation initiated against the applicant; the accounting documents had not had the name of the company (the second applicant) anywhere on them and had essentially been issued by the applicant in her own name. No document proving ownership of the computer had ever been provided by the applicant. Moreover, the difference between the registered office of the second applicant and the applicant’s home had not been clearly demarcated, either factually or legally, as evidenced by the signed lease contract between these parties.
63. Furthermore, in the Government’s view, the prosecutor had been entitled to carry out a body search of the suspect in accordance with Article 106 of the RCCP (see paragraph 46 above). The alleged breach of the applicant’s privacy had been kept to a minimum, as only her purse had been searched for safety reasons and investigation considerations, and only relevant items and documents had been seized.
B. The Court’s assessment
64. In the circumstances of the present case, with regard to compliance with Article 8 of the Convention, the Court considers it necessary to examine separately the prohibition on the use of the mobile phone, the body search, the alleged breach of the applicant’s right to professional secrecy, and the home search.
1. The temporary prohibition on using the mobile telephone during the home search
65. The Court reiterates its case-law to the effect that telephone calls made from business premises, as well as from the home, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997-III). Turning to the applicant’s situation, it observes that on 20 November 2005 she was indeed prevented from using her mobile phone during the search (see paragraph 26 above).
66. However, taking into account the explanations provided by the domestic authorities in relation to this measure (see paragraph 26 above), the Court is not ready to hold that the applicant’s rights under Article 8 were limited more than was strictly necessary on that occasion. The Court finds it relevant that the applicant failed to point to any specific or concrete need to use the mobile phone during the search (see, mutatis mutandis, D.D. v. Lithuania, no. 13469/06, § 181, 14 February 2012).
67. The Court finds that the applicant’s complaint regarding her being prevented from using the mobile phone is therefore manifestly ill-founded, and rejects it, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The body search
68. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Whether there was an interference
69. According to the Court’s case-law, the use of coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010, (extracts)).
70. In the present case, the Court notes that there is no dispute between the parties that the applicant’s bag was searched, and that this could constitute a “body search” under the domestic law and in accordance with the relevant practice (see paragraphs 26, 42 and 63 above). At the beginning of this search, an orange notebook was seized from the applicant’s bag, as it was believed to contain information relevant to the criminal investigations initiated against her (see paragraphs 13 and 26 above). The relevant seizure was noted in the home search report (see paragraph 16 above).
71. In view of the above, the Court considers that there has been an interference with the applicant’s right to respect for her private life, on account of the search performed on her bag. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2, and is “necessary in a democratic society” in order to achieve the aim or aims (see Smirnov v. Russia, no. 71362/01, § 37, 7 June 2007).
(b) Whether the interference was justified
72. The Court reiterates that an interference cannot be regarded as “in accordance with the law” unless, first of all, it has some basis in domestic law, this term being understood in its “substantive”, rather than “formal” sense. In a sphere covered by the written law, the “law” is the enactment in force as the competent courts have interpreted it (see Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002-III).
73. The Government maintained that the body search of the applicant had been performed in accordance with Article 106 of the RCCP, arguing that such a measure could be necessary at the start of or during a home search, for safety reasons and for the purposes of an investigation (see paragraph 63 above). The domestic authorities relied on similar arguments when dismissing the applicant’s complaint that the limits of the search warrant had been exceeded by the body search, namely the search performed on her bag (see paragraphs 26, 30, 31, 36 and 42 above).
74. The Court notes at the outset that, at the time of the search, criminal investigations had been initiated in respect of the applicant - in her capacity as an accounting expert - in relation to intellectual forgery. The home search warrant had been issued so as to ensure that important evidence relating to the offence of intellectual forgery - such as files, documents, a computer, a printer - was located (see paragraphs 11 and 12 above).
75. The Court further observes that, under the relevant domestic law in force at the material time, a body search could be carried out on the order of the authority in charge of an investigation, in compliance with specific rules (see Article 106 of the RCCP, cited in paragraph 46 above). However, the Court takes note of the fact that the warrant issued by the Oradea District Court on 20 October 2005 (see paragraph 12 above), while making general reference to the application of Articles 103-108 of the RCCP, did not mention specifically that a body search could be performed on the basis of Article 106 of the RCCP, nor did it contain any specific reasons justifying such a measure. Moreover, the prosecutor present at the search also omitted to define the purpose and scope of the body search (see paragraph 13 above).
76. The Court reiterates that reference to the pertinent law in general terms cannot replace specific authorisation of a search, delimiting its purpose and scope and drawn up in accordance with the relevant legal provisions either beforehand or afterwards (see, mutatis mutandis, Kilyen v. Romania, no. 44817/04, § 34, 25 February 2014).
78. Furthermore, while accepting that certain urgent circumstances, such as the existence of specific safety reasons, may require that particular measures, including on-the-spot body searches, be taken by the authorities in charge of an investigation at the outset of a home search, the Court considers that the Government have not put forward any convincing argument to prove the existence of such reasons in the present case.
79. The Court thus concludes that, in view of the above-mentioned considerations and in the absence of a decision adapted to the applicant’s case which would clearly indicate the purpose and scope of the body search, the interference with the applicant’s right to a private life was not “in accordance with the law” within the meaning of Article 8 of the Convention. It is therefore not necessary to examine whether the interference pursued a legitimate aim and was proportionate.
80. It follows that there has been a violation of Article 8 of the Convention on this account.
3. Professional secrecy
81. The Court notes that the applicant complained in vague and general terms before the domestic authorities that the seizure of various items from her home, namely “personal documents and personal notebooks which had no connection with the criminal charge against her”, had breached her right to professional secrecy (see paragraph 23 above). No further substantiation of the complaint, either in fact or in law, was put forward by the applicant. Before the domestic authorities, she never expressly referred to the relevant legal texts describing the circumstances in which such privilege operated (see paragraphs 45 and 50 above).
82. The Court further observes that the applicant complained to it in similar terms, without further justification or substantiation of the damage produced by the alleged breach (see paragraph 59 above). Indeed, the applicant has failed to justify, both before the domestic authorities and before the Court, why such personal documents should have been covered by accountant-client privilege.
83. In these circumstances, the Court considers that the applicant has failed to properly substantiate her complaint relating to a breach of her right to professional secrecy. It follows that this complaint must be declared inadmissible as manifestly ill-founded and rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The home search
84. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Whether there was an interference
85. The Court observes that the search and seizure of various items ordered by the judge concerned the applicant’s residential premises, where she was found to have her office and where she kept the computer and certain work-related material.
In line with its case-law on the matter, the Court considers that there has been an interference with the applicant’s right to respect for her home in the present case (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005-IV; Niemietz v. Germany, cited above, §§ 29-31; see also, mutatis mutandis, Sallinen and Others v. Finland, no. 50882/99, §§ 70-72, 27 September 2005; and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43-45, ECHR 2007-IV).
(b) Whether the interference was justified
86. The Court next has to determine whether the interference was justified under paragraph 2 of Article 8, that is, whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve that aim.
(i) Whether the interference was in accordance with the law
87. While referring to its general principles on the matter (see paragraph 72 above), the Court notes that, at the relevant time, the RCCP, namely Articles 96-111 (see paragraphs 45-46 above), contained detailed provisions regarding the seizure of objects and documents and the applicable search procedure, both in respect of a home search and a search of a legal entity’s registered office.
88. However, in the present case, the Court observes that the applicant’s objections relate primarily to the manner in which the legal framework was applied. The applicant’s arguments concerning the lawfulness of the interference being closely related to the question as to whether the “necessity” test was complied with in her case, the Court will address jointly the “in accordance with the law” and “necessity” requirements (see, mutatis mutandis, Kvasnica v. Slovakia, no. 72094/01, § 84, 9 June 2009).
(ii) Whether the interference pursued a legitimate aim
89. The Court observes that the search and seizure measures were ordered in the context of criminal proceedings against the applicant, who was suspected of having committed intellectual forgery. They therefore served a legitimate aim, namely the prevention of crime.
(iii). Whether the interference was “necessary in a democratic society”
90. In accordance with the Court’s established case-law, the notion of “necessity” implies that an interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued (see, among many other authorities, Camenzind v. Switzerland, 16 December 1997, § 44, Reports, 1997-VIII). In determining whether an interference is “necessary in a democratic society”, the Court will take into account that a certain margin of appreciation is left to the Contracting States. However, the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see, inter alia, Buck, cited above, § 44).
91. As regards searches of premises and seizures of items in particular, the Court has consistently held that Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences.
The question for the Court is whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular: whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; the circumstances in which the search warrant was issued, in particular the further evidence available at that time; whether the scope of the warrant was reasonably limited; and the manner in which the search was carried out, including the presence of independent observers during the search in order to ensure that materials subject to professional secrecy were not removed (see, inter alia, Smirnov, cited above, § 44, and, mutatis mutandis, Sher and Others v. the United Kingdom, no. 5201/11, § 172, ECHR 2015 (extracts)).
(α) The granting and terms of the order
92. Turning to the present case, the Court notes at the outset that the search and seizure complained of were based on a warrant issued by a judge at the request of the authority in charge of the investigation, namely the prosecutor (see paragraphs 11-12 above). The Court does not consider that the fact that the warrant was obtained in an ex parte procedure was problematic in itself (see, for instance, Iliya Stefanov, cited above, § 39).
However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not, in itself, necessarily amount to a sufficient safeguard against abuse. Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004).
93. In that respect, the Court observes that the application was formulated in the context of criminal proceedings which had been initiated against the applicant in relation to a suspected offence of intellectual forgery; it contained reasons and referred to specific evidence which was to be located and seized (see paragraph 11 above). The Oradea District Court examined the application and the evidence relied on by the prosecutor, and considered it to have a proper basis, including in respect of the existence of a reasonable suspicion, therefore allowing it as formulated. In this context, it is noteworthy that the relevant legislation at the time, namely Article 100 of the RCPP (see paragraph 46 above), did not require a warrant to include an enumeration of objects which were presumed to exist at a search location and which needed to be seized.
In the circumstances described above, the Court finds no valid reason to question the domestic courts’ assessment of the case and their conclusion that, at the material time, the search warrant was based on a reasonable suspicion. The fact that the applicant was eventually acquitted years later cannot change that assessment (see, for instance, Robathin, cited above, § 46).
94. Furthermore, noting that the warrant was issued for a short period of time and referred to specific evidence to be seized, namely the computer, the printer and the documents on which the second forensic accounting report was based (see paragraphs 11 and 12 above), the Court considers that the scope of the warrant was reasonably limited (see, by contrast, Smirnov, cited above, § 47).
(β) The execution of the order
95. There remains the question of whether the actual execution of the search warrant can be regarded as “necessary” and, in particular, proportionate to the legitimate aim pursued.
96. The Court notes at the outset that the search was carried out in the presence of the applicant, two witnesses - who were the applicant’s neighbours - and the applicant’s defence counsel (see paragraph 15 above). An IT specialist was part of the investigative team that performed the search (see paragraph 13 above). According to the search report drawn up at the end of the search, all the items seized were listed and sealed.
97. While the applicant argued that the sealing procedure was defective, especially in respect of the computer (see paragraph 23 above), in the absence of any proper substantiation of that claim, the Court is bound by the domestic courts’ assessments in that respect, which all agree that the sealing was correct. Moreover, the Court observes that no objection was made at the time of the search by the applicant or her lawyer, either in respect of the search itself, or in relation to the sealing procedure or the objects which were seized (see paragraph 18 above).
98. The Court also notes that the unsealing of the computer and its actual search took place in accordance with a different search warrant issued at a later date, namely on 18 November 2005. When this latter warrant was executed, the applicant and her lawyer refused to be present during the unsealing and search procedure (see paragraph 21 above).
99. Under these circumstances, the Court considers that they implicitly but unequivocally waived an important guarantee offered to them by the domestic legal system (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 202, ECHR 2007-IV), which would have allowed them to perform an ex post facto check of the content of the computer in order to reveal any possible manipulation of the relevant files.
100. Furthermore, even assuming that the applicant has properly pursued before the domestic authorities her allegations that the IT data seized on 21 October 2005 was falsified and altered before the search of the computer of 21 November 2005 (see paragraphs 21, 33 and 43 above), these allegations were never found to be substantiated (see paragraphs 27, 31 and 36 above).
101. In any event, the Court considers that, in relation to the particular complaints regarding the sealing of the computer and the alteration of its files, the salient issue essentially concerns the use of allegedly unlawfully obtained evidence in criminal proceedings, rather than a breach of Article 8 rights. As indicated by the domestic courts and the Constitutional Court (see paragraphs 30 and 35 above), in such a situation, once she was indicted, the applicant had the opportunity to contest the impugned measures and their impact on her rights throughout the criminal proceedings.
102. Finally, in the present case, the applicant had a remedy in the form of an ex post facto judicial review claim in respect of the manner in which the home search order was executed (see, by way of contrast, Iliya Stefanov, cited above, § 44).
The Court notes that all of the applicant’s complaints concerning the circumstances in which the home search was carried out on 21 October 2005 were examined by the domestic courts in three separate sets of proceedings (see paragraphs 30-36 and 42 above). The judgments, which relied on the relevant domestic legislation in force at the material time, were fairly reasoned.
103. In these circumstances, the Court is unable to arrive at a different conclusion to that of the domestic authorities. It reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see Chappell v. the United Kingdom, 30 March 1989, § 54, Series A no. 152-A).
104. To conclude, the Court considers that the decision authorising the search of the applicant’s home was based on relevant and sufficient reasons, and was attended by adequate safeguards against abuse and arbitrariness. The Court therefore does not regard either the home search measure itself or the manner in which it was carried out, including the seizure of various items other than the orange notebook (see paragraph 77 above), as disproportionate to the aim pursued.
It follows that no breach of Article 8 has been established in the circumstances of the present case in respect of the search carried out at the applicant’s home and of the seizure of other various items on 21 October 2005.
III. ALLEGED VIOLATION OF ARTICLE 13, TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
105. The applicant argued that she did not have an effective remedy in respect of her complaints related to the home search. She invoked Article 13 of the Convention in this respect, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
106. The applicant complained of a violation of her right to an effective remedy, as Romanian law did not provide for an appeal against the decision allowing the home search. She claimed that she had exhausted all existing avenues, none proving to be effective in respect of her complaints under Article 8.
107. The Government admitted that no appeal lay against the home search measure itself. However, the manner in which the measure had been carried out could be challenged before a court. Furthermore, the applicant had had the opportunity to raise any objections concerning the legality of the evidence collected during the home search before the criminal court.
The Government further submitted that the applicant could have lodged criminal complaints against the officers in question in relation to unlawful trespass on property or abuse of office. She could also have brought tort claims against the officers responsible if the search had been unlawfully ordered or executed.
B. The Court’s assessment
108. The effect of Article 13 is to require the provision of a remedy at national level which allows the competent domestic authority to both deal with the substance of a relevant Convention complaint and grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Camenzind, § 53 and Ilyia Stefanov, § 56, both cited above).
109. Having regard to its findings under Article 8 in relation to the search of the applicant’s home and the seizure of various items (see paragraph 84 above), the Court considers that the complaint in this respect was arguable. Accordingly, it finds that the applicant’s grievance under Article 13, relating to the lack of an effective remedy in this respect, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.
110. The Court recalls at the outset that the issue of the warrant was subject to an a priori judicial scrutiny in a procedure providing sufficient safeguards against abuse and arbitrariness (see paragraph 104 above).
111. However, neither now, nor at the material time, did any provision of the RCCP set out any procedure whereby a person could contest a search measure itself or its necessity.
112. The Court reiterates its established case-law on the matter: the notion of an effective remedy in this context does not presuppose the possibility of challenging the issuing of a warrant prior to a search (see, mutatis mutandis, Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002-VIII and Ilyia Stefanov, § 59, cited above).
113. Furthermore, the Court notes that both the lawfulness of the search measure in question and the manner in which it was executed could be challenged before the domestic courts, either before indictment (via a challenge to the measures taken by the prosecutor), or afterwards (before the court seized of the criminal case). The domestic courts were entitled to check the legality of all procedural acts and measures taken in the earlier stages of the investigation (see, by contrast, L.M. v. Italy, no. 60033/00, §§ 41-47, 8 February 2005, where the applicant had no remedy available to contest either the search measure, or the fact that it had not been validated a posteriori by the Prosecutor’s Office, as prescribed by the relevant domestic law, in so far as no items had been seized during the search).
114. The Court takes particular note of the fact that the domestic courts, including the Constitutional Court, referred to the applicant’s opportunities to challenge, before the courts called upon to decide on the merits of the charges against her, any impugned measure taken during the criminal investigation, including with reference to the search and the manner in which it was executed (see paragraphs 30 and 35 above).
In fact, this is what the applicant did in challenging the impugned measure and its manner of execution before the domestic courts in three separate sets of proceedings. In this context, the Court attaches particular importance to the fact that, in the second set of proceedings, the domestic courts held that she had expressly stated that she agreed with the measure, but not the manner in which it had been carried out (see paragraph 33 above; see also, mutatis mutandis, Giuttari v. Italy (dec.), no. 42733/07, §§ 33 and 45, 2 December 2014).
The applicant’s claims were duly assessed by the courts, in compliance with the relevant legislation. Furthermore, the evidence seized during the search was examined and relied on by the courts in their acquittal decision (see paragraph 39 above).
115. At the same time, the Court observes that the applicant has not filed any tort claim under general tort law seeking compensation for the allegedly unlawful search.
116. In view of the above, the Court considers that the applicant did have at her disposal sufficient remedies capable of offering redress for her complaints relating to the search and seizure of various items on 21 October 2005.
There has therefore been no violation of Article 13 taken in conjunction with Article 8 of the Convention, in relation to the search carried out at the applicant’s home and the seizure of various items.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
117. Lastly, the applicant complained under Article 6 of the Convention of several issues relating to the criminal proceedings against her.
118. However, in the light of 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
119. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
120. The applicant claimed 412.07 euros (EUR) in respect of pecuniary damage, which corresponded to the value of the seized computer and printer. She further claimed EUR 10,000 in respect of non-pecuniary damage.
121. The Government contested these claims. They further argued that the finding of a violation would constitute sufficient just satisfaction.
122. The Court notes that it has found no violation of the Convention in respect of the seizure of the applicant’s computer and printer. There is therefore no reason to award her the pecuniary damage claimed in this respect; hence it rejects this claim. However, the Court accepts that the breach of the applicant’s right to a private life must have caused her distress. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in compensation for non-pecuniary damage.
B. Costs and expenses
123. The applicant also claimed EUR 2,432.67 for costs and expenses incurred before the domestic authorities.
124. The Government contested these claims, submitting that they were not properly supported by evidence.
125. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and ruling on an equitable basis, the Court considers it reasonable to award the applicant the sum of EUR 500 for costs and expenses incurred in the domestic proceedings.
C. Default interest
126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible in respect of the search performed on the applicant’s bag, the home search, and the seizure of various items on 21 October 2005, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention in respect of the search performed on the applicant’s bag, which included the seizure of an orange notebook;
3. Holds that there has been no violation of Article 8 of the Convention in respect of the home search and the seizure of other various items on 21 October 2005;
4. Holds that there has been no violation of Article 13, taken in conjunction with Article 8 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli András