European Court of Human Rights

In the case of 'Etica' Professional Public Notary Organisation v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus KÅ«ris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 3 July 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 43190/10) 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 legal entity, the "Etica" Office of Associated Public Notaries ("the applicant organisation"), on 17 June 2010.

2. The applicant organisation was represented by Mr D.O. Rădulescu (hereinafter referred to as D.O.R.), one of the members of the applicant organisation. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.

3. The applicant organisation alleged that the unlawful entry of police officers onto its premises and their subsequent actions had impinged on its duty of professional secrecy and had breached its right to private life, home and correspondence, as protected by Article 8 of the Convention. In addition, the applicant organisation alleged that the unlawful seizure by the police officers of fees and taxes belonging to it had amounted to a breach of its property rights, as protected by Article 1 of Protocol No. 1 to the Convention.

4. On 1 September 2015 the application was communicated to the Government.

5. On 4 March 2016 the applicant organisation informed the Court that it had changed its name to the "Etica" Professional Public Notary Organisation.

6. The Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant organisation is a public notary professional association and has its main office in Bucharest.

A. The background to the case

8. According to the applicant organisation, on 13 December 2007 approximately thirty police officers dressed in civilian clothes entered its premises. They informed a receptionist that they were clients. The receptionist asked them to leave the premises and to wait outside, but they refused.

9. Eventually two of the officers disclosed their identity and the fact that they were police officers and proceeded to seize an original sale contract that had been signed by two private parties and had been notarised by D.O.R. One of the private parties in question was suspected by the police of being part of an organised criminal group involved in immovable property fraud.

10. The police officers also seized a number of documents, including the sale contract and original documents concerning the aforementioned private parties. Moreover, the police officers seized the fees and taxes that had been paid by the private parties for the services rendered by the applicant organisation. Furthermore, the police officers took statements from the applicant organisation's employees.

11. According to the report produced and signed by the two police officers on the same date, they seized 8,943 euros (EUR), the amount paid in income tax by the private party selling the immovable property, and EUR 1,000 and 12,215 Romanian Lei (RON - approximately EUR 3,470), representing public notary fees and the applicable tax for the registration of the sale in the immovable property register.

B. Criminal proceedings brought by the applicant organisation against two police officers

12. On 23 April 2008 the applicant organisation, legally represented by D.O.R., brought criminal proceedings against the two police officers (see paragraph 9 above) for unlawful home intrusion and abuse of office against private interests. Furthermore, it asked for the report produced by the police officers on the day of the incident to be annulled and for the original documents and for the relevant fees and taxes seized to be returned.

13. On 27 March 2009 the Bucharest prosecutor's office noted that the police officers had seized the relevant documents and sums of money without an express order to do so having been issued by the prosecutor charged with the case because the police officers had at the time been carrying out an operational mission aimed at catching suspects red-handed in the commission of an offence. Moreover, according to the available evidence, an official order from the prosecutor would in any case not have been necessary in this regard because the seized documents and sums of money had been turned over to the officers without any objections.

14. On 11 August 2009 a prosecutor attached to the Bucharest Prosecutor's Office discontinued the criminal investigation opened against the two police officers on the grounds that no unlawful act had been committed. She held that the police officers had acted within the context of a criminal investigation initiated against an organised criminal group involved in immovable property fraud. A large number of police officers had been mobilised for an operation aimed at catching the suspects red-‘handed. The two police officers had entered the premises of the applicant organisation, disclosed their identity and the fact that they were police officers, and proceeded to seize the relevant documents and fees. Consequently, the police officers had acted in their professional capacity in order to fulfil their professional duties and with the aim of investigating cases they had been working on. Their presence on the applicant organisation's premises had not amounted to the offence of unlawful home intrusion because the premises of the applicant organisation constituted by their nature a public area and the event in question had occurred during working hours. Moreover, the elements of the offence of abuse of office against private interests had not been met. Consequently, no damage had been caused given that the valuables seized by the officers had concerned the commission of offences.

15. The applicant organisation challenged the prosecutor's decision before the superior prosecutor attached to the Bucharest Prosecutor's Office.

16. On 31 August 2009 the superior prosecutor dismissed the applicant organisation's challenge as ill-founded.

17. On 21 September 2009 the applicant organisation lodged an appeal against the prosecutor office's decisions with the Bucharest Court of Appeal. It argued, among other things, that the police officers had entered its premises in breach of Article 27 § 2(b) of the Romanian Constitution (see paragraph 32 below). They had not been seeking to protect other people's property and in any event they could have done that by taking property preservation measures (that is to say take measures to prevent the re-sale or use of the property - indisponibilizarea bunului). Moreover, the two above-mentioned police officers had entered the premises accompanied by their colleagues and had remained there outside the applicant organisation's working hours. Also, they had unlawfully seized the public notaries' professional fees and returned them to the private party who had been the victim of the alleged fraud. Furthermore, they had failed to include in the report produced on the day of the incident the applicant organisation's objections against (i) the police officers' presence on its premises, (ii) the seizure of fees and (iii) the questioning of its staff members, who had been bound by rules concerning professional secrecy.

18. On 2 November 2009 the Bucharest Court of Appeal dismissed the applicant organisation's appeal and upheld the prosecutor office's decisions. It considered that the two police officers, accompanied by other colleagues, had carried out an operational mission seeking to catch suspects red-handed in the commission of an offence and to gather evidence. In this connection they had surveyed the suspected criminal group and after a sale contract had been signed, they had asked D.O.R. to turn over all the documents and sums of money connected to the sale. D.O.R. had relinquished all the documents connected to the sale contract in question and the relevant public notaries' professional fees and taxes without any objection.

19. With regard to the lawfulness of the police officers' presence on the applicant organisation's premises, the court held that the said premises did not constitute a home, room, annex or closed area attached to a home or a room and that entering such premises had therefore not constituted the offence of unlawful home intrusion. It considered that in classifying the latter act as an offence, the legislature had been concerned only with entering or refusing to leave areas which were closely connected to a person's private life and where the person concerned conducted activities away from the eyes of the public which were closely related to his or her personal life. A public notary's office did not comply with the aforementioned criteria because it was a place for a professional activity, open to the public during working hours and designed for a public activity. Moreover, the relevant domestic legislation concerning public notaries did not impose on interested individuals special rules in respect of entering a public notary's office. The two police officers' presence on the applicant organisation's premises had not constituted any other offences either. They could have protected the victims' property by taking property preservation measures only after establishing that an offence had been committed.

20. The court also held that the seizure of the relevant documents and sums of money had been justified and lawful because they amounted to evidence which could be used in criminal proceedings and could clarify the circumstances of a criminal case. In addition, D.O.R.'s statement that the police officers had failed to mention his objections in the report produced on the day of the incident was relatively untrustworthy, given that as a public notary he was aware that he could have asked for any objections voiced by him to be included in the report; otherwise he could have refused to sign the said report.

21. The court furthermore held that the police officers who had asked the employees of the applicant organisation to give statements had not breached the relevant domestic rules concerning professional secrecy because the information provided by the said employees with regard to the commission of an offence had not amounted to them being formally heard as witnesses in the case. Moreover, the domestic rules concerning professional secrecy applicable to employees of a public notary's office had not prevented them from providing relevant information or from allowing access to documents to anyone proving a legitimate right or interest, such as police officers exercising their professional duty.

22. The court concluded that the applicant organisation was mainly unhappy with the fact that the sale contract and the public notaries' professional fees seized by the police officers had been returned to the alleged victims of the offence and not to the organisation. The court considered, however, that such a measure could not be contested by way of an appeal against the prosecutor office's decisions but rather by a complaint lodged with the prosecutor's office against the acts and measures taken by the police officers.

23. The applicant organisation appealed on points of fact and law (recurs) against the judgment and reiterated in part the arguments raised before the first-instance court. In addition, it argued, inter alia, that according to the Court's case-law the fact that the police officers had entered its premises and subsequently had refused to leave amounted to a breach of its rights, as guaranteed by Article 8 of the Convention. The operation had not concerned the commission of an offence, as the sale contract validated by the applicant organisation had not been a forged one. The statements given by its employees could not be categorised as mere information and had in fact amounted to witness testimony. According to the relevant rules concerning professional secrecy, only specially assigned magistrates could access public notary documents and police officers could therefore not be considered to constitute persons who could legitimately justify such access. Also, the first-instance court's finding that the applicant organisation could have vented its discontent with the unlawful seizure of its fees by the police officers by means of a complaint against the acts and measures taken by the police officers (rather than by means of a criminal complaint lodged against the perpetrators - see paragraph 22 above) had amounted to a breach of its right of access to court.

24. By a final judgment of 25 January 2010 the High Court of Cassation and Justice dismissed the applicant organisation's appeal on points of fact and law and upheld the decisions of the prosecutor's office and the judgment of the first-instance court. It held, among other things, that the police officers had acted within the context of a criminal investigation and in their professional capacity. According to the relevant criminal procedure rules, police officers were entitled and had a duty to carry out operations seeking to identify and investigate unlawful acts and to gather and seize relevant evidence. Furthermore, any natural and legal person had a duty to turn over impugned evidence. The applicant organisation's submissions that the police officers had entered its premises outside working hours and had acted unlawfully in seizing the relevant documents, taxes and fees were unsubstantiated.

C. Other relevant information

25. On 15 January and 11 June 2008 - within the framework of the criminal investigation initiated by the domestic authorities against the organised criminal group allegedly involved in immovable property fraud - the applicant organisation lodged a complaint with the Bucharest Prosecutor's Office in respect of the acts and measures taken by the police officers. It asked the prosecutor's office to quash the acts and measures taken by the police officers and to order the return of the original documents produced by the applicant organisation and of the relevant fees and taxes seized by the police officers. In addition, it stated that if the prosecutor's office refused to order the return of the relevant fees the applicant organisation would join the criminal proceedings opened against the criminal group as a civil party.

26. On 8 July 2010 the Bucharest Prosecutor's Office informed the applicant organisation that the criminal case in question had been referred to the domestic courts which had the authority to examine its requests.

27. On 3 August 2010 the applicant organisation informed the Bucharest County Court that it had joined as a civil party the criminal proceedings opened by the domestic authorities against the organised criminal group allegedly involved in immovable property fraud. It asked the court to order the return of the original documents produced by the applicant organisation and to order the defendants to return the relevant fees and taxes seized by the police officers and to pay compensation for non-pecuniary damage.

28. On 30 November 2010 the Bucharest County Court convicted the members of the organised criminal group involved in immovable property fraud and annulled the sale contract validated by the applicant organisation. In addition, it dismissed the applicant organisation's requests for the return of the original documents produced by it and the relevant fees and taxes on the grounds that the documents in question had been annulled and the relevant fees and taxes returned to the private party who had sold the property and who had been the victim of the offences committed by the criminal group. Moreover, the applicant organisation had not proved that it had suffered non-pecuniary damage.

29. The applicant organisation appealed against the judgment.

30. On 17 November 2011 the Bucharest Court of Appeal dismissed the applicant organisation's appeal. It held, inter alia, that if the applicant organisation considered that it had suffered some damage following its validation of the subsequently annulled sale contract, it could initiate proceedings in tort before the civil courts and prove the alleged damage. Given the offences which were the object of the criminal case at hand, the applicant organisation could not be awarded damages within the framework of the criminal proceedings.

31. There is no evidence in the file that the applicant organisation appealed on points of fact and law against the judgment of the second-‘instance court.

II. RELEVANT DOMESTIC LAW

32. Article 27 of the Constitution provides among other things that no one can enter or remain in a person's domicile or residence without that person's consent. Exceptions may be made under the law for situations concerning the prevention of threats to a person's life, physical integrity or property.

33. Articles 96, 97, 99 and 202 of the former Code of Criminal Procedure provided, among other things, that investigating authorities had to seize objects and documents which might serve as evidence in a criminal trial. Any legal or natural person had a duty to turn over any such objects or documents upon the request of the investigating authorities. If the object or document was confidential or secret, it had to be turned over in such a manner as to preserve its secrecy or confidentiality. The investigating authorities had to gather the information and evidence necessary for solving a case, and they could order the forcible seizure of the object or document sought in the event that it was not turned over voluntarily.

34. Article 29 of the Rules of Law no. 36/1995 on public notaries, as in force at the time, provided that the duty of public notaries and of staff members of public notary offices to preserve professional secrecy prohibited them from providing information and granting access to public notary documents to other individuals except for the parties involved, their heirs or legal representatives, or those who could demonstrate a right or a legitimate interest. A public notary called to testify before an investigating authority could be exempted from the obligation to preserve professional secrecy only by those with an interest under the law in preserving the secret. The original documents kept in the public notary office's archives could be accessed by a magistrate assigned for this purpose by the relevant judicial authority. If the original documents were investigated in respect of suspected fraud they could be seized and if declared forged they could be kept in the case file. The judgment or the prosecutor's order declaring the documents forged had to be communicated; otherwise the document had to be returned.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

35. The applicant organisation complained that the entry of police officers onto its premises and the seizure of documents, public notary fees and taxes, as well as the questioning of its staff members, were unlawful, had impinged on its duty of professional secrecy and had breached its right to home, private life and correspondence under Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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. Admissibility

1. The Government's objection of non-exhaustion of domestic remedies

36. The Government argued that the applicant organisation had initiated domestic proceedings only against two of the police officers and that it had failed to complain to the domestic authorities of the alleged abuses perpetrated by the other police officers. Consequently, the part of the applicant organisation's complaint concerning the other police officers was inadmissible for non-exhaustion of domestic remedies.

37. The applicant organisation did not submit observations on this point.

38. The Court reiterates the general principles concerning the exhaustion of domestic remedies summarised in the case of Gherghina v. Romania ([GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).

39. In the instant case, the Court notes that the applicant organisation opened formal domestic court proceedings against only two of the allegedly thirty police officers who were present on or around its premises. The Court furthermore notes that it is not disputed by the Government that had they been successful, the criminal proceedings opened by the applicant organisation against the two police officers would have provided it with some form of redress for the alleged breach of its rights.

40. In these circumstances, the Court finds it irrelevant that the applicant organisation initiated the aforementioned proceedings only against a small number of police officers and not against all of them.

41. It follows that the Government's preliminary objection of non-‘exhaustion of domestic remedies must be dismissed.

2. The Government's objection of incompatibility ratione materiae

42. The Government contended that according to the available evidence, the police officers did not carry out a search of the applicant organisation's premises within the meaning of the criminal procedure rules. Furthermore, the police officers did not enter the offices of the public notaries, and even when collecting the relevant evidence they remained in the waiting area, which was open to the general public. Given that the police officers were not present at the signing of the sale contract behind closed doors, Article 8 of the Convention was not applicable to the instant case in so far as it concerned the applicant organisation's right to respect for its home.

43. The applicant organisation argued that according to the Court's case-law, Article 8 of the Convention was applicable to cases where a person's office was searched on the basis of a general order issued by a prosecutor's office or where objects found in that office were seized.

44. The relevant principles concerning the scope of Article 8 of the Convention in respect of circumstances involving the presence of State authorities on the premises of an organisation or company and the seizure of documents and data are set out in Bernh Larsen Holding AS and Others v. Norway (no. 24117/08, § 104, 14 March 2013).

45. Turning to the particular circumstances of the present case, the Court observes that on 13 December 2007 a significant number of police officers surrounded and entered the premises of the applicant organisation and asked D.O.R. to provide access to and to turn over all relevant documents, fees and taxes connected to an immovable property sale contract which had been concluded by two private parties and had been notarised by D.O.R. Moreover, it is undisputed by the parties that the police officers seized the aforementioned relevant document, fees and taxes and used them as evidence in criminal proceedings initiated by the domestic authorities against one of the aforementioned private parties. Furthermore, they questioned some of the applicant organisation's staff members with regard to matters concerning the signing of the sale contract (see paragraphs 8-“10 above).

46. The Court also observes that under the relevant criminal procedure rules the disputed measure was aimed at collecting the information and evidence necessary for solving a criminal case. It was not equivalent to a search and was not enforceable on pain of criminal sanctions. However, the applicant organisation was nonetheless under a legal obligation to comply with the police officers' demands to enable such access and to turn over the relevant documents, fees and taxes, and the said officers were legally allowed to forcefully seize objects or documents which were not turned over voluntarily (see paragraph 33 above).

47. In spite of the Government's submissions, the Court considers - given the applicant organisation's legal obligation to comply with the police officers' demands - that the police officers' presence on its premises, the questioning of its staff and the seizure of the relevant documents and valuables constituted an interference with its "home" and "correspondence" within the meaning of Article 8 of the Convention.

48. It follows that the Government's preliminary objection of incompatibility ratione materiae must be dismissed.

3. The Government's objection of incompatibility ratione personae

49. The Government argued that the applicant organisation had not submitted a valid application to the Court and that therefore the case had to be dismissed as incompatible ratione personae with the Convention provisions. They argued that the application had been lodged by the applicant organisation and that the application form had been signed only by D.O.R., who acted as the organisation's representative. However, the seal of the applicant organisation had not been affixed to the application form and D.O.R. had failed to submit a power of attorney proving that he was the representative of the applicant organisation. According to the available information, the applicant organisation was a professional association of three public notaries, including D.O.R. Consequently, in the absence of proof of D.O.R.'s official authorisation, the application to the Court was not the result of the applicant organisation actually and validly exercising its right of individual petition.

50. The Government submitted that neither D.O.R. nor the other two members of the professional association had lodged complaints before the Court on their own behalf. In this context, it could not be inferred that the situation of one of the members of the professional association, acting only as the organisation's representative, could be confused with the situation of the organisation itself.

51. The applicant organisation argued that it had submitted a valid application to the Court. D.O.R. had signed the application form both on his own behalf and as a representative of his two daughters, who were the other two members of the professional association. The written submissions made before the Court after the case was communicated to the Government and which had been signed by D.O.R. and his daughters constituted a confirmation that the latter had empowered D.O.R. to act also on their behalf. Assuming that D.O.R. could not be considered to be a representative in this case, this would mean that he had not held this status before the two police officers either. Consequently, this would constitute an additional argument for the applicant organisation's fees to be returned.

52. The applicant organisation contended that in any event, under the relevant domestic civil procedure rules, the application could have been signed at any stage of the proceedings before a court.

53. The Court notes that according to the available information the applicant organisation is a professional association of three public notaries, comprising D.O.R. and his two daughters. Moreover, it notes that the application was lodged by the applicant organisation and that the application form was signed only by D.O.R., who acted as the organisation's representative. Furthermore, it notes that the application form did not bear the applicant organisation's official stamp and that D.O.R. had not submitted a power of attorney proving that he was the representative of the applicant organisation.

54. The Court observes, however, that according to the available evidence D.O.R. acted as the applicant organisation's sole legal representative throughout the criminal proceedings initiated by the organisation before the domestic authorities. Moreover, the written submissions made to the Court after the case was communicated to the Government were signed both by D.O.R. and his daughters and confirmed that the latter had empowered D.O.R. to act also on their behalf.

55. In these circumstances, the Court cannot endorse the Government's arguments that the mere presence of D.O.R.'s signature on the application did not amount to the actual and valid exercising of the applicant organisation's right of individual petition.

56. It follows that the Government's preliminary objection of incompatibility ratione personae must be dismissed.

4. The Government's objection that the complaint is manifestly ill-‘founded

57. The Government submitted that the police officers had seized only the documents and valuables which were closely connected to the offence in progress. Moreover, there was no statement by D.O.R. or by the applicant organisation's employees attached to the domestic criminal case-file. Consequently, the Government considered that the domestic authorities had not breached the applicant organisation's and its staff members' right to preserve professional secrecy. Therefore, this part of the application was manifestly ill-founded.

58. The applicant organisation did not specifically comment on this point.

59. The Court considers that the preliminary objection raised by the Government is so closely linked to the substance of the applicant organisation's complaint that it must be joined to the merits (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 142, ECHR 2017).

B. Merits

1. The parties' submissions

(a) The applicant organisation

60. The applicant organisation submitted that under the relevant criminal procedure rules police officers did not have authority to carry out a criminal investigation concerning acts undertaken by public notaries. It was the Prosecutor's Office attached to the Bucharest Court of Appeal which had authority in that regard. The police officers had acted in the absence of any order being issued by a prosecutor. Moreover, the applicant organisation had objected to the seizure of documents and sums of money. However, the two police officers who had remained on the applicant organisation's premises long after working hours had ended had informed its staff members that they had to accompany them to the police station and would have to wait there until the officers obtained a court seizure order.

61. The two police officers had taken witness statements from two of the applicant organisation's staff members, even though the latter had been bound by professional secrecy. Moreover, the sale contract validated by the applicant organisation had been valid in itself. It had been annulled only because the previous sale contract that had been signed with regard to the same property had been unlawful.

62. The police officers had not been aimed at catching suspects red-‘handed in the commission of an offence as that offence had already been committed as a result of the repeated sale of the same property. Moreover, the police officers had not remained only in the area of its premises which was open to the public, as the documents and sums of money had not been stored in this area.

63. The applicant organisation submitted that the interference with its rights had been neither necessary nor proportionate. Moreover, a retroactive judicial review could not substitute a preliminary authorisation for the police officers' actions, which had been mandatory.

(b) The Government

64. The Government submitted that the acts and measures taken by the police officers had been prescribed by law and had pursued a legitimate aim - specifically, the protection of public order, the prevention of offences and the protection of the rights of others.

65. The measures taken by the police officers had been proportionate to the aim pursued. Their mission had been to discover evidence which could prove decisive for a criminal investigation concerning serious offences. They had seized only a small number of documents and valuables, and only those which had been closely connected to the offence in progress. Moreover, they had entered the premises of the applicant organisation during working hours and had remained in the waiting area. In these circumstances, the police officers had not been required to obtain a warrant issued by a judge. Moreover, D.O.R. had turned over the relevant documents and sums of money without any objection.

66. The applicant organisation had brought criminal proceedings against two of the police officers and the domestic courts had examined the merits of its complaint and had dismissed it as ill-founded. Consequently, although the police officers' actions had not been subject to a preliminary judicial review, they had been subject to a retroactive one.

2. The Court's assessment

67. In the instant case the Court notes that it has already been established that the actions and measures taken by the police officers while they were present on the applicant organisation's premises amounted to an interference with its home and correspondence (see paragraph 47 above).

68. In so far as the applicant organisation argued that the acts and measures undertaken by the police officers had also amounted to an interference with its right to respect for private life, the Court can accept that the seized documents might have contained some personal information about the employees of the organisation. However, no such individual complained of an interference with his or her private life, either before the national courts or before the Court. In the absence of such a complaint, the Court does not find it necessary to determine whether there has been an interference with "private life" in the instant case (see, mutatis mutandis, Petri Sallinen and Others v. Finland, no. 50882/99, § 72, 27 September 2005).

69. Next, it is to be assessed whether the interference with the applicant organisation's rights 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.

70. In this connection the Court notes that, according to the domestic courts, the actions and measures taken by the police officers fell within the scope of the powers granted to them by Articles 96, 97, 99 and 202 of the former Code of Criminal Procedure (see paragraph 33 above) governing their investigative powers in respect of the collection of evidence needed to solve criminal cases. This interpretation of domestic law is neither arbitrary nor manifestly unreasonable, and it is therefore not for the Court to question it (see Radomilja and Others c. Croatia [GC], no. 37685/10, § 149, 20 March 2018). Moreover, in the absence of any concrete evidence in the file attesting to the fact that D.O.R. objected to the actions and measures taken by the police officers, the applicant organisation's arguments that the police officers were not competent to enter its premises and to have access to documents in the absence of a prosecutor's order (see paragraph 60 above) do not have a foundation in domestic law. The Court therefore concludes that the police officers were authorised to act in line with the powers granted to them by the pertinent domestic legislation and that the interference was "in accordance with the law".

71. The Court furthermore notes that the purpose of the interference with the applicant organisation's right to respect for their premises and correspondence was to obtain evidence of immovable property fraud committed by certain private parties. The interference was in the interests of both "the prevention of crime" and "the protection of rights and freedoms of others". It therefore served a legitimate aim.

72. Consequently, it remains to be determined whether the interference was proportionate and may be regarded as necessary for achieving those aims.

73. The Court notes that the police officers' presence on the applicant organisation's premises was not related to any potential suspicion or criminal investigation initiated against the applicant organisation or against its employees. The purpose of the operation was to make sure that evidence relating to the criminal investigation initiated against a private party was gathered and secured.

74. The Court also observes that the police officers' presence on the applicant organisation's premises, the questioning of its staff members and the seizure complained of were not based on any express order issued by a prosecutor (see paragraph 13 above). In addition, the domestic legislation and practice did not seem to call for any form of preliminary judicial review of the police officers' actions in circumstances such as those concerning the applicant organisation. Indeed, under the relevant domestic legislation and the findings of the domestic courts it would appear that the police officers would have had to obtain an order issued by a prosecutor only if the representative of the applicant organisation (that is to say D.O.R.) had refused to comply with the officers' demands (see paragraphs 13, 18 and 33 above).

75. In this connection, the Court notes that in spite of the allegations of the applicant organisation's representative to the contrary (see paragraph 20 above), it has already been established that there is no concrete evidence in the file attesting to the fact that he objected to the acts carried out and the measures taken by the police officers (see paragraph 70 above).

76. The Court can accept that certain urgent circumstances may require that particular measures may be taken by the investigating authorities without any prior authorisation in order to ensure the proper investigation of a criminal case (see, mutatis mutandis, Gutsanovi v. Bulgaria, no. 34529/10, §§ 221-222, ECHR 2013). Whether the respective conditions were met in the instant case, seems questionable. However, even assuming that this was the case, the Court is concerned that the provisions of the former Code of Criminal Procedure in force at the material time did not provide for access to a specific judicial remedy aimed at providing an ex post facto challenge to acts and measures carried out by police officers (ibid, §§ 221-222) in respect of natural or legal persons finding themselves in a position similar to that of the applicant organisation, that is to say persons who were not actual parties to criminal investigation proceedings from which arose a need for the collection of evidence. This is particularly striking given that even in the event of an objection against the acts and measures taken by the police officers and an order issued by the prosecutor, it does not appear that under the provisions of the former Code of Criminal Procedure the applicant organisation would have been able to challenge the aforementioned prosecutor's order before the domestic courts. In these circumstances, the availability of such an ex post factum judicial review in order to counterbalance the absence of a prior judicial warrant, becomes especially important.

77. It is true that the applicant organisation was able to obtain a review of the acts and measures taken by the officers within the context of the criminal proceedings initiated against two of them. However, the Court notes that the examination carried out by the domestic courts during the these proceedings was based on a narrow definition of the term "home", was rather concerned with the potential commission of a criminal offence by the police officers and was focused on the lawfulness and the legitimacy of the police officers' actions, without giving any in-depth consideration to the proportionality of the impugned actions and measures. The Government have not shown that this ex post factum review was efficient and able to counterbalance the absence of a prior judicial order (see Gutsanovi, cited above, § 222, and Smirnov v. Russia, no 71362/01, §§ 45 and 47, 7 June 2007).

78. In the light of the above, the Court finds that it cannot be said that the interference in question was attended by adequate safeguards against abuse and arbitrariness to the extent that it can be inferred that it was strictly proportionate to the aim pursued.

79. There has accordingly been a violation of Article 8 of the Convention, and the Government's objection that the applicant organisation's complaints were manifestly ill-founded (see paragraph 57 above) must be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

80. The applicant organisation alleged that the unlawful seizure by the police officers of the public notary fees and taxes received for the work undertaken by its staff members had amounted to a breach of its property rights, as protected by Article 1 of Protocol No. 1 to the Convention, which reads as follows:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

A. The parties' submissions

1. The Government

81. The Government raised a preliminary objection of non-exhaustion of domestic remedies. While they acknowledged that the applicant organisation had suffered some damage, they argued that it had ignored the instruction of the Bucharest Court of Appeal of 17 November 2011 (see paragraph 30 above) and had failed to initiate proceedings in tort before the civil courts against those it considered responsible for the damage it had suffered following the seizure by the police officers of the relevant fees and taxes. Moreover, in the event that it had considered the reasoning of the domestic court in question to be flawed it could have lodged an appeal on points of fact and law, but it had failed to do this (see paragraph 31 above). The Government contested the applicant organisation's submission that such an appeal was an extraordinary remedy which, according to the Court's case-law, did not have to be exhausted (see paragraph 85 below).

82. The Government acknowledged that the applicant organisation had brought a civil-party claim in the criminal proceedings opened against the criminal group suspected of fraud (see paragraph 27 above). However, they considered that the avenue chosen by the applicant organisation had not been appropriate because the offences examined by the domestic courts during the aforementioned criminal proceedings had affected honest buyers and not the applicant organisation. Moreover, since the sale contract had been invalidated by the domestic courts the applicant organisation had no longer been able to rely on this contract to claim the return of the relevant fees. However, none of the authorities had denied the applicant organisation's right to obtain compensation for the time spent preparing the seized documents. The Government considered that the applicant organisation could have brought such proceedings against the members of the criminal group.

83. The Government furthermore submitted that the applicant organisation had a legitimate expectation within the meaning of the Convention only in so far as it sought to obtain the return of the fees owed by the private parties for the validation of the sale contract.

2. The applicant organisation

84. The applicant organisation argued that the criminal proceedings brought against the two police officers, where the return of the fees seized was requested (see paragraph 12 above), had been more appropriate than initiating proceedings in tort before the civil courts. Its request for the relevant taxes seized by the police officers to be returned had been appropriate because the organisation had had a lawful duty to first collect such taxes and then to transfer them to the relevant authorities. In addition, the buyers had been informed by the police before they had signed the contract that the private parties selling the property were fraudsters. Consequently, given the circumstances, they had been liable to pay the public notary fees required for the preparation and validation of the aforementioned contract. In addition, the Government acknowledged that the applicant organisation had suffered some damage and that it was entitled to obtain compensation for the said damage (see paragraphs 81-“82 above). However, the Government failed to clarify what other avenue of redress was open to it and who could be held liable.

85. The applicant organisation submitted that it had not appealed against the judgment of the Bucharest Court of Appeal of 17 November 2011 because it had been forced to pay substantial legal fees both during the first-‘and the second-instance court proceedings. Moreover, the appeal on points of fact and law was an extraordinary form of appeal which, according to the Court's case-law, did not have to be exhausted.

86. The applicant organisation considered that the domestic authorities had not had the right to seize without affording compensation the fees for the time spent by the organisation for the preparation of the sale contract. And just as the authorities had returned the price of the immovable property to the buyers after the contract was invalidated, so they should have also returned the relevant fees to the applicant organisation.

B. The Court's assessment

87. The Court notes that - assuming that the applicant organisation can be considered to have at least a legitimate expectation of the return of the taxes and fees seized by the police officers - the aforementioned taxes and fees were never returned to it and it was never compensated for the alleged loss incurred.

88. The Court also observes that when examining the applicant organisation's request for the return of the relevant taxes and fees within the context of the criminal proceedings that it opened against two of the police officers, the domestic courts identified other avenues of redress better suited for the applicant organisation to obtain just satisfaction. The Court furthermore notes that the applicant organisation attempted to exhaust these remedies. However, in pursuing them, it failed, in particular, to appeal against the Bucharest Court of Appeal's judgment of 17 November 2011 (see paragraphs 30-“31 above).

89. In these circumstances the Court considers that the applicant organisation failed to exhaust the available domestic remedies.

90. It follows that this complaint must be dismissed as inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

91. 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."

A. Damage

92. The applicant organisation claimed EUR 9,943 and RON 12,215 (approximately EUR 2,738) in respect of pecuniary damage, representing the fees and taxes seized by the police officers. It also claimed EUR 10,000 in respect of non-pecuniary damage.

93. The Government submitted with regard to the pecuniary damage claimed that the applicant organisation had failed to prove to the Court that the domestic tax authorities had forced it to pay the taxes due to the State following the validation of the sale contract that was subsequently annulled by the domestic courts. Consequently, the applicant organisation could not claim to have at least a legitimate expectation for the return of the said taxes. Also, the applicant organisation has not exhausted the available domestic remedies with regard to the amount due for its fees, and the domestic authorities could not be held responsible for any loss incurred by the applicant organisation in that regard.

94. The Government argued that the applicant organisation had failed to prove that it had suffered any non-pecuniary damage. Moreover, it had not been directly affected by the criminal investigation and it had not been subjected to searches or seizures of confidential data or documents which could have affected its activity or its relationship with its clients. In any event, the amount claimed by the applicant organisation was excessive and the finding of a violation would amount to sufficient just satisfaction.

95. The Court observes that the applicant company has failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

96. However, the Court accepts that the applicant organisation suffered some non-‘pecuniary damage as a result of the infringement of its rights under Article 8 of the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the applicant organisation EUR 3,000 under this head, plus any tax that may be chargeable.

B. Costs and expenses

97. The applicant organisation has not submitted any claim for costs and expenses. The Court is therefore not called upon to make any award in this respect.

C. Default interest

98. 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. Joins to the merits the Government's preliminary objection that the applicant organisation's complaint under Article 8 is manifestly ill-‘founded and dismisses it;

 

2. Declares the applicant organisation's complaint under Article 8 admissible and the remainder of the application inadmissible;

 

3. Holds that there has been a violation of Article 8 of the Convention;

 

4. Holds

(a) that the respondent State is to pay the applicant organisation, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

 

5. Dismisses the remainder of the applicant organisation's claim for just satisfaction.

Done in English, and notified in writing on 24 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident