THIRD SECTION

DECISION

Application no . 8398/04 Miron Victor PANAITESCU against Romania

The European Court of Human Rights (Third Section), sitting on 19 March 2013 as a Chamber composed of:

Josep Casadevall, President ,

Alvina Gyulumyan,

Luis López Guerra,

Nona Tsotsoria,

Kristina Pardalos,

Johannes Silvis,

Valeriu Griţco, judges , and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 10 February 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision taken by the President of the Chamber to appoint Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Miron Victor Panaitescu, is a Romanian national, who was born in 1974 and lives in Bucharest . He was represented before the Court by Mrs Elena Panaitescu, his mother. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan Horaţiu Radu, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

3. On 8 December 1999 the applicant was arrested on suspicion of aggravated theft, which he had allegedly committed between 29 and 30 June 1999.

4. On 16 December 1999 the prosecutor of the Bucharest Court of Appeal committed the applicant and two other individuals for trial on charges of aggravated theft. They were accused of having illegally transferred stocks from investment fund portfolios with the intention of using them on the stock market and then returning them to their real owner before their absence was noticed.

5. Before the Bucharest County Court the applicant submitted that his actions could not be classified as theft, as at that time the Criminal Code and legal opinion excluded intangible goods, and thus stocks, from being the object of a theft. In the applicant ’ s view, his actions could be interpreted as unauthorised stock trading under Article 114 of the Securities and Stock Exchanges Act (Law no. 52/1994) or under the 2001 Convention on Cybercrime. During the proceedings, he requested that the evidence be considered under Article 29 of the Electronic Commerce Act (Law no. 365/2002), which in his view was a more lenient piece of legislation.

6. On 3 October 2002 the Bucharest County Court found the applicant guilty of aiding and abetting in theft ( complicitate la furt ) pursuant to Articles 208 and 209 of the Criminal Code and of money laundering pursuant to Article 23(1)(c) of the Prevention and Punishment of Money Laundering Act (Law no. 21/1999). He was sentenced to eleven years ’ imprisonment and received a five-year restriction on his rights to vote and to hold a position of power (Article 64 (a) and (b) of the Criminal Code as in force at the material time).

7. In deciding that the crime committed should be classified as theft, the County Court stated:

“...[S]tocks are intangible goods [ bun incorporal ] of economic value... and can be made subject to charge. Therefore, stocks may constitute the object of a theft... The ‘ taking ’ consisted of a virtual, electronic operation, a data transfer - that is to say, the stocks were moved from one account to another.

...

The evidence shows that the purpose of this action was to acquire the stocks illegitimately, not just to use them.”

8. The County Court considered that, although the applicant had not been the person making the transfers, he had been behind the operation and was therefore an accomplice.

9. The County Court excluded the applicability of the Security and Stock Exchanges Act as the culprits ’ actions could not be classified as broking for the purposes of that Act. It also excluded the applicability of the Electronic Commerce Act to the offence, as the culprits had not carried out any “electronic commerce” activities for the purposes of that Act.

10. The applicant appealed, alleging in particular that the offence could not be classified as theft. He requested that the Electronic Commerce Act and the Prevention and Punishment of Money Laundering Act be applied to his case.

11. In a decision given on 28 January 2003, the Bucharest Court of Appeal dismissed the applicant ’ s arguments concerning the legal classification of the crime he had committed, endorsing the reasons given by the first ‑ instance court on that point. However, the court amended the first ‑ instance judgment, acquitting the applicant of money laundering. The sentence remained unchanged.

12. The applicant lodged an appeal on points of law with the High Court of Cassation and Justice, relying on his previous arguments regarding the classification of the crime.

13. In a final decision of 12 November 2003 the High Court dismissed the appeal, for reasons similar to the ones given by the lower courts.

14. The applicant served his sentence and on 24 April 2007 he was released and placed on probation.

B. Relevant domestic law

15. The relevant Articles of the Criminal Code in force at the material time read as follows:

Article 208

“(1) The act of taking a movable asset from another person ’ s possession or detainment, without the latter ’ s consent, in order to make it one ’ s own without right, shall be punishable by one to twelve years ’ imprisonment.

(2) Movable assets shall also mean any form of energy that has economic value, as well as documents.”

Article 209

“(1) Theft committed in the following circumstances:

(a) by two or more persons together;

...

shall be punishable by three to fifteen years ’ imprisonment.”

16. The relevant provision of the Prevention and Punishment of Money Laundering Act (which entered into force on 21 April 1999) reads as follows:

Article 23

“(1) The following shall be considered money laundering and shall be punishable by three to twelve years ’ imprisonment:

(a) ... the exchange or transfer of assets, knowing that they are derived from criminal activity... offences committed through computers; offences committed through credit cards with a view to concealing or disguising their illicit origin, and assistance to persons who are involved in such activities or under suspicion of trying to escape the legal consequences of their actions;

(c) the acquisition, possession or use of such property, knowing that it derives from one of the offences under paragraph 1(a). ”

17. On 12 December 2002, a new version of the Prevention and Punishment of Money Laundering Act entered into force (Law no. 656/2002), which contains a similar prohibition under its Article 23.

18. Article 29 of the Electronic Commerce Act (which entered into force on 5 July 2002) prohibits any unauthorised operations in data-processing systems.

19. An example of legal opinion at the material time on what constitutes the object of a theft is as follows:

“Theft can only concern tangible assets ( bunuri corporale )... Article 208 § 2 includes documents in the sphere of movable assets... it is irrelevant whether the document has an intrinsic value (for example a historical document) or whether it only carries an economic value that it bears and with which it is inextricably linked (for example a share). The latter case is an exception from the rule that the object of a theft must be a tangible asset, as what is taken in this case is an intangible asset.” (Costica Bulai, Avram Filipas, Constantin Mitrache, Institutii de drept penal , Ed. Trei, 2001, p. 347)

C. Relevant domestic practice

20. At the Court ’ s request, the Government submitted information on how similar cases had been treated by the domestic courts. The only court which had dealt with similar cases to that of the applicant was the Bucharest Court of Appeal, which applied the Criminal Code to the actions carried out. That court gave a decision on 2 October 2007, in which it convicted the accused of a similar theft.

D. Council of Europe instruments

21. The Council of Europe ’ s Convention on Cybercrime (ETS no. 185) was opened for signature on 23 November 2001 in Budapest . It entered into force on 1 July 2004. The Convention was ratified by Romania on 12 May 2004 and became binding on the respondent State on 1 September 2004. Article 7 of the Convention on Cybercrime reads as follows:

Article 7 – Computer-related forgery

“Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent, before criminal liability attaches.”

C OMPLAINTS

22. Relying in substance on Article 7 of the Convention, the applicant contended that he had been convicted of and sentenced for a crime that had not existed at the material time. In his view, the earliest examples of cases where people had been convicted of charges similar to those brought against him had been after the Electronic Commerce Act and the Convention on Cybercrime had entered into force.

23. He further complained under Article 6 § 1 of the Convention that the proceedings in his case had been lengthy, and that the courts had disregarded his arguments concerning which legislation was applicable to his actions.

THE LAW

A. Alleged violation of Article 7 of the Convention

24. The applicant submitted that he had been convicted of and sentenced for a crime that had not existed at the material time.

He relied on Article 7 of the Convention, which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

1. The parties ’ submissions

25. In the applicant ’ s view, the first examples of cases where people had been convicted of charges similar to those brought against him had been after the Electronic Commerce Act and the Convention on Cybercrime had entered into force.

26. The Government contested that argument. In their view the domestic courts had thoroughly examined the evidence in the file, given exhaustive reasoning on the legal classification of the offence committed, including the alternative classifications that had been proposed by the defence, and had established beyond doubt that the shares could have constituted the object of a theft.

27. The domestic courts concluded that the way in which the theft had taken place had made the applicant ’ s actions similar to that of a theft of electricity. The Government submitted that the courts had hesitated about the legal classification of the crime only because the way it was committed had been so unconventional, and not because there had been any questions over the crime itself.

28. They contended that the applicant, who had not denied committing the crime, had only contested the classification as a defence tactic.

29. Lastly, in their view, the applicable law, namely the Criminal Code, was accessible and foreseeable in its application.

2. The Court ’ s assessment

30. The Court makes reference to the well-established principles developed in its case-law in the context of Article 7 of the Convention (see, in particular, Kokkinakis v. Greece , 25 May 1993, § 52, Series A no. 260 ‑ A; Dragotoniu and Militaru-Pidhorni v. Romania , nos. 77193/01 and 77196/01, §§ 33-38, 24 May 2007; Kafkaris v. Cyprus [GC], no. 21906/04 , §§ 139-141 , ECHR 2008 ; Sud Fondi S.r.l. and Others v. Italy , no. 75909/01, §§ 105-110, 20 January 2009; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 92-109, 17 September 2009). In particular, it reiterates that Article 7 of the Convention requires that an offence must be clearly defined in law; that the law must be foreseeable in its application and must not be extensively construed to an accused ’ s detriment, for instance by analogy. Nevertheless, it must allow for the gradual clarification of the rules of criminal liability through judicial interpretation from case to case.

31. The Court has already had occasion to note that, as a logical consequence of the principle that laws must be of general application, the wording of statutes is not always precise, the use of general categorisations being favoured to that of exhaustive lists (see Cantoni v. France , 15 November 1996, § 31, Reports of Judgments and Decisions 1996 ‑ V) . It follows that the interpretation of these rules depends on practice and it is beyond doubt that the domestic courts are better placed to examine and interpret the domestic legislation; such an interpretation is not in itself incompatible with Article 7 of the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I; Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II; and Sud Fondi S.r.l. and Others , cited above, § 108).

32. In the present case the domestic courts examined the evidence before them and the various domestic and international legal provisions relied on by the applicant. They remained unwavering in their interpretation and gave thorough justification for their position. The Court also notes that although there had been few cases concerning similar actions, such actions had been consistently classified as theft.

33. In this context, the Court considers that the very fact that stock operations were not specifically mentioned by the law is not sufficient for it to conclude that the applicant was not in a position to foresee the consequences of his actions.

34. The Court also notes that in 2002 the State enacted specific legislation to deal with electronic fraud, which could be seen to have been the logical continuation of a perceptible line of case-law developing in the matter (see, mutatis mutandis, S.W. v. the United Kingdom , 22 November 1995, § 43, Series A no. 335 ‑ B, and Dragotoniu and Militaru-Pidhorni , cited above, § 46).

35. For these reasons, in the light of all the material in its possession, the Court finds that the facts do not disclose any appearance of a violation of the right guaranteed by Article 7 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 6 of the Convention

36. The applicant complained that the proceedings in his case had been lengthy, and that the courts had disregarded his arguments concerning which legislation was applicable to his actions.

37. The Government contested that argument.

38. The Court notes that the domestic courts examined thoroughly and gave answers to the arguments raised by the defence in amply reasoned decisions. Nothing in the case file indicates that the way the case was dealt with by those courts was arbitrary.

Furthermore, the proceedings lasted for a total amount of four years at three levels of jurisdiction, which does not contradict the requirement of expedition enshrined in Article 6 of the Convention.

39. For these reasons, 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 complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President