FOURTH SECTION

DECISION

Application no. 60457/16 Răzvan-Liviu TEMEȘAN against Romania

The European Court of Human Rights (Fourth Section), sitting on 27 September 2022 as a Committee composed of:

Tim Eicke, President ,

Faris Vehabović,

Pere Pastor Vilanova, judges,

and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 60457/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 October 2016 by a Romanian national, Mr Răzvan-Liviu Temeșan, who was born in 1951 and lived in Cornu de Jos (“the applicant”) and who was represented by Ms A. Temeşan , a lawyer practising in Bucharest;

the decision to give notice of the complaints under Article 6 § 2 taken alone and combined with Article 13 and under Article 6 § 1 (access to court) of the Convention, to the Romanian Government (“the Government”), represented by their Agent, Ms O.-F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. By letter of 14 October 2020 the applicant’s representative informed the Registry that the applicant had died on 8 October 2020. In response to comments from the Government, on 18 November 2020 the representative informed the Registry that one of the applicant’s two heirs, namely his son, Mr Bogdan-Åžerban TemeÈ™an, expressed the wish to pursue the application before the Court. For practical reasons, Mr Răzvan-Liviu TemeÈ™an will continue to be called “the applicant” in this decision, although Mr Bogdan ‑ Åžerban TemeÈ™an is now to be regarded as such ( Ruianu v. Romania , no. 34647/97, § 1, 17 June 2003).

2. In 1999 criminal proceedings were instituted against the applicant for having allegedly illegally approved, in March 1994, in his capacity of president of the bank B., financial operations covering an amount of more than five million United States Dollars (USD). On 28 May 1999 an indictment was issued by the Prosecutor’s Office attached to the Constanţa Court of Appeal indicting the applicant under Articles 248-248 1 of the former Criminal Code. On 19 June 2003 the Bucharest County Court decided to send the case back to the Prosecutor’s Office for the completion of the criminal investigation. This decision was upheld on 29 September 2003 by the Bucharest Court of Appeal.

3 . On 3 October 2011 the Constanţa Territorial Service of the National Anticorruption Directorate (“NAD”, hereafter) of the Prosecutor’s Office attached to the High Court of Cassation and Justice issued a decision changing the legal classification of the offence under Article 248 § 2 taken together with Article 13 of the Criminal Code and ordering the discontinuation of the prosecution against the applicant as time-barred.

4 . On 28 March 2012 the Bucharest District Court finally dismissed the applicant’s appeal against NAD’s decision of 3 October 2011.

5 . On 22 June 2012, based on provisions of the domestic law in force at the material time (Article 13 of the former Criminal Code), the applicant requested that the criminal proceedings be resumed in order to determine his innocence, on the grounds that the facts imputed to him did not exist.

6 . On 5 March 2013 NAD discontinued the criminal prosecution as time ‑ barred.

7. On 29 November 2013 the Bucharest District Court allowed the applicant’s appeal against NAD’s decision of 5 March 2013 and returned the case to the prosecutor in view of reopening the criminal investigation against the applicant.

8 . On 16 April 2015 the prosecutor discontinued the criminal proceedings against the applicant as time-barred, while considering that the facts imputed to the applicant did exist.

9 . On 14 April 2016 the Bucharest County Court dismissed the applicant’s appeal against the above-mentioned decision of the prosecutor and found that it could not be concluded that the facts did not exist. The above-mentioned decision stated that:

“From the criminal investigation file attached to this case, the preliminary chamber judge did not find that this condition was met by S.C. A. S.A. to [the bank] B. S.A., which, correlated with the fact that there was no application in the form requested by the norms of the National Bank of Romania, prove the violation of granting the letter of credit ( fac dovada încălcării acordării acreditivului ) of USD 5,500,000 by the plaintiff Temeșan Răzvan-Liviu, who, on that date, was president of [the bank] B. S.A.

...

Consequently, the preliminary chamber judge maintains that in the activity of approving the letter of credit ( activitatea de aprobare a acreditivului ) dated 17 March 1994, confirmed by his handwritten note on 19 March 1994, the plaintiff Temeșan Răzvan-Liviu violated both the Regulation on the performance of foreign exchange operations, issued by the National Bank of Romania under no. V/36162 on 4 May 1992, published in the Official Gazette of Romania Part I no. 92 on 13 May 1992, supplemented by the Norms no. 3 dated 30 June 1993 (published in the Official Gazette of Romania Part I no. 182 on 30 July 1993), and the Circular no. 18/1993, published in the Official Gazette of Romania Part I no. 182 on 30 July 1993, as well as the internal procedures of the bank that he managed and the good performance of its activity, he responded.

As such, with respect to the date of perpetration of the alleged criminal offence provided for in Art. 248 § 2 Criminal Code, previously with the application of Art. 13 of the former Criminal Code, in corroboration with the provisions of art. 124/ art. 122 § (1) letter d) Criminal Code, previously referred to art. 121 of the former Criminal Code, the solution to discontinue, based on the lapsed statute of limitation, is well ‑ founded.”

10 . Based on a legal provision stating that the costs were to be borne by the party whose appeal was dismissed, the County Court ordered the applicant to pay to the state the judicial expenditure ( cheltuieli judiciare ) incurred with the appeal that was dismissed, amounting to 300 Romanian leu (RON).

11 . Under Article 6 § 2 of the Convention, the applicant alleged that there was a breach of his right to the presumption of innocence, because of the above-mentioned reasoning of the pre-trial judge of the Bucharest County Court in the decision of 14 April 2016, and due to the fact that he was ordered to pay the court costs for that appeal.

THE COURT’S ASSESSMENT

12. The general principles concerning the presumption of innocence enshrined in Article 6 § 2 are exposed in Allen v. the United Kingdom ([GC], no. 25424/09, §§ 92-94, ECHR 2013), and in G.I.E.M. S.R.L. and Others v. Italy ([GC], nos. 1828/06 and 2 others, §§ 314-16, 28 June 2018). In particular, the voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of the criminal proceedings has not resulted in a decision on the merits of the accusation ( Grabtchouk v. Ukraine , no. 8599/02, § 45, 21 September 2006).

13. The Court considers that from the point of view of the possible consequences of the criminal proceedings which were resumed on 22 June 2012 (see paragraph 5 above), the current case is similar to Gângă and the Independent Union of Lawyers of Romania v. Romania ((dec.), no. 28906/09, § 43, 10 April 2012). In the above-mentioned decision, the Court considered that the applicant assumed the risk to see his culpability being examined by a judge while no criminal sanction could have been imposed on him because the prosecution for the offences with which the applicant had been charged was time-barred.

14. In the current case, having regard to the particular features of the criminal proceedings which came to an end by the final judicial decision of 28 March 2012 (see paragraph 4 above) and which were resumed upon the applicant’s request, the domestic court was faced with the applicant’s request to assess the facts that gave rise to a criminal investigation. The domestic court was thus not in a position to avoid establishing the facts.

15. Turning to the language used by the Bucharest County Court in its decision of 14 April 2016, the Court notes that the County Court merely established the facts on the basis of the adduced evidence, and found a breach of the banking rules by the applicant, who was the president of the bank at that time (see paragraph 9 above). In so doing, that court did neither state nor suggest that the applicant was guilty of the “ alleged criminal offence provided for in Art. 248 § 2 Criminal Code”, and found that the decision to terminate the criminal proceedings as time-barred was legal. The County Court did not assess the subjective culpability of the applicant, and nothing in the language used suggested that the applicant was guilty of a particular offence under the criminal law (compare and contrast Caraian v. Romania , no. 34456/07, §§ 74-77, 23 June 2015, and Felix Guţu v. the Republic of Moldova , no. 13112/07, §§ 70-71, 20 October 2020). The County Court confirmed that the reason for discontinuing the case was merely technical in nature.

16. Finally, the applicant was ordered to pay the equivalent of approximately 70 euros (EUR) of court costs (see paragraph 10 above) since his appeal against the prosecutor’s decision of 16 April 2015 to discontinue the criminal proceedings against him as time-barred was dismissed. The Court notes that this decision was based on a legal provision stating that the costs were to be borne by the party whose appeal was dismissed. The applicant was not obliged to bear court or prosecution costs that resulted from an appraisal of the guilt of the accused ( Minelli v. Switzerland , 25 March 1983, §§ 32-41, Series A no. 62).

17. Overall, 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 Article 6 § 2 of the Convention.

18. The applicant also raised other complaints under Article 6 § 1 and Article 13 of the Convention in relation to the alleged absence of means of redress in the domestic legal system for the alleged violation of Article 6 § 2 described above (see paragraph 11 above).

19. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2022.

Crina Kaufman Tim Eicke Acting Deputy Registrar President