FOURTH SECTION

DECISION

Application no. 493/15 Dan VOICULESCU against Romania

The European Court of Human Rights (Fourth Section), sitting on 22 February 2022 as a Committee composed of:

Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 493/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2014 by a Romanian national, Mr Dan Voiculescu, who was born in 1946 and lives in Bucharest (“the applicant”), who was represented by Mr G. Mateuț, a lawyer practising in Arad;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . The case concerns mainly the applicant’s allegations that his right to the presumption of innocence set forth by Article 6 § 2 of the Convention had been breached and that the criminal proceedings against him were politically motivated, contrary to Article 18 of the Convention.

2 . Following an investigation for corruption offences, the applicant (a businessman owner of media channels and president of a political party at the time) and twelve other people, including several public officials, were sent before a court in 2008. The applicant was accused of having had, in his capacity of president of a political party, exercised influence over several public officials in order to facilitate money laundering in the context of the privatisation of a State-owned company.

3 . On 8 August 2014 the Bucharest Court of Appeal convicted the applicant with final effect for money laundering committed in connection with corruption offences and sentenced him to ten years’ imprisonment. In order to recover the millions of euros of damage caused by the crimes on trial to the State budget, the court ordered the confiscation and seizure of assets belonging to the applicant and to the other defendants as well as of other property considered as direct proceeds of the crimes on trial and belonging to relatives of the defendants or third parties. The court’s decision was based on an important body of evidence that included documents, witness statements, several expert reports produced by all parties to the trial and statements and submissions made by the defendants including the applicant and by the third parties whose property had been subject to seizure. It was extensively and thoroughly reasoned, based on the facts and relevant legal provisions, and included replies to all arguments raised by the parties.

4 . During the above proceedings, the applicant and other parties in the trial lodged numerous complaints and petitions for the recusal of the judges sitting on the appeal trial bench arguing that the decision concerning the seizure had been based on those judges’ bias against them. These petitions were rejected by reasoned decisions based on the applicable legal framework (Article 67(5) of the Code of Criminal Procedure) as there were no subjective or objective reasons put forward capable of raising any suspicions of bias and all legal requirements had been observed in respect of the decision ordering the seizure.

5 . The applicant submitted a transcript of excerpts of an interview allegedly given by the President of Romania on a television show that took place on 5 August 2014. According to the transcript prepared by the applicant, when asked by the moderator what was his opinion about the pressure exerted by the media in the context of the applicant’s trial, the President replied:

“It is not right and especially the anticipation that everyone is expecting a conviction. It can be very well an acquittal. I don’t know. It can be anything. The judge is the only one who has all the elements to decide.”

6 . The applicant also submitted numerous transcripts prepared by him and containing excerpts of television shows, interviews and press articles commenting his trial and his actions as politician (including a motion to suspend the President of Romania that the applicant had initiated when he was a member of parliament).

THE COURT’S ASSESSMENT

7. Relying on Article 6 § 2 of the Convention, the applicant complained that his right to the presumption of innocence had been breached by the statement made against him during his trial by the President of Romania (see paragraph 5 above).

8 . The Court acknowledges that the applicant was a well ‑ known businessman and politician in Romania and that his activities were of great interest to the general public (see paragraph 6 above). It also acknowledges that the gravity of the unlawful acts he was charged with and then convicted of may have required the authorities and the media to keep the public informed of any criminal proceedings instituted in connection with those events. Nevertheless, assuming that the statement in question had the content submitted by the applicant, the Court observes that it cannot be interpreted as reflecting an opinion that the applicant was guilty of the crime on trial neither was it a clear declaration, in the absence of a final conviction, that the applicant had committed the crime on trial (contrast Khuzhin and Others v. Russia , no. 13470/02, §§ 95-96, 23 October 2008).

9 . The Court further considers that there are no grounds to believe that the independence and impartiality of the courts were compromised by the statement in question. Nor is there anything in the case file that would enable it to doubt the overall fairness of the criminal proceedings against the applicant before the domestic courts (see paragraph 3 above). Taking all these circumstances into account, the Court considers that there is no appearance of a breach of the applicant’s right to be presumed innocent. 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 .

10. The applicant complained that the State had used the criminal prosecution for a political end in order to prevent him from carrying out his political functions and from conducting his business in breach of Article 18 in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. He alleged that, following a political dispute with the President of Romania, the applicant’s political party had left the governing coalition and became an opposition party in 2007. Consequently, the applicant had suffered persecution in the form of the criminal proceedings against him (see paragraphs 2 and 3 above), the public statements made by State officials portraying him as a criminal or a corrupt politician (see paragraphs 4 and 5 above), an alleged blackmail of one of the judges who sat briefly on the appeal trial bench for the purpose to adopt a decision within a short period of time and the bias that in his opinion had marked the judges who delivered the final judgment in his case.

11. In the light of the general principles concerning the interpretation and application of Article 18 of the Convention that may be found in the case of Merabishvili v. Georgia ([GC], no. 72508/13, §§ 287-17, 28 November 2017), the Court must therefore assess whether the factors which, according to the applicant, showed that the criminal proceedings against him and the seizure and confiscation of his assets ordered within those proceedings were principally meant to remove him from Romania’s political scene and to prevent him from conducting his business are sufficient, considered alone or together, to establish that.

12. The factors deriving from the broader political context in which the criminal case was brought against the applicant are not sufficient proof in that respect. The Court reiterates that the mere fact that a politician is criminally prosecuted, even during an electoral campaign, is not automatically in breach of his or her right to run for office (ibid. §§ 322-23).

13. The same reasoning applies to the statements by State officials about the criminal case against the applicant. The Court has previously found that such statements can only be seen as proof of ulterior purpose behind a judicial decision if there is evidence that the courts were not sufficiently independent from the executive authorities (ibid. § 324). No such evidence has been put forward in this case (see paragraphs 8 and 9 above).

14. As regards the alleged bias of the judges sitting on the appeal trial bench who delivered the final judgment in the applicant’s case, the Court notes that the arguments raised by the applicant in this respect had been examined by the domestic court and rejected in reasoned decisions, in compliance with the provisions of Article 67(5) of the Code of Criminal Procedure since the situation complained of was not listed among the grounds for disqualification of judges in criminal proceedings as provided by law (see paragraph 4 above). Furthermore, the judge who stated that he had been blackmailed sat only briefly on the appeal trial bench and no additional information was provided by the applicant on this issue. In these circumstances and on the basis of the file, the Court considers that there is no appearance of any objective or subjective lack of impartiality on the part of the judges who sat on the appeal trial bench. Moreover, the manner in which the criminal proceedings against the applicant were conducted does not reveal a predominantly political purpose behind the decisions adopted by the judges during the trial. Having regard to the way in which the domestic courts assessed the case, the Court finds that the proceedings in the present case cannot be considered to have been arbitrary, the applicant was afforded reasonable opportunity to put forward his arguments in adversarial proceedings and the decisions adopted were thoroughly reasoned on the basis of the facts and the applicable law.

15. In view of the foregoing, the Court does not find it established that the criminal proceedings against the applicant and the seizure and confiscation of his assets ordered during those proceedings were chiefly meant to prevent him from carrying out his political functions or his business (compare Năstase v. Romania (dec.), no. 80563/12, § 109, 18 November 2014).

16. Since the Court sees no evidence to suggest that the Romanian authorities have committed an abuse of power by conducting the criminal proceedings against the applicant for a purpose other than that for which they were designed, it finds that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

17. The applicant also raised other complaints under various Convention provisions.

18. 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.

19. 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 17 March 2022.

Ilse Freiwirth Tim Eicke Deputy Registrar President