Communicated on 28 January 2021 Published on 15 February 2021

FOURTH SECTION

Application no. 911/16 Daniela CĂPĂŢÎNĂ against Romania lodged on 21 December 2015

SUBJECT MATTER OF THE CASE

The application concerns criminal proceedings against the applicant (a border police officer at that time) and seventy other individuals (border police and customs officers) under suspicions of participating in the organised crime and bribe-taking. Some of the applicant ’ s assets were forfeited during the criminal proceedings and the courts dismissed her request for restitution, as they considered it established that the defendants, the applicant included, had made unlawful gains and that they had failed to prove the origin of those assets (in the applicant ’ s case 5,530 euros (EUR), 24 US dollars (USD), and a car). The applicant was convicted on both counts and a confiscation order was issued for 3,400 Romanian lei (RON; approximately EUR 800) which the courts considered to be proceeds of crime (decision of 6 May 2014 of the Suceava Court of Appeal and final decision of 17 March 2015 of the High Court of Cassation and Justice). The courts found that they could not establish the exact amounts which were taken by each defendant individually and for that reason adopted a method of calculation based on the average amounts obtained on each shift at the border, the number of shifts and the position occupied in the team by each individual (controller or person in charge). In her domestic appeal, the applicant contested the calculation method. She argued that the confiscation was ordered for a larger amount than what she allegedly received and presented a report from the National Agency for Integrity confirming that her assets were not disproportionate to her income.

The courts ordered that the money be paid from the value of the forfeited assets, and that the difference in value be returned to the applicant at the end of the proceedings.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, concerning the forfeiture of her assets and the method of calculation of the amount to be confiscated and of the amount to be returned to her at the end of the proceedings (see, mutatis mutandis , Man and Others v. Romania ( dec. ), no. 39273/07, § 139, 19 November 2019)?

2. Was the interference with the applicant ’ s right to peaceful enjoyment of possessions in accordance with the conditions provided for by law and proportionate to a legitimate aim pursued, within the meaning of Article 1 of Protocol No. 1, insofar as it concerned the forfeiture and the confiscation of her assets (see notably Air Canada v. the United Kingdom , 5 May 1995, §§ 33 and 34, Series A no. 316 ‑ A; B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia , no. 42079/12, § 38, 17 January 2017; S.C. Service Benz Com S.R.L. v. Romania , no. 58045/11, § 30, 4 July 2017; and YaÈ™ar v. Romania , no. 64863/13, § 49, 26 November 2019)?

3. In particular, were the following compliant with the requirements of Article 1 of Protocol No. 1:

- the manner in which her assets were forfeited by order of the prosecutor ’ s office attached to the High Court of Cassation and Justice during the criminal investigations against the applicant and maintained throughout the criminal proceedings;

- the method of calculation by the courts of the sum to be confiscated from the applicant under the provisions of Article 112 (e) of the new Criminal Code (Article 118 (e) of the old Criminal Code) regulating the special confiscation, taking into account, notably, her allegations that that sum was set by the courts randomly, without any assessment of the concrete circumstances of the case (see, mutatis mutandis, Phillips v. the United Kingdom , no. 41087/98, § 53, ECHR 2001 VII);

- the manner in which the courts examined her complaints against the forfeiture and the confiscation measures, in particular her allegations that the assets in question had been lawfully acquired and the evidence brought by her to prove her position (see, mutatis mutandis, Phillips , cited above, § 43, Balsamo v. San Marino , nos. 20319/17 and 21414/17, § 93, 8 October 2019, and Yașar v. Romania , no. 64863/13, § 62, 26 November 2019 ) ; and

- the manner in which the assets were returned to her at the end of the proceedings, in particular, as it concerns the method of calculation of the value of the remaining assets and the delay in returning those assets to the applicant?