Published on 30 January 2023

FOURTH SECTION

Application no. 47735/20 Călin-Ovidiu OLTEANU against Romania and 2 other applications (see list appended) communicated on 9 January 2023

STATEMENT OF FACTS

A list of the applicants and the relevant details of their applications is set out in the appendix.

The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

In a criminal case involving a number of suspects, the applicant had been charged on 23 October 2015 with having been an accomplice to abuse of office: in his capacity as a lawyer, he had requested that a certain immovable property be registered in the Land Registry for the benefit of a private party, even though he did not provide or produce any title to the said property. On 15 June 2017 several third parties were indicted and sent before the domestic criminal courts; in respect of the applicant, the charges were dropped ( clasare ), the prosecutor finding that no criminal act had been committed ( fapta nu existÇŽ ).

Consequently, the applicant filed a civil case, claiming from the Prosecutor’s Office and from the State reimbursement of an amount of 6,200 Romanian lei (RON) in respect of representation fees incurred in the criminal proceedings initiated against him. He relied on Article 276 §§ 5 and 6 of the Criminal Procedure Code (“the Criminal PC”).

On 2 November 2018 the Iași District Court dismissed his action against the Prosecutor’s Office for lack of legal standing of the defendant, the court considering that it was the State who was liable for such claims; it consequently allowed the action lodged against the State, finding that on the basis of Article 504 § 1 of the Criminal PC, the State was financially liable for any judicial error, the latter concept covering the applicant’s situation. On 29 October 2019 the Iași County Court upheld that judgment, finding that Article 538 of the new Criminal PC as well as Article 275 § 6 were relevant to the applicant’s circumstances, the State being at procedural fault in his case. On 28 May 2020 the Iași Court of Appeal allowed the objection lodged by the State and found that the latter did not have legal standing for such requests as the applicant’s, in so far as, according to the Criminal PC, the State was not listed as “party to the criminal proceedings” and hence, it could not be liable to reimburse costs and expenses.

On 30 October 2006 the applicant, a journalist in Cluj, was charged with having committed bribery and criminal association in the activities of a criminal group; she was indicted on 19 January 2007, together with eight co ‑ accused. The criminal case was transferred to another jurisdiction located 500 km away, namely, from Cluj to BrÇŽila. In the final judgment of 20 December 2017, the GalaÅ£i Court of Appeal upheld the applicant’s acquittal pronounced by the first instance court on 15 April 2016.

On 19 June 2018 the applicant lodged a civil action against the State, seeking, in so far as relevant to the present case, to be awarded compensation for pecuniary damage in an amount of 79,752.69 RON (representation, transport and accommodation costs) incurred during the eleven years and more than 117 hearings that had taken place in the criminal proceedings initiated against her. She relied on the provisions of tort law, arguing, essentially, that it was the State that had initiated the criminal proceedings against her, which made her incur all the pecuniary damage claimed.

On 10 December 2018 Bihor County Court dismissed her claims, considering that the indictment per se could not be regarded as an unlawful action, within the meaning of tort responsibility. Neither was the notion of guilt relevant to such circumstances, in so far as a prosecutor could not be bound to indict only those in respect of which the outcome as to a conviction was certain.

In her appeal, the applicant argued that as long as the Criminal PC did not provide for a clear right to obtain reimbursement of costs and expenses from the State, she had to rely on civil provisions to justify her reimbursement claims. On 21 May 2019 the Oradea Court of Appeal found that in criminal proceedings, the Public Prosecutor indeed acted on behalf of the State, but an acquittal in itself could not be regarded as proof that the prosecutor had acted unlawfully when investigating and indicting.

The applicant’s further appeal was dismissed by the High Court of Cassation and Justice on 5 March 2020. The highest court found that an acquittal by itself did not necessarily involve the prosecutor’s fault in initiating the related criminal proceedings; also, the indictment per se could not be regarded as an unlawful action. The Criminal PC provided for a reimbursement of costs and expenses only by the injured and/or civil party, wherever applicable. At the same time, the applicant had decided to rely on the provisions of tort law, invoking the existence of an objective responsibility of the State in case of acquittal, and not on the relevant provisions of the Criminal PC, which provided for specific conditions for the reimbursement of costs in criminal proceedings.

At a certain unspecified time in 2015, criminal proceedings were initiated against the applicant, accused of having taken bribes and of having instigated others to take bribes. The final judgment of 28 November 2019 acquitted him, the High Court of Cassation and Justice finding that the act had not been committed ( fapta nu existÇŽ ).

On 2 June 2020 the applicant filed civil claims against the State, seeking to obtain reimbursement of 15,076.80 RON, namely the amount paid in respect of costs and expenses in the criminal proceedings, as well as interest on that amount. He argued that there had inevitably been a fault by the State in having initiated criminal proceedings which ended with an acquittal because no criminal act had been committed. He relied on Article 276 §§ 5 and 6 of the Criminal PC, on Article 453 of the Civil Procedure Code (“the Civil PC”), as well as on tort law principles.

On 8 October 2020 the BeiuÈ™ First Instance Court partly allowed the claims, finding that the State did have legal standing in such actions as the one lodged by the applicant, as it was the one to be held liable when its representatives initiated civil or criminal proceedings against a third party, who ultimately won the case. The legal basis of such actions relied on the procedural fault of the State ( culpa procesualÇŽ ), which existed even in the absence of any bad faith on its behalf.

On 30 March 2021 the Bihor County Court allowed the State’s appeal and dismissed the claims. It considered that while paragraph 6 of Article 276 of the Criminal PC established an accused’ right to claim judicial costs from the State, such claims were to be examined in accordance with civil law, in particular tort law, principles; on a principled basis, the State’s fault in having initiated criminal proceedings against an individual could not be presumed whenever that individual was acquitted, the existence of an unlawful action and of a concrete fault in the initiation of those criminal proceedings being issues to be proved by the claimant on a case by case basis. In the applicant’s case, there was no indication of such fault or unlawful action.

On 30 March 2022 the Oradea Court of Appeal upheld, by a majority, the lower court’s findings; it considered that the State was bound to initiate criminal proceedings in each case of detection of signs of a crime ( principiul oficialitǎţii ); such initiation as well as all investigative acts were by default lawful actions, unless proved otherwise. An acquittal per se did not imply the existence of a judicial error, triggering the State’s liability to compensate.

The dissenter considered that no one could be exonerated from the procedural fault, unless expressly provided for by the law.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

The Criminal PC essentially provides in its relevant parts that if the criminal proceedings end by acquittal, the accused may claim reimbursement of costs and expenses from the injured and/or the civil party, in so far that those costs had been caused by them. However, in all other cases the Criminal PC indicates that the matter would be examined on the basis of the civil law principles, without any further details as to the steps to be taken by the applicant or by the courts:

Article 275 – Payment of costs of the litigation incurred by the parties

“...(5) In the event of acquittal, the injured party or the civil party shall be bound to pay to the accused and, where appropriate, to the civilly liable party the legal costs incurred by them in so far as they were caused by the injured party or the civil party.

(6) In all other situations, the court shall determine the refund obligations in accordance with civil law principles”.

Article 504 – Compensation for wrongful conviction or unlawful detention

“(1) Anyone who has been convicted by means of a final decision... is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a final judgment that he did not commit the offence in question or that no offence was committed....

(2) Anyone against whom a preventive measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for the damage sustained...”

The content of Article 504 of the former Criminal PC is reiterated in similar terms in so far as relevant to the present case by Articles 538 and 539 of the current Criminal PC.

The relevant provisions of the Civil PC state as follows:

Article 453 – Awarding costs of the litigation

“(1) The losing party shall be bound, at the request of the winning party, to pay to the latter costs of the litigation...”

In 2017 the High Court of Cassation and Justice (“the HCCJ”) had been seised with a request for a preliminary ruling settling (new) legal matters ( hotărâre prealabilă pentru dezlegarea unor chestiuni de drept ), the question to be assessed being whether an accused who had been acquitted because the act had not been committed ( fapta nu existǎ ) could seek reimbursement of costs and expenses incurred in the criminal proceedings, relying on Article 275 § 6 of the Criminal PC read in conjunction with Article 453 of the Civil PC. On 11 July 2018 the HCCJ dismissed the request as inadmissible, noting that the matter at stake was not newly legislated, as the relevant provisions had not changed their content ever since the former Criminal CP had been adopted in 1968. The HCCJ stated that the matter had been rarely dealt with in its case-law, and that the relevant outcomes did not appear to sufficiently converge in the same and unequivocal direction. Various approaches had also been identified in the relevant doctrine. Some supported the idea that the State should be liable to reimburse costs and expenses incurred by the accused who was acquitted, if no fault on behalf of the injured and/or civil party in determining such expenses had been identified. Such liability was grounded on the idea of “procedural fault” ( culpǎ procesualǎ ), incumbent on any party who had lost the case. Others considered that save for judicial errors, the State could not be found liable to compensate the accused by, inter alia , reimbursing costs and expenses incurred in the procedure. Finally, some others considered that tort law principles could be relevant in assessing the respective claims.

COMPLAINTS

The applicants complain that they were unable to recover costs and expenses (in particular, representation and transport fees) incurred in criminal proceedings which had been initiated against them and terminated with them being exculpated, either by a non-indictment (case no. 47735/20), or by way of acquittal (cases nos. 55917/20 and 29610/22); such impossibility is due, in the applicants’ opinion, to the lack of clarity of the relevant domestic law. They allege a breach of their property rights, as protected by Article 1 of Protocol No. 1 of the Convention, while the applicant in application no. 29610/22 also relies on Article 13 of the Convention to complain that the domestic law does not provide an effective remedy for his relevant claims.

The applicants in applications nos. 55917/20 and 29610/22 also consider that they were discriminated against on account of the fact that they were unable to recover costs and expenses from the State, whereas their similar claims would have been admissible against private injured and/or civil parties in the proceedings. They rely on Article 14 of the Convention.

QUESTIONS TO THE PARTIES

All applications

1. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, did the applicants have any legitimate expectation that the costs and expenses incurred in the criminal proceedings initiated against them would be reimbursed to them in case of discontinuation or acquittal? If so, have they been deprived of such a legitimate expectation amounting to “possessions” in the public interest, and in accordance with the conditions provided for by law?

2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?

Applications no. 55917/20 and 29610/22

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in connection with their complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 that in the matter of recovery of costs in criminal proceedings terminated with an acquittal, by virtue of the law, they, as the former accused in those proceedings, were entitled to obtain the costs and expenses incurred from the injured and/or civil party, in so far as the latter’s procedural fault was presumed (“loser pays” rule), but not from the State, whose subjective fault had to be proved?

2. Are the applicants, in their capacity as alleged creditors of the State in respect of the above-mentioned costs and expenses incurred in criminal proceedings initiated against them and terminated with an acquittal, in a comparable situation with the creditors of a private party (injured and/or civil party) in similar proceedings? If so, have the applicants been treated differently than the creditors of a private party (injured and/or civil party), because they were unable to obtain reimbursement of the costs incurred in the criminal proceedings against them from the State? In the affirmative, is such difference in treatment contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1? (see, mutatis mutandis , Fábián v. Hungary [GC], no. 78117/13, §§ 113-117 and 127, 5 September 2017)?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

47735/20

Olteanu v. Romania

15/10/2020

Călin-Ovidiu OLTEANU 1979 Iași Romanian

2.

55917/20

Vodă v. Romania

27/11/2020

Anca Elena VODÄ‚ 1976 Nojord Romanian

Radu Liviu CHIRIŢĂ

3.

29610/22

Rotar v. Romania

31/05/2022

Raul-Ovidiu-Raj ROTAR 1971 Sârbești Romanian

Simona Ioana PAÅžCU