Published on 3 April 2023

FOURTH SECTION

Application no. 3737/19 DANIELA CONSTRUCÈšII S.R.L. against Romania lodged on 7 January 2019 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The application concerns civil proceedings brought by the applicant company, in order to object to a freezing order issued against it on 26 March 2018 (and amended on 6 and 20 June 2018), by the Italian courts, under Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence (“Framework Decision”). A criminal investigation was started in Italy against several people, including the owner of the applicant company, who were accused of participation in organised crime and money laundering.

The freezing order was approved by decisions of 11 April and 21 June 2018 of the prosecutor’s office attached to the Argeş County Court, relying on Law no. 302/2004 on the international cooperation in criminal matters (“Law no. 302/2004” which transposed into domestic law the requirements of the abovementioned Framework Decision).

The applicant company lodged an objection against the prosecutor’s decision, arguing, in essence, that the nature of the measure requested and the extent of the alleged damage had not been specified in the freezing order; the request had not been submitted in due form and by the competent Italian authority; the applicant company was not a party to the Italian criminal proceedings; and the jurisdiction to examine the request belonged to the Argeş County Court and not to the prosecutor’s office.

The applicant company’s objection to the prosecutor’s decision was rejected by the Argeş County Court in the final decision nr. 298 of 5 July 2018, made available to the parties on 2 August 2018. The court observed that the freezing order had been issued in due form and did not necessitate further formalities. Furthermore, it dismissed the applicant company’s allegations concerning its lack of legal standing in the Italian proceedings, the omission in the order to indicate the amount to be frozen and the nature of the measure, as it observed that those issued pertained to the content of the order and, under the applicable law, should be raised with the Italian authorities which issued the order.

On 9 December 2020 bankruptcy proceedings were initiated against the applicant company, by decision of the Argeş County Court. The applicant company’s lawyer informed the Court of their intention to continue the current application. The judicial liquidator, appointed by the same decision of the Argeş County Court, did not inform the Court of its intentions concerning the present application.

The applicant company essentially complains, under Articles 6 §§ 1 and 2 and 7 of the Convention, that the Romanian authorities failed to examine its arguments concerning the content of the freezing order and the manner in which it had been issued, in the absence of a criminal investigation against it. It further complains, under Article 13, that it lacked the possibility to appeal against the County Court’s final decision of 5 July 2018. Lastly, the applicant company complains, relying on Article 1 of Protocol No. 1 to the Convention, that the application of the freezing order infringed its property rights.

QUESTIONS TO THE PARTIES

1. Can the applicant company still claim to be a victim of a violation its rights, given that the bankruptcy proceedings had been started against it and that the judicial liquidator appointed by the Argeş County Court to represent to the applicant company did not manifest its intentions to continue the present application (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 94, 27 June 2017, and Euromak Metal Doo v. the former Yugoslav Republic of Macedonia , no. 68039/14, §§ 32 ‑ 33, 14 June 2018)?

2. Did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Was the applicant company’s right of access to court breached having regard to the way the Argeş County Court examined the arguments brought before it? Was the Argeş County Court under an obligation to verify if, in the particular circumstances of the case, whether a remedy had actually been available to the applicant company in Italy (see Avotiņš v. Latvia [GC], no. 17502/07, §§ 113-15 et §§ 121-22, 23 May 2016) or if the execution of the freezing order would have entailed a breach of the applicant company’s rights (see Article 225 to 230 of Law no. 302/2004)?

4. Did the enforcement by the Romanian authorities of the decision to freeze the applicant company’s assets infringe its right to respect for its possessions (see, mutatis mutandis, Călin v. Romania , no. 54491/14, §§ 68 ‑ 69 and 74-76, 5 April 2022)?