FOURTH SECTION

DECISION

Application no. 37990/16 Ovidiu Eugen CIOGESCU against Romania

The European Court of Human Rights (Fourth Section), sitting on 9 May 2023 as a Committee composed of:

Faris Vehabović, President , Iulia Antoanella Motoc, Branko Lubarda , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 37990/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 June 2016 by a Romanian national, Mr Ovidiu Eugen Ciogescu, who was born in 1961 and lives in Râmnicu-Valcea (“the applicant”) who was represented by Ms M.C. Beniog, a lawyer practising in Râmnicu-Vâlcea;

the decision to give notice of the complaints concerning Article 6 § 1 and Article 8 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. The application concerns the criminal prosecution of the applicant, who was the owner and administrator of two private companies incorporated in Romania. The applicant was accused of bribing the director of a branch of a state-owned bank by paying the lease for four vehicles worth over 164,000 Euros (EUR) which were used by the latter and by members of his family. It was also imputed to the applicant that he had bribed the same director and another high-ranking employee of the bank branch by offering them many home appliances and electronic devices worth over EUR 14,000. In exchange for the bribes, his companies obtained from the bank credits which were issued contrary to the rules, contracts for refurbishment works of buildings belonging to the bank in the absence of a tender and payments for those works in the absence of proof that the works had been completed, and fake brokerage contracts.

2. On 19 October 2015 the Bucharest Court of Appeal finally found the applicant guilty of bribe giving, abetting abuse of office and forging of documents and sentenced him to a prison term of three years.

3. In so deciding, the domestic courts relied on such evidence as transcripts of intercepted telephone communications, documents seized during searches which proved the fact that his companies have been paying for the lease of vehicles used by the director of the bank and his relatives and that the applicant’s companies had transmitted home appliances to the same director and to another employee of the bank. The courts also relied on witness statements which proved the fact that the brokerage contracts were fake and that in fact no brokerage services had been provided in exchange for the commissions paid by the bank to one of the applicant’s companies.

4. The applicant argued in his defence that the leased vehicles and the home appliances were given to the director of the bank as payment for lease of a building belonging to the latter by applicant’s relatives. The director of the bank advanced a different explanation by arguing that the vehicles offered to him by the applicant’s companies amounted to payment for his services of consulting one of the applicant’s companies. The courts dismissed the above statements while finding that none of them was supported by evidence.

THE COURT’S ASSESSMENT

5. The applicant alleged under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair because (i) the courts which convicted him both at first and last instance had failed to hear evidence directly from part of the witnesses in the case and (ii) his conviction was grounded on documents seized during a search carried out on part of his company’s premises in the absence of any judicial authorisation for the search and seizure. In particular, he argued that the judicial authorisation for the search of his offices covered only two buildings, but the search had been carried out in three buildings belonging to one of his companies. The applicant finally alleged under Article 8 of the Convention that the search of part of his company’s premises and the seizure of the documents found on those premises without a judicial authorisation delivered by a court breached his rights to private and family life.

6. The Government disagreed and argued that the complaints were inadmissible.

7. The Court refers to the general principles established in its case-law concerning the right to call witnesses for the defence ( Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 158-68, 18 December 2018) and to the general principles concerning the six-month rule (see D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26 June 2001).

8. As to the applicant’s complaint under Article 6 § 1 that the domestic courts convicted him without hearing evidence directly from part of the witnesses, the Court notes in the first place that the complaint was formulated in very vague terms, without there being any indication as to the names of the witnesses who the applicant referred to. In his observations in the proceedings before the Court, the applicant referred to “the majority of the witnesses” and only gave the name of one witness, V.P. The Court notes next that in his appeal against the judgment of the first instance court, the applicant did not complain that any of the witnesses had not been examined directly.

9. It is not for the Court to assume a fact-finding role by attempting to determine who are the witnesses to whom the applicant refers when using such expressions as part of the witnesses or majority of the witnesses. It will therefore confine itself to examining only the part of the complaint concerning witness V.P., i.e., the only witness directly referred to by the applicant.

10. It notes from the materials of the case-file that the witness in question was heard by the first instance court but that the court did not mention his testimony it its judgment. Based on the submissions made by the applicant, the Court is unable to conclude whether his request to examine this particular witness was sufficiently reasoned and relevant to the subject matter of the accusation. Similarly, in the absence of any substantiation from the applicant, the Court is unable to conclude that the failure of the courts to rely expressly on the testimony of this particular witness undermined the overall fairness of the proceedings (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 158, 18 December 2018).

11. In so far as the applicant complains, under Article 6 § 1 of the Convention, that his conviction was grounded on documents seized during a search carried out on part of his company’s premises in the absence of any judicial authorisation for the search and seizure, the Court notes that the applicant failed to indicate the documents to which he refers. In finding the applicant guilty, the domestic courts referred to multiple evidence in the form of documents without specifying in which exact place they had been seized. In such circumstances and in the absence of any substantiation from the applicant, the Court is unable to conclude that this complaint is meritorious.

12. Finally, as to the applicant’s complaint under Article 8 of the Convention, the Court notes that he initially claimed, without providing any details or substantiation, that the search on part of one of his company’s premises without a proper judicial authorisation breached his right to respect of his private and family life. In his observations on the admissibility and merits of the case submitted in the proceedings before the Court on 9 December 2020, the applicant argued for the first time that the search had breached his right to respect for his home. However, this new complaint was lodged more than five years after the conclusion of the domestic proceedings, i.e., outside the six-month time-limit.

13. In the light of the above, the Court considers it necessary to reject the complaint under Article 6 of the Convention as being manifestly ill-founded and the complaint under Article 8 of the Convention as unsubstantiated and for failure to observe the six-month rule under Article 35 §§ 1 and 4 of the Convention.

14. It follows that 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 1 June 2023.

Crina Kaufman Faris Vehabović Acting Deputy Registrar President