FOURTH SECTION

DECISION
Application no. 17500/15
Elisabeta MĂRGĂRIT against Romania
and 3 other applications
(see list appended)

The European Court of Human Rights (Fourth Section), sitting on

1 October 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 9 April 2015,
Having deliberated, decides as follows:

THE FACTS
1. A list of the applicants, who are all Romanian nationals, and the
applicant company, which is registered in Romania, is set out in the
appendix. Ms Elisabeta Mărgărit is M.C.’s mother, Ms Luiza Mărgărit is his
former wife, and Mr Ion Bogdan Mărgărit is his son.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be

summarised as follows.
3. By a decision of the prosecutor’s office attached to the High Court of
Cassation and Justice of 29 September 2005, nine people, including M.C.,
were tried for tax evasion and conspiracy to commit money laundering in
the context of the privatisation of several State-owned companies.
4. On 28 November 2011 the Bucharest County Court convicted the
defendants, including M.C., of several counts of tax evasion and money
laundering. Jointly with four other co-defendants, M.C. was ordered to pay
the equivalent of several billion euros in respect of damage caused to the
2 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION

State budget by their criminal activity. In order to recover the damages, the
court decided to uphold seizure measures previously put in place in respect
of the defendants’ assets by a prosecutor’s decision of 12 January 2005 and
a court order of 20 May 2010. All defendants appealed against that
judgment.
5. The proceedings on appeal started before the Bucharest Court of
Appeal.
6. At a hearing on 15 September 2014 the Bucharest Court of Appeal
allowed an application by the prosecutor and, on the basis of Article 249
§§ 1 and 4 of the Code of Criminal Procedure (“the CCP”), extended the
seizure measures so that they related to all the direct proceeds of crime
derived from the crimes which had been considered in the trial, including
those assets belonging to relatives of the defendants or to other third parties.
The court held that, in view of the large amount of damage allegedly caused
by the crimes which had been considered in the trial, those preventive
measures were necessary to avoid the hiding, destruction or selling of assets
which might serve to cover that damage. The court further ordered that
assets which might be subject to seizure be identified, and that their owners
be summoned to appear before the court in order to protect their rights
under the civil limb of Article 6 § 1 of the Convention.
7. At the next hearing on 19 September 2014 the court allowed an
application by M.C. and ordered the investigators to draw up a separate list
identifying all assets which might be seized to cover the damage caused by
him in the event that his conviction was upheld.
8. At the hearing on 1 October 2014 the applicants in applications
nos. 17501/15 (Luiza Mărgărit v. Romania) and 17502/15 (Ion Bogdan
Mărgărit v. Romania) were present as third-party interveners, and they
submitted, both orally and in writing, complaints against the seizure
measures adopted at the hearing of 15 September 2014 (see paragraph 6
above).
9. The Bucharest Court of Appeal ordered that a list of the immovable
property which had been seized be sent to the National Property
Registration Office, in order for the security measures to be registered in the
land registry. The list included numerous industrial buildings, houses,
apartments and plots of land, including an apartment building located at
no. 17-23 Catedralei Street in Bucharest, and an apartment owned by the
applicant Ion Bogdan Mărgărit. The seizure measures also concerned
various bank accounts and shares in commercial companies, some of which
belonged to the applicant Luiza Mărgărit, and a car belonging to the
applicant Ion Bogdan Mărgărit. The court scheduled another hearing for
9 October so that the security measures could be registered in the land
registry and all those with an interest in the relevant property could come
forward and be heard. The court also ordered that the applicant in
application no. 17500/15 (Elisabeta Mărgărit v. Romania), who was not
 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION 3

present at the hearing on 1 October 2014, be summoned to appear at the

next hearing.
10. At the hearing on 9 October 2014 the applicants Luiza Mărgărit,
Elisabeta Mărgărit and Ion Bogdan Mărgărit were present as third-party
interveners and were represented by lawyers of their choice. They submitted
additional written and oral complaints against the seizure measures adopted
on 15 September 2014 (see paragraph 6 above). They argued that all the
seized property had been acquired lawfully, and that their right to defend
themselves had been breached because they had been involved in the
proceedings only at the appeal phase. They also argued that Article 249 § 4
and Article 250 § 6 of the CCP were unconstitutional: firstly because they
introduced the presumption that property had been acquired unlawfully; and
secondly because they provided that complaints against seizure measures
were to be lodged with the same court which had implemented the disputed
measures. The applicants submitted that these provisions breached their
right of property and their right of access to a court as guaranteed by the
Constitution. Their representative submitted documents in support of the
claim that the property in issue had been acquired lawfully, and mentioned
that all their submissions also referred to the property belonging to the
applicant company in application no. 17604/15 (Consult Imobiliare
Nord S.R.L. v. Romania), where Ms Luiza Mărgărit was the sole associate.
With regard to the apartment building located at no. 17-23 Catedralei Street
in Bucharest (see paragraph 9 above), the representative submitted that
some of the apartments in the building had been sold to other people in the
past year, and the remaining apartments were no longer the property of the
applicant company Consult Imobiliare Nord S.R.L., since on 18 September
2014 they had been transferred to other people in order to pay a debt.
11. The court adjourned the pronouncement of the judgment until
14 October 2014.
12. On 14 October 2014 the Bucharest Court of Appeal adopted the final
judgment in the case. The court upheld the defendants’ convictions for the
crimes with which they had been charged in an extensively reasoned
judgment of 276 pages, in which all the evidence – including expert reports,
documents, numerous witness statements and transcripts of phone
conversations – was thoroughly examined.
13. The court also decided to maintain the seizure measures. In this
regard, the court observed that the defendant M.C. had committed crimes
which had resulted in serious financial losses to the State budget. It held that
there was ample evidence proving that M.C. had invested the direct
proceeds of those crimes in various properties bought in the name of his
parents, his son and his former wife, with whom he still lived. The court
further held that M.C.’s parents, his son and his former wife, who were
present before the court, could not justify their contention that they had
lawfully acquired the seized assets. In reply to the arguments raised during
4 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION

the proceedings (see paragraph 10 above), the court held that the procedure
for putting in place the seizure measures had been in accordance with the
law and that the procedural rights of all interested parties had been
respected. Moreover, the relevant land registration authorities had been
notified of the measures, and the owners of the seized property had been
summoned to appear before the court and had made full use of their
procedural rights. In addition, the court held that the seizure of direct
proceeds of crime, like the seizure in the current proceedings, was in full
compliance with the Constitution.
14. In addition, considering that there was ample evidence that the
applicant company Consult Imobiliare Nord S.R.L. was in fact controlled by
M.C., who was also the real beneficiary of its profits, on the basis of
Article 33 §§ 1 and 3 of Law no. 656/2002, and Article 112 §§ 1 (e) and 6
of the Criminal Code (“the CC”), the court ordered the confiscation of the
building located at no. 17-23 Catedralei Street in Bucharest (see
paragraphs 9 and 10 above), which was considered to form part of the direct
proceeds of M.C.’s crimes. In this regard, the court observed that during the
proceedings, ownership of the building had been transferred to M.C.’s
parents in the context of a debt recovery contract concluded with them.
However, neither the initial owner (the applicant company Consult
Imobiliare Nord S.R.L.) nor the subsequent owners (M.C.’s parents) had
succeeded in proving that they had lawfully earned the amount of money
necessary to cover the cost of that building.

B. Relevant domestic law and international documents

15. A detailed description of the domestic law and practice and

international documents concerning the seizure and confiscation of proceeds
of crime can be found in Telbis and Viziteu v. Romania (no. 47911/15,
§§ 35-44, 26 June 2018).

COMPLAINTS
16. The applicants complained under Article 6 § 1 of the Convention
that the proceedings which had culminated in the seizure and confiscation of
their assets had been unfair. Under the same Article, the applicants Elisabeta
Mărgărit and Luiza Mărgărit also complained that the appeal bench dealing
with their case had not been impartial.
17. Relying on Article 13 of the Convention, the applicants complained
that they did not have two levels of jurisdiction in the proceedings which
had resulted in the seizure and confiscation of their assets.
18. The applicants also complained that the seizure and confiscation of
their property without sufficient procedural guarantees had been in breach
of Article 1 of Protocol No. 1 to the Convention.
 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION 5

19. Under Article 17 of the Convention, the applicants complained that

the Bucharest Court of Appeal had relied on the provisions of Articles 6
and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention
in order to justify the lawfulness of the seizure and confiscation measures,
which had in fact been unlawful.

THE LAW
A. Joinder of the applications

20. Given the factual and legal similarities of the applications, the Court
decides to order their joinder (Rule 42 § 1 of the Rules of Court).

B. Application no. 7604/15 (Consult Imobiliare Nord S.R.L.

v. Romania)

21. The applicant company Consult Imobiliare Nord S.R.L. complained

that the proceedings that had resulted in the confiscation of its building
located at no. 17-23 Catedralei Street in Bucharest had not been fair and had
unlawfully deprived it of its property, and that it had not had access to an
effective domestic remedy, in breach of Articles 6 § 1, 13 and 17 of the
Convention, as well as of Article 1 of Protocol No.1.
22. The Court observes that the applicant company’s property rights in
respect of the building in question were transferred to other persons before
the final judgment on confiscation was adopted (see paragraph 14 above).
Moreover, the applicant company itself argued before the Bucharest Court
of Appeal that it no longer had property rights in respect of the building in
question (see paragraph 10 above).
23. In view of the above, the Court considers that the applicant
company’s property rights were not interfered with as a result of the
proceedings complained of. It follows that it cannot claim to be a victim of a
violation of its rights under Articles 6 § 1, 13 and 17 of the Convention and
under Article 1 of Protocol No. 1 by reason of the outcome of those
proceedings and/or of the manner in which they were conducted. Therefore,
these complaints are incompatible ratione personae with the provisions of
the Convention within the meaning of Article 35 § 3 (a), and application
no. 7604/15 must be rejected in accordance with Article 35 § 4.
6 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION

C. Remaining applications (nos. 17500/15 (Elisabeta Mărgărit

v. Romania), 17501/15 (Luiza Mărgărit v. Romania) and 17502/15
(Ion Bogdan Mărgărit v. Romania))

1. Complaints under Article 6 § 1 of the Convention

24. The applicants complained of a breach of their rights under Article 6
§ 1 of the Convention the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by an ... impartial tribunal ...”

(a) Fairness of the proceedings

25. The applicants complained that the proceedings finalised with the
judgment of 14 October 2014 (see paragraphs 12-14 above) had not been
fair because the Bucharest Court of Appeal had ordered the seizure and
confiscation of their assets without their being informed of the evidence or
elements justifying those measures, and without their having an opportunity
to defend their rights in the framework of the criminal proceedings against
M.C.
26. The Court reiterates its well-established case-law to the effect that in
cases involving the confiscation of applicants’ property in the framework of
criminal proceedings against third parties, confiscation measures constitute
an interference with the applicants’ right to the peaceful enjoyment of their
possessions. As property rights are civil rights within the meaning of
Article 6 § 1 of the Convention, that provision is applicable under its civil
head (see Silickienė v. Lithuania, no. 20496/02, §§ 45-46, 10 April 2012,
and Yldirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV).
27. The Court has previously examined the Romanian legal framework
on the issue of seizure and confiscation from third parties and found it to be
in compliance with the fair trial guarantees set out in Article 6 § 1 of the
Convention (see Telbis and Viziteu v. Romania (no. 47911/15, §§ 53-58,
26 June 2018). In this regard, the Court has held that the domestic
legislation gives third parties the opportunity, if they so wish, to fully
participate in the proceedings in which a seizure or confiscation measure is
decided (ibid., § 54).
28. Turning to the current case, all applicants were summoned to appear
before the Bucharest Court of Appeal (see paragraphs 6-9 above) and were
accepted as parties to the criminal proceedings against M.C. (see
paragraph 10 above and compare Silickienė, cited above, § 48, where the
applicant was not a party to the criminal proceedings at all). Moreover, the
Court notes that the documents in the file indicate that the applicants were
represented by lawyers of their choice and had ample opportunity to present
their arguments on points of fact and law before the court, both in writing
and orally at hearings (see paragraphs 8 and 10 above). The domestic court
 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION 7

duly examined and responded to the applicants’ arguments in the light of

the supporting evidence available in the case file and concluded that the
seized and confiscated assets formed part of the direct proceeds of M.C.’s
criminal activity, and that the applicants had not shown that those assets had
been lawfully acquired (see paragraphs 12-14 above).
29. In the light of the above, the Court considers that the Romanian
authorities afforded the applicants reasonable and sufficient opportunity to
adequately protect their interests. 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.

(b) Impartiality of the Court of Appeal

30. The applicants Elisabeta Mărgărit and Luiza Mărgărit also alleged
that the trial panel who ordered the seizure and confiscation of their assets
had lacked impartiality. The Court notes that there is no evidence in the file
that the above-mentioned applicants have exhausted the domestic remedies
on this issue, more specifically there is no evidence that they ever submitted
to the Bucharest Court of Appeal an application for the recusal of the panel
in question.
31. In view of the above, the Court finds that this complaint is
inadmissible for non-exhaustion of domestic remedies and must be rejected
in accordance with Article 35 §§ 1 and 4 of the Convention.

(c) Lack of two levels of jurisdiction

32. Relying on Article 13 of the Convention, the applicants also
complained that they did not have two levels of jurisdiction in the
proceedings which had resulted in the seizure and confiscation of their
assets.
33. The Court reiterates that by virtue of the jura novit curia principle it
is not bound by the legal grounds adduced by the applicant under the
Convention and the Protocols thereto and has the power to decide on the
characterisation to be given in law to the facts of a complaint by examining
it under Articles or provisions of the Convention that are different from
those relied upon by the applicant (see Radomilja and Others v. Croatia
[GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). Having regard to
the nature and the substance of the applicants’ complaints, the Court
considers that they fall to be examined under Article 6 § 1 of the
Convention.
34. The Court recalls that the Convention does not guarantee a right to a
double degree of jurisdiction in civil matters. In fact, since it does not
provide any right to an appeal in civil cases, Article 6 § 1 does not require
States to set up courts of appeal or of cassation (see Mugliett v. Malta (dec.),
no. 46661/12, § 37, 28 May 2013).
8 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION

35. It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention, and must be rejected under
Article 35 §§ 3 and 4 of the Convention.

2. Complaint under Article 1 of Protocol No. 1 to the Convention

36. The applicants argued that the seizure and confiscation of their
property without their being convicted of anything, and without sufficient
procedural guarantees, had been in breach of Article 1 of Protocol No. 1 to
the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
37. The Court firstly recalls that it has already examined similar
complaints and found them to be in compliance with the provisions of
Article 1 of Protocol No. 1 to the Convention (see Telbis and Viziteu, cited
above, §§ 72-82).
38. In the current case, the measures adopted with respect to the
applicants’ assets constituted control of the use of property within the
meaning of the second paragraph of Article 1 of Protocol No. 1 to the
Convention (ibid., §§ 69 and 72). The Court notes that the measures were
prescribed by law, since they were ordered under Article 249 §§ 1 and 4 of
the CCP, and Article 112 §§ 1 (e) and 6 of the CC (see paragraphs 6 and 14
above). Furthermore, the Court considers that the measures in question,
namely the seizure and confiscation of property obtained through crime,
were in line with the general interest of the community (see Veits v Estonia,
no. 12951/11, § 73, 15 January 2015).
39. The Court therefore needs to examine whether a fair balance was
struck between the legitimate aim and the applicants’ fundamental rights,
and whether there were sufficient procedural guarantees in place.
40. In this connection, the Court firstly notes that the proceedings in
which the seizure and confiscation measures were decided clearly formed
part of a policy aimed at the prevention of crime, in relation to which the
States enjoy a wide margin of appreciation both with regard to the existence
of a problem affecting the public interest which requires measures of control
and the appropriate way to apply such measures (see Arcuri and Others
v. Italy (dec.), no. 52024/99, ECHR 2001-VII).
41. The Court considers that its findings in respect of Article 6 § 1 (see
paragraphs 26-29 above) are also relevant in the context of Article 1 of
Protocol No. 1 as regards the question of whether the domestic proceedings
 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION 9

afforded the applicants a reasonable opportunity to put their case to the

authorities in order to effectively challenge the measures in question (see
Telbis and Viziteu, cited above, § 78). On this point, the Court attaches
importance to the fact that all applicants were summoned to appear in the
proceedings, and they were able to present their arguments in person and
through legal representatives of their choice. In addition, the domestic court
dealt with – and rejected with sufficient reasoning – the applicants’
arguments to the effect that the property in question had not been obtained
through crime.
42. The Court thus finds that there is nothing in the conduct of the
proceedings to suggest either that the applicants were denied a reasonable
opportunity to put forward their case or that the domestic court’s findings
were tainted with arbitrariness. The seizure and confiscation measures were
applied by the domestic court on the basis of evidence that the assets in
question had illicit origins and the applicants’ inability to prove the contrary
(see paragraphs 12-14 above; see also, mutatis mutandis, Telbis and Viziteu,
cited above, § 79).
43. Having regard to all the above considerations, and in particular the
way in which the domestic court fairly assessed the case, the Court finds
that the proceedings in the present case cannot be considered to have been
arbitrary. Having regard to the wide margin of appreciation enjoyed by
States in the pursuit of a policy designed to combat crime, and to the fact
that the domestic court afforded the applicants a reasonable opportunity to
put their case through adversarial proceedings, the Court concludes that the
interference with the applicants’ right to the peaceful enjoyment of their
possessions was not disproportionate to the legitimate aim pursued (see,
mutatis mutandis Telbis and Viziteu, cited above, § 81, and Bongiorno and
Others v. Italy, no. 4514/07, §§ 44-51, 5 January 2010).
44. It follows that this complaint must be rejected as manifestly
ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Complaint under Article 17 of the Convention

45. The applicants lastly complained that the Bucharest Court of Appeal
had relied on the provisions of Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 to the Convention in order to justify the
lawfulness of the seizure and confiscation measures, in breach of Article 17
of the Convention, which reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction
of any of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.”
46. The Court observes that Article 17 of the Convention can only be
applied in conjunction with the substantive provisions of the Convention. In
10 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION

so far as it refers to the State, Article 17 has been relied on in alleging that a
State has acted in a manner aimed at destroying any of these rights and
freedoms or limiting them to a greater extent than is provided for in the
Convention (see Mozer v. the Republic of Moldova and Russia [GC],
no. 11138/10, § 226, 23 February 2016).
47. The Court considers that the complaint, as formulated by the
applicants, alleging a breach of Article 17 on account of the respondent
State’s verification of the compliance of the measures adopted at domestic
level with Articles of the Convention, falls outside the scope of that Article.
In any case, the Court finds no evidence to suggest that the respondent State
set out to deliberately destroy any of the rights relied on by the applicants in
the present case, or to limit any of these rights to a greater extent than is
provided for in the Convention.
48. 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.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 24 October 2019.

Andrea Tamietti Faris Vehabović

Deputy Registrar President
 MĂRGĂRIT v. ROMANIA AND OTHER APPLICATIONS DECISION 11

APPENDIX

No. Application no. Lodged on Applicant’s Represented by

Date of Birth/
Date of Registration
Place of Residence
1 17500/15 09/04/2015 Elisabeta MĂRGĂRIT
17/01/1947
Bucharest
2 17501/15 09/04/2015 Luiza MĂRGĂRIT
20/05/1966
Bucharest
3 17502/15 09/04/2015 Ion Bogdan
MĂRGĂRIT
19/02/1991
Bucharest
4 17604/15 09/04/2015 CONSULT Luiza MĂRGĂRIT,
IMOBILIARE NORD unique associate
S.R.L.
22/06/2007
Bucharest