Despre durata măsurilor asigurătorii în procesul penal

I hear or read a lot lately, either in court or in doctrinal articles, that the precautionary measures ordered in criminal proceedings must be lifted because 𝒅𝒖𝒓𝒂𝒕𝒂 𝒍𝒐𝒓 𝒆𝒔𝒔𝒕𝒆 𝒆𝒙𝒂𝒈𝒆𝒓𝒂𝒕 𝒅𝒆𝒆 𝒎𝒂𝒓𝒆. I also heard this sentence when the measures had been in place for a few months, but also for 4-5-6 or even 10-11 years. Invariably, ECHR case law on the matter is invoked, in particular the 𝐹𝑜𝑟𝑚𝑖𝑛𝑠𝑡𝑒𝑟 𝐸𝑛𝑡𝑒𝑟𝑝𝑟𝑖𝑠𝑒𝑠 𝑐. 𝑅𝑒𝑝𝑢𝑏𝑙𝑖𝑐𝑖𝑖 𝐶𝑒ℎ𝑒, sometimes also 𝐵𝑒𝑛𝑒𝑛𝑒𝑡 𝑃𝑟𝑎ℎ𝑎 𝑐. 𝑅𝑒𝑝𝑢𝑏𝑙𝑖𝑐𝑖𝑖 𝐶𝑒ℎ𝑒, and more recently also 𝐶𝑟𝑒𝑑𝑖𝑡 𝐸𝑢𝑟𝑜𝑝𝑒 𝐿𝑒𝑎𝑠𝑖𝑛𝑔 𝐿𝑒𝑎𝑠𝑖𝑛𝑔 𝑐. 𝑅𝑜𝑚𝑎̂𝑛𝑖𝑒𝑖 or 𝑊𝑒𝑒𝑙𝑙𝑎𝑛𝑒 𝐿𝑡𝑡𝑑. 𝑐. 𝑅𝑜𝑚𝑎̂𝑛𝑖𝑖𝑒𝑖.

How much is in fact too much in this matter, according to the ECHR?

First of all, it should be noted that 𝐧𝐢𝐜𝐚̆𝐢𝐞𝐫𝐢 𝐂𝐄𝐃𝐎 𝐂𝐄𝐃𝐎 𝐧𝐮 𝐬𝐩𝐮𝐧𝐞 𝐜𝐚̆ 𝐝𝐮𝐫𝐚𝐭𝐚 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐨𝐫 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐨𝐫 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐞𝐬𝐭𝐞 𝐞𝐬𝐭𝐞 𝐬𝐢𝐧𝐠𝐮𝐫𝐮𝐥 𝐬𝐢𝐧𝐠𝐮𝐫𝐮𝐥 𝐜𝐫𝐢𝐭𝐞𝐫𝐢𝐮 𝐜𝐚𝐫𝐞 𝐣𝐮𝐬𝐭𝐢𝐟𝐢𝐜𝐚̆ 𝐣𝐮𝐬𝐭𝐢𝐟𝐢𝐜𝐚̆ 𝐫𝐞𝐭̦𝐢𝐧𝐞𝐫𝐞𝐚 𝐢̂𝐧𝐜𝐚̆𝐥𝐜𝐚̆𝐫𝐢𝐢 𝐢̂𝐧𝐜𝐚̆𝐥𝐜𝐚̆𝐫𝐢𝐢 𝐚𝐫𝐭. 𝐝𝐢𝐧 𝐏𝐫𝐨𝐭𝐨𝐜𝐨𝐥𝐮𝐥 𝟏 𝐥𝐚 𝐂𝐨𝐧𝐯𝐞𝐧𝐭̦𝐢𝐞 (𝐩𝐫𝐨𝐭𝐞𝐜𝐭̦𝐢𝐚 𝐩𝐫𝐨𝐩𝐫𝐢𝐞𝐭𝐚̆𝐭̦𝐢𝐢).

Specifically, in the cases cited above:

- in the case 𝐹𝑜𝑜𝑟𝑚𝑖𝑛𝑠𝑡𝑒𝑟 𝑐. 𝑅𝑒𝑝𝑢𝑏𝑙𝑖𝑐𝑖𝑖 𝐶𝑒ℎ𝑒, the duration of the proceedings is 𝐜𝐨𝐫𝐨𝐛𝐨𝐫𝐚𝐭𝐚̆ 𝐜𝐮 𝐯𝐚𝐥𝐨𝐚𝐫𝐞𝐚 𝐜𝐨𝐧𝐬𝐢𝐝𝐞𝐫𝐚𝐛𝐢𝐥𝐚̆ 𝐚 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐨𝐫 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 (the damage established by the indictment of 2005 was 41,941,642 euros);

- Similarly, a duration of 4 years and 5 months, 𝐜𝐨𝐫𝐨𝐛𝐨𝐫𝐚𝐭𝐚̆ 𝐜𝐜𝐮 𝐯𝐚𝐥𝐨𝐚𝐫𝐞𝐚 𝐬𝐮𝐦𝐞𝐢 𝐢𝐧𝐝𝐢𝐬𝐩𝐨𝐧𝐢𝐛𝐢𝐥𝐢𝐳𝐚𝐭𝐞 𝐬̦𝐢 𝐢𝐦𝐩𝐨𝐬𝐢𝐛𝐢𝐥𝐢𝐭𝐚𝐭𝐞𝐚 𝐜𝐨𝐧𝐭𝐞𝐬𝐭𝐚̆𝐫𝐢𝐢 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐢 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐝𝐢𝐬𝐩𝐮𝐬𝐞 𝐝𝐢𝐬𝐩𝐮𝐬𝐞 𝐢̂𝐧 𝐟𝐚𝐳𝐳𝐚 𝐮𝐫𝐦𝐚̆𝐫𝐢𝐫𝐢𝐢 𝐩𝐞𝐧𝐚𝐥𝐞 has been held not to be in conformity with the Convention (case 𝑊𝑒𝑙𝑙𝑎𝑛𝑒 𝐿𝑡𝑑. 𝐶. 𝑅𝑜𝑜𝑚𝑎̂𝑛𝑖𝑖𝑖, judgment of October 12, 2021);

- Previously, a duration of approx. 8 years, 𝐜𝐨𝐫𝐨𝐛𝐨𝐫𝐚𝐭𝐚̆ 𝐜𝐮 𝐚𝐜𝐞𝐥𝐞𝐚𝐬̦𝐢 𝐞𝐥𝐞𝐦𝐞𝐦𝐞𝐧𝐭𝐞, led the Court to find a violation of Art. 1 of Protocol No. 1 to the Convention (see CtEDO, case 𝐶𝑟𝑒𝑑𝑖𝑡 𝐸𝑢𝑟𝑜𝑝𝑒 𝐿𝑒𝑎𝑠𝑖𝑛𝑔 𝐼𝐹𝑁 𝑆𝐴. 𝑐. 𝑅𝑜𝑚𝑎̂𝑛𝑖𝑖𝑒𝑖, judgment of July 20, 2020) - the plaintiff company was a third party to the criminal proceedings;

- Conversely, a duration of the precautionary measure of 5 years was considered by the Court to be proportionate if, 𝐚𝐯𝐚̂𝐧𝐝 𝐢̂𝐧 𝐯𝐞𝐝𝐞𝐫𝐞 𝐜𝐨𝐦𝐩𝐥𝐞𝐱𝐢𝐭𝐚𝐭𝐞𝐚 𝐜𝐚𝐮𝐳𝐞𝐢, 𝐨𝐫𝐠𝐚𝐧𝐞𝐥𝐞 𝐨𝐫𝐠𝐚𝐧𝐞𝐥𝐞 𝐩𝐩𝐞𝐧𝐚𝐥𝐞 𝐧𝐮 𝐚𝐮 𝐫𝐚̆𝐦𝐚𝐬 𝐢̂𝐧 𝐢̂𝐧 𝐩𝐚𝐬𝐢𝐯𝐢𝐭𝐚𝐭𝐞 𝐚𝐜𝐞𝐚𝐬𝐭𝐚̆ 𝐩𝐞𝐫𝐢𝐨𝐚𝐝𝐚̆, 𝐬𝐭𝐫𝐚̂𝐧𝐠𝐚̂𝐧𝐝 𝐩𝐫𝐨𝐛𝐞, 𝐚𝐮𝐝𝐢𝐢𝐧𝐝 𝐦𝐚𝐫𝐭𝐨𝐫𝐢 𝐦𝐚𝐫𝐭𝐨𝐫𝐢 𝐬̧𝐢 𝐞𝐟𝐞𝐜𝐭𝐮𝐚̂𝐧𝐝 𝐦𝐦𝐚𝐢 𝐦𝐮𝐥𝐭𝐞 𝐬𝐨𝐥𝐢𝐜𝐢𝐭𝐚̆𝐫𝐢 𝐝𝐞 𝐚𝐬𝐢𝐬𝐭𝐞𝐧𝐭̦𝐚̆ 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐫𝐚̆ (cause 𝐵𝑒𝑛𝑒𝑡 𝑃𝑟𝑎ℎ𝑎 𝑆𝑃𝑂𝐿 𝑆.𝑅.𝑂. 𝑐. 𝑅𝑒𝑒𝑝𝑢𝑏𝑏𝑙𝑖𝑐𝑖𝑖𝑖 𝐶𝑒ℎ𝑒, judgment of September 28, 2010, para. 103 et seq.).

Perhaps one of the most relevant causes for the issue at hand is 𝐾𝑎𝑟𝑎ℎ𝑎𝑠𝑎𝑛𝑜𝑔𝑙𝑢 𝑐. 𝑇𝑢𝑢𝑟𝑐𝑖𝑖𝑒𝑖 of 2021 - see, in particular, paras. 150-154 - in which the Court held that 𝐚𝐫𝐭. 𝐝𝐢𝐧 𝐏𝐫𝐨𝐭𝐨𝐜𝐨𝐥𝐮𝐥 𝐧𝐫𝐫. 𝐧𝐮 𝐚 𝐟𝐨𝐬𝐭 𝐢̂𝐧𝐜𝐚̆𝐥𝐜𝐚𝐭, 𝐝𝐞𝐬̦𝐢 𝐞𝐫𝐫𝐚 𝐯𝐨𝐫𝐛𝐚 𝐝𝐞 𝐦𝐚̆𝐬𝐮𝐫𝐢 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐥𝐮𝐚𝐭𝐞 𝐝𝐞 𝐚𝐩𝐫𝐨𝐱. 𝟏𝟎 𝐚𝐧𝐢.

In short, the Court says that the proportionality of the interference with the right to property is assessed having regard to a 𝑐𝑢𝑚𝑢𝑙 𝑑𝑒 𝑓𝑎𝑐𝑡𝑜𝑟𝑖 (para. 151), which take into account both the duration, but also the scope and nature of the restrictions, as well as the presence or absence of procedural safeguards. Criteria such as:

- 𝐯𝐯𝐚𝐥𝐨𝐚𝐫𝐫𝐞𝐚 𝐛𝐮𝐧𝐮𝐫𝐢𝐥𝐨𝐫 𝐬𝐞𝐜𝐡𝐞𝐬𝐭𝐫𝐚𝐭𝐞 (it is therefore important to evaluate them+whether or not they cover the amount of the damage) - e.g., in the 𝐷𝑧𝑧𝑖𝑛𝑖𝑛𝑖𝑐 case, the value of the seized assets was almost nine times the alleged pecuniary gain obtained by the crime, and the domestic courts did not make any assessment in this respect; on the other hand, in the 𝐾𝑎𝑟𝑎ℎ𝑎𝑠𝑎𝑛𝑜𝑔𝑙𝑢 case, the scope of the provisional measures against the applicant was not disproportionate in relation to the pecuniary losses claimed from the persons whose assets were subject to the precautionary measures. The Court also notes that the damage caused by the precautionary measures 𝑛𝑢 𝑡𝑟𝑒𝑏𝑢𝑖𝑒 𝑠𝑎̆ 𝑠𝑎̆ 𝑓𝑖𝑒 𝑚𝑎𝑖 𝑚𝑎𝑟𝑒 𝑑𝑒𝑐𝑎̂𝑡 𝑐𝑒𝑒𝑒𝑎 𝑐𝑒 𝑒𝑠𝑡𝑒 𝑖𝑛𝑒𝑣𝑖𝑡𝑎𝑏𝑖𝑙 (for example, in 𝑆𝑡𝑜𝑙𝑘𝑜𝑤𝑠𝑘𝑖 𝑐. 𝑃𝑜𝑜𝑙𝑜𝑜𝑛𝑖𝑒𝑖 of 2021 held that "keeping the car (by the authorities - n. m.) for many years in an open-air parking lot cannot be considered diligence");

- 𝐝𝐚𝐜𝐜𝐚𝐚̆ 𝐞𝐱𝐢𝐬𝐭𝐚̆ 𝐞𝐥𝐞𝐦𝐞𝐧𝐭𝐞 𝐢𝐦𝐩𝐨𝐫𝐭𝐚𝐧𝐭𝐞 𝐜𝐚𝐫𝐞 𝐬𝐮𝐠𝐞𝐫𝐞𝐚𝐳𝐚̆ 𝐯𝐢𝐧𝐨𝐯𝐚̆𝐭̦𝐢𝐚 𝐢𝐧𝐜𝐮𝐥𝐩𝐚𝐭̦𝐢𝐥𝐨𝐫 - e.g., in 𝑈𝑧𝑧𝑎𝑎𝑛, there was no evidence on the record to indicate that the applicants themselves were involved in the commission of the offenses; on the contrary, in the 𝐾𝑎𝑟𝑎ℎ𝑎𝑠𝑎𝑛𝑜𝑔𝑙𝑢 case, the national courts found certain elements in the case file which indicated the guilt of the complainant;

- 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐞 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐧𝐮 𝐬𝐮𝐧𝐭 𝐠𝐞𝐧𝐞𝐫𝐚𝐥𝐞 𝐬̦𝐢 𝐧𝐮 𝐬𝐮𝐧𝐭 𝐚𝐩𝐥𝐢𝐜𝐚𝐭𝐞 𝐢̂𝐧 𝐦𝐨𝐝 𝐚𝐮𝐭𝐨𝐦𝐚𝐭 𝐬̦𝐢 𝐢𝐧𝐟𝐥𝐞𝐱𝐢𝐛𝐢𝐥, which is extremely important in the Court's view. Specifically, it is verified that the sources of income are not entirely unavailable and whether there has been the possibility to adapt the measures (e.g. whether they are periodically checked in our law); for example, in the case 𝐴𝑚𝑒𝑟𝑖𝑠𝑜𝑐 𝐶𝑒𝑒𝑛𝑡𝑒𝑟 𝑆.𝑅.𝐿. 𝑣. 𝐿𝑢𝑥𝑒𝑚𝑏𝑜𝑢𝑟𝑔 (2024), national courts did not review the measures at all for 6 years; in the case 𝐴𝑘𝑠ℎ𝑖𝑛 𝐺𝑎𝑟𝑎𝑦𝑒𝑣 𝑣. 𝐴𝑧𝑒𝑟𝑏𝑏𝑎𝑖𝑗𝑎𝑛 (2023) the measures lasted for 25 years, without the possibility for the authorities to verify the need to maintain them; it is also examined whether alternative measures were considered (e.g, return of the goods to the complainant company in exchange for a bank letter of guarantee - 𝐼̇𝑝𝑒𝑘 𝑆𝑜𝑜𝑐𝑖𝑒́𝑡𝑒́ 𝑎̀ 𝑟𝑒𝑠𝑝𝑜𝑛𝑠𝑎𝑏𝑖𝑙𝑖𝑡𝑒́ 𝑙𝑖𝑚𝑖𝑚𝑖𝑡𝑒́𝑒𝑒 𝑐. 𝑇𝑢𝑢𝑟𝑐𝑖𝑖𝑖𝑖, 2022, finding a violation of Art. 1 of Protocol No. 1); on the contrary, in the 𝐾𝑎𝑟𝑎ℎ𝑎𝑠𝑎𝑛𝑜𝑔𝑙𝑢 case, the courts gradually reduced the scope and extent of the measures in question in order to allow the applicant to enjoy his movable property and use his salary and pension;

- whether both the precautionary measures and their maintenance 𝐚𝐮 𝐩𝐮𝐮𝐭𝐮𝐭𝐮𝐭 𝐟𝐢 𝐜𝐨𝐧𝐭𝐞𝐬𝐭𝐚𝐭𝐞 by the persons concerned, thus benefiting from all necessary procedural guarantees;

- of course, an important role in the analysis (and here especially for national courts) is played by 𝐜𝐨𝐦𝐩𝐥𝐞𝐱𝐢𝐭𝐚𝐭𝐞𝐚 𝐜𝐚𝐮𝐳𝐞𝐳𝐞𝐢 - I would add, and 𝐬𝐭𝐚𝐝𝐢𝐮𝐥 𝐩𝐫𝐨𝐜𝐞𝐝𝐮𝐫𝐢𝐢 (ICCJ case law, incidentally, attaches particular importance to the timing of the procedure, frequently lifting precautionary measures that last for several years if the file is still at the prosecution stage or if the judicial investigation is at the beginning). And yes, precautionary measures can be lifted (and need to be verified) even if it is mandatory by law (𝑑𝑒𝑠𝑝𝑟𝑒 𝑎𝑐𝑒𝑠𝑡𝑒 𝑝𝑟𝑜𝑏𝑙𝑒𝑚𝑒 𝑝𝑟𝑜𝑏𝑙𝑒𝑚𝑒 𝑎𝑚 𝑠𝑐𝑟𝑖𝑠 𝑝𝑒 𝑙𝑎𝑟𝑔 𝑖̂𝑛 𝐶𝑃𝑃 𝐶𝑜𝑚𝑒𝑛𝑡𝑎𝑡 𝑝𝑢𝑏𝑙𝑖𝑐𝑎𝑡 𝑙𝑎 𝑒𝑑𝑖𝑡𝑢𝑟𝑎 𝐶𝐻 𝐵𝑒𝑐𝑘).

Very interestingly, in the case 𝐺𝑖𝑙𝑙𝑖𝑔𝑎𝑛 𝑠̦𝑖 𝑎𝑙𝑡̦𝑖𝑖𝑖 𝑐. 𝐼𝑜𝑟𝑙𝑙𝑎𝑛𝑑𝑒𝑖𝑖 (2021), however, analyzed in the light of Art. 6 of the Convention, the Court held that that Article had not been violated, as although the proceedings had lasted a total of 20 years, during which the applicants' assets had been under seizure, that duration had been largely determined by them, and during the proceedings 𝐚𝐮 𝐜𝐨𝐧𝐭𝐢𝐧𝐮𝐚𝐭 𝐬𝐚̆ 𝐬𝐚̆ 𝐬𝐞 𝐛𝐮𝐜𝐮𝐫𝐞 𝐝𝐞 𝐛𝐮𝐧𝐮𝐫𝐢𝐥𝐞 𝐬𝐮𝐩𝐮𝐬𝐞 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐨𝐫 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 (the properties in which they lived).

Conclusion: 𝐝𝐮𝐫𝐚𝐭𝐚 𝐦𝐚̆𝐬𝐮𝐫𝐢𝐥𝐨𝐫 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐚𝐬𝐢𝐠𝐮𝐫𝐚̆𝐭𝐨𝐫𝐢𝐢 𝐞𝐬𝐬𝐭𝐞 𝐝𝐨𝐚𝐫 𝐮𝐧𝐮𝐥 𝐝𝐢𝐧𝐭𝐫𝐞 𝐜𝐫𝐢𝐭𝐞𝐫𝐢𝐢𝐥𝐞 𝐜𝐚𝐫𝐞 𝐜𝐚𝐫𝐞 𝐭𝐫𝐞𝐛𝐮𝐢𝐞 𝐚𝐧𝐚𝐥𝐢𝐳𝐚𝐭𝐞 𝐝𝐞 𝐨𝐫𝐠𝐚𝐧𝐞𝐥𝐞 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐫𝐞 𝐚𝐭𝐮𝐧𝐜𝐢 𝐜𝐚̂𝐧𝐝 𝐥𝐞 𝐯𝐞𝐫𝐢𝐟𝐢𝐜𝐚̆/𝐬𝐨𝐥𝐮𝐭̦𝐢𝐨𝐧𝐞𝐚𝐳𝐚̆ 𝐨 𝐜𝐞𝐫𝐞𝐫𝐞 𝐨 𝐝𝐞 𝐫𝐢𝐝𝐢𝐜𝐚𝐫𝐞 𝐚 𝐚𝐜𝐞𝐬𝐭𝐨𝐫𝐚. There is no duration at which one can say "it's too much", but the analysis has to be done on a case-by-case basis (𝑠̦𝑡𝑖𝑢, 𝑛𝑢 𝑛𝑒 𝑝𝑙𝑎𝑐𝑒 𝑒𝑥𝑝𝑟𝑒𝑠𝑖𝑎), according to all the criteria listed above.