ECtHR Recognises Confiscation of Unexplained Property as Legal

The ECtHR has adopted the relevant decision in considering the Case of Păcurar v. Romania.

1. Timeline of proceedings

According to the case file, Ioan Păcurar occupied a high-ranking position in the county police inspectorate. On 28 December 2011, the National Integrity Agency (Agentia Nationala de Integritate – ANI) stated that Păcurar had not respected the legal provisions regulating the declaration of assets thereby triggering verification procedures. The latter indicated that Păcurar had not disclosed any income except for his salary and had been inconsistent in listing the real estate he had acquired.

On 31 August and 4 September 2012, Păcurar was informed by a registered letter and phone respectively that throughout the period in which he had held the public position a considerable (over EUR 10,000) difference between his income and expenses had been detected. Thereafter, he was summoned to the court to provide his point of view and any relevant information.

In explaining the origin of his income, Păcurar provided the documents confirming the payment of allowances in his workplace and said that the difference between his income and expenses was due to the financial wedding gifts in 2005 amounting to EUR 93,000 his wife’s income of EUR 79,000 and the income from his family’s farming ranging from EUR 8,000 and EUR 16,000 depending on the year. At the same time, Păcurar did not explain why this income had not been declared.

On 24 September 2012, the ANI concluded the verification with a report in which it was explained that significant differences between the applicant’s income and expenses had been found in relation to 2001, 2003, 2004 and 2008 to 2010, totalling 718,847.54 Romanian lei (ROL – approximately EUR 189,000). The amounts allegedly received as gifts and those belonging to Păcurar’s wife had not been taken into account as legitimate assets, because it was considered that no proof had been submitted in support of the allegations.

Thereafter, the case was forwarded to the Commission for the Verification of Assets attached to the Cluj Court of Appeal (Comisia de Verificare a Averii ataşată Curţii de Apel Cluj). In the first hearing set for 7 November 2012, Păcurar stated again that the considerable sums of money had been received by him from farming and as the gifts from his farther at his wedding and on the occasion of his children’s baptisms; a part of the money used for buying real estate, in Păcurar’s words, belonged to his wife who had obtained it by selling a Volkswagen Golf to a person whose name she could not remember, and no written proof of the transaction could be submitted.

On 21 November 2012 the court also heard a number of witnesses indicated by Păcurar, in particular:

Păcurar’s son from his previous marriage stated that he had bought a car from his father for EUR 11,000 and two other cars from Păcurar’s wife for the total amount of EUR 34,400, and that he had received a house from Păcurar in 2004 that he had rented out and the rent had been deposited in a bank account opened in Păcurar’s name;
Păcurar’s former wife and another witness who stated that they had acquired certain assets from Păcurar.

All above-listed statements were not proved by any documents.

In the same hearing, the court initiated an accounting expert report that resulted in the decision that there were no differences between Păcurar’s income and expenses. The ANI lodged a protest against the decision because the calculations were based on the information on the income that had not been proved by any documents.

As a result, on 25 March 2013 the court recognised the presence of considerable differences between the income and expenses only with regard to the income for the period between 1996 and 2004 and the expenses in 2004; the difference amounted to ROL 261,310 (roughly EUR 59,000). The case was forwarded to the Cluj Court of Appeal for considering the confiscation of this sum of money.

On 27 May 2013, the proceedings were initiated in the Court of Appeal, where Păcurar’s lawyer insisted that the calculation of income and expenses were to be done for the whole period rather than for each year as the ANI had done. In addition, a number of new witnesses was heard, including Păcurar’s relatives who confirmed orally Păcurar’s words about the origin of his income. On 28 April, another accountant’s report was submitted, taking into consideration the testimony of all witnesses, according to which there were no differences between the income and expenses. In October-November 2014 yet another report was prepared with the participation of a new expert, and on 24 November 2014 the court satisfied the ANI’s request to conduct an independent examination that indicated that there had been differences in 2003 and 2004 amounting to EUR 696 and EUR 2,815 respectively.

The Court of Appeal stated in its final ruling that the origin of ROL 254,924 (approximately EUR 57,000) had not been proved and that that sum of money was to be confiscated. The Court of Cassation upheld the decision.

2. ECtHR’s decisions

Păcurar did not agree with the court ruling and appealed to the ECtHR for its reconsideration. In his opinion, the proceedings had been characterized by the following violations:

1. The right to a fair trial had been violated:

The courts either interpreted in a biased manner or ignored some evidence, especially, the witnesses’ testimony, proving the origin of Păcurar’s assets;
Păcurar did not have sufficient possibility to contest the ANI’s conclusions;
The court obliged Păcurar, for no reason, to prove the legal origin of his assets;

2. The right to respect for private property was violated:

There was no sufficient ground for confiscation, because Păcurar was not accused of a crime, while the contested assets were recognised to be lacking of proof rather than illicit;
The confiscation violated the principle of proportionality between the public interest and Păcurar’s right to property;
Păcurar provided sufficient explanations about the origin of his income;

3. The verification covered the period preceding the time when Păcurar assumed the high-ranking position in the county police inspectorate, which was illegal.

The ECtHR considered Păcurar’s file and did not find violations in the confiscation of assets or facts of failure of the national justice bodies to comply with the provisions regulating the right to own property, stressing that:

1. The trial was fair, because:

Păcurar was informed about the initiation of the procedure, provided evidence, participated in the proceedings and was represented by a lawyer;
The procedure consisted of a number of verification levels: the ANI, the Commission for the Verification of Assets, judges of the appeal and cassation instances;
The courts considered all Păcurar’s arguments, provided motivated responses and undertook a comprehensive analysis of the evidence;
The argument stating that the evidence had been ignored was unfounded, because the courts considered all evidence provided, including the witnesses’ testimony, and concluded that some of them were not sufficiently convincing;
The burden of proof was distributed in a balanced manner, because the courts assessed all evidence available, including that of the ANI;

2. The right to respect for private property was not violated, because:

The confiscation was undertaken within civil proceedings in line with the anti-corruption legal provisions; the sum of money subject to confiscation was limited, calculated in a precise manner and based on the differences detected;
The courts had undertaken an adequate analysis of the evidence the reliability of which they were entitled to assess and not to take into consideration in case of doubt, and their refusal to take into consideration a part of it had not violated Păcurar’s right;

3. The verification had been conducted only with regard to the period where the asset declaration legislation that Păcurar had had to respect had been in force.

The ECtHR thereby recognised that the confiscation of assets of officials, in case of absence of explanations of their origin, is not a violation of human rights. In defining the assets subject to confiscation the authorised bodies can:

Use the confiscation of unexplained property in civil proceedings without proving the link with any crime (if this mechanism is provided for by national law);
Undertake calculations for short subperiods (for example, a year), and then summarize all kinds of income that have not been proved in a total sum of money subject to confiscation;
Conduct purifications with regard to the whole period of one’s being in office.