BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF MITREA v. ROMANIA
(Application
no. 26105/03)
JUDGMENT
STRASBOURG
29 July
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mitrea v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26105/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Augustin Mitrea (“the
applicant”), on 11 July 2003.
- The
applicant was represented by Mr Vasile Florin Fericean, a lawyer
practising in Baia Mare. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, from the Ministry of Foreign Affairs.
- On
6 November 2007 the Court decided to communicate to the Government
the complaint concerning the alleged violation of the applicant's
right to a fair hearing by the quashing, on an extraordinary appeal,
of a final and enforceable decision in his favour. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Baia Mare.
A. Proceedings against I.W.
- On
1 April 2002 the Maramureş County Court ordered a company I.W.,
the applicant's former employer, to reinstate him in his post and to
pay him compensation. This decision became final.
However,
on 30 September 2002 the same court granted I.W.'s request and
annulled the 1 April 2002 decision (contestaţie în
anulare). It proceeded to re-examine the case and dismiss the
applicant's initial action.
The
30 September 2002 decision was drafted on 28 October 2002 and typed
up on 30 October 2002. In accordance with the rules of
procedure, it was not served on the parties.
- On
18 December 2002 the applicant requested the Procurator-General to
lodge an application with the Supreme Court of Justice for an audit
setting aside the decision of 30 September 2002 (recurs în
anulare). On 20 March 2003, the Procurator-General refused
to act upon the applicant's request.
B. Proceedings against M.
- In
a decision of 3 February 2000, which was upheld by a final decision
of the Maramureş County Court on 18 May 2000, the
applicant's previous employer, a company called M. was ordered to
give the applicant his employment record and to pay him 100,000 Old
Romanian Lei (ROL) in legal fees.
- On
an unspecified date, the applicant lodged an application with the
Baia Mare District Court to enforce that decision. In its defence, M.
claimed that it no longer had the applicant's employment record and
that only the most recent employer (I.W.) was allowed to deliver a
duplicate.
- On
15 February 2002 the application was dismissed. The court found, in
particular, that the facts of the case confirmed that it was
objectively impossible for M. to deliver the applicant's employment
record, as the document was no longer in its possession.
- The
applicant's appeal was allowed by the Maramureş County Court in
a final decision of 17 June 2002, as amended on 12 September 2002.
The court imposed a daily penalty on M. of ROL 350,000 from
3 February 2000 until execution and ordered it to pay the
applicant ROL 5,712,000 in legal fees. After noting the
arguments used by the court at first instance in order to find
in favour of the debtor, the appeal court stated, in particular,
that:
“In so far as an irrevocable decision ordered [M.]
to deliver to the complainant his employment record, the impediments
to compliance referred to by the first-instance court are
irrelevant.”
- On
10 March 2003 M. filed with the Maramureş County Court a request
for the annulment (contestaţie în anulare) of the
decision of
17 June 2002, on the ground that the County Court had
not examined the evidence confirming its inability to comply.
- The
applicant submitted that M. did not have locus standi to
request an annulment, since the extraordinary-appeal procedure was
only available to the party who had lodged the ordinary appeal. He
also contended that the request should be rejected since M. had
invoked the same reasons as before the first-instance court and the
appeal court.
- In
a final decision of 26 March 2003, the Maramureş County Court,
sitting in a different composition from that of 17 June 2002, allowed
the request, and quashed the final decision of 17 June 2002 on the
merits and the decision of 12 September 2002 amending it.
Consequently, it dismissed the applicant's appeal and upheld the
judgment of 15 February 2002. The relevant parts of the decision read
as follows:
“The request [for annulment] was lodged by [M.],
which was the respondent in the appeal proceedings, within the
time-limits set out in Article 313 of the Code of Civil Procedure...
The court considers that Article 318 of the Code of
Civil Procedure is applicable, as the appeal court committed a
material error, that is, an obvious material error made by omitting
important elements or information from the file which had an
influence on the solution adopted.
When examining the grounds for appeal, the court should
have taken into account the evidence, that is, all elements that
confirmed the inability to comply, namely the lack of the applicant's
employment record. The court's conclusion that those impediments are
irrelevant contradicts the evidence.”
II. RELEVANT DOMESTIC LAW
- Article
318 of the Code of Civil Procedure defines a “material error”
as one of the grounds for having a final decision quashed by means of
a request for annulment (contestaţie în anulare).
This Article reads as follows, in so far as relevant:
Article 318
“Decisions rendered by a court of last instance
may also be contested by means of a request for annulment, when the
decision was based on a material error...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the annulment of the final decisions of 1
April 2002 and of 17 June 2002 and that the proceedings were unfair,
as the extraordinary appeals had been allowed although they did not
meet the admissibility criteria. He invoked Article 6 § 1
of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
1. Proceedings against I.W.
- The
Court reiterates that the object of the six-month time-limit under
Article 35 is to promote legal certainty by ensuring that cases
raising issues under the Convention are dealt with within a
reasonable time and that past decisions are not continually open to
challenge. The rule also affords the prospective applicant time to
consider whether to lodge an application and, if so, to decide on the
specific complaints and arguments to be raised (see, among other
authorities, Worm v. Austria, judgment of 29 August 1997,
Reports of Judgments and Decisions 1997-V, p. 1534, at
p. 1547, §§ 32-33).
- The
Court notes that the proceedings against I.W. ended with the final
decision of 30 September 2002. While it is not possible to establish
the date when this decision became available to the parties, the
Court notes that by 18 December 2002 at the latest, the applicant
must have known the content of the decision. At that date, he asked
the Procurator-General to appeal against it. It follows that, in
lodging this application on 11 July 2003, the applicant did not
observe the six-month requirement set forth in the Convention.
- Accordingly,
this part of the complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
2. Proceedings against M.
- The
Court notes that this part of the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government contended that several aspects distinguished this case
from Brumărescu v. Romania ([GC], no. 28342/95, ECHR
1999 VII) and Androne v. Romania (no. 54062/00, 22
December 2004), where the Court found that the quashing of a final
decision had violated the applicant's right to a fair hearing. They
pointed out that no State official had intervened in the case, as the
extraordinary appeal was directly lodged with the courts by the
defendant.
Furthermore,
the time-limits for lodging the complaint were clearly stated and
were observed. Lastly, the court that examined the extraordinary
appeal was the same as the one that had rendered the final decision,
and not a higher court exercising a supervisory power.
- The
Government contended that the material error committed, namely the
overlooking of important evidence, had been a very serious procedural
flaw which had led to an erroneous solution to the case.
- The
applicant argued that the County Court had examined the same
arguments both in the ordinary and extraordinary appeal and
reiterated that in his view the company had not had locus standi
to lodge the request for annulment.
2. The Court's assessment
- The
Court reiterates that, under its settled case-law, the right to a
fair hearing before a tribunal as guaranteed by Article 6 § 1
must be interpreted in the light of the Preamble to the Convention,
which declares, among other things, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, inter alia, that where the courts have finally
determined an issue, their ruling should not be called into question
(Brumărescu, cited above, § 61).
- Legal
certainty presupposes respect for the principle of res judicata
(ibid., § 62), that is the principle of the finality of
judgments. This principle underlines that no party is entitled to
seek a review of a final and binding judgment merely for the purpose
of obtaining a rehearing and a fresh determination of the case.
Higher courts' power of review should be exercised to correct
judicial errors and miscarriages of justice, but not to carry out a
fresh examination. The review should not be treated as an appeal in
disguise, and the mere possibility of there being two views on the
subject is not a ground for re-examination. A departure from that
principle is justified only when made necessary by circumstances of a
substantial and compelling character (see Ryabykh v. Russia,
no. 52854/99, § 52, ECHR 2003 IX).
- However,
the requirements of legal certainty are not absolute. The Court
itself recommends sometimes the re-opening of proceedings as the most
appropriate reparatory measure when the domestic proceedings have not
satisfied the Article 6 requirements (see, among other authorities,
Lungoci v. Romania, no. 62710/00, § 56,
26 January 2006).
In
any case, the power to launch and conduct a supervisory review should
be exercised by the authorities so as to strike, to the maximum
extent possible, a fair balance between the interests at stake (see,
mutatis mutandis, Nikitin v. Russia, no. 50178/99,
§ 57, ECHR 2004 VIII).
- Lastly,
the Court notes that, in the context of the Russian supervisory
review, the Committee of Ministers expressed particular concern at
the fact that the same court acted consecutively as a cassation and
extraordinary instance in the same case and stressed that the court
should be enabled to rectify all shortcomings of lower courts'
judgments in a single set of proceedings so that subsequent recourse
to the extraordinary appeal becomes truly exceptional, if necessary
at all (Interim Resolution ResDH (2006), quoted in Nelyubin v.
Russia, no. 14502/04, § 17,
2 November 2006).
- Turning
to the facts of the instant case, the Court notes that the final and
irrevocable decision of 17 June 2002 found in favour of the applicant
and considered that the arguments invoked by the debtor and accepted
by the first-instance court in order to justify the failure to comply
were irrelevant. However, the same court allowed the extraordinary
appeal on the ground that the court of last instance had not taken
that evidence into account.
- In
the light of all the material in its possession, and in so far as the
Court is competent to examine the domestic proceedings, it finds that
they do not disclose any appearance of arbitrariness in the way the
ordinary courts dealt with the case, such as to justify the reopening
of the proceedings (see García Ruiz v. Spain [GC],
no. 30544/96, § 28,
ECHR 1999 I, and Brualla
Gómez de la Torre v. Spain, judgment of
19 December
1997, Reports 1997 VIII, p. 2955, § 31;
see also paragraph 25 above).
Despite
the Government's claim to the contrary, the Court considers that this
situation is a typical case of there being different views of the
courts concerning the admissibility and relevance of the evidence
adduced, which, in the present case, does not justify the quashing of
a final and binding decision.
- Furthermore,
bearing in mind the circumstances of the case, the Court does not
consider it to be of any great significance that the request for
extraordinary review was lodged directly by one of the parties, as,
in its view, the domestic court used the opportunity created by that
request to re examine the evidence and quash the final and
binding decision (see also, mutatis mutandis, Androne,
§§ 17 and 19, cited above). For the same reason the Court
will not examine further the applicant's claim that the company
lacked locus standi for the extraordinary appeal.
- The
foregoing considerations are sufficient to enable the Court to
conclude that, by allowing the final decision of 17 June 2002 (as
amended on 12 September 2002) to be quashed, the authorities failed
to strike a fair balance between the interests at stake and thus
infringed the applicant's right to a fair hearing.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- On
24 March 2008 the applicant claimed 32,693 euros (EUR) in respect of
pecuniary damage, representing the daily penalty imposed by the final
decision of 17 June 2002 for the period from 3 February 2000 to
31 March 2008. He also claimed EUR 31,538 in respect of
non-pecuniary damage.
Lastly,
he made additional claims for the damage allegedly sustained as a
result of the quashing of the final decision of 1 April 2002.
- The
Government pointed out that the debtor in the case is a private
entity, and the State should not be held responsible for M.'s failure
to pay, in so far as the State's sole obligation in the matter is to
provide the creditor with an effective enforcement mechanism.
Furthermore, they reiterated that the only complaint raised by the
applicant was that under Article 6 § 1, and that no issue
connected with the property rights had been communicated to the
Government.
Lastly,
they considered that there was no causal link between the complaints
raised before the Court and the alleged non-pecuniary damage, and
contended that the claims under that head were in any case excessive.
- The
Court notes that it has already decided that a penalty similar to
that imposed on M. in the present case cannot be directly enforced,
as the interested party must seek its quantification by the domestic
courts, on the basis of the damage actually incurred (see Gavrileanu
v. Romania, no. 18037/02, § 66, 22 February
2007). The Court cannot speculate on the outcome of such proceedings.
It therefore rejects this claim.
- On
the other hand, it considers that the applicant must have sustained
non pecuniary damage and awards him EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 1,183 for fees and stamp duty and EUR 317
for translation, editing and copying costs. He informed the Court
that he was unable to present invoices, as he had not kept the
receipts for the costs incurred throughout the proceedings. He sent
invoices for the payment, on 24 March 2008, of 1,000 New Romanian Lei
(RON) for translations and RON 84 for postage stamps.
- The
Government argued that the applicant had not proved that these costs
had actually been incurred and pointed out that, for the same reason,
the two invoices could not be taken into account by the Court.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the two invoices are dated 24 March 2008, that being the date the
applicant's observations were sent to the Court. These costs must
have been incurred in connection with the present proceedings.
Therefore, having regard to the information in its possession and the
criteria mentioned above, the Court considers it reasonable to award
the sum of EUR 500 covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the quashing
of the final decision of 17 June 2002 (as amended on 12 September
2002) admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, for costs and expenses;
(b) that
these amounts are to be converted into the respondent State's
national currency at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
