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ADRIAN
MIHAI IONESCU v. ROMANIA DECISION 7
…
THE FACTS
-
The applicant, Mr Adrian Mihai Ionescu, is a Romanian national, who
was born in 1974 and lives in Bucharest. The Romanian Government
(“the Government”) were represented by their Agent,
Mr Răzvan Horaţiu Radu, of the Ministry of
Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
an action before the Bucharest District Court, the applicant claimed
90 euros (EUR) in damages from an international road transport
company (“the company”), alleging that it had failed to
perform its contractual obligations.
- He
claimed that in respect of a return journey between Bucharest and
Madrid, which had cost him EUR 190, the company had failed to observe
the safety and comfort requirements set out in its advertising
material, namely the provision of fully reclining seats, a change of
coach in Luxembourg and the availability of six drivers.
- On
6 January 2004 he requested the production of the relevant
transport documents held by the defendant company.
- In
a judgment of 7 January 2004 the court dismissed his action. After
examining the clauses of the contract of carriage, it found that none
of the conditions referred to by the applicant were mentioned. The
court did not rule on the request for the production of certain items
of evidence.
- In
an appeal on points of law received in the court’s registry on
22 January 2004, the applicant challenged that judgment. In
his grounds of appeal, filed in the registry on the same day, he
alleged that the impugned judgment was based on contradictory
grounds, that it was the result of an erroneous application of the
law and that it infringed the law. The applicant added that the court
had failed to rule on certain defences that were crucial for the
outcome of the dispute and that it had misinterpreted the
subject-matter of the proceedings.
- He
developed his arguments relying on provisions of the Civil Code and
on the interpretation of the contractual clauses.
- The
case was referred to the High Court of Cassation and Justice (“the
High Court”). Under the Code of Civil Procedure as then in
force, the appeal was subject to a two-stage examination: first, the
High Court would adjudicate in private on its admissibility and, if
it was declared admissible, the merits of the impugned judgment would
then be examined in a public hearing.
- On
26 February 2004 the applicant submitted “pleadings
concerning the admissibility of the appeal” in which he argued
that it should be declared admissible because the substantive and
procedural conditions were satisfied.
- In a final judgment delivered in private on 2 April
2004 in the absence of the parties, who had not been summoned to
appear, the High Court declared the appeal null and void, under
Article 302-1 § 3 of the Code of Civil Procedure as
then in force, on the ground that it had not stated the reasons why
the District Court’s decision was alleged to be unlawful.
- On
3 August 2004 the applicant applied to have that judgment
set aside, alleging that it was the result of a manifest error on the
part of the High Court, because he had set out his grounds of appeal
in the document filed on 22 January 2004. In addition, he complained
about the lack of publicity of the proceedings before the High Court.
- In
a judgment of 26 January 2005 the High Court rejected his application
on the ground that no appeal lay against the judgment of 2 April
2004.
B. Relevant domestic law
- The
Code of Civil Procedure (as amended by the Government’s
Emergency Order no. 58 of 25 June 2003), as worded at the
material time, contained the following provisions:
Article 299
“Appeals on points of law shall be heard by the
High Court of Cassation and Justice, unless otherwise provided by
law.”
Article 302-1 § 3
“Statements of appeal on points of law shall, if
they are not to be declared null and void, ... indicate the grounds
of illegality raised and contain the corresponding reasoning ...”
Article 304
“The setting-aside or quashing of a judgment may
be sought only in the following cases and for the following reasons:
1. if the bench was composed in breach of the
statutory provisions;
2. if the judgment was delivered by judges
other than those who heard the case on the merits;
3. if the judgment was rendered in disregard
of the jurisdiction of another court;
4. if the court exceeded its jurisdiction;
5. if the judgment was rendered contrary to
rules of procedure of which a breach carries the sanction of nullity
...;
6. if the judgment was rendered ultra
petita;
7. if the judgment did not give reasons or if
it was based on reasoning that was contradictory or unrelated to the
subject-matter of the proceedings;
8. if, on account of misinterpretation, the
court modified the subject-matter of the proceedings whereas that
subject-matter had been clear and undisputed;
9. if the judgment was not based on the law,
if it infringed the law, or if it was the result of an erroneous
application of the law;
10. if the court failed to rule on certain
defences or certain documents in the file that were crucial for the
outcome of the dispute.”
Article 304-1
“An appeal on points of law against a judgment
which is not subject to an ordinary appeal shall not be limited to
the situations provided for in Article 304, as the appellate court
shall be entitled to examine all the aspects of the case.”
Article 308 §§ 1 and
4
“The president of the court which receives the
appeal on points of law shall appoint a bench of three judges to rule
on its admissibility ...
If the judges are unanimous in finding that the
admissibility conditions are not satisfied, or if they find that the
grounds of appeal and the accompanying arguments do not correspond to
those set out in Article 304, they shall declare the appeal null and
void or, if appropriate, reject it in a reasoned decision without
summoning the parties, that decision not being subject to appeal.”
- Law
no. 195 of 25 May 2004, further amending the Code of
Civil Procedure, repealed the provisions of Emergency Order
no. 58/2003 concerning the exclusive jurisdiction of the High
Court of Cassation and Justice to hear appeals on points of law,
together with the provisions concerning the preliminary examination
of their admissibility. Appeals on points of law are now examined by
the courts that are immediately above those that gave the judgments
at first instance or on appeal, without any preliminary examination
of admissibility, and in accordance with the ordinary procedure
provided for by the Code of Civil Procedure.
COMPLAINTS
- Relying
on Article 6 § 1 of the Convention, the applicant complained
that the District Court had failed to rule on his request for the
production of evidence, that the proceedings in the High Court had
not been public, and lastly that he had not had access to the High
Court for the purpose of appealing against the judgment of 7 January
2004.
- Referring
to Article 13 of the Convention, he complained that the appeal
against the above-mentioned judgment had not constituted an effective
remedy and that there had been no remedy by which to challenge the
judgment of 2 April 2004.
THE
LAW
- The
applicant submitted a number of complaints under Article 6 § 1
and Article 13 of the Convention, which read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
- First,
as regards the proceedings before the District Court, the applicant
alleged that the court had omitted to rule on his request for the
production of evidence.
- The
Court reiterates at the outset that the admissibility of evidence is
primarily a matter for regulation by national law and that it is for
the national courts to assess whether it is appropriate to take
evidence. Nor is it for the Court to examine an application
concerning errors of fact or law allegedly committed by domestic
courts.
- In
view of all the material in its possession, and to the extent that it
is competent to examine the allegations made, the Court finds
that the
District Court carried out a wholly independent assessment of all the
circumstances of the case and the various evidence adduced by the
parties and gave adequate reasons for its judgment. The judgment was
given after adversarial proceedings during which the applicant had
been able to present the observations and legal grounds that he
deemed necessary, together with arguments in support of his position.
It cannot therefore be considered that the proceedings failed to meet
the requirements of fairness under Article 6 § 1 of
the Convention.
- It
follows that this complaint must be rejected as manifestly
ill-founded in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
- Secondly,
as regards the examination by the High Court of Cassation and Justice
of his appeal on points of law, the applicant complained that the
procedure had not been public and that the appeal had been declared
null and void. He also complained that there was no remedy by which
to challenge the High Court’s judgment.
- The
Government admitted that the applicant’s right of access to a
court had been subjected to limitations, but argued that the
conditions of admissibility of the appeal on points of law had been
compatible with Convention requirements. They alleged that the
applicant had not satisfied the procedural conditions laid down in
the Code of Civil Procedure, as he had failed to refer expressly to
the cases he sought to submit in which such an appeal was available.
- They
further pointed out that the High Court had examined the applicant’s
pleadings and had concluded that his arguments did not enable it to
relate his complaints to the cases in which such an appeal was
available. The Government concluded that the annulment of the appeal
had been the result of negligence on his part.
- The
applicant maintained that the decision declaring null and void his
appeal on points of law had breached his right of access to a court.
He stated that in his pleadings of 22 January 2004 he had
cited and developed the provisions of Article 304 of the Code of
Civil Procedure. He thus took the view that the High Court had
confined itself to a purely formal examination of his appeal and had
dismissed it arbitrarily.
27. The Court
finds at the outset that the applicant’s complaints about the
proceedings before the High Court underlie
those concerning the annulment of his appeal and may be seen in the
context of his right of access to a court.
- The
Court further notes that Article 35 of the Convention, as amended by
Protocol No. 14, which entered into force on 1 June 2010,
provides as follows:
“3. The Court shall declare inadmissible any
individual application submitted under Article 34 if it considers
that :
a. the application is incompatible with the provisions
of the Convention or the Protocols thereto, manifestly ill-founded,
or an abuse of the right of individual application; or
b. the applicant has not suffered a significant
disadvantage, unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected
on this ground which has not been duly considered by a domestic
tribunal.”
29. In the
present case, the Court finds that the complaint under Article 6 of
the Convention is
not incompatible with the provisions of the Convention or its
Protocols, nor is it manifestly ill-founded or an abuse of the right
of application within the meaning of Article 35
§ 3 (a) of the Convention as amended by Protocol No. 14.
- However,
having regard to the entry into force of Protocol No. 14, the Court
finds it necessary to examine of its own motion whether in the
present case it should apply the new admissibility criterion provided
for by Article 35 § 3 (b) of the Convention as amended
(see, mutatis mutandis, among the many cases where the Court
has examined compliance with admissibility conditions of its own
motion, Walker v. the United Kingdom (dec.), no. 34979/97,
ECHR 2000 I; Blečić v. Croatia [GC], no.
59532/00, § 63, ECHR 2006 III; and Şandru and
Others v. Romania, no. 22465/03, §§ 50 et seq., 8
December 2009).
31. As
indicated in paragraph 79 of the Explanatory Report to Protocol
No. 14: “The new criterion may lead to certain cases being
declared inadmissible which might have resulted in a judgment without
it. Its main effect, however, is likely to be that it will in the
longer term enable more rapid disposal of unmeritorious cases”.
32. The Court
notes that the main aspect of this new criterion is
whether the applicant has suffered any significant disadvantage.
- Even
though the concept of “significant disadvantage” has not
been interpreted to date, it has been referred to in dissenting
opinions appended to the judgments in Debono
v. Malta (no. 34539/02, 7 February 2006),
Miholapa v. Latvia (no. 61655/00, 31 May
2007),
O’Halloran and Francis v. the United Kingdom ([GC], nos.
15809/02 and 25624/02, ECHR 2007 VIII) and Micallef
v. Malta ([GC], no. 17056/06, ECHR
2009 …).
34. Those
opinions show that the absence of any such disadvantage can be based
on criteria such as the financial impact of the matter in dispute or
the importance of the case for the applicant. In this connection it
is noteworthy that the insignificance of a claim was the decisive
factor in a recent decision by the Court declaring an application
inadmissible (see Bock v. Germany
(dec.), no. 22051/07, 19 January 2010).
- In
the present case the Court notes that the applicant’s alleged
financial loss on account of a failure to perform a contract of
carriage was limited. The amount in issue, according to the
applicant’s own estimation, was 90 euros for all heads of
damage, and there is no evidence that his financial circumstances
were such that the outcome of the case would have had a significant
effect on his personal life.
- In
those circumstances the Court finds that the applicant has not
suffered any “significant disadvantage” in the exercise
of his right of access to a court.
- As
to the question whether respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits, the Court points out that it has already
held that respect for human rights does not require it to continue
the examination of an application when, for example, the relevant law
has changed and similar issues have been resolved in other cases
before it (see Léger v. France (striking out) [GC], no.
19324/02, § 51, ECHR 2009 ...).
- In the present case the Court observes that the
provisions concerning the preliminary examination of the
admissibility of appeals on points of law have been repealed and that
such appeals are now examined according to the ordinary procedure
provided for by the Code of Civil Procedure.
- In
those circumstances, since the issue before the Court is of
historical interest only and as the Court has already had a number of
opportunities to rule on the application of procedural rules by
domestic courts (see, for example, Běleš and Others v.
the Czech Republic, no. 47273/99, § 69, ECHR 2002 IX;
Zvolský and Zvolská v. the Czech Republic, no.
46129/99, § 55, ECHR 2002 IX; L’Erablière
A.S.B.L. v. Belgium, no. 49230/07, §
38, ECHR 2009 …; and Sâmbata
Bihor Greco-Catholic Parish v. Romania,
no. 48107/99, § 63, 12 January 2010), the Court finds
that respect for human rights does not require it to continue the
examination of this complaint.
- Lastly, as regards the third condition of the new
admissibility criterion, namely that the case must have been “duly
considered” by a domestic tribunal for it to be inadmissible,
the Court notes that the applicant’s action was examined on the
merits by the Bucharest District Court. The applicant was therefore
able to submit his arguments in adversarial proceedings before at
least one domestic court.
- The
three conditions of the new admissibility criterion having therefore
been satisfied, the Court finds that this complaint must be declared
inadmissible under Article 35 §§ 3 (b) and 4 of the
Convention.
For these reasons, the Court by a majority,
Declares the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President
