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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
31530/05
by Radu MUREŞAN
against Romania
The
European Court of Human Rights (Third Section), sitting on 22 June
2010 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
regard to the above application lodged on 8 August 2005,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Radu Mureşan, is a Romanian national who was born
in 1971 and lives in Sălaj. He was represented before the Court
by Mr Tudor Crihan, a lawyer practising in Zalău. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu, from 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.
- The
applicant was renting a small apartment from S., a former State owned
company. On an unspecified date, he made an offer to buy the
apartment under Law no. 85/1992, but he did not receive an answer to
the request. He therefore lodged an action with the Zalău
District Court seeking to have S. compelled to sell him the
apartment. His action was allowed on 8 May 2003, a decision
upheld on appeal by the Sălaj County Court.
- However,
in a final decision of 13 October 2004, the Cluj Court of Appeal
allowed an appeal on points of law lodged by S. and dismissed the
initial action. The applicant's lawyer was present at the delivery of
the said decision.
- The
reasoning of the final decision was completed on 12 November 2004.
The case file, including the complete text of the final decision, was
returned to the District Court on 26 January 2005.
- According
to the case-file, the applicant obtained a certified copy of the
final decision on 3 August 2005.
B. Relevant domestic law and practice
- The
Romanian Code of Civil Procedure provides that copies of decisions
are served on the parties only when this is necessary to start the
time-limit for bringing an appeal running. As a consequence, final
decisions are not served on the parties, on whom it is incumbent to
take the necessary steps to obtain a copy. In practice, copies are
obtained from the first-instance court, where the case file, together
with the final decision, is archived.
COMPLAINTS
- The
applicant complained in substance under Article 6 § 1, taken
alone and in conjunction with Article 14 of the Convention, that the
proceedings giving rise to the final decision of 13 October 2004 were
unfair, in particular in so far as the same [Cluj] Court of Appeal
had adopted conflicting decisions in identical cases brought against
other tenants of apartments located in the same building.
THE LAW
- The
applicant complained of the alleged conflicting case-law of the same
[Cluj] Court of Appeal.
- The
Government claimed that the applicant had failed to comply with the
six-month time-limit fixed by Article 35 § 1 of the Convention.
They argued that the final decision of the Cluj Court of Appeal,
which had been delivered on 13 October 2004, had been drafted on 12
November 2004 and had been deposited with the registry of the
first-instance court on 26 January 2005, whereas the applicant
had lodged his application with the Court on 8 August 2005, more than
six months after the date it was archived with the first-instance
court.
- The
applicant stated that, prior to addressing the Court, he tried to
obtain redress at national level by making a request with the
Procurator General to lodge an extraordinary appeal (recurs in
anulare). By letter of 26 July 2005, the latter informed the
applicant that this extraordinary appeal (recurs în anulare)
had been abolished from domestic law. Further, the applicant stated
that even though the final decision was archived with the
first-instance court on 26 January 2005, he did not obtain a copy
of it until later, submitting that it was not possible to find out
the exact date the file became available. The applicant did not
mention the specific date on which he asked for and obtained a copy
of the reasoned final decision.
- The Court reaffirms its practice that, where an
applicant is automatically entitled to be served a written copy of
the final domestic decision, the object and purpose of Article 35 §
1 of the Convention are best served by counting the six-month period
as running from the date of service of the written judgment (see Worm
v. Austria, judgment of 29 August 1997, Reports
1997-V, p. 1547, § 33). However, in cases where the
domestic law does not provide for service, the Court considers it
appropriate to take the date the decision was finalised as the
starting-point, that being when the parties were able to find out its
content (see, among many other authorities, the judgment in Seher
Karataş v. Turkey, no. 33179/96, § 27,
9 July 2002, and Karatepe v. Turkey (dec.), no.
43924/98, 3 April 2003, Potop v. Romania, no. 35882/97,
§ 32, 25 November 2003).
- The
Court reiterates its established case-law, in particular in cases
against Turkey, according to which, when the national law does not
provide for service, the six-month time-limit starts to run from the
date the drafted decision is registered with the court of first
instance (see Tahsin Ipek v. Turkey (dec.), no. 39706/98,
and Yavuz and others v. Turkey (dec.), no. 48064/99).
- Applying
these principles, the Court is satisfied that it can consider as the
dies a quo of the limitation period in the instant case, the
day on which the case file, together with the reasoned final
decision, was registered with the court of first instance, namely, 26
January 2005.
- The
application, lodged on 8 August 2005, therefore appears to be out of
time, provided that the Court is not convinced of the existence of
special circumstances justifying the delay and interrupting or
suspending of the six-month time-limit (see Mıtlık
Ölmez and Yıldız Ölmez v. Turkey
(dec.), no. 39464/98).
- The
arguments put forward by the applicant do not suffice to lead to such
a conclusion.
- Firstly,
notwithstanding that the Court acknowledges that neither the
applicants nor their representatives can be required to enquire day
after day whether a judgment that has not been served on them has
been delivered (see Papageorgiou v. Greece, 22 October 1997, §
32, Reports of Judgments and Decisions 1997 VI), in the
instant case it notes that the applicant failed to submit any
evidence regarding the enquiries made with the domestic courts to
obtain a copy of the final decision (see, by contrast,
N.T. Giannousis and Kliafas Brothers S.A. v. Greece (dec.),
no. 2898/03 and Potop, §§ 31-34, cited above).
- Secondly,
it is well established case-law that no extraordinary remedies have
to be exhausted prior to lodging an application with the Court,
particularly when the said remedy is not an effective means of
redress (see Fernie v United Kingdom (dec.), no.
14881/04). In the instant case, not only was the extraordinary remedy
not an effective means, but it had already been abolished from
domestic law.
- Furthermore,
the materials in the file show that the applicant's request to the
Prosecutor General to lodge an extraordinary appeal was made on a
date before 26 July 2005, on which date he was informed that his
request was refused. This indicates that the applicant, who was
assisted by a lawyer, was fully aware of the unfavourable judgement
on a date within the six months after the written judgement was
deposited with the District Court. However, instead of directly
applying to the Court, he chose to submit an
inevitably futile petition to the Procurator General, thus
losing the possibility of lodging the complaint to the Court within
the six-month time-limit.
- In
view of the above, it follows that the application was lodged out of
time and must be rejected pursuant to Article 35 §§ 1 and 4
of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
