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THIRD
SECTION
CASE OF GIURAN v. ROMANIA
(Application
no. 24360/04)
JUDGMENT
STRASBOURG
21 June
2011
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 Giuran v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24360/04) 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 and British national, Mr Mihai-Ion
Giuran (“the applicant”), on 1 May 2004.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu, from the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, a violation of his right to a fair
trial and peaceful enjoyment of his possessions as a result of the
quashing, by way of extraordinary appeal, of a final judgment issued
in his favour.
- On
19 March 2010, the President of the Third Section decided to
communicate these complaints to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
- The
United Kingdom Governments were informed of the application, in view
of the applicant’s nationality (Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court). They did not wish to
intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1930 and lives in Slatina. He is retired.
- On
7 August 2001, he lodged a criminal complaint against E.I., claiming
that she had stolen certain items from his flat. He stated that E.I.
was regularly at his flat to do cleaning and on 20 January 2001 she
had removed several items of jewellery and clothing from his flat. He
had only realised in July 2001 that those goods had disappeared from
his flat.
- The
case was heard by the Drăgăşani District Court, which
delivered its first-instance judgment on 14 January 2002, by which
E.I. was found guilty and sentenced to three months’
imprisonment, suspended. E.I. was ordered to pay the applicant
damages of 10,000,000 Romanian lei (ROL, approximately 350 euros
(EUR) at the time), representing the estimated value of the stolen
items, and ROL 2,500,000 (approximately EUR 90) in legal fees. The
District Court based its decision on the statements of the parties
and of two witnesses. According to one of the witnesses, the
applicant had complained to him in July 2001 that several items were
missing from his flat. According to the second witness, in February
2001 the defendant had shown him several items of jewellery and
clothing, mentioning that she had received them as a gift from the
applicant.
- On
1 April 2002 the Vâlcea County Court dismissed E.I.’s
appeal and the judgment of 14 January 2002 thus became final and
enforceable.
- On
an unspecified date, the General Prosecutor of Romania lodged an
extraordinary appeal (recurs in anulare) against the judgment
of 14 January 2002. The General Prosecutor argued that E.I. had
been wrongfully convicted, as none of the evidence adduced was
conclusive as to her guilt. This led to a breach of her right to be
presumed innocent until proved guilty. The prosecutor also indicated
that E.I. had submitted two pieces of evidence as part of her
defence, which had been ignored in the ordinary proceedings. One of
the documents was a request lodged by the applicant to the owners’
association, in which he asked to be exempt from the payment of
utility costs for the period December 2000-April 2001, when he would
be away in the United Kingdom. This document was relevant, as the
applicant stated that E.I. entered his flat only when he was there,
and he had declared that the items had been stolen on the exact date
of 20 January 2001, when, according to this document, he was not in
Romania. The second document was a report of a search conducted by
the police at the home of the defendant, which indicated that none of
the items claimed to have been stolen from the applicant’s
place had been found there.
- In
a decision of 4 November 2003, the High Court of Cassation and
Justice allowed the extraordinary appeal, quashed the judgments of
14 January and 1 April 2002, acquitted E.I. and relieved her of
the obligation to pay the applicant compensation for the stolen goods
and legal costs.
The
court held that the prior conviction had been based on the statements
of two witnesses, who declared that they knew that E.I. was doing
household work for the applicant, that he owned the items mentioned
in his criminal complaint, and that after 20 January 2001, some of
the items were seen by one of the witnesses in the house of E.I.
Nevertheless, the court indicated that these statements were
contradicted by the evidence in the case file indicating that the
applicant was away from Romania between December 2000 and April 2001.
Furthermore, taking into account that he had always stated that E.I.
only did housework in his flat when he was also there, the court
indicated that it was not credible that he had not noticed E.I.
leaving the flat with so many items.
The
court further concluded that the evidence adduced to the file was
both contradictory and inconclusive in respect of the date the
alleged theft was committed and of whether the defendant had
committed the theft. It held therefore that the earlier decisions had
not been lawful, quashed them and acquitted E.I. of all charges,
relieving her also of the obligation to pay compensation for the
stolen goods and court costs incurred by the applicant.
- The
applicant attended the hearing and submitted his arguments in support
of his claims.
II. RELEVANT DOMESTIC LAW
- For
the summary of the relevant domestic-law provisions concerning this
type of extraordinary appeal (“recurs in anulare”)
see the judgment in the case of Precup v. Romania
(no. 17771/03, § 15, 27 January
2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention that the act of
quashing the final judgment of 14 January 2002, as confirmed on 1
April 2002, had violated his right to a fair trial and his right to
peaceful enjoyment of possessions. The relevant parts of these
provisions 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 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law...”
A. Admissibility
- The
Government raised a plea of inadmissibility, arguing that the
applicant had not suffered a significant disadvantage. They indicated
in this respect that the civil head of the proceedings at stake
concerned an amount of 350 euros (EUR) and that there was no evidence
in the case file that the applicant was in a financial position such
that the outcome of the litigation could have a significant impact on
his personal life. The Government further submitted that the two
safeguards clauses set up by Article 35 § 3 (b) of the
Convention were met, as the Court has ruled numerous times before on
issues analogous to that arising in the instant case and that the
applicant’s case has been duly examined by the domestic courts.
- The
applicant disagreed.
- The
Court notes that the main element of the criterion set by Article 35
§ 3 (b) of the Convention is whether the applicant has suffered
any significant disadvantage (see Adrian Mihai Ionescu v.
Romania (dec.), no. 36659/04, 1 June 2010, and Korolev v.
Russia (dec.), no. 25551/05, 1 July 2010).
- Inspired
by the general principle de minimis
non curat praetor, this
admissibility criterion hinges on the idea that a violation of a
right, however real from a purely legal point of view, should attain
a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in the
nature of things, relative, and depends on all the circumstances of
the case. The severity of a violation should be assessed taking into
account both the applicant’s subjective perceptions and what is
objectively at stake in a particular case (see Korolev,
cited above). In other words, the absence of any significant
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
(see Adrian Mihai Ionescu,
cited above).
- The
Court reiterates in this respect that it has previously considered
insignificant the pecuniary loss of some EUR 90 allegedly sustained
by the applicant in the cases of Adrian Mihai Ionescu (cited
above) and it appreciated as negligible a
pecuniary loss of some EUR 0.5 allegedly sustained by the applicant
in the case of Korolev, cited above.
- In
the present case, the Court notes that the applicant sought
compensation for goods allegedly stolen from his flat by a third
person. In the ordinary criminal proceedings, by a final decision,
the domestic courts found a third party guilty of theft of a number
of items belonging to the applicant and ordered her to pay the
applicant compensation for those stolen items, their estimated value
being some EUR 350. By virtue of the same final decision the
applicant was also awarded costs. The extraordinary appeal and the
quashing of that final decision resulted in the applicant’s
losing entitlement to the compensation for the stolen goods and legal
costs.
- The
Court notes that none of the parties submitted information concerning
the financial status of the applicant. Nevertheless, it observes that
the applicant is retired, and that according to the Romanian
Department of Pensions and Social Insurance the average pension level
in Romania in 2003, when the applicant lost entitlement to the sums
of money determined by the final judgment of 14 January 2002, was the
equivalent of some EUR 50.
- The
Court also takes note of the fact that the domestic proceedings which
are the subject of the complaint before it were aimed at the recovery
of goods stolen from the applicant’s own apartment. Therefore,
in addition to the pecuniary interest in the actual goods and the
sentimental value attached to them, it is necessary also to take into
account the fact that the proceedings concerned a question of
principle for the applicant, namely his right to respect for his
possessions and for his home.
- Under
these circumstances, in the Court’s view, the applicant can not
be deemed not to have suffered a significant disadvantage.
- The
Court takes note that the admissibility criterion set by Article 35 §
3 (b) of the Convention is applicable only when the applicant has
suffered no significant disadvantage and provided that the
two safeguards clauses set by the same provision are respected.
It follows that, where it has not been determined that the applicant
has suffered no significant disadvantage.
- The
Court accordingly dismisses the Government’s objections. Noting
that these complaints are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and that they are
not inadmissible on any other grounds, it declares them admissible.
B. Merits
1. Article 6 § 1 of the Convention
(a) Submissions by the parties
- The
applicant complained that the quashing of the final decision of 14
January 2002 violated his right to a fair trial, breaching the
principle of legal certainty.
- The
Government indicated at the outset that the applicant was a civil
party to the criminal proceedings against E.I. and that his civil
claims were closely linked to the outcome of the criminal head of the
proceedings. They further argued that the final decision had been
quashed in order to remedy a fundamental defect in the criminal
proceedings before the lower courts. The only way to remedy the
miscarriage of justice was by the quashing of the final decision
convicting E.I. The Government submitted that the extraordinary
appeal had been lodged within a short time-frame from the adoption of
the final decision and that the applicant took part in the
proceedings before the High Court of Cassation and Justice and he had
the opportunity to submit arguments in support of his claims. The
Government further observed that the relevant provisions of the Code
for Criminal Proceedings concerning this type of extraordinary appeal
had been repealed in the meantime.
(b) General principles
- The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which
declares, in its relevant part, 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, among other things, that where the courts have finally
determined an issue their ruling should not be called into question
(see Brumărescu v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII).
- This
principle insists that no party is entitled to seek reopening of
proceedings merely for the purpose of a rehearing and a fresh
decision on the case. The mere possibility of there being two views
on the subject is not a ground for re-examination.
- Departures
from that principle are justified only when made necessary by
circumstances of a substantial and compelling character (see, mutatis
mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR
2003-X, and Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004). Higher
courts’ powers to quash or alter binding and enforceable
judicial decisions should be exercised for correction of fundamental
defects. That power must be exercised so as to strike, to the maximum
extent possible, a fair balance between the interests of an
individual and the need to ensure the effectiveness of the system of
justice (see, mutatis mutandis, Nikitin v. Russia,
no. 50178/99, §§ 54-61, ECHR 2004 VIII).
- The relevant considerations to be taken into account
in this connection include, in particular, the effect of the
reopening and any subsequent proceedings on the applicant’s
individual situation and whether the reopening resulted from the
applicant’s own request; the grounds on which the domestic
authorities revoked the finality of the judgment in the applicant’s
case; the compliance of the procedure at issue with the requirements
of domestic law; the existence and operation of procedural safeguards
in the domestic legal system capable of preventing abuses of this
procedure by the domestic authorities; and other pertinent
circumstances of the case (see Nikitin, cited above, §
60; Bratyakin v. Russia (dec.), no. 72776/01, 9
March 2006; Fadin v. Russia, no. 58079/00, § 34,
27 July 2006, and Savinskiy v. Ukraine, no. 6965/02, §§
24-26, 28 February 2006). In addition, the review must afford all the
procedural safeguards of Article 6 § 1 and must
ensure the overall fairness of the proceedings (see Vanyan
v. Russia, no. 53203/99, §§ 63-68, 15 December
2005).
- In a number of cases the Court, while addressing the
notion of “a fundamental defect”, stressed that the mere
consideration that the investigation in the applicant’s case
was “incomplete and one-sided” or led to an “erroneous”
acquittal cannot in itself, in the absence of jurisdictional errors
or serious breaches of court procedure, abuses of power, manifest
errors in the application of substantive law or any other weighty
reasons stemming from the interests of justice, indicate the presence
of a fundamental defect in the previous proceedings (see Radchikov
v. Russia, no. 65582/01, § 48, 24 May 2007).
- The
Court further reiterates its findings in the case of Lenskaya
v. Russia (no. 13151/04, § 18, 31
July 2008). In that case the final judgment in the applicant’s
favour was quashed by way of a supervisory review, on the ground that
the lower courts “had not established what constituted the
criminal conduct under the particular head of the criminal charge,
whether it had in fact taken place and whether it had been committed”
by the defendant in that case. The decision to quash that final
judgment was also based on the reason that the lower courts, without
proper assessment of the evidence, presumed that the applicant’s
injuries had been committed by the defendant in that case, without
proving his guilt, thus violating the principle of presumption of
innocence. While concluding that there had been no breach of Article
6 § 1 of the Convention in that case, the Court held (§§
36 et seq.) that the proceedings had been reopened for the purposes
of correcting a fundamental judicial error which could not have been
neutralised or corrected by any other means, save by the quashing of
the final judgment which was grossly prejudicial to the convicted
person. The Court found also that all the procedural guarantees of
Article 6 had been available to the applicant in the course of the
supervisory review proceedings.
(c) Application to the present case
- At the outset, the Court notes that, in past cases
against Romania, it has been called to examine whether quashing of a
final decision by means of an extraordinary appeal was in compliance
with the requirements of the Convention and it has systematically
found that such quashing amounted to a breach of the right to a fair
trial. Those cases concerned either the quashing of a civil decision
(see, among others, Brumărescu v. Romania [GC], no.
28342/95, ECHR 1999 VII, and Cornif v. Romania, no.
42872/02, 11 January 2007) or the quashing of a criminal decision. As
regards the latter type of decision, the quashing either concerned
only the civil head of those proceedings (see SC Plastik ABC v.
Romania, no. 32299/03, § 15, 7 April 2008, and Igna
and Igna (Valea) v. Romania, nos. 1526/02 and 1528/02, §§
44-56, 14 February 2008) or led to the imposition of a heavier
sentence on a defendant or his or her conviction after an initial
acquittal (see, among others, Bota v. Romania, no. 16382/03, 4
November 2008; Precup v. Romania, no. 17771/03, 27 January
2009, and Ştefan v. Romania, no. 28319/03, 6 April 2010).
- However,
the factual situation in the instant case is different from the cases
previously examined against Romania, as the extraordinary appeal
concerning mainly the criminal head of the proceedings was lodged in
favour of the defendant with a view to correcting a miscarriage of
justice, thus being similar to the factual situation in the case of
Lenskaya, cited above.
- In
this respect, the Court reiterates that it has previously held that
while the institution of supervisory review can give rise to problems
of legal certainty because judgments in civil cases remain open to
review on relatively minor grounds indefinitely (see Brumărescu
and Ryabykh, both cited above), The position regarding
criminal cases is somewhat different. The Court has emphasised that
the requirements of legal certainty are not absolute, in particular
in criminal procedures. In such cases, they must be assessed in the
light of, for example, Article 4 § 2 of Protocol No. 7, which
expressly permits a State to reopen a case due to the emergence of
new facts, or where a fundamental defect which could have affected
the outcome of the case is detected in previous proceedings (see,
Nikitin, cited above, §§ 55 and 56). The
possibility of re-examining or reopening cases has also been
considered by the Committee of Ministers as a means of achieving
restitutio in integrum, particularly in the context of the
execution of the Court’s judgments. In its Recommendation No. R
(2000) 2 on the re-examination or reopening of certain cases at the
domestic level following judgments of the European Court of Human
Rights, it encouraged the Contracting Parties to review their
domestic legal systems with a view to ensuring that adequate
opportunity for the re-examination of a case, including reopening of
proceedings, exists in instances where the Court has found a
violation of the Convention.
- Having
regard to the above-mentioned principles, the Court has to ascertain
whether the High Court of Cassation and Justice, in its decision of 4
November 2003, reopened the criminal proceedings and quashed the
final judgment of 14 January 2002, as confirmed on 1 April 2002, with
a view to correcting a fundamental judicial error, and if so whether
the actual manner in which the High Court exercised that power
undermined the overall fairness of the proceedings at stake (see,
mutatis mutandis, Lenskaya, cited above, § 36).
- As
regards the purpose of the quashing, the Court notes that the General
Prosecutor, in lodging the request for re-opening of the proceedings,
had underlined that important pieces of evidence submitted by the
defendant in her defence had not been taken into account during the
ordinary proceedings. Furthermore, the High Court of Cassation and
Justice in its quashing decision found that the lower courts had
failed to give consideration to the fact that the evidence was
contradictory and not conclusive in respect of the date when the
alleged theft had taken place and in respect of the question whether
the defendant had actually committed the alleged theft.
- The
Court considers that in such circumstances, the grounds for the
re-opening of the proceedings were based on serious procedural
defects, affecting the procedural rights of the defendant and the
decision to quash the final judgment convicting E.I. does not appear
unreasonable or arbitrary (see, mutatis mutandis, Lenskaya,
cited above, § 38). In this connection, the Court once again
reiterates that the Convention in principle permits the reopening of
a final judgment to enable the State to correct miscarriages of
criminal justice. A verdict ignoring key evidence may well constitute
such a miscarriage (see Vedernikova v. Russia, no. 25580/02, §
25, 12 July 2007).
- The
Court attributes particular weight to the fact that the judicial
error committed by the lower courts could not be neutralised or
corrected by any other means than the quashing of the final judgment
by which E.I had been found guilty. The quashing of the final
judgment in the instant case was the only means of indemnifying the
convicted person for the mistakes in the administration of justice.
- In
the circumstances of the instant case, the Court notes that the
proceedings have been reopened for the purpose of correcting a
fundamental judicial error triggering serious unfavourable
consequences for the defendant. It remains to be further analysed
whether the procedural guarantees of Article 6 of the Convention were
available in the proceedings before the High Court of Cassation and
Justice.
- In
this respect, the Court observes that the applicant had the
opportunity to present his arguments and to challenge the submissions
of the adversary in the proceedings. Furthermore, he attended the
proceedings and made oral submissions. The Court finds that there is
nothing to indicate that the way in which the High Court of Cassation
and Justice established and assessed the evidence was unfair or
arbitrary. Therefore, it cannot but conclude that the extraordinary
appeal proceedings in the instant case afforded the applicant all the
procedural safeguards of Article 6 § 1 of the Convention.
- Having
regard to the foregoing, the Court finds that in the circumstances of
the present case, the High Court of Cassation and Justice struck the
correct balance between the competing interests of finality and
justice. It therefore finds that the quashing of the final judgment
of 14 January 2002, as confirmed on 1 April 2002, did not amount
to a breach of Article 6 § 1 of the Convention. There has been
accordingly no violation of that Article.
2. Article 1 of Protocol No. 1 to the Convention
- The
applicant complained that the quashing of the final judgment of 14
January 2002 deprived him of the right to compensation as it had been
set by that judgment.
- The
Government admits that there has been an interference with the
applicant’s right to property in respect of the damages that he
was awarded by the final judgment of 14 January 2002. Nevertheless,
they underline that this interference was justified in the interest
of justice in order to remedy a judicial error.
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt would be paid, and
constitutes the beneficiary’s “possessions” within
the meaning of Article 1 of Protocol No. 1. Quashing such a
judgment amounts to an interference with his or her right to peaceful
enjoyment of possessions (see, among other authorities, Brumărescu
v. Romania, cited above, § 74, ECHR, and Androsov v.
Russia, no. 63973/00, § 69, 6 October 2005). An
interference with the peaceful enjoyment of possessions must strike a
fair balance between the demands of the general interests of the
community and the requirements of the protection of the individual’s
fundamental rights (see, among other authorities, Sporrong and
Lönnroth v. Sweden, 23 September 1982, § 69, Series A
no. 52). In particular, there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised by any measure depriving a person of his possessions.
- Turning
to the facts of the present case, the Court observes that by virtue
of the judgment of 14 January 2002, as confirmed on 1 April 2002,
E.I., found guilty of theft of goods from the applicant’s flat,
was ordered to pay him a sum of money in compensation for damage
caused as a result of the theft and for legal costs. By operation of
law, the payment of the compensation by E.I. was conditional on her
conviction for the alleged theft. Following the quashing of the
judgments and the acquittal of the defendant, her obligation to pay
compensation to the applicant ceased to exist because it had not been
established that she had stolen goods from him.
- Having
regard to the Court’s findings under Article 6 of the
Convention, the Court concludes that the special circumstances of the
present case can be regarded as exceptional grounds justifying the
quashing of the judgment of 14 January 2002, as confirmed on 1 April
2002, and the dismissal of the applicant’s claim for
compensation (see, mutatis mutandis, Lenskaya, cited
above, § 47). The Court finds that the domestic courts struck a
fair balance between the applicant’s rights to protection of
property and the general interest to correct miscarriages of criminal
justice.
- The Court therefore considers that the quashing in the
present case did not amount to an unjustified interference with his
property rights as guaranteed by Article 1 of Protocol No. 1. There
has therefore been no violation of that Convention provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant, relying on Article 6 § 1 of the Convention complained
that the prosecutor and the judges involved in the judicial
proceedings against E.I. had not been impartial and that the
authorities had tried to discourage him from lodging a complaint with
the Court by preventing him to obtain a copy of the final decision of
4 November 2003.
- However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention concerning the
quashing, by means of an extraordinary appeal, of the judgment of
14 January 2002, as confirmed on 1 April 2002, admissible and
the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
- Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
