CASE OF FĂLIE v. ROMANIA
(Application no. 23257/04)
19 May 2015
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 Fălie v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 21 April 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 23257/04) 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 national, Mr Dragoş Fălie (“the applicant”), on 25 May 2004.
2. The applicant was represented by Mr P. I. Vlaic, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
3. The applicant alleged that the domestic court of last resort had deprived him of his right of access to the courts by dismissing his civil complaint without deciding on its merits.
4. On 31 August 2008 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1951 and lives in Bucharest.
6. In 1999 he purchased a house and the land on which it was built, located in Bucharest. The applicant’s parcel of land was adjacent to a parcel of land purchased by two other third parties in 1948.
7. On 13 November 2001 the applicant lodged a civil action against the two third parties, seeking to obtain the demarcation of the adjacent parcels of land and an order requiring the defendants to return to him an 11 sq. m parcel of land which was allegedly being illegally occupied by them.
8. In a judgment of 4 April 2002 the Bucharest District Court held that the defendants had been illegally occupying a parcel of 10.78 sq. m of the applicant’s land since 1965. It established the boundaries of the properties on the basis of a technical report prepared by an expert and ordered the defendants to return the land in question to the applicant.
9. The defendants lodged an appeal with the Bucharest County Court. The court ordered a new expert report. On 22 May 2003 the court dismissed the appeal as ill-founded endorsing the reasoning of the first-instance court.
10. The defendants lodged an appeal on points of law on the ground that the courts had misinterpreted the facts and the applicable legal provisions.
11. In a final decision of 26 November 2003 the Bucharest Court of Appeal allowed the appeal on points of law, quashed the decisions of the first two courts and dismissed the applicant’s action. It held that both the applicant and the defendants had in their possession smaller areas of land than those mentioned in their respective contracts of acquisition, and invited the parties to reach a friendly settlement. It also held that the parties could bring a fresh action only if they could not reach an agreement.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Civil Code
12. The Civil Code in force at the material time did not provide any definition of an action to demarcate land. Civil actions of this kind are a creation of the doctrine and caselaw. At the time the applicant lodged his action with the domestic court, the Civil Code contained an Article concerning the right of landowners to seek an order requiring the owners of adjacent plots of land to contribute to the demarcation of their land.
“Any landowner may oblige the owner of an adjacent plot of land to contribute to the demarcation of their land; the related expenses should be shared equally.”
B. Law no. 36/1995 concerning public notaries and the activities of notaries
13. The relevant provisions of Law no. 36/1995 read as follows:
“Notarial deeds containing manifest errors or omissions may be corrected or completed by a public notary at the request of the parties or on the notary’s own initiative with the agreement of the parties ...”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
14. The applicant complained that by dismissing his civil action without an analysis of its merits, the domestic court of last resort had deprived him of his right of access to a court and infringed his right to peaceful enjoyment of his possessions.
15. The Court will examine the complaints solely under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
16. The Court notes that this 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.
1. The parties ‘submissions
17. In the Government’s submission, the applicant had had a sufficient degree of access to the courts for the purpose of asserting his rights, as the court of last resort had analysed the merits of his action and indicated to the parties that they should try to reach a friendly settlement. Although the court had not mentioned what procedure was to be followed, the Government submitted that it had referred to the procedure provided for by Article 53 of Law 36/1995 regarding public notaries and the activities of notaries.
18. The applicant did not agree with the Government’s submissions. He claimed that the procedure before a public notary mentioned in the written observations of the Government did not represent a real possibility for him to have his civil claim decided on the merits.
2. The Court’ assessment
19. From the outset the Court reiterates that everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect (Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). The “right to a court” and the right of access are not absolute. They may be subject to limitations, but these must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see De Geouffre de la Pradelle v. France, 16 December 1992, § 28, Series A no. 253-B, and Stanev v. Bulgaria [GC], no. 36760/06, § 229, ECHR 2012).
20. The Court notes that the applicant in the present case had the possibility of bringing legal proceedings; he availed himself of it by bringing a civil action against his neighbours.
21. This in itself does not satisfy all the requirements of Article 6 § 1. It must also be established that the degree of access afforded under the national legislation was sufficient to secure the individual’s “right to a court”, having regard to the rule of law in a democratic society (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). The Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32, and Garcia Manibardo v. Spain, no. 38695/97, § 43, ECHR 2000-II).
22. In this connection the Court reiterates that the right of access to a court does not only include the right to institute proceedings, but also the right to obtain a “determination” of the dispute by a court (see Beneficio Cappella Paolini v. San Marino, no. 40786/98, § 29, ECHR 2004-VIII (extracts)). That right would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without securing to the parties the right to have their civil disputes finally determined (see Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003).
23. In the instant case the Court notes that the domestic courts at the first two levels of jurisdiction had allowed the applicant’s action on the basis of the expert reports adduced before them. Later, on the basis of the same evidence, the court of last resort allowed the defendants’ appeal on points of law, quashed the decisions of first two courts and dismissed the applicant’s action as being premature and invited the parties to reach a friendly settlement without indicating what that procedure might be.
24. However, it seems obvious that the reason that the applicant lodged a complaint with the court was precisely because the parties could not reach an agreement with regard to the area of land to which they were entitled. Besides, there is no legal provision in the Romanian legislation obliging the parties to follow a friendly-settlement procedure before lodging a civil action for the demarcation of their land and restitution of land illegally occupied by their neighbours. Therefore, the fact that the domestic court of last resort did not analyse the merits of the applicant’s civil action could not be justified on any legitimate grounds.
25. Lastly, the Court notes that the procedure indicated by the Government in its written submissions concerns the amendment of material errors and the completion of notary deeds, performed by a public notary at the request and with the agreement of the parties.
26. In these circumstances the Court cannot accept that the degree of access afforded under the national legislation was sufficient to secure the applicant a “right to a court”. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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.”
28. In respect of pecuniary damage the applicant claimed EUR 10,780 representing the value of the 10.78 sq. m of land. He claimed EUR 10,000 in respect of non-pecuniary damage.
29. The Government stressed that the present application had been communicated to them only in respect of the complaint raised under Article 6 § 1 of the Convention and not the complaint under Article 1 of Protocol no. 1. They also argued that the applicant’s claim was unfounded as no court had established his rights over the parcel of land claimed and no expert valuation of the land had been submitted to the Court. Therefore, they asked the Court to reject the claim for pecuniary damage. With regard to non-pecuniary damage, they submitted that a judgment finding that there had been a violation of the Convention would in itself constitute sufficient just satisfaction.
30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
31. As to non-pecuniary damage, the Court considers it likely that the applicant suffered frustration on account of the dismissal of his action without any determination of his claims. Ruling on an equitable basis, the Court considers that the applicant should be awarded EUR 3,600 in this respect.
B. Costs and expenses
32. The applicant did not claim any amount in respect of costs and expenses incurred.
C. Default interest
33. 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,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the applicant’s lack of access to a court;
(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, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Josep