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Cite as: [2010] ECHR 671

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THIRD SECTION

CASE OF CIUTĂ v. ROMANIA

(Application no. 35527/04)

JUDGMENT

STRASBOURG

18 May 2010

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 Ciută 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 27 April 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 35527/04) 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 Ştefan Ciută (“the applicant”), on 21 September 2004.

The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.

On 30 April 2008 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1953 and lives in Braşov.

A. The accident and subsequent complaints

On 25 March 1992 the applicant crushed three fingers of his left hand in an accident at work. He was taken to hospital, where he underwent a surgical intervention resulting in the amputation of two fingers.

On 26 March 1992 an investigating commission was constituted within the private company where the applicant was working. After investigating the accident, the commission considered that the applicant was at fault because he had not observed the relevant safety rules.

The applicant complained before the Braşov County Inspectorate for Labour Safety against the way in which the investigation had been carried out. On 15 April 1993 the Inspectorate concluded that the investigation had been in line with labour legislation.

Beginning on 17 April 1992 the applicant lodged several criminal complaints with the Prosecutor’s Office against the Inspectorate’s conclusions, against the doctors and against his employer in respect of the causes of the accident. According to the documents in the file, until 1997, several public prosecutors refused or confirmed the refusal to initiate a criminal action, considering that the applicant was responsible for the accident and that he had accepted the surgical intervention. In a letter of 10 November 1997 addressed to the General Prosecutor, the applicant mentioned, inter alia, that he had given up struggling with the prosecutors and that he had brought a civil action.

B. Claim for damage

On 6 August 1997 the applicant brought civil proceedings against his employer, the County Public Health Agency, the County Department for Labour and Social Protection and the Ministry of Finance. He sought an order requiring the Public Health Agency to send him, at its expense, to a medical institution abroad with a view to the replacement of his two fingers. He further claimed compensation for pecuniary and non-pecuniary damage. The applicant alleged that the amputation of his two fingers had been due to the doctor’s incompetence and that he had not consented to the surgical intervention.

Of the twenty-five hearings held between 18 September 1997 and 14 May 1999, four were adjourned at the applicant’s request because his lawyer was ill or in order to study the file previously drawn up by the public prosecutor. At ten other hearings, he asked if he could produce evidence in the proceedings. The court upheld the applicant’s requests to hear witnesses and to produce documents as well as medico-legal and graphological expert reports, but also mentioned on two occasions that the defendants were not properly summoned. The defendants’ statements were also made available.

Ten other hearings were adjourned because the court had failed to properly summon the other parties in the proceedings.

On 21 May 1999 the Braşov County Court dismissed the action, considering that the applicant had been exclusively at fault and, on the basis of the medico-legal expert report, that surgical intervention had been necessary and that the applicant had consented to it. The court also considered that a request by the applicant to hear some extra witnesses was pertinent but not conclusive because it was difficult to believe that witnesses might invalidate documents produced by specialised bodies.

On 14 January 2000 the Braşov Court of Appeal dismissed an appeal by the applicant, taking into consideration that, besides it being his fault, he had not lost his capacity to work and continued to work at the same company.

The applicant lodged a further appeal, complaining of the court’s refusal to admit the evidence he wished to adduce, including new medico-legal and graphological expert reports. Of the six hearings held, two were adjourned because the court had failed to properly summon the defendants and two other for deliberations. The applicant expressly opposed the adjournment of the proceedings on one occasion.

On 26 October 2001 the Supreme Court of Justice upheld his appeal, quashed the previous judgments and sent the case to the Braşov Court of First Instance instructing it to take further evidence and provide a fresh examination. The court held that the lower courts had disregarded the provisions of the Code of Civil Procedure by rejecting the applicant’s request to produce further evidence. Thus, it considered relevant the applicant’s request to hear witnesses.

During the retrial, of the twenty-two hearings held between 27 February 2002 and 8 December 2003 only three were adjourned at the applicant’s request. At three other hearings, the court heard four witnesses proposed by the applicant, requested him to provide further information and allowed his requests for medico-legal and graphological expert reports. Then the court ordered a new adjournment so that the expert reports could be prepared. On 10 April 2002 the applicant made further submissions and on 19 June 2002 the hospital was joined in the proceedings. Two other hearings were adjourned because the court had failed to properly summon the other parties in the proceedings.

At eight other hearings, the applicant lodged requests to challenge either individual judges, the whole section or all the courts in Braşov. Four of these requests were declared null and void for non-payment of the stamp duty, one was rejected for lack of reasoning and three as unfounded. In particular, on 5 September 2003, the court held that his request was made in bad faith and therefore imposed a fine on him on the grounds that he had challenged the judges several times and had used insulting words and inappropriate remarks against them.

However, on 19 September 2003 the Supreme Court of Justice upheld a request by the applicant to transfer the proceedings to the Ploieşti Court of First Instance for legitimate doubt as to judges’ objective impartiality. On 1 October 2003 the Braşov Court of First Instance sent the case file to that court.

On 15 December 2003 the Ploieşti Court of First Instance dismissed the action. It found, on the basis of expert reports, that the applicant had been exclusively at fault for the accident, that the graphological expert report confirmed the applicant’s consent by signature to the surgical intervention and to its risks and that, in spite of his permanent infirmity, his capacity to work had not been diminished. It also held that the examination of the accident carried out by the investigating commission had been in accordance with the law.

On 27 April 2004 the Ploieşti Court of Appeal considered an appeal by the applicant to be unfounded. It also held that, according to the Supreme Court’s directions (see paragraph 14 above), it was not necessary to reassess the graphological or medico-legal expert reports.

The applicant lodged a further appeal with the High Court of Cassation and Justice complaining that the lower court had dismissed his request to reassess the expert reports. On 28 July 2004 the High Court considered that, in line with new legal provisions regarding changes of venue, it was within the competence of the Court of Appeal to hear that appeal and it remitted it back to that court.

On 15 November 2005 the Ploieşti Court of Appeal dismissed the appeal by a final decision. It upheld the findings of the lower courts which had considered it unnecessary to reassess the expert reports and which had complied with the directions of the Supreme Court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government contested that argument contending that the case had been particularly complex because of the need to produce several expert reports and to hear witnesses. Moreover, the applicant had requested several adjournments and had made numerous requests to challenge the judges or to have the proceedings transferred to another court. They also submitted that the applicant had delayed the proceedings by making full use of the procedures available to him under domestic law to complain against unfavourable court decisions.

The period to be taken into consideration began on 6 August 1997 and ended on 15 November 2005. It thus lasted more than eight years and three months at three levels of jurisdiction.

A. Admissibility

The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. While the applicant bore responsibility for delays of several months, his conduct alone cannot explain the overall length of the proceedings.

The Court further notes that several hearings were held during the proceedings (see paragraphs 10 and 15 above) and it cannot consider, to this extent, that the national courts were inactive. However, the fact that the courts held numerous hearings does not necessarily mean that the case was progressing. Moreover, the dispute in the present case was related to compensation for damage to his health. The Court is of the opinion that the nature of the dispute called for particular diligence on the part of the domestic courts (see, mutatis mutandis, Marchenko v. Russia, no. 29510/04, § 40, 5 October 2006; Păunoiu v. Romania, no. 32700/04, § 27,
16 September 2008; and Drăgănescu v. Romania, no. 29301/03, § 22,
30 September 2008).

The Court also reiterates that an applicant cannot be criticised for taking full advantage of the resources afforded by national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319 A). In the present case, the Court notes that the applicant’s constant efforts to introduce evidence (see paragraphs 11 and 13 above) were successfully upheld by the Supreme Court of Justice (see paragraph 14 above). Moreover, the applicant tried several times to challenge judges’ impartiality and failed for several reasons, but eventually he succeeded in his attempts (see paragraphs 15 and 16 above).

The Court further notes the constant failure by the courts to summon different parties in the proceedings (see paragraphs 10, 13 and 15 above). In addition, certain delay was also caused by the re-examination of the case as a result of errors committed by lower courts (see paragraph 14 above).

Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained under Articles 2 and 3 of being tortured by the doctors and that his fingers had been amputated without his consent. He also complained under Article 6 § 1 about the solutions given by the domestic courts, which had failed to assess the facts correctly, had refused to hear the witnesses he wanted to call, had misinterpreted the domestic law and had not been impartial. The applicant further complained about the criminal investigations carried out by the prosecutors.

Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. 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

The applicant claimed 1,000,000 euros (EUR) in respect of pecuniary damage incurred as a consequence of a decrease in his capacity to work following the amputation of his two fingers. He further claimed a pension of EUR 2,000 per month, for the rest of his life, and EUR 1,000 per month for a carer. The applicant also claimed EUR 3,000,000 in respect of non-pecuniary damage.

The Government contested the claim for pecuniary damage on the ground that no causal link between the pecuniary damage sought and the alleged length-of-proceedings violation could be found. Further, they considered that a finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage the applicant might have suffered. In any event, they considered that the amounts claimed were too high.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage in respect of the violation found. Ruling on an equitable basis, it awards EUR 2,000 under that head.

B. Costs and expenses

The applicant also claimed EUR 100,000 for the costs and expenses incurred before the domestic courts and before this Court, representing lawyer’s and expert report fees, transport and postal fees. He submitted a contract of judicial assistance and invoices for payment of lawyer’s and expert report fees, as well as for transport and postal expenses.

The Government contested these claims on the grounds that the contract of judicial assistance entered into with a lawyer had not been signed by the latter and had not mentioned the requested hourly fees and that it was impossible to match travel expense claims with journeys made in respect of this case.

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 were actually and necessarily incurred and were reasonable as to quantum. The Court considers that the applicant has not shown that the legal costs and expenses claimed by him were incurred in order to prompt domestic courts to comply with the requirements of Article 6 § 1 (see Zimmermann and Steiner v. Switzerland, 13 July 1983, § 37,
Series A no. 66, and Craiu v. Romania, no. 26662/02, § 38, 7 October 2008). However, regard being had to the information in its possession and to the above criteria, and making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 100 in respect of costs and expenses.

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 excessive length of the proceedings 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, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that the respondent State is to pay the applicant, within the same three months, the amount of EUR 100 (one hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses;

(c) that the aforementioned amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(d) 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 18 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Josep Casadevall
Registrar President