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THIRD SECTION

CASE OF COJOCARU AND OTHERS v. ROMANIA

(Applications nos. 27269/07, 48668/07 and 20729/09)

JUDGMENT

STRASBOURG

5 July 2011

This judgment is final but it may be subject to editorial revision.

In the case of Cojocaru and Others v. Romania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Ján Šikuta, President,
Ineta Ziemele,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 14 June 2011,

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

PROCEDURE

The cases originated in three applications (nos. 27269/07, 48668/07 and 20729/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals, Daniel Cojocaru, Marin Cesar, Cezar Bogdan Ruse and Gabriela Ruse, (“the applicants”). Details as to the applicants’ dates of birth, introduction of the applications as well as their representatives are indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.

On 30 March and 9 November 2009 respectively, the President of the Third Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3). In accordance with Protocol No. 14, after informing the respondent Government, the applications were assigned to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASES

The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto.

THE LAW

I. JOINDER OF THE APPLICATIONS

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

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

The applicants 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 expressed the opposite view. As regards application no. 20729/09, they asked the Court to declare it inadmissible as manifestly ill-founded and argued that most of the delays in the trial were imputable to the applicants and that the State could not be found responsible for the overall length of the proceedings.

A. Admissibility

Regarding application no. 48668/07, the Government considered that the applicant had lodged it on 6 November 2007, namely more than six months after the date of the final decision, which was taken on 4 May 2007. The applicant contested this argument.

The Court notes that the first letter of the applicant was sent on 31 October 2007; therefore, his complaint was raised within the six month time limit set forth under Article 35 § 1 of the Convention.

The Court concludes that the applicants’ complaints regarding the excessive length of the proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Commencement of the period to be taken into account in respect of application no. 27269/07

The Government argued that for the calculation of the period to be taken into account, the Court should consider that the action (a request for division of common property) was brought before the domestic courts on 4 February 2000 and that the proceedings have been suspended for more than one year, pending the outcome of another case (a petition for divorce).

In this regard, the Court notes that the action was in fact lodged on 3 March 1999, together with the petition for divorce.

When determining the period to be taken into account, the Court has regard to its case-law according to which in civil proceedings, the “reasonable time” begins at the moment the action was instituted before the tribunal (for example, Erkner and Hofauer v. Austria, judgment of 23 April 1987, Series A no. 117, § 64).

Furthermore, it is not the Court’s task to determine whether there existed a sufficient link between the two sets of proceedings and whether the proceedings at issue were thus properly stayed, because, as a general rule, it is for the domestic courts to establish the facts and to interpret and apply national law. The Court will not interfere with their rulings, unless the applicants succeed in demonstrating that they acted arbitrarily. Nor can the Court find that a system providing for the dependence of one set of civil proceedings on another one, when they concern the same or related facts, goes per se against the requirements of Article 6 of the Convention (Kiurkchian v. Bulgaria, no. 44626/98, § 68, 24 March 2005).

In light of the above, the Court considers that for the purpose of assessing the merits of the applicant’s complaint, the overall length of the proceedings is to be taken into account, which is of seven years and nine months, calculated from the date of lodging of the original proceedings.

2. The reasonableness of the length of the proceedings

The Government argued that the applicants had contributed to the delays in the proceedings.

All the applicants contested this argument.

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 applicants and the relevant authorities (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 cases (see Frydlender, cited above, Abramiuc v. Romania, no. 37411/02, § 130, 24 February 2009).

In the present cases, having regard to the length of the proceedings as mentioned in the appended table, and 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 particular, even if the applicants’ conduct was not beyond reproach, the Court considers that the judicial authorities were responsible for most of the delays (see, mutatis mutandis, Beaumartin v. France, 24 November 1994, § 33, Series A no. 296 B). In the light of its case-law on the subject, the Court considers that in these cases 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.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Invoking Article 6 § 1 of the Convention, the applicants complained of the outcome and the unfairness of the proceedings, as well as of the independence and or impartiality of the courts. They argued that the courts wrongfully assessed the evidence and misinterpreted the applicable legal provisions (all applications).

Invoking Article 1 of Protocol No. 1, they also raised complaints concerning alleged violations of property rights or alleged rights to compensation (all applications).

Having considered the applicants’ submissions in the light of all the material in its possession, the Court finds that, insofar 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 these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. 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 applicants have submitted the following claims in respect of pecuniary and non-pecuniary damage:

No.	Application no.	Pecuniary damage	Non-pecuniary damage
1.	27269/07	EUR 5,500	EUR 4,000
2.	48668/07	EUR 1,000	EUR 5,000
3.	20729/09	EUR 235,568	EUR 20,000

The Government contested these claims.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims.

On the other hand, the Court considers that the applicants must have sustained non-pecuniary damage.

Ruling on an equitable basis, it awards them the following amounts under that head:

EUR 2,000 to the applicant in application no. 27269/07;
EUR 1,200 to the applicant in application no. 48668/07;
EUR 3,400 jointly to the applicants in application no. 20729/09.

B. Costs and expenses

The Court notes that only the applicant in application no. 27269/07 has submitted claims for costs and expenses. He claimed the sum of RON 3,330.20, covering for the correspondence and the representation before the Court.

Having regard to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 700 in respect of this applicant.

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

Decides to join the applications;

Declares the complaint concerning the excessive length of the proceedings admissible in respect of all applications and the remainder of the applications inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants:

EUR 2,000 (two thousand euros) for non-pecuniary damage and EUR 700 (seven hundred euros) for costs and expenses to the applicant in application no. 27269/07;
EUR 1,200 (one thousand two hundred euros) for non-pecuniary damage to the applicant in application no. 48668/07;
EUR 3,400 (three thousand four hundred euros) for non-pecuniary damage jointly to the applicants in application no. 20729/09;

(b) 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 applicants’ claims for just satisfaction.

Done in English, and notified in writing on 5 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ján Šikuta
Deputy Registrar President

Appendix 1

No.

Case no. and date of lodging

Applicant’s Details

Length of the proceedings and levels of jurisdiction

Subject Matter

27269/07

13 June 2007

Daniel COJOCARU

Born in 1952 and residing in Brasov; represented by Ioan Nicolae, a lawyer practising in Brasov.

3 March 1999 - 15 December 2006

7 years, 9 months, 12 days

Levels: 2 (before 4 courts)

Civil proceedings concerning the division of common property following the applicant’s divorce.

48668/07

31 October 2007

Marin CESAR

Born in 1926 and residing in Bucharest.

3 September 2002 - 4 May 2007

4 years, 8 months, 1 day

Levels: 2 (before 2 courts)

Proceedings brought by the applicant against third parties contesting the amount of the charges he had to pay for his apartment.

20729/09

9 April 2009

Cezar Bogdan RUSE and Gabriela RUSE

(husband and wife)

Born in 1954 and in 1950 respectively and residing in Bucharest.

22 September 1996 - 20 October 2008

12 years, 28 days

Levels: 3 (before 6 courts)

Proceedings brought by third parties against the applicants and the Bucharest Mayor’s Office seeking the return of property rights and the annulment of the sale contract over the immovable property that the applicants had bought from the State on the basis of Law No. 112 of 1995.