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THE ARGES COLLEGE OF LEGAL ADVISERS - 2162/05 [2011] ECHR 402 (8 March 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/402.html
Cite as:
(2012) 55 EHRR 38,
[2011] ECHR 402,
55 EHRR 38
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THIRD
SECTION
CASE OF THE ARGEŞ COLLEGE OF LEGAL ADVISERS
v.
ROMANIA
(Application
no. 2162/05)
JUDGMENT
STRASBOURG
8 March
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 The Argeş College of Legal Advisers 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 8 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2162/05) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the Argeş College of Legal Advisers, on 21
December 2004.
The
applicant was represented by Mr Victor Horia Panduru, a legal adviser
practising in Piteşti. The Romanian Government (“the
Government”) were represented by their Agent, Mr.
Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
The
applicant alleged that the refusal of the domestic courts to register
it as an association was unjustified and breached its right to
association.
On
31 August 2009, the President of the Third Section decided to
communicate to the Government the complaint concerning the refusal to
register the applicant as an association. It was also decided to
examine the merits of the application at the same time as
its admissibility (Article 29 § 3). The
applicant and the Government each submitted observations on the
merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant is an association from Piteşti (Argeş
County) whose registration as a professional association was
refused in a final decision delivered by the Argeş
County Court on 4 October 2004. Its name in Romanian is Colegiul
Consilierilor Juridici Argeş (The
Argeş College of Legal Advisers). The application on its
behalf was lodged by Mr Victor Horia Panduru, the dean of the
association.
On
8 December 2003 Law no. 514/2003 regarding the
organisation and functioning of the profession of legal adviser
entered into force. It allowed legal advisers to form professional
associations and set a ninety-day time-limit from its coming into
force for those professional associations to be
established and their statutes to be adopted. It entered into force
three days after its publication in the Official Journal on 5
December 2003.
7. On
6 January 2004 the constituent assembly of the applicant association
took place. On the same date its statute was adopted.
On
14 January 2004 the applicant requested the opinion (“aviz”)
of the Ministry of Justice, which was required by Government
Ordinance no. 26/2000 on the establishment of associations and
foundations, in its version in force at the time.
On
21 January 2004 the Ministry of Justice issued a favourable
opinion on the statute of the applicant, referring specifically to
the purposes of the association described in Articles 6 and 7.
Article 6 stipulated that the goal of the association was the unitary
organisation and functioning of the profession of legal adviser in
Argeş County and the promotion of the
principle that this profession had a complementary place within the
national judicial system. Article 7 of the statute provided further
that the aim of the association was “the protection and
promotion of the rights of its members, (...) concerning a consistent
practice of the profession for the protection and promotion of the
rights and freedoms of legal entities, authorities and public
institutions, as well as of private persons in their relations with
judicial institutions (...)”.
On
4 February 2004 the applicant lodged an application with Piteşti
District Court seeking registration in the Register of Associations
and Foundations kept by that court. By an interlocutory judgment
delivered in private on 9 February 2004 the court granted the request
and ordered the registration of the applicant in that register. The
decision also provided that the Public Prosecutor's Office could
lodge an appeal on points of law within five days from communication.
The
Public Prosecutor and the Argeş Bar
Association lodged an appeal on points of law against that decision.
The National Association of the Romanian Bar joined the proceedings
in the Argeş Bar Association's
interest.
In
the appeal, the prosecutor argued that the interlocutory judgment of
9 February 2004, in approving the purposes stipulated in the
association's statute, had infringed Articles 4 and 10 of Law no.
514/2003 in so far as it had allowed the applicant to protect and
promote the rights of private individuals, whereas only lawyers had
the right to represent or assist private individuals in their
relations with judicial institutions. The prosecutor also criticised
Article 20 § 3 (j) of the statute, which allowed the council of
the association to give its opinion (“aviz”) on
the creation, within its geographical area, of companies providing
freelance consultancy, assistance and legal representation, as well
as to resolve complaints against the fees charged by freelance legal
advisers. Further, the prosecutor contested Article 20 § 3 (l),
which entitled the council of the association to organise competitive
examinations for vacant legal adviser positions, draw up job
descriptions and inform the disciplinary board of any malpractice on
the part of legal advisers.
The
bar associations supported the prosecutor's arguments.
On
24 February 2004 the applicant held an extraordinary general assembly
and adopted an additional protocol to the statute, in which it
amended Article 7 by removing the reference to representation of
private persons. It also removed Article 20 § 3 (j)
entirely and amended Article 20 § 3 (l) by limiting the task of
the council of the association to providing information on
malpractice on the part of legal advisers.
On
27 February 2004 the applicant lodged an application with the Piteşti
Court of First Instance seeking registration of the modifications. By
an interlocutory decision of 1 March 2004, delivered in private, the
court ordered the registration of those modifications. From the
information submitted by the Government, it appears that an appeal
was lodged against this judgment and a final decision was delivered
on 2 December 2004. No copy of the appeal decision was submitted to
the case file.
During
the trial regarding the appeal lodged by the prosecutor and by the
bar associations against the interlocutory judgment of 9 February
2004, the applicant alleged that it had become groundless after the
adoption of the additional protocol to its statute. It argued that
the only ground for the appeal could be an amendment to the
interlocutory decision of 9 February 2004.
On
4 October 2004 Argeş County Court
upheld the prosecutor's appeal on points of law in a final decision,
modified the interlocutory judgment of 9 February 2004 and dismissed
the applicant's request for registration The court considered that,
according to Articles 6 and 15 of Law no. 514/2003, the professional
activity of a legal adviser could only be carried out within the
framework of the legal entity for which he worked, thus excluding the
possibility to represent the interests of private individuals. It
further considered that Article 10 (a) of that law provided that the
profession of legal adviser was incompatible with that of lawyer. It
then held that legal advisers could be appointed or hired under the
provisions of that law; therefore they could not carry out functions
which were specific to those of a lawyer.
The
court further held that the provisions of Article 20 § 3 (j) of
the applicant's statute were at odds with Article 1 of Law no.
51/1995 on the organisation and functioning of the
lawyer profession, which provided that only lawyers may offer
freelance consulting, assistance and legal representation. The
appellate court considered that those aspects of illegality had also
been recognised by the applicant, which had allegedly removed them by
adopting an additional protocol to its statute. However, the fact
that an additional protocol had been adopted could not have validated
the interlocutory judgment of 9 February 2004, since that decision
had taken account of the existing situation at the time it had been
delivered.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article
9 of the Government Ordinance no. 26/2000 on associations and
foundations provides that the judge in charge of reviewing the
legality of a request for registration and the supporting documents
is to scrutinise the request within three days of the date it was
lodged. If within this deadline, the judge concludes that the
documents submitted do not comply with the legal requirements, the
representative of the associations shall be summoned for a hearing
held in private and one week will be granted in order to remedy those
irregularities. When the deadline is reached and the judge concludes
that the irregularities have been remediated, it shall take note of
this in an interlocutory judgment and shall order the registering of
the association in the Register of Associations and Foundations.
Article
12 provides that an association is registered in the
Register of Associations and Foundations only when the interlocutory
judgment allowing the request for registration becomes final. Article
33 of the same act provides that any changes to the statute of an
association which has acquired legal personality and has been
registered legally have to be recorded in the Register of
Associations and Foundations according to a procedure that is similar
to the one for registering as an association.
The
same Ordinance provides that an association may be dissolved by a
judicial decision if its goals prove to be contrary to law or public
order.
The
other relevant provisions of Government Ordinance no. 26/2000 are
cited in the judgment of Bozgan v. Romania (no. 35097/02, §
11, 11 October 2007).
21. The
relevant provisions of Law no. 514 of 28 November 2003 on the
organisation and functioning of the profession of legal adviser read
as follows:
Article 4
“A legal adviser...provides
counsel and representation to the authority or public institution
where he works, or for the legal entity with which he has working
relations, protects their legitimate rights and interests in their
relations with public authorities, any kind of institution, and any
Romanian or foreign private person or legal
entity; according to the law and to the specific regulations, he
approves and countersigns documents of a judicial nature.”
Article 5
Legal advisers may form professional
associations to protect and promote their professional interests, in
accordance with the legal provisions regulating the association and
the setting up of legal entities.
Article 10
“The exercise of the profession of
legal adviser is incompatible with:
a) being
a lawyer;
...”
Article 20
(1) Under the conditions set up in Article 5,
the legal advisers may form associations at county levels, by
branches or fields of activity, according to professional interests,
and, if the case, at national level, in compliance with the law on
associations and foundations.
(2) The forms of association and organisation
at county and national level are set by the statute of the
association (...).
(3) The setting up of professional
associations is based on the constitutional principles of the right
to freedom of association and the legislation regulating the
association and the setting up of legal entities.
Article 25
Professional associations shall be constituted and their
statutes adopted within ninety days of the date of entry into force
of the present law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicant complained about the refusal of the domestic courts to
register it as an association. It further complained that it could
not even reapply for registration, given the fact that by the time
the registration request had been refused the deadline for the
setting up of such professional associations had expired. It relied
on Article 11 of the Convention which reads as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
A. Admissibility
The
Government raised an objection of inadmissibility, arguing that the
applicant was not a legal entity which could have legal standing
before the Court. They emphasised in this respect that the
applicant's request to register as an association had been dismissed
and therefore the applicant did not have legal personality.
The
applicant replied that the essence of its complaint is precisely the
refusal of the authorities to register it as an association and thus
acquire legal personality.
The
Court reiterates that the word “victim” in the context of
Article 34 of the Convention denotes the person directly
affected by the act or omission in issue (see Lüdi v.
Switzerland, 15 June 1992, § 34, Series A no. 238).
Consequently, the conditions governing individual applications under
the Convention are not necessarily the same as the national criteria
relating to locus standi in legal proceedings. National rules
in this respect may serve purposes different from those contemplated
by Article 34 and whilst those purposes may sometimes be analogous,
they need not always be. Indeed, the underlying object of the
Convention mechanism is to provide an effective and practical
safeguard to those personally affected by violations of fundamental
human rights (see Velikova v. Bulgaria (dec.), no. 41488/98,
ECHR 1999 V (extracts)).
If
it were to accept the Government's arguments, the Court would be
unable to exercise supervisory jurisdiction in respect of the
impugned decisions as concerns alleged infringement of the
applicant's rights under Article 11 of the Convention, the complaints
that the individual members of the applicant may raise before the
Court being different from the ones raised by the applicant itself in
the instant case (see, mutatis mutandis, Mişcarea
Producătorilor Agricoli pentru Drepturile Omului v. Romania,
no. 34461/02, §§ 32-35, 22 July 2008).
The
Court notes, at the same time, that it has already declared
admissible requests lodged by a political party or an association
whose registration had been refused by the national authorities and
which therefore did not exist from the point of view of the domestic
law (see for example, Partidul Comunistilor (Nepeceristi) and
Ungureanu v. Romania, no. 46626/99 (dec.), 16 December 2003, and
The United Macedonian Organisation Ilinden and Others v. Bulgaria,
no. 59491/00, (dec.), 9 September 2004).
Taking
into account the above, the Court considers that the applicant
association may claim to be a victim of the violations complained of
for the purposes of Article 34 of the Convention. In order to
ascertain whether it was in fact a victim, it is necessary to examine
the merits of its contentions.
The
Court further notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
Government, admitting that the refusal to register the applicant as
an association amounted to interference to its right to freedom of
association, considers nevertheless that this interference was
prescribed by law, pursued a legitimate aim and was necessary in a
democratic society. In this respect, they referred to Government
Ordinance no. 26/2000 which provides that if the legal requirements
for the setting up of an association are not satisfied, the request
to register is dismissed. The refusal to register the applicant
association in the instant case pursued the legitimate aim of
protecting public order and the rights and liberties of the others,
namely the rights of those who use the services of lawyers to
represent their interests.
The
Government also considered that a just balance had been struck
between the applicant's individual right to freedom of association
and the general interest in preserving public order. It indicated in
this respect the fact that the applicant's Statute set down as one of
its goals the protection and promotion of the rights of individuals
in their relation with public authorities. This aim was contrary to
Law no. 51/1995 which forbids the establishment of bar associations
and the practice of the lawyer profession outside the Romanian Bar
Association. The same goal was also contrary to Article 10 of the Law
no. 514/2003 regulating the profession of legal adviser. The
Government also showed that the activity of legal adviser could only
be carried out as part of a work relationship and it was not a
liberal profession. They submitted to the case file a copy of a
decision of the High Court of Cassation and Justice of 12 June 2006.
That decision, which was meant to unify the divergent case-law of the
domestic courts, concluded that the profession of legal adviser was
not a liberal one and therefore it could not be practised as a trade
service, but only in the framework of a work relationship.
As
regards the applicant's argument that it had changed its statute, the
Government indicated that that modification was done after the
delivery of the interlocutory judgment of 9 February 2004 and as the
appeal concerned that specific judgment, the subsequent modifications
could not be taken into account. They further held that in any event
the changes to the statute did not concern all the articles that had
been criticised in the appeal.
Finally,
the Government added that the persons, who wanted to be members of
the applicant association, could still join other associations of
legal advisers.
The
applicant argued that the Ministry of Justice and the court of first
instance allowed its request for registration and did not identify
any impediment to its registration. Upon seeing the reasons for
appeal lodged by the prosecutor and in order to avoid any potential
problems, they immediately proceeded to modify the disputed
provisions of the Statute, and those changes were also approved by an
interlocutory judgment of the first instance court of 1 March 2004,
prior to the review of the appeal. They considered that in the light
of the changes made to the Statute, the appeal remained without an
object and should have been dismissed.
As
regards the Government's reference to the decision of the High Court
of Cassation and Justice which unified the divergent practice of the
domestic courts as regards the profession of legal adviser, the
applicant underlined that that decision concerned the right to set up
profit-making companies and not the right to establish associations,
which are non-profit organisations.
2. The Court's assessment
(a) General principles
The
Court reiterates that the right to form an association is an inherent
part of the right set forth in Article 11 of the Convention. The
ability to form a legal entity in order to act collectively in a
field of mutual interest is one of the most important aspects of the
right to freedom of association, without which that right would be
deprived of any meaning. The way in which national legislation
enshrines this freedom and its practical application by the
authorities reveal the state of democracy in the country concerned.
Certainly States have a right to satisfy themselves that an
association's aim and activities are in conformity with the rules
laid down in legislation, but they must do so in a manner compatible
with their obligations under the Convention and subject to review by
the Convention institutions (see Sidiropoulos and Others v.
Greece, 10 July 1998, § 40, Reports of Judgments and
Decisions 1998-IV; The United Macedonian Organisation Ilinden
and Others v. Bulgaria, no. 59491/00, § 57,
19 January 2006; The Moscow Branch of the Salvation Army
v. Russia, no. 72881/01, § 59, ECHR 2006 ...;
and Ramazanova and Others v. Azerbaijan, no. 44363/02, §
54, 1 February 2007).
The
exceptions to the rule of freedom of association are to be construed
strictly and only convincing and compelling reasons can justify
restrictions on that freedom. Any interference must correspond to a
“pressing social need”. It is in the first place for
the national authorities to assess whether there is a “pressing
social need” to impose a given restriction in the general
interest. While the Convention leaves to those authorities a margin
of appreciation in this connection, their assessment is subject to
supervision by the Court, going both to the law and to the decisions
applying it, including decisions given by independent courts (see
Gorzelik and Others v. Poland [GC], no. 44158/98, §§
95, 96, 17 February 2004).
When
the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to
review under Article 11 the decisions they delivered in the exercise
of their discretion. This does not mean that it has to confine itself
to ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; it must look at the
interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”
(see Sidiropoulos and Others, cited above, § 40, and
United Communist Party of Turkey and Others v. Turkey,
30 January 1998, §§ 46 and 47, Reports 1998 I).
In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 11 and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(see, mutatis mutandis, Ahmed and Others v. the United
Kingdom, 2 September 1998, § 55, Reports 1998-VI;
and Goodwin v. the United Kingdom, 27 March 1996, § 40,
Reports 1996-II).
(b) Application of the general principles
to the present case
(i) Existence of interference
The
Court considers that the domestic court's refusal to register the
applicant as an association amounts to an interference by the
authorities with its right to freedom of association (see, for
example, Gorzelik and Others [GC], cited above, § 52;
Sidiropoulos, cited above, § 31; and APEH
Üldözötteinek Szövetsége and Others v.
Hungary (dec.), no. 32367/96, 31 August 1999).
This
interference will not be justified under the terms of Article 11
unless it was “prescribed by law”, pursued one or more of
the legitimate aims set out in paragraph 2 and was “necessary
in a democratic society” for the achievement of those aims.
(ii) Justification for the interference
The
Court is satisfied that the interference was prescribed by law,
namely by Ordinance no. 26/2000 and pursued a legitimate aim, namely
the protection of public order (see mutatis mutandis Bota
v. Romania (dec.), no. 24057/03).
It must therefore proceed to examine whether the interference was
necessary in a democratic society. In doing so, the Court shall
scrutinise the particular grounds adduced by the national authorities
to justify the interference and the significance of that
interference.
The
Court notes that Argeş County Court, in its decision dismissing
the applicant's request for registration, relied on the following
reasons: the Law no 514/2003 excluded the right of the legal advisers
to represent physical persons and stated that the role of legal
adviser was incompatible with that of a lawyer and that legal
advisers could not constitute themselves in legal entities specific
to the profession of a lawyer. It then held that Article 20 §
3 j) of the Statute was not in compliance with the Law no. 514/2003.
It further dismissed the applicant's arguments that it had removed
the contested provisions from its Statute, judging that the
first-instance judgment of 9 February 2004 was delivered taking into
account the Statute before its amendment.
It
appears from the reasons put forward by Argeş County Court that
the main problem with the registration were the provisions of the
applicant's Statute, in its version before the amendments of 1 March
2004, which led the court to believe that the applicant association
wanted to carry on activities similar to those of lawyers, which by
their nature were incompatible with the profession of legal adviser.
In that respect, the county court had regard to Articles 7
(defining the aims of the association) and 20 § 3 j) of the
Statute.
The
Court notes nevertheless that these specific provisions had been
subject to amendments, which had been allowed by the Pitesti District
Court by the interlocutory judgment of 1 March 2004. While it is true
that from the information submitted by the Government it appears that
the interlocutory judgment had been appealed against and a final
decision, whose content is unknown to the Court, had been delivered
on 4 December 2004, the Court notes that the applicant took immediate
measures to remedy the alleged irregularities and used the procedure
set up by law to have the amendments to its statute lawfully
registered.
The
Court further notes that Government Ordinance no. 26/2000 provided
that the judge reviewing a request for registration could allow the
applicant a deadline to put in conformity the application and its
supporting documents. That option was explicitly provided for the
first instance proceedings, although no precisions were made in
respect of the appeal proceedings.
Nevertheless,
the Court considers that the main purpose of the option was to give
the opportunity to an association making a registration request to
comply with all formalities during the registration proceedings,
should the initial request be affected by irregularities.
In
the instant case, the first instance judge did not identify any
irregularity in the request for registration and therefore allowed
it. Upon seeing the reasons for appeal lodged by the prosecutor, the
applicant, wishing to remedy any potential irregularities, proceeded
immediately to modify its statute and made a request with the
competent court to have these modifications recorded. These
modifications had been recorded by 1 March 2004, a date
which was also within the ninety-day time-limit set by Law
no. 514/2003 for the setting up of associations of legal
advisors.
In
the light of the fact that the national law aimed to give
associations a chance to remedy any irregularities during the
registration proceedings, the decision of the appellate court,
delivered on 4 October 2004, to consider irrelevant the changes
brought to the Statute of the association appears to contradict the
purpose of the law.
Moreover,
the decision of the county court proved to be even more severe in its
effects, given that the applicant did not have any other opportunity
to reapply for registration, taking into account that by the time its
request for registration had been refused, the deadline for the
setting up of associations of legal advisers was expired.
The
factual situation in the instant case is different from that in the
case of Bota (cited above), where the Court found proportional
the dissolution of an association which had among its statutory goals
the “setting up of bar associations” and whose members
effectively performed activities which were within the exclusive
competence of the Romanian bar association.
In
the present case it does not appear that the statutory provisions of
the applicant gave any indication that the association had the aim of
setting up such organisations.
Further,
the Court notes that the national law provides for the possibility of
dissolving an association should it be proven that it has goals which
are contrary to public order or that it acts contrary to its
statutory provisions (see, mutatis mutandis, Bozgan v.
Romania, no. 35097/02, § 36, 11 October 2007).
As
regards the Government's invoking of the decision of the High Court
of Cassation and Justice, the Court considers that it is not relevant
to the instant case, taking into account that that decision concerned
the right of legal advisers to set up profit-making companies. Or, in
the instant case, the applicant wanted to set up a non-profit
association.
Likewise,
the Court does not consider relevant the argument according to which
in any event the changes made to the statute did not concern all the
articles which were contested by the prosecutor and the bar
association in their appeals. When dismissing the registration
request, Argeş County Court did not analyse the changes to the
Statute, but simply considered them irrelevant and therefore it did
not give any reasoning as to whether the changes addressed all the
reasons for the appeal.
Taking
into account all the above, in the Court's view, the reasons invoked
by the authorities to refuse the registration of the applicant
association were not relevant and sufficient. Moreover, such a severe
measure as refusal of the request for registration, taken even before
the association started operating, appears disproportionate to the
aim pursued. That being so, the interference can not be deemed
necessary in a democratic society.
There
has accordingly been a violation of Article 11 of the Convention
II. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
The
applicant complains in substance under Article 6 § 1 of the
Convention that the judges reviewing its request for registration
were biased, that the proceedings were not completed speedily, and
that the bar association's appeal had been allowed unlawfully.
Having
regard to the facts of the case and its finding of a violation of
Articles 11 above, the Court considers that it has examined the main
legal questions raised in the present application. It concludes,
therefore, that there is no need to examine the admissibility and the
merits of the complaints under Article 6 § 1 of the Convention
(see, for example, Kamil Uzun
v. Turkey, no. 37410/97, §
64, 10 May 2007).
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 made no claim in respect of pecuniary or
non-pecuniary damage, asking the Court to find a violation of Article
11 of the Convention.
The
Court recalls at the outset that a judgment in which it finds a
breach imposes on the respondent State a legal obligation to put an
end to the breach and make reparation for its consequences in such a
way as to restore as far as possible the situation existing before
the breach (see Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 19, ECHR 2001 I,
and Former King of Greece and Others v. Greece [GC] (just
satisfaction), no. 25701/94, § 72). In this respect,
the Court draws attention to the fact that Article 322 § 9 of
the Romanian Code of Civil Procedure allows the applicant to address
the national courts with an extraordinary appeal (revizuire)
in order to restore the situation existing before the breach of the
Convention (see, among others, Bindea v.
Romania, no. 32297/04, §§ 24
and 25, 5 May 2009).
B. Costs and expenses
The
applicant made no claim in respect of costs and expenses and
accordingly the Court does not award it any sum on this account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares
the complaint under Article 11 admissible;
2. Holds that there has been a violation of Article
11 of the Convention;
Holds that there is no need to examine the
admissibility and the merits of the remainder of the application;
Done in English, and notified in writing on 8 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
