European Court of Human Rights

THIRD SECTION

Application no. 20789/07
Marian ENCULESCU
against Romania
lodged on 19 April 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Marian Enculescu, is a Romanian national who was born in 1961 and lives in Drobeta Turnu Severin.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 23 August 1996 the applicant brought criminal proceedings and joined civil claims against a third party for forgery and use of forged documents.

By a final order of 12 July 2002 the Drobeta Turnu Severin Prosecutor’s Office discontinued the criminal investigation against the third party on the grounds that it was time-barred. At the same time, it referred the case to the civil courts to determine whether the applicant’s signature on the documents contested by him had been forged by the third party and whether the said documents were invalid.

By a judgment of 10 June 2003 the Mehedinti County Court dismissed the applicant’s action on the basis of documentary, testimonial and expert evidence. The applicant appealed against the judgment on, inter alia, the grounds that the first-instance court had failed to examine the validity of some of the documents contested by him.

By a final judgment of 24 February 2004 the Craiova Court of Appeal allowed the applicant’s appeal, quashed the judgment of 10 June 2003 and ordered a retrial by the first-instance court. It held that the first-instance court had not examined the validity of some of the documents contested by the applicant, which amounted to a failure to examine the merits of the case.

By a judgment of 16 June 2004, following a retrial, the Mehedinti County Court dismissed the applicant’s action on the merits. The applicant appealed against the judgment.

By a final judgment of 2 November 2006 the Court of Cassation, sitting as a third-instance court, in a bench of three judges that included judges E.E. and B.S., dismissed on merits the applicant’s appeal as ill-founded. The applicant lodged an extraordinary appeal (contestatie în anulare) against the judgment on the grounds that the domestic courts had failed to examine one of the points of appeal he had raised.

By a second final judgment of 4 March 2008 the Court of Cassation allowed the applicant’s extraordinary appeal, quashed the final judgment of 2 November 2006 and ordered a second retrial. It held that the Court of Cassation sitting as court of final appeal had failed to examine all the points of appeal raised by the applicant.

By a third final judgment of 29 April 2010, following the second retrial of the case, the Court of Cassation, sitting as a bench of three judges including judges E.E. and B.S., dismissed the applicant’s action on the merits.

On 28 April 2010 judges E.E. and B.S. had lodged a request before the Court of Cassation to be allowed to withdraw from examining the applicant’s case on the grounds that they had already examined the same case between the same parties on 2 November 2006. By a final interlocutory judgment delivered on the same date the Court of Cassation dismissed the two judges’ request without providing any reasons.

B.  Relevant domestic law

Article 24 of the Romanian Code of Civil Procedure (“the CCP”) provides that a judge who has already ruled on a case cannot sit on a panel deciding on the case in a new set of proceedings following a quashing decision. Article 25 of the CCP provides that a judge who is aware that there is a reason precluding him or her from being eligible to rule on a case has to inform his or her supervisor and withdraw from sitting on the panel reviewing the case.

COMPLAINTS

Citing Article 6 § 1 of the Convention, the applicant complains that the proceedings brought by him against a third party for forgery and use of forged documents were unfair. He argues that the domestic courts lacked impartiality insofar as two of the judges sitting on the three-judge panel examining his appeal before the Court of Cassation at the second retrial of the case, E.E. and B.S., had already adjudicated on his first appeal before the Court of Cassation following the first retrial of the case.

Moreover, he submitted that the proceedings were unreasonably lengthy and that the domestic courts wrongfully assessed the evidence and misinterpreted the applicable legal provisions.

QUESTIONS TO THE PARTIES

1.  Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s appeal in front of the Court of Cassation dealt with by an independent and impartial tribunal established by law, as required by Article 6 § 1 of the Convention? Did judges E.E. and B.S. sitting on the three-judge panel examining the applicant’s appeal at the second retrial of the case lack impartiality as they had already adjudicated on his first appeal following the first retrial of the case?

2.  Was the length of the proceedings brought by the applicant against a third party for forgery and use of forged documents in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?