European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF S.C. CARBOCHIM S.A. CLUJ-NAPOCA AND
S.C. FENEGA IMPORT-EXPORT S.R.L.
AND OTHERS v. ROMANIA

 

(Applications nos. 45621/05, 46691/07, 27314/08 and 1150/09)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

17 January 2017

 

 

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




In the case of S.C. Carbochim S.A. Cluj-Napoca and S.C. Fenega Import-Export S.R.L. and Others v. Romania,

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

          Paulo Pinto de Albuquerque, President,
          Iulia Motoc,
          Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 6 December 2016,

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

PROCEDURE

1.  The case originated in four applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian companies and six Romanian nationals on the various dates indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

2.  On 27 June 2012 the applications were communicated to the Government.

3.  The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The list of applicants and the relevant details of the applications are set out in the appended table.

5.  The applicants lost their court cases consisting of civil proceedings held in their absence. The notices of the court proceedings had been served on them solely by means of posting them on a gate or wall (hereinafter “by public notice” - citarea prin afişare). They all argued in their subsequent appeals, whether appeals in cassation (when the notices were served during the first-instance proceedings or the appeal hearings took place) or appeals seeking the quashing of the final decision (contestaţie în anulare) (when the notices were served during the proceedings at the court of last instance), that they had not been aware of the date of the court proceedings as they had never received the relevant notifications from the courts. Their complaints to that effect were dismissed by the courts on the grounds that service by public notice was provided for by law. Consequently their appeals were dismissed without examination of the merits of the cases.

II.  RELEVANT DOMESTIC LAW

6.  The relevant domestic law in force at the time on the service of judicial documents by means of public notice is summed up in the Court’s judgment in the case of S.C. Raisa M. Shipping S.R.L. v. Romania (no. 37576/05, § 18, 8 January 2013).

THE LAW

I.  JOINDER OF THE APPLICATIONS

7.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications and to consider them in a single judgment, given that they concern similar facts and raise identical issues under the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LACK OF ACCESS TO COURT

8.  The applicants complained that their right of access to court had been breached in so far as they had not received the summonses and had therefore been unable to participate in the court proceedings.

They relied on 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 ...”

A.  Admissibility

9.  The Government raised several preliminary objections. The Court will examine them in relation to the different application to which they pertain.

1.  Objection of lack of victim status (applications nos. 45621/05 and 27314/08)

(a)  Objection concerning the first applicant company in application no. 45621/05

10.  The Government argued that the first applicant company in application no. 45621/05 lacked victim status, in so far as it had been aware of the proceedings. It was only the second applicant company, S.C. Fenega Import Export S.R.L., that had been summoned by means of public notice.

11.  The applicant companies contested those arguments.

12.  The Court notes that first applicant company did not suffer any adverse consequences as a result of the alleged problem in the service procedure, which affected exclusively the second applicant company. It thus cannot claim to be a victim of a violation of its right of access to court.

13.  The Government’s objection is therefore allowed in respect of the first applicant company.

14.  It follows that, in so far as it concerns S.C. Carbochim S.A., this application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

(b)  Objection concerning the second applicant company in application no. 45621/05 and concerning application no. 27314/08

15.  In applications nos. 45621/05 and 27314/08 the Government further argued that the applicants had been aware of the proceedings but had deliberately chosen not to participate.

16.  The applicants contested those arguments.

17.  The Court notes that the Government failed to put forward any argument supporting their position. Moreover, it reiterates that the obligation to notify judicial documents lies exclusively with the judicial authorities. Therefore, it cannot be accepted that the second applicant company in application no. 45621/05 should have been aware of the progress of the domestic proceedings by the mere fact that the first applicant company was. Moreover, nothing in the file indicates that the applicants in application no. 27314/08 were aware of the course of the proceedings.

18.  The Government’s objection should therefore be dismissed.

2.  Objection of non-exhaustion of domestic remedies (applications nos. 45621/05, 27314/08 and 1150/09)

19.  In applications nos. 45621/05, 27314/08 and 1150/09 the Government argued that the applicants had failed to exhaust the domestic remedies in so far as they had not availed themselves of the possibility of bringing criminal proceedings against the court officer (agentul procedural) responsible with the service procedure (înscrierea în fals). However, the Court has already examined a similar objection and dismissed it on the ground that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see S.C. Raisa M. Shipping S.R.L., cited above, § 25).

20.  For these reasons, the Court dismisses this objection in both applications.

3.  Objection of lack of significant disadvantage (applications nos. 27314/08 and 1150/09)

21.  In applications nos. 27314/08 and 1150/09 the Government argued that the applicants had not suffered a significant disadvantage. The Court reiterates that the admissibility criterion set forth in Article 35 § 3 (b) of the Convention is applicable only when the applicant has suffered no significant disadvantage and provided that the two safeguard clauses contained in the same provision are respected. It follows that where it has not been determined that the applicant has suffered no significant disadvantage, this admissibility criterion does not apply (see Giuran v. Romania, no. 24360/04, § 24, ECHR 2011 (extracts)). Bearing in mind what was at stake for the applicants, whose right to respect for the integrity of their home was at risk and who could not argue their case before the domestic courts, the Court considers that this objection is to be dismissed.

4.  Other reasons for inadmissibility

22.  With the exception of the first applicant company in application no. 45621/05 (see paragraph 13 above), the Court notes that the complaints concerning access to court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

23.  The Government submitted that the right of access to court was not absolute, but may be subject to limitations. They argued that service of court documents by means of public notice was provided for by the domestic law as an alternative to direct notification and as a means of preventing the abuse of procedural rights by the parties. Moreover, the courts examined systematically the legality of the service procedure. The Government pointed out that domestic law allowed for proceedings to take place in the absence of a party provided that the notification of judicial proceedings had been done correctly.

24.  The applicants maintained their complaints.

25.  The Court reiterates that it cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see Avotiņš v. Latvia [GC], no. 17502/07, § 99, 23 May 2016). It further reiterates that the right of access to a court, the principle of adversarial proceedings, and the principle of equality of arms enshrined in Article 6 § 1 of the Convention are also applicable in the specific sphere of service of judicial documents on the parties (see S.C. Raisa M. Shipping S.R.L., cited above, § 29, and, as a recent example, Avotiņš, cited above, § 119).

26.  In S.C. Raisa M. Shipping S.R.L. v. Romania the Court found a violation of Article 6 § 1 of the Convention because the applicant company had been summoned to appear in the proceedings on the merits of its case only by means of public notice. The Court considered that, while the domestic law in force at that time provided for summoning by means of public notice (Article 92 § 4 of the Code of Civil Procedure), the way in which the Romanian courts applied the law was too formalistic. The courts were not diligent in ensuring that defendants had been informed of the date of the hearings, and were thus failing in their obligation to ensure effective participation in the proceedings (see S.C. Raisa M. Shipping S.R.L., cited above, §§ 32-35).

27.  In the present applications, the Court has not found any fact or argument capable of persuading it to depart from its existing case-law. The applicants were summoned only by notices affixed to their premises and alleged that they did not receive the notifications. They were thus unaware of the dates of the hearings and could not be present in court. Despite the absence of the applicants from the proceedings, the domestic courts made no other attempt to ensure that they were informed of the dates of the hearings and that they could take part in the proceedings in which their civil rights were at stake, in particular by postponing the hearings and repeating the service of summonses.

28.  There has accordingly been a violation of Article 6 § 1 of the Convention on account of the applicants’ lack of access to court.

III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

29.  In case no. 45621/05 an additional complaint was raised, concerning an alleged violation of the rights guaranteed by Article 1 of Protocol No. 1 to the Convention.

30.  Having regard to the finding that the applicants’ right of access to court has been breached (see paragraph 28 above), the Court considers that there is no need to give a separate ruling on the admissibility and merits of the complaint raised under Article 1 of Protocol No. 1 (see S.C. Raisa M. Shipping S.R.L., cited above, § 38; see also, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

31.  Lastly, the Court notes that the applicants raised other complaints under Articles 6 and 13 of the Convention.

32.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

33.  Accordingly, these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  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

35.  The applicants claimed the following amounts in respect of pecuniary and non-pecuniary damage:

(a)  application no. 45621/05:

-  1,400,000 euros (EUR) in respect of pecuniary damage; and

-  EUR 5,000 for each applicant company in respect of non-pecuniary damage.

(b)  application no. 46691/07:

-  EUR 99,643 in respect of pecuniary damage.

(c)  application no. 27314/08:

-  EUR 50,000 in respect of pecuniary damage; and

-  EUR 10,000 in respect of non-pecuniary damage.

(d)  application no. 1150/09

-  43,668 Romanian lei (RON) in respect of pecuniary damage; and

-  RON 30,000 in respect of non-pecuniary damage.

36.  The Government contested the amounts sought. They considered that the applicants had failed to bring justifications for their claims or to prove any causal link between the alleged violations and the loss incurred. They further argued that the amounts sought in respect of non-pecuniary damage were excessive and that the finding of a violation should constitute sufficient just satisfaction.

37.  The Court notes that the applicants have failed to show the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to all the circumstances of the present cases, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants the following sums, in respect of non-pecuniary damage, plus any tax that may be chargeable thereon:

(a)  EUR 3,600 for the second applicant company in application no. 45621/05;

(b)  EUR 3,600 for each applicant in application no. 27314/08;

(c)  EUR 3,600 for each applicant in application no. 1150/09.

38.  The Court further notes that Article 509 § 10 of the New Civil Procedure Code allows for the reopening of the domestic proceedings in order to remedy the breaches found by it. Given the nature of the applicants’ complaints and the reasons for which it has found a violation of Article 6 § 1 of the Convention, the Court considers that in the present cases the most appropriate form of redress would be to reopen the proceedings complained of in due course (see, for the similar solution under the provisions of the former Code of Civil Procedure, S.C. Raisa M. Shipping S.R.L., cited above, § 44).

B.  Costs and expenses

39.  The applicants the applicants did not request reimbursement of costs and expenses. Therefore, the Court makes no award under this head.

C.  Default interest

40.  The Court considers it appropriate that the default interest rate 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.  Decides to join the applications;

 

2.  Declares the complaints concerning access to court admissible, except for the complaint raised by the first applicant company, S.C. Carbochim S.A., in application no. 45621/05, which it declares inadmissible;

 

3.  Holds that there is no need to examine the admissibility and merits of the complaint under Article 1 of Protocol No. 1 to the Convention raised in application no. 45621/05;

 

4.  Declares the remainder of the applications inadmissible;

 

5.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the applicants’ lack of access to a court stemming from the service procedure;

 

6.  Holds

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

(i)  EUR 3,600 (three thousand six hundred euros) for the second applicant company in application no. 45621/05;

(ii)  EUR 3,600 (three thousand six hundred euros) for each applicant in application no. 27314/08; and

(iii)  EUR 3,600 (three thousand six hundred euros) for each applicant in application no. 1150/09;

(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;

 

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                         Paulo Pinto de Albuquerque
Deputy Registrar                                                                       President




APPENDIX
List of applications

No.	Case no. and date of introduction	Applicants’ names, dates of birth (for individuals) and addresses	Representatives	(a)  Circumstances of the case (b)  Incidents in the service procedure and (c)  Domestic remedy used
1)	45621/05 05/12/2005	1) S.C. Carbochim S.A. Cluj-Napoca   2) S.C. Fenega Import-Export S.R.L. Cluj-Napoca	C. E. Iordăchescu	(a)  Annulment of a sale contract concluded between the applicants for alleged illegalities;   (b)  Notification of the court proceedings was served on the second applicant company by public notice for both hearings held in the case; the applicant company was not represented in the appeal proceedings;   (c)  The second applicant company complained in its appeal in cassation that the service procedure had been illegal (final decision of 9 June 2005 of the High Court of Cassation and Justice).
2)	46691/07 16/10/2007	Fadeta Angela Udrescu 15/04/1953 Bucharest	I. Udrescu	(a)  Complaint concerning the calculation of retirement benefits;   (b)  First-instance court decision served by public notice; the applicant could not appeal against it within the legal time-limit;   (c)  The applicant requested an extension of the time-limit for lodging an appeal (dismissed on 6 December 2006) and sought the annulment of the final decision (dismissed on 20 April 2007).
3)	27314/08 18/01/2008	1) Rodica Neagu 17/06/1955 Bucharest 2) Eugen Neagu 31/07/1952 Bucharest	R. Neagu	(a)  Request for a performance order seeking temporary access to the applicants’ neighbours’ property in order to undertake major consolidation works in their home needed for reinforcing its structure;   (b)  Notification of the appeal proceedings was served on the applicants by public notice; the proceedings were terminated for lack of participation of the parties (perimarea acţiunii);   (c)  Appeal on points of law dismissed as inadmissible on 8 January 2008 (both unlawful notification and request for criminal proceedings against the court officer invoked).
4)	1150/09 24/12/2008	1) Mircea Bantaş 16/06/1967 Bucharest   2) Virginia Bantaş 27/08/1967 Bucharest   3) Ioana Georgiana Bantaş 22/06/1988 Bucharest	L.N. Şova	(a)  Eviction proceedings instituted against the applicants;   (b)  Decision rendered in the appeal proceedings served on the applicants by public notice; the applicants could not appeal in cassation against it within the legal time-limit;   (c)  The applicants requested an extension of the time-limit for lodging an appeal (dismissed on 8 July 2008).