CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 septembre 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBAD0D18F { width:1.87pt; display:inline-block } .sD5C72CDD { width:189.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   THIRD SECTION DECISION Application no. 1197/11 Elena PETRAŞCU against Romania The European Court of Human Rights (Third Section), sitting on 30   September 2014 as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Ján Šikuta,   Dragoljub Popović,   Johannes Silvis,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above application lodged on 6 December 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Elena Petraşcu, is a Romanian national, who was born in 1931 and lives in Bucharest. She was represented before the Court by Mr P. V. Manta, a lawyer practising in Bucharest. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 6 November 2008 the applicant brought proceedings against a third party seeking the cancellation of the sale contract with a maintenance clause for her apartment. During the proceedings before the first and second-instance courts, the applicant was assisted by a legal representative of her own choosing. 5.     By an interlocutory judgment ( ȋncheiere de şedință ) of 2   December   2008 the Bucharest District Court adjourned the proceedings to, inter alia , allow the applicant to specify the value of the object of the dispute, in order for the court to be able to determine its competence ratione materiae and the appropriate form of appeal that could be lodged against the judgment. 6.     At a hearing on 6 January 2009 the applicant submitted to the first ‑ instance court that the tax value of the apartment, namely 64,959   Romanian lei (approximately 17,500 euros (EUR)), was the value of the object of the dispute. 7.     By a judgment of 12 May 2009 the Bucharest District Court dismissed the applicant’s action as ill-founded on the basis of the available documents, submissions and testimonial evidence. The operative part of the judgment expressly stated that it was amenable to appeal within fifteen days of notification. 8.     On 11 August 2009 the applicant lodged an appeal against the first ‑ instance court’s judgment without providing reasons. 9.     On 26 October 2009 the applicant also lodged an appeal on points of law ( recurs ) against the first-instance court’s judgment, for which she did provide reasons. 10.     At a hearing on 2 February 2010 before the Bucharest County Court the applicant argued that the market value of her apartment was RON   110,000 (approximately 29,000 Euros (EUR)). 11.     On 6 April 2010, after hearing submissions from both parties, the Bucharest County Court changed the applicant’s appeal to an appeal on points of law and referred the case to a bench of three judges competent to examine such appeals by virtue of Article 282 1 (1) of the Romanian Code of Civil Procedure. It held that on 6 January 2009 the applicant had expressly informed the first-instance court of the value of the apartment, which had not been contested by the third party. In addition, the relevant civil procedure rules and the principle of lawfulness did not allow the parties to choose the form of appeal they wished to lodge against a judgment. 12.     On 1 June 2010 the Bucharest County Court heard submissions from both parties on whether the applicant had provided reasons for her appeal on points of law within the statutory time-limit. 13.     On 2 June 2010 the applicant submitted written observations to the Bucharest County Court. She reiterated her argument that the value of her apartment was RON 110,000 and contended that the second-instance court had wrongfully reclassified her appeal. In addition, she contended that she had submitted the reasons for her appeal within the statutory time-limit. 14.     By a final judgment of 18 June 2010 the Bucharest County Court, sitting as a bench of three judges, declared the applicant’s appeal on points of law invalid. It held that she had not submitted her reasons for it within the statutory time-limit. Moreover, there was no public interest justifying the invalidation of the judgment. Furthermore, the appropriate form of appeal that could be exercised by the parties was prescribed by law and not the judge examining the case. Consequently, the fact that the first-instance court had wrongfully identified the form of appeal that could have been exercised by the applicant did not exempt her from lodging the appropriate form of appeal and from submitting her reasons for it within the statutory time-limit. The applicant appealed on points of law against the judgment and argued, inter alia , that at the time of initiating the proceedings against the third party the domestic legislation on judicial tax had not classified her action as a pecuniary type of action. It was only on 12 December 2008 that the domestic legislation on judicial tax had been amended and the classification had changed. Also, the second-instance court could have ordered an expert report to determine the value of the apartment, given that the applicant had expressly informed the same court that the value in question was in excess of RON 100,000. 15.     On 31 March 2011 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law as inadmissible. It held, inter alia , that the judgment in the interest of the law ( recurs ȋn interesul legii ) delivered by the Court of Cassation on 9 June 2008 had considered that the type of action opened by the applicant against the third party was pecuniary in nature and that the provisions of Article 282 1 (1) of the Romanian Code of Civil Procedure therefore applied. In addition, the Bucharest County Court had lawfully interpreted the applicant’s clear and repeated submissions that the value of the apartment in dispute was RON 64,959. B.     Relevant domestic law Former Romanian Code of Civil Procedure 16.     Article 103 (1) and (2) provided that failure to lodge any form of appeal within the statutory time-limit resulted in the deprivation of that right, except when the law provided otherwise or the party proved that it was impeded from doing so by unforeseen circumstances. In the latter case, the right could be exercised within fifteen days of the date the impediment ceased to exist. 17.     Article 112 (3) provided that the application to initiate proceedings had to include a description of the object of the dispute as estimated by the claimant. 18.     Articles 282, 287 and 292 provided that first-instance court judgments were amenable to appeal within fifteen days of the date of notification. Reasons for the appeal had to be submitted by the parties at the time of the first hearing before the court at the latest. Failure to submit the reasons for appeal within the allowed time-limit did not lead to its invalidation, but removed the ability to raise additional issues of fact and law that had not been raised before the first-instance court. 19.     Articles 282 1 (1) (amended by Law no. 195/2004, which entered into force on 29 May 2004), 299, 301 and 302 1 provided that judgments delivered in respect of disputes where the object of the dispute was valued at less than RON 1 billion (approximately EUR 27,000) were not amenable to appeal. Judgments not amenable to appeal were amenable to appeal on points of law ( recurs ). An appeal on points of law could be lodged within fifteen days of the judgment being notified to the parties. Reasons for the appeal on points of law had to be submitted within the same fifteen-day period, or it would be declared invalid. 20.     Article 329 (3) provided that judgments in the interest of the law had no impact on existing judgments or on the situation of the parties involved in the proceedings. The solution adopted was binding on the domestic courts. COMPLAINTS 21.     The applicant complained under Article 6 of the Convention of unfairness in the proceedings, in so far as her right of access to court had been restricted because the court of last instance had failed to examine her case after it had reclassified and invalidated her appeal. In addition, she complained that the proceedings had been excessively lengthy. 22.     The applicant complained under Article 1 of Protocol No. 1 to the Convention of an alleged breach of her right of property in so far as she had been deprived of her apartment. THE LAW A.     Complaint under Article 6 of the Convention concerning access to court 23.     The applicant complained that the proceedings had been unfair, in so far as her right of access to court had been restricted because the appellate court had failed to examine her case after it had reclassified and invalidated her appeal. She relied on Article 6 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 1.       The parties’ submissions 24.     The Government submitted that the restriction imposed on the applicant’s right of access to court was prescribed by law, pursued a legitimate aim, and was proportionate. The reclassification of her appeal had taken place on the basis of the applicable civil procedural rules during a public hearing, after she had been allowed to submit arguments on that point. The aim of the measure was to ensure the proper administration of justice, particularly to ensure that appeals on points of law were dealt with speedily. The reclassification of her appeal and the consequences of failure to submit reasons for her appeal on points of law within the statutory time ‑ limit could have been predicted by her, given that she had been assisted by a legal representative during the proceedings and the provisions of Articles 282 1 (1) of the former Romanian Code of Civil Procedure were sufficiently clear. 25.     The Government also argued that the applicant’s legal representative had contented himself with claiming to the second-instance court that the value of the object of the dispute was in excess of RON 100,000, without submitting any supporting evidence. In addition, he had failed to ask the second-instance court on behalf of the applicant to reinstate the time-limit for an appeal. Furthermore, the applicant herself had informed the first ‑ instance court that the value of the apartment in question was below RON 100,000. Also, the restriction of her right of access to court had happened at an advanced stage of the proceedings, and only after the first ‑ instance court had examined the merits of the case. 26.     The applicant argued that at the time she had initiated the proceedings against the third party the domestic legislation regulating judicial tax had not classified her action as a pecuniary type of action. It was only on 12 December 2008 that the domestic legislation on judicial tax had been amended and the classification had changed. Consequently, the amendments to the legislation regulating judicial tax should not have had any relevance for the proceedings, and she should have had access to three levels of jurisdiction. By changing her appeal to an appeal on points of law, the final-instance court had deprived her of the opportunity to have the merits of her complaints raised against the first-instance court’s judgment examined at a higher level of jurisdiction, and had therefore denied her of her right of access to court. 2.       The Court’s assessment 27.     The Court notes in the instant case that by changing the applicant’s appeal to an appeal on points of law, the court of last instance had deprived her of the opportunity to have the merits of the case re-examined at a higher level of jurisdiction as a result of the different formal requirements that had to be fulfilled by her in respect of the applicable time-limits for providing reasons for the different forms of appeal. Consequently, there has been an interference with the applicant’s right of access to court guaranteed by Article 6 § 1 of the Convention. 28.     The Court reiterates that the right of access to court is not absolute, but may be subject to limitations; these are permitted by implication, particularly in respect of conditions for the admissibility of an appeal on points of law, since "by its very nature it calls for regulation by the State, which enjoys in this respect a certain margin of appreciation" (see Trif v.   Romania (dec.), no. 26873/06, § 36, 12 November 2013). The limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, among other authorities, Angel Angelov v. Bulgaria , no. 51343/99, § 35, 15   February 2007, and Kreuz v.   Poland , no. 28249/95, §   54, ECHR   2001 ‑ VI). Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought (see Krastev v. Bulgaria , (dec.) no. 33065/05, § 24, 15   May   2012). 29.     The Court notes, on the basis of the evidence available in the file, that the Bucharest County Court’s decision to change the applicant’s appeal to an appeal on points of law was prescribed by law and was foreseeable. In this connection, the Court observes that Article 282 1 (1) of the former Romanian Code of Civil Procedure and its interpretation by the Court of Cassation following its judgment in the interest of the law provided clear instructions in respect of the type of proceedings that were not amenable to appeal. In addition, the decision pursued a legitimate aim, given that it observed the principle of lawfulness for lodging various forms of appeal at the national level and aimed at ensuring the proper administration of justice. In this context, the Court notes that during the proceedings the applicant had always been represented by a lawyer of her own choosing, and could therefore have asked for and obtained detailed legal advice clarifying the appropriate form of appeal she could have chosen to challenge the first ‑ instance court’s judgment. 30.     The Court also notes that the main criteria for determining the appropriate form of appeal that could be lodged against the first-instance court’s judgment was the value of the immovable property disputed by the applicant. In this context, the Court observes that the applicant herself, after being expressly asked, had informed the first-instance court that the value of the said property was well below RON 100,000. While at a later stage of the proceedings, before the second-instance court, she reviewed her claim and argued that the value of the property was in excess of RON 100,000, there is no evidence in the file that at any stage of the proceedings she had asked the first or the second-instance court, in the absence of any reaction by the courts, for an expert report to determine the actual value of the apartment. Given the special nature of the County Court’s role as a court of appeal, the Court is able to accept that the procedure followed before it may be more formal, including in respect of the interpretation of the applicable legislation (see, mutatis mutandis , Negreanu v. Romania , (dec.) no. 30164/03, § 34, 14   May 2013). 31.     The Court further observes that the Bucharest County Court reclassified the applicant’s appeal during a public hearing, after it had allowed the parties to submit observations on that point. In this connection, the Court notes that neither the applicant nor her chosen legal representative had asked the court for the time-limit for an appeal on points of law to be reinstated. In this context, the Court considers that the applicant had exposed herself to the risk of having her appeal on points of law dismissed without an examination of the merits of her case. 32.     In the light of the above, the Court considers that the applicant has not suffered a disproportionate interference with her right of access to court. 33.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.     Complaint under Article 1 of Protocol No. 1 to the Convention 34.     The applicant complained of a breach of her right of property in so far as she had been deprived of her apartment. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 35.     The Government contended that the first-instance court had examined the merits of the applicant’s case and provided ample reasoning for its decision. In addition, the proceedings resulting in the court of last instance’s decision to invalidate the appeal lodged by the applicant against the first-instance court’s judgment had not been unfair. Lastly, the applicant had not been deprived of the apartment, because she had willingly chosen to sell it. 36.     The applicant disagreed. 37.     The Court notes that this complaint is closely linked to the one examined under Article 6 of the Convention. It has already found that the assessment of the applicant’s case by the domestic courts was in conformity with the requirements of that provision. In conclusion, it appears from the evidence in the file that the applicant’s claims in respect of the apartment and the contract signed with the third party had been dismissed by the domestic courts without any appearance of arbitrariness. Consequently, the Court considers that there is no indication of a breach of Article 1 of Protocol No. 1 to the Convention. 38.     It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. C.     Other complaint 39.     In so far as the applicant’s remaining complaint is concerned (see paragraph 21, above), the Court considers that there is nothing in the file to suggest that the length of the proceedings failed to comply with the “reasonable time” requirement under Article 6 § 1 of the Convention. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Marialena Tsirli   Josep Casadevall Deputy Registrar   President