CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 janvier 2015

.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 } .s6088A1B { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; 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 } .sB5688C0F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sF63C82F { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; line-height:115%; font-size:10pt } .sA56DF1A1 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .s6ED1B729 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s62F35E4B { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sC09AF19 { width:186.93pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   THIRD SECTION DECISION Application no. 6005/05 Ion SGAIBĂ against Romania The European Court of Human Rights (Third Section), sitting on 27   January 2015 as a Chamber composed of:   Josep Casadevall, President,   Luis López Guerra,   Ján Šikuta,   Dragoljub Popović,   Kristina Pardalos,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Stephen Phillips, Section Registrar, Having regard to the above application lodged on 31 January 2005, 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, Mr Ion Sgaibă, is a Romanian national who was born in 1942 and lives in Poiana, Turburea administrative district. His application was lodged on 31   January 2005. The applicant’s request for self ‑ representation was granted. 2.     The Romanian Government (“the Government”) are represented by their Agent, Ms I. Cambrea, 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 15 April 2003 the applicant lodged a complaint against the Gorj County Pension Authority (the “Pension Authority”), complaining about the way in which his pension had been calculated with effect from December   2002. He stated that it had been calculated by multiplying the annual average point level ( punctajul mediu anual ) determined for each retired person by the pension point ( punct de pensie ) which had been set by governmental decision. He relied on the following two arguments: firstly that the average point level used for calculating his pension with effect from December 2002 had been progressively lowered since it had first been determined on 1 April 2001, and secondly that there had been errors in the calculation of his pension, meaning that the sums which had actually been paid in the periods from June to December 2001, March to December 2002 and March to May 2003 had been lower than the sums obtained by multiplying the two relevant figures together, even taking the value set by the Pension Authority. He also contended that the lowering of the annual average point level was discriminatory as it only affected people who had retired between 1   January   1999 and 31   March 2001. 5.     In a first-instance judgment of 23 May 2003 the Gorj County Court (“the County Court”) dismissed his complaint, holding that even though the average point level had been lowered in January 2003, this had caused no difference in the actual pension paid between December 2002 and January   2003, and that his claims were therefore ill-founded. 6.     The applicant lodged an appeal, arguing that his claims had not been properly examined. He claimed that the County Court had not considered his allegation that the lowering of the average point level had been discriminatory and had failed to address his allegation that the pension that he had actually been paid for some periods had not corresponded to the sums produced by multiplying the two relevant figures together, even taking the value set by the Pension Authority. 7.     In a final decision of 19 November 2003 the Craiova Court of Appeal, sitting as a panel of three judges, namely E.C., D.U. and D.S., dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been calculated by reference to the pension to which he had been entitled on 31 December 2002 and deducting from it his compulsory contribution to the health insurance fund. 8.     The applicant lodged an extraordinary appeal, contending that the appellate court had failed to examine all his arguments. In a final decision of 27   January 2004, the Craiova Court of Appeal, sitting as a panel of three judges including D.S. and D.U., allowed the extraordinary appeal. It held that one of the applicant’s arguments concerning the way in which his pension rights had been calculated had not been properly examined. 9.     The Craiova Court of Appeal kept the case for a fresh determination of the ordinary appeal and set the date for the first hearing at 24   February   2004. 10.     The re-examination of the ordinary appeal lasted from 24   February to 15 June 2004. The court held several hearings sitting as a panel of three judges, including D.S. and D.U. The applicant attended all the hearings. 11.     In a final decision delivered on 15 June 2004 and served on the applicant on 28 August 2004, the appellate court dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been correctly calculated in accordance with the applicable law. It stated that the applicant’s pension rights had not been affected after the recalculation of the annual average point level. The appellate court also noted that the applicant had brought parallel proceedings for the calculation of his pension rights and the amount of his pension had therefore already been established by a final decision of the Gorj County Court delivered on 30 May 2003. 12.     The applicant lodged another extraordinary appeal, arguing that two of the judges considering his appeal had lacked impartiality, as they had ruled on the case on a previous occasion, and that the new decision of 15   June 2004 had contradicted the final decision of 27 January 2004, which had found that there was in fact a discrepancy between the pension which was actually paid to him and the one that would have resulted from a proper calculation. He also complained that the appellate court had dismissed the financial expert report without addressing the contradictions between that report and the new pension decision. 13.     In a final decision of 9 November 2004 the appellate court dismissed the extraordinary appeal, holding that all of the applicant’s grounds of appeal had been duly examined. B.     Relevant domestic law 14.     Article 24 of the Romanian Code on Civil Procedure (CCP), as in force at the material time, provided that a judge who had already ruled on a case could not sit on the panel deciding the same case in any new set of proceedings following the quashing of a previous decision. 15.     Under Article 29 of the CCP, parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case. 16.     The rules concerning a change of trial venue were laid down in Articles 37 to 40 of the CCP. 17.     Article 317 of the CCP provided that an extraordinary appeal on points of law against final decisions of a court of appeal in cases where the appeal had been decided by a disqualified judge, or the court’s composition had been incorrect, was available only if the parties could not have invoked these grounds in an ordinary appeal. COMPLAINTS 18.     The applicant complained under Article 6 § 1 of the Convention that the proceedings against the Pension Authority had been unfair on several grounds. He contended that the domestic courts had failed to examine all his arguments and had lacked impartiality and independence, especially taking into account the fact that two of the judges who had considered his appeal in the second set of proceedings had already ruled on the first appeal. 19.     Relying on Article 14 of the Convention, the applicant complained that he had been subjected to discriminatory treatment in the way in which his pension rights had been determined compared with the rights of people who had retired on dates that differed from his own date of retirement. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention 20.     The applicant alleged that he had not had a fair hearing before the domestic courts because, firstly, the domestic courts had not given sufficient or clear reasons for their decisions and, secondly because they had lacked impartiality and independence. He relied on Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 1.     The parties’ submissions 21.     The Government submitted that the application should be dismissed for non-compliance with the six-month rule. They contended that the final decision from which the six-month term should be calculated was the decision of the Craiova Court of Appeal of 15 June 2004 and not the decision of 9 November 2004 by which the appellate court had dismissed the extraordinary appeal lodged by the applicant. 22.     As regards the applicant’s complaint concerning the lack of impartiality of the domestic courts, the Government contended that the applicant had not exhausted the domestic remedies. They pointed out that despite the fact that the applicant could have raised this complaint before the Craiova Court of Appeal at any time after 27 January 2004, he had presented this argument for the first time in his extraordinary appeal against the final decision of 15 June 2004. They argued that the applicant could have challenged the composition of the panel on the basis of Article 24 of the CCP as in force at that time. They further submitted that he could have requested a change of venue of the appeal based on Articles 37-40 of the same code. 23.     In response to the applicant’s complaint that the domestic courts had not addressed essential arguments raised by him, the Government submitted that the present case was a typical “fourth instance” case, which reflected the applicant’s obvious dissatisfaction with the outcome of the proceedings. 24.     The applicant disagreed with the Government’s arguments. He contended that he had not raised the issues concerning the lack of impartiality before the domestic courts because he had not had the assistance of a lawyer and he had considered that the courts had an obligation to defend his rights. He further argued that his grounds of appeal had not been properly examined by the domestic courts. 2.     The Court’s assessment (a)     Objection of non-compliance with the six-month time-limit 25.     The Court reiterates that the six-month period starts running from the date on which the applicant and/or his or her representative has sufficient knowledge of the final domestic decision (see Koç and Tosun v. Turkey (dec.), no. 23852/04, 13 November 2008). It also points out that it is for the State relying on the failure to comply with the six-month time-limit to establish the date on which the applicant became aware of the final domestic decision (see Şahmo v. Turkey (dec.), no. 37415/97, 1 April 2003). 26.     The Court is aware that, in accordance with its consistent case-law, an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR   2004-II). 27.     In the instant case, the Court notes that the applicant became aware of the decision of 15 June 2004 on 28 August 2004 as it results from the copy of the decision submitted by the applicant and attached to the case file. Consequently, the Court notes that, even without taking into account the decision of 9 November 2004 and taking the final decision of 15   June 2004 as the starting-point for the calculation of the six-month period, the applicant complied with the six-month rule when he lodged his application with the Court on 31 January 2005. (b)     Objection of non-exhaustion of domestic remedies 28.     The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations that a Convention right has been violated and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, 28   April 2004, and Kudla v. Poland [GC] no. 30210/96, § 152, ECHR   2000-XI). 29.   Moreover, the Court has held that the existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, are a relevant factor. The existence of such rules displays the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned, and also constitutes an attempt to ensure impartiality by eliminating the causes of such concerns (see   Mežnarić v.   Croatia , no.   71615/01, § 27, 15 July 2005). Therefore, the Court considers that when the domestic law offers the possibility of eliminating the causes of concerns regarding the impartiality of the court or a judge, it would be expected (and in terms of the national law required) of an applicant who truly believed that there were arguable concerns on that account to raise them at the first opportunity. 30.     As regards the applicant’s complaint concerning the lack of impartiality of the domestic courts which had examined his appeals, the Court notes that judges D.S. and D.U. examined not only the first appeal but also the extraordinary appeal against that appeal. The Court further notes that the same judges re-examined the appeal after the quashing of the decision delivered on the first appeal. 31.     The Court also notes that the applicant never argued that the decisions by the appeal courts had not been served on him or that he had been unaware of the composition of the panels which had decided his appeals. Moreover, he personally attended each hearing held by the Craiova Court of Appeal. 32.     The re-examination of the applicant’s ordinary appeal lasted from 24   February to 15 June 2004. It is undisputed between the parties that during the period of almost four months in which the applicant’s ordinary appeal was re-examined by a panel comprising judges D.S. and D.U., the applicant never lodged any complaints alleging a lack of impartiality on the part of those judges, even though he must have been aware of their previous involvement in his case. The applicant raised the complaint concerning the judges’ alleged lack of impartiality for the first time in his second extraordinary appeal lodged with the Craiova Court of Appeal. 33.     The Court notes that the applicant could have submitted a request for the removal of the judges who had already ruled in his case based on Article   24 of the CCP in force at the material time. Pursuant to the same legal provision, such a request should have been submitted immediately after the applicant had become aware of the reason for the removal of the judges. Under Articles 37-40 of the same code, the applicant could have lodged a request with the Supreme Court of Justice for a change of venue (“ strămutare ”) had he had reasonable concerns that the fairness of the proceedings might be affected by the presence of the two judges on the panel. 34.     In view of the relevant domestic law, the Court sees no reason why the applicant could not have submitted a request for the removal of judges D.S. and D.U. during the period of almost four months during which the post-quashing appeal proceedings were pending before the court panel that included D.S. and D.U. 35.     The applicant sought the two judges’ removal only in his second extraordinary appeal. However, the Court notes that pursuant to Article 317 of the CCP, the applicant was not allowed to raise his concerns about the impartiality of the judges directly in the extraordinary appeal if he had had the opportunity to raise such concerns before the appeal court which delivered the final decision. Moreover, the applicant’s second extraordinary appeal was dismissed as inadmissible on 9 November 2004. 36.     The Court expects that where the domestic law offers the possibility of eliminating causes for concern regarding the impartiality of the court or a judge, an applicant who truly believes that there are arguable concerns on that account would be expected (and, in terms of the national law, required) to raise them at the first opportunity. This would above all allow the domestic authorities to examine the applicant’s complaints at the material time and to ensure that his rights were respected. 37.     In the present case, however, the applicant failed to take the opportunity to submit his complaint before the court which examined his second ordinary appeal. 38.     In the absence of any satisfactory explanation from the applicant as to why he refrained from doing so, or of any indication that in the instant case those remedies would not have been accessible and effective, the Court finds that the domestic remedies were not exhausted. 39.     It follows that this part of the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. (c)     Alleged failure of the domestic courts to address essential arguments raised by the applicant 40.     The Court reiterates that the effect of Article 6 § 1 is, amongst other things, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties without prejudice to its assessment of whether or not they are relevant for its decision, bearing in mind that the Court is not called upon to examine whether arguments are adequately addressed (see Perez v. France [GC], no.   47287/99, § 80, ECHR 2004 ‑ I, and Buzescu v. Romania , no. 61302/00, §   63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands , 19   April 1994, §§ 59 and 61, Series A no. 288, and Burg v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see   Ruiz   Torija   v.   Spain , 9 December 1994, § 29, Series A nos. 303-A, and Hiro Balani v.   Spain , 9 December 1994, § 27, Series A 303-B). 41.     In the instant case, the Court notes that in the extraordinary appeal proceedings the Craiova Court of Appeal concluded that it had failed to examine one of the applicant’s arguments concerning the calculation of his pension rights during the examination of his ordinary appeal. It therefore quashed the appeal decision and kept the case for a fresh determination of the appeal. The Court observes however, that in the decision delivered in the second appeal proceedings, the Craiova Court of Appeal responded to all the applicant’s arguments and dismissed his action by providing clear ‒ albeit succinct ‒ reasons which appear to be neither arbitrary nor in breach of the applicable rules of civil procedure. 42.     The Court therefore considers that in the circumstances of the present case it cannot be maintained that the domestic courts failed to properly examine the essence of the applicant’s submissions. 43.     It follows that this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention. B.     Remainder of the application 44.     Relying on Article 14 of the Convention, the applicant complained that he had been subjected to discriminatory treatment in the way in which his pension entitlement had been determined compared with people who retired on dates that differed from his own date of retirement. 45.     The Court has examined this complaint as submitted by the applicant. However, having regard to all the material in its possession and in so far as this complaint falls within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Done in English and notified in writing on 19 February 2015. Stephen Phillips   Josep Casadevall   Registrar   President