CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 février 2017

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border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding:3.88pt 6.72pt 3.88pt 3.88pt; vertical-align:top } .s6F8568F7 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding:3.88pt 6.72pt 3.88pt 3.88pt; vertical-align:top }       FOURTH SECTION                 CASE OF TIMAR AND OTHERS v. ROMANIA   (Applications nos. 26856/06 and 7 others – see appended list)                 JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 16 April 2019           STRASBOURG   28 February 2017       This judgment is final but it may be subject to editorial revision. In the case of Timar 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 7 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in eight 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 five Romanian nationals, two Romanian companies and a Romanian Calvinist parish 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.     When Mr Horea Mircea Timar, the applicant in application no.   26856/06, died on 20 April 2013, his heirs, Mrs Gabriela Timar (wife) and Ms Mihaela Timar (daughter), expressed the wish to pursue the proceedings on his behalf. For practical reasons, Mr   Horea   Mircea   Timar will continue to be referred to in this judgment as “the applicant”, although Mrs   Gabriela   Timar and Ms Mihaela Timar are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ VI). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4 .     The applicants lost their court cases, which had been examined in 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 fence (hereinafter “by public notice” – citarea prin afişare ). They all argued in their subsequent appeals, whether appeals on points of law (when the notices were served during the first-instance proceedings or the appeal hearings) 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 summonses 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 5.     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 6.     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 7.     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 8.     The Government raised several preliminary objections. The Court will examine them in relation to the different applications to which they pertain. 1.     Abuse of the right of petition (application no. 61815/09) 9.     The Government claimed that the applicant had abused his right of individual petition. In their view, he should have been aware of the course of the proceedings against him, in so far as the court documents had been served by means of public notice at the address of a former business partner. Moreover, he should have been aware of the bankruptcy proceedings instituted against his former company. 10.     The applicant contested those arguments. 11.     The Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no.   67810/10, § 28, ECHR 2014). However, it is uncontested in the current case that in the civil proceedings instituted against him, the applicant had been summoned only by public notice. The complaint brought before the Court concerns this aspect alone, and the circumstances indicated by the Government are not sufficient to establish beyond reasonable doubt that the applicant was aware of the date of the relevant court proceedings. 12.     The Government’s objection should therefore be dismissed. 2.     Objection of non-exhaustion of domestic remedies (applications nos.   26856/06, 58287/10 and 63120/10) 13.     The Government argued that the applicants in applications nos.   26856/06 and 58287/10 had failed to exhaust 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 for the service procedure ( înscrierea în fals ). However, the Court has already examined a similar objection and dismissed it on the grounds 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. v. Romania, no. 37576/05, §§ 24-25, 8 January 2013). 14.     Furthermore, the Government argued that the applicant company in application no. 63120/10 should have appealed against the court order under the special law governing commercial transactions, and not under the Code of Civil Procedure. The Court notes, however, that the applicant company argued its case on both grounds, and they were both dismissed by the domestic courts. 15.     For these reasons, the Court dismisses this objection in respect of all three applications. 3.     Other reasons for inadmissibility 16.     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 17.     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. 18.     The applicants maintained their complaints. 19.     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). 20.     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 court in 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). 21.     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 means of notices posted at their premises and alleged that they had not received 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 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. 22 .     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 23.     In applications nos. 26856/06 and 36942/11 an additional complaint was raised, concerning an alleged violation of the rights guaranteed by Article   1 of Protocol No. 1 to the Convention. 24.     Having regard to the finding that the applicants’ right of access to court has been breached (see paragraph 22 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; and S.C. Carbochim S.A. Cluj-Napoca and S.C. Fenega Import-Export S.R.L. v. Romania , nos. 45621/05, 46691/07, 27314/08 and 1150/09, § 30, 6 December 2016). IV.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 25.     Lastly, the Court notes that the applicants raised other complaints under Article 6 of the Convention. 26.     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. 27.     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 28.     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 29.     The applicants claimed the following amounts in respect of pecuniary and non-pecuniary damage: (a)     application no. 26856/06: 500,000 euros (EUR) in respect of pecuniary damage. (b)     application no. 26449/08: - EUR 7,500 in respect of pecuniary damage; and - EUR 50,000 in respect of non-pecuniary damage. (c)     application no. 61815/09: - EUR 1,379,940 in respect of pecuniary damage; and - EUR 10,000 in respect of non-pecuniary damage. (d)     application no. 30395/10: - EUR 7,804 in respect of pecuniary damage; and - EUR 10,000 in respect of non-pecuniary damage. (e)     application no. 50999/10: EUR 10,000 in respect of non-pecuniary damage. (f)     application no. 58287/10: - EUR 60,000 in respect of pecuniary damage; and - EUR 40,000 in respect of non-pecuniary damage. (g)     applications nos. 63120/10 and 36942/11: no request made under this head. 30.     The Government contested the amounts sought. They considered that the applicants had failed to submit justifications for their claims or to prove any causal link between the alleged violations and the loss allegedly 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. 31.     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 the claims in respect of pecuniary damage. 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 in application no.   26449/08; (b)     EUR 3,600 in application no.   61815/09; (c)     EUR 3,600 in application no. 30395/10; (d)     EUR 3,600 in application no. 50999/10; (e)     EUR 3,600 in application no. 58287/10. 32.     The Court further notes that Article 509 § 10 of the New Civil Procedure Code allows for the reopening of 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, should the applicants so request (see, for a 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 33.     The applicants also claimed the following amounts for the costs and expenses incurred before the domestic courts and for those incurred before the Court: (a)     in application no. 30395/10: 1,000 Romanian lei (RON), representing legal fees, attested by a bill issued to the applicant by his representative; (b)     in application no. 50999/10: the applicant sought reimbursement of costs and expenses without quantifying them; (c)     in application no. 58287/10: RON 7,000 or EUR 1,500; the applicant company submitted a bill attesting to the payment of RON 3,000 to its lawyer; (d)     in application no. 36942/11: RON 4,821 representing the lawyer’s fee, costs before the domestic courts, and costs for translations incurred before the Court; the applicant parish submitted relevant proof of payment. 34.     The Government argued that the applicants had failed to prove that they had actually incurred the costs claimed. They further considered that some of the costs claimed were not relevant for the violation alleged before the Court. 35.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the following amounts, covering costs under all heads: (a)     EUR 220 in application no. 30395/10; (b)     EUR 700 in application no. 58287/10; (c)     EUR 1,000 in application no. 36942/11. C.     Default interest 36.     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;   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 applications nos. 26856/06 and 36942/11;   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: (i)     EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 26449/08 in respect of non-pecuniary damage; (ii)     EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 61815/09 in respect of non-pecuniary damage; (iii)     EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 30395/10 in respect of non-pecuniary damage; (iv)     EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 50999/10 in respect of non-pecuniary damage; (v)     EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to the applicant in application no. 58287/10 in respect of non-pecuniary damage; (vi)     EUR 220 (two hundred and twenty euros), plus any tax that may be chargeable to the applicant, in application no. 30395/10 in respect of costs and expenses; (vii)     EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant company, in application no. 58287/10 in respect of costs and expenses; (viii)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant parish, in application no. 36942/11 in respect of costs and expenses; (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 28 February 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 8 applications       No. Application number (a) Date of introduction and (b) Date of communication 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. 26856/06 (a)     23/06/2006 (b)     14/01/2011 Horea Mircea Timar 1956 Târgoviște, Dâmbovița   --- (a)     Complaint concerning an alleged patent infringement; (b)     The applicant was informed of the appeal proceedings by means of public notice with an indication to pay court fees; the applicant did not participate in the proceedings and his appeal was dismissed for failure to pay the court fees; (c)     The applicant appealed on points of law on the grounds that that the service procedure had been illegal (dismissed on 24 January 2006).   2. 26449/08 (a)     15/05/2008 (b)     27/06/2012 Maria Laurus 1933 Milişăuţi   Gară, Suceava --- (a)     Claim for the annulment of a building permit issued by the Milișăuți Municipality in favour of third parties; (b)     The applicant was informed of the appeal proceedings by means of public notice with an indication to pay court fees; she did not participate in the proceedings and the appeal was dismissed for failure to pay the court fees; (c)     The applicant sought the quashing of the final decision on the grounds that the service procedure had been illegal (dismissed on 14 November 2007, available on 13   December 2007).   3. 61815/09 (a)     29/08/2009 (b)     27/06/2012 Gheorghe Enescu 1957 Breaza, Prahova --- (a)     Civil proceedings lodged by a liquidator seeking to hold the applicant financially liable for a bankrupt company of which he had been administrator and sole shareholder; (b)     The applicant was informed of the court proceedings by means of public notice; he did not participate in the proceedings; (c)     The applicant lodged an appeal on points of law, complaining that the service procedure had been illegal (dismissed on 18 May 2009) and sought the quashing of the final decision (dismissed on 5 August 2009).   4. 30395/10 (a)     18/05/2010 (b)     27/06/2012 Petrică Bănăţeanu Olteniţa, Călărași V. Topârceanu (a)     Civil proceedings concerning division of property after divorce; (b)     The applicant was informed of the appeal proceedings, with an indication to pay court fees, by means of public notice; the applicant was not present and the appeal was dismissed for failure to pay the court fees; (c)     The applicant sought the quashing of the final decision (dismissed on 26   November 2009).   5. 50999/10 (a)     25/08/2010 (b)     4/01/2011 Rodica Simona Berbente 1978 Cluj-Napoca, Cluj M.L. Negru (a)     Civil proceedings seeking to hold the applicant financially liable for a bankrupt company of which she had been administrator and shareholder before bankruptcy; (b)     The applicant was informed of the court proceedings (both first-instance and appeal) by means of public notice; she did not participate in the proceedings; (c)     The applicant sought the quashing of the final decision on the grounds that the service procedure had been illegal (dismissed on 25 May 2010).   6. 58287/10 (a)     14/09/2010 (b)     27/06/2012 S.C. Magdadia Trans S.R.L. Constanţa V.F. Grădina (a)     Court order ( ordonanţă ) requiring the applicant company to pay damages to its business partner (decision of 1 September 2009); (b)     The applicant company was informed of the court proceedings and the court order by means of public notice; it became aware of the court order when enforcement proceedings commenced against it; (c)     The applicant company sought the quashing of the court order based on the special law governing commercial transactions, on the grounds that the service procedure had been illegal (dismissed on 15 March 2010).   7. 63120/10 (a)     14/10/2010 (b)     27/06/2012 S.C. Eurorent Group S.R.L. Timişoara, Timiș A. Julean (a)     Court order ( ordonanţă ) requiring the applicant company to pay damages to its business partner (decision of 9 April 2009); (b)     The applicant company was informed of the court proceedings and of the court order by means of public notice; it became aware of the court order when enforcement proceedings commenced against it; (c)     The applicant company sought the quashing of the court order based on the special law governing commercial transactions and on the Code of Civil Procedure, on the grounds that the service procedure had been illegal (dismissed on 14 July 2010).   8. 36942/11 (a)     09/06/2011 (b)     27/06/2012 Haţeg Calvinist Parish Haţeg, Hunedoara M. Bodis (a)     Civil action lodged against the applicant parish whereby a third party sought to have his property title deed for two barracks built on the applicant parish’s land entered in the Land Register (allowed on 7   January 2010); (b)     The applicant parish was informed of the court proceedings and of the first-instance judgment by means of public notice; (c)     The applicant parish sought an extension of the time-limit for lodging an appeal, on the grounds that the service procedure had been defective (dismissed on 10   December 2010).