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THIRD
SECTION
CASE OF CORNIF v. ROMANIA
(Application
no. 42872/02)
JUDGMENT
STRASBOURG
11
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Cornif v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M.
Zupančič, President,
Mr J. Hedigan,
Mr C.
Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson, judges,
and
Mr V. Berger, Section Registrar,
Having
deliberated in private on 7 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42872/02) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Tiberiu Octavian Cornif
(“the applicant”), on 4 December 2002.
- The
applicant, who had been granted legal aid, was represented by Mr R.V.
Oprea, a lawyer practising in Bucharest. The Romanian Government
(“the Government”) were represented by their Agent,
Mr B. Aurescu, who was subsequently replaced by Mrs R.
Rizoiu and lastly by Mrs B. Ramaşcanu
from the Ministry of Foreign Affairs.
- On
7 April 2004 the Court (Second Section) decided to communicate the
complaints concerning the right to a fair hearing under Article 6 §
1 of the Convention and the right to the protection of property under
Article 1 of Protocol No. 1, to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Bucharest.
- On
21 May 1999, he signed a contract for services with the National
Association of Securities Dealers, a private enterprise (“the
Association”).
- On
18 July 2000 he notified the Association of his intention to
terminate the contract from 5 August 2000, invoking the Association's
non compliance with its contractual obligations.
- On
13 November 2000, the applicant lodged with the Bucharest County
Court an action against the Association seeking compensation for
pecuniary damage caused by the latter's failure to fulfil its
contractual obligations.
- Before
the County Court, the Association asked to have the contract declared
null and void on the ground that the procedure for the validation of
the contract had not been carried out in conformity with its own
statutes, this having as result the fact that the contract was not
legally binding on it. The applicant contested this argument.
- In
a judgment of 7 June 2001, the County Court found the contract to be
valid and, based on an expert opinion, awarded the applicant
129,648 US dollars (USD) in compensation, USD 8,330 by way of
penalties and 96,413,000 Romanian lei (ROL) for court fees.
According
to the applicable law, this judgment was enforceable.
- In
a final decision of 5 November 2001, the Bucharest Court of Appeal
dismissed the appeal lodged by the Association and confirmed the
judgment.
- On
22 January 2002, the applicant, who had instituted proceedings for
the enforcement of the judgment of 7 June 2001, received
ROL 440,000,000 from the Association.
This
sum is still in the applicant's possession although proceedings for
its recovery have been started by the Association in 2005 and are
still pending with the domestic courts.
- On
5 December 2001, the Procurator General, at the Association's
request, lodged an application with the Supreme Court of Justice to
have both the judgment of 7 June 2001 and the final decision of
5 November 2001 quashed (“recurs în
anulare”) on the ground that the two courts which
decided on the case had committed a serious breach of the law when
examining the legality of the parties' contract.
- On
18 April 2002, the Supreme Court postponed the pronouncement of the
final decision until 29 May 2002.
The
decision was eventually adopted on 5 June 2002. The Supreme Court
allowed the application, quashed the final decision of
5 November 2001 and sent the case back to the Bucharest
Court of Appeal for a fresh examination on the merits, on the ground
that the two courts had not examined whether the contract was valid
and binding on both parties and whether the applicant's initial
action could still be allowed in the light of the termination of the
contract by the applicant on 5 August 2000.
- In
an interlocutory judgment of 13 November 2002, the Court of Appeal
asked the applicant to supplement the court fees by ROL 18,231,600
which he did on 10 December 2002.
- In
a final decision of 12 March 2003, the Bucharest Court of Appeal
allowed the Association's appeal, quashed the judgment of 7 June 2001
and dismissed the applicant's action on the ground that while the
contract was valid, the conditions for engaging the Association's
responsibility for paying damages were not met. It also ordered the
applicant to pay the Association ROL 32,109,680 in court fees.
II. RELEVANT DOMESTIC LAW
- The
relevant articles of the Code of Civil Procedure read as follows:
Article 330
“The Procurator-General may, of his own motion or
on an application by the Minister of Justice, apply to the Supreme
Court of Justice for a final decision to be quashed on any of the
following grounds: ...
2. that the decision in question has
seriously infringed the law by giving a wrong solution on the merits
of the case, or when the decision is manifestly ill founded;
...”
Article 3301
“The time-limit for lodging an appeal on the
grounds provided for by Article 330 § 2 is one
year from the date on which the decision became final.”
- These
provisions have been repealed by Article I § 17 of the
Government's Emergency Ordinance no. 58 of 25 June 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
his right to a fair hearing had been breached by reason of the fact
that the final decision of 5 November 2001 of the Bucharest Court of
Appeal had been quashed and reversed by means of an extraordinary
appeal (recurs în anulare), a procedure available only
to the Procurator General and not to the parties.
- He
also considered that his right to a fair hearing had been breached by
the fact that the Supreme Court had not respected the procedural
requirements concerning the extraordinary appeal, namely that it had
not allowed the parties the possibility to discuss the grounds of its
admissibility and it had not had a report of the judge rapporteur
presented to it.
- The
applicant further maintained that the absence of an interlocutory
judgment of 29 May 2002, by which the public pronouncement of the
final decision of 5 June 2003 had been postponed, had violated the
obligation imposed by Article 6 § 1 that judgments should be
pronounced publicly.
- Lastly,
he complained of the non-enforcement of the final decision of 5
November 2001 and of the length of the proceedings instituted by him
in this respect.
- Article
6 § 1 reads as follows, in so far as relevant:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair ...
hearing within a reasonable time by [a] ... tribunal. Judgment shall
be pronounced publicly ...”
A. Complaint concerning the quashing of the final
decision of 5 November 2001
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- In
so far as the quashing of the final decision is concerned, the
Government contested that a violation of Article 6 § 1 occurred
and contended that several aspects distinguished this case from that
of Brumărescu v. Romania ([GC], no. 28342/95, ECHR
1999 VII) where the Court found that the same extraordinary
appeal violated the applicant's right to a fair hearing. Accordingly,
in the present case the lodging of the appeal was limited to a period
of one year after the date on which the decision became final (they
cite also Sovtransavto Holding v. Ukraine, no. 48553/99, § 74,
ECHR 2002 VII). They considered that the final decision had been
quashed for having seriously infringed the law, therefore to correct
judicial mistakes and miscarriages of justice, situation which had
already been sanctioned by the Court (see Ryabykh v. Russia,
no. 52854/99, § 52, ECHR 2003 IX). Furthermore,
the Procurator-General had not acted on his own initiative but at the
request of the Association, which had been party to the initial
proceedings. Lastly, the Government contended that if the final
decision had not been quashed, the applicant would have received from
the Association a sum of money that he did not deserve (unjust
enrichment) and recalled that the case had been referred back to the
ordinary courts and during the new trial all the procedural
requirements of Article 6 § 1 had been observed.
- The
applicant contested these arguments. In particular, in the light of
the Ryabykh case-law, he recalled that the only ground that
the Supreme Court had used for allowing the extraordinary appeal had
been that the ordinary courts had not examined the validity of the
contract, which in his opinion was not more than a different view on
the interpretation of the law, which could not legitimise the use of
the extraordinary appeal.
- The
Court recalls that, under its settled case-law, the right to a fair
hearing before a tribunal as guaranteed by Article 6 § 1 must be
interpreted in the light of the Preamble to the Convention, which
declares, among other things, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, inter alia, that where the courts have finally
determined an issue, their ruling should not be called into question
(Brumărescu, cited above, § 61).
- In
the case of Brumărescu cited above, the Court found a
violation of Article 6 § 1 in that the extraordinary appeal was
not open to the parties to the procedure but to the
Procurator General alone, the power to exercise the appeal was
not subject to any time limits and by allowing the application
the Supreme Court of Justice set at naught an entire judicial process
which had ended in a judicial decision that was res judicata
and which had, moreover, been executed (see Brumărescu,
cited above, § 62).
Furthermore,
in the case of SC Maşinexportimport Industrial Group SA v.
Romania (no. 22687/03, § 36, 1 December 2005) the Court
considered that even in the new wording of the Code of Civil
Procedure, which instituted a time-limit of one year for its
introduction, this extraordinary appeal still infringed the principle
of legal certainty since it preserved the other two elements
criticised by the Court in the case of Brumărescu, cited
above.
- Lastly,
the Court reiterates that no party is entitled to seek a review of a
final and binding judgment merely for the purpose of obtaining a
rehearing and a fresh determination of the case. Higher courts' power
of review should be exercised to correct judicial errors and
miscarriages of justice, but not to carry out a fresh examination.
The review should not be treated as an appeal in disguise, and the
mere possibility of there being two views on the subject is not
a ground for re-examination. A departure from that principle is
justified only when made necessary by circumstances of a substantial
and compelling character (see Ryabykh, cited above, §
52).
- In
the present case the Court is not convinced by the Government's
argument that there has been a manifest violation of law by the
ordinary courts which justified the recourse to an extraordinary
appeal. It recalls that the said appeal was allowed on the sole
ground that the lower courts had not examined whether the contract
was valid and binding on both parties and whether the applicant's
initial action could still be allowed in the light of the termination
of the contract by the applicant on 5 August 2000. However, the
ordinary courts did give their view on the matter (see paragraphs 10
and 11 above). The Court concludes therefore that this is a
typical case of two conflicting views on the same matter which in no
case justifies the quashing of a final and binding decision that,
moreover, had already been partially executed.
Moreover,
nothing in this case, which is a contract law dispute between private
parties, constitutes circumstances of a substantial or compelling
interest that would justify the quashing of the final decision under
the Ryabych principles (see Ryabych, cited above, §
52).
- Against
the Government's view, the Court considers that the fact that the
Procurator General acted upon the Association's request does not
change the fact that the exercise of the extraordinary appeal was
solely at his discretion (see also Brumărescu cited
above, § 20).
- As
for the Government's argument concerning the unjust enrichment, the
Court recalls that the applicant's right to receive the sums of money
was recognised by a final and binding decision, that of
5 November 2001, at the end of proceedings whose fairness
was not contested by either party.
- Indeed,
with the Government, the Court notes that the applicant was afforded
a fresh opportunity to put forward his case before the Court of
Appeal after the quashing of the final decision. However, in the end,
the applicant's action was rejected.
Moreover,
in the light of its constant case-law, it considers that judicial
systems characterised by this type of extraordinary appeal are, as
such, incompatible with the principle of legal certainty (see
Sovtransavto Holding, cited above, § 77).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the quashing of the final decision of 5 November 2001
infringed the applicant's right to a fair hearing.
There
has accordingly been a violation of Article 6 § 1 of
the Convention.
B. Other complaints under Article 6 § 1
- Having
regard to the findings under paragraph 34 above, the Court considers
that it is not necessary to pursue the examination of the other
aspects of the Article 6 § 1 complaint (see paragraphs 20 to 22
above).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant considered that the quashing by means of an extraordinary
appeal of the final decision of 5 November 2001 whereby he had been
awarded compensation violated his right to peaceful enjoyment of his
possessions. He relied on Article 1 of Protocol No. 1, 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.”
- The
Government contested that argument. In their view, the applicant
could not claim to have a possession as his right to compensation had
been illegally acquired in so far as the decision that granted him
that right had seriously infringed the law.
Furthermore,
they considered that the Supreme Court's decision of 5 June 2002
did not represent an interference with the applicant's rights but
rather a measure meant to re-establish the legal order. Even if
construed as interference, it was justified by the general interest
which required that only the lawful decisions are enforced. Lastly,
it did not place an excessive burden on the applicant.
37 The
applicant considered that he had a possession and that he had
suffered an unjustified interference with his property rights.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that a judgment debt may be regarded as a
“possession” for the purposes of Article 1 of Protocol
No. 1. Furthermore, quashing such a judgment after it has become
final and “irrevocable” will constitute a deprivation of
property within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1 (see Brumărescu
§ 77, and Maşinexportimport Industrial Group SA,
§ 44, both cited above).
- A
taking of property within this second rule can only be justified if
it is shown, inter alia, to be “in the public interest”
and “subject to the conditions provided for by law”.
Moreover, any interference with the property must also satisfy the
requirement of proportionality (see Brumărescu,
cited above, § 78).
- Turning
to the present case, the applicant, who had received a part of the
sum awarded on 7 June 2001, could no longer obtain the enforcement of
the judgment for the rest of the award as the judgment had been
quashed. However, the Court has already found that the proceedings
that lead to this quashing were unfair and therefore could not
justify the interference with the applicant's right. Moreover, the
Government have not advanced any justification for it.
- Even
assuming that the interference could be justified as having served
some public interest, the Court finds that a fair balance was upset
and that the applicant bore an individual and excessive burden (see
Brumărescu, § 80, and SC Maşinexportimport
Industrial Group SA, § 47, cited above).
There
has accordingly been a violation of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly,
under Article 13 of the Convention, the applicant complained that he
had not had an effective domestic remedy to challenge the final
decisions of 5 June 2002 and of 12 May 2003 for breach of the
Convention.
- Having
regard to the finding relating to Article 6 § 1
(see paragraph 34 above), the Court considers that it is
not necessary to examine whether, in this case, there has been a
violation of Article 13, in so far as its requirements are less
strict than, and are here absorbed by, those of Article 6 § 1
(see, among other authorities, British-American Tobacco
Company Ltd. v. the Netherlands, judgment of 20
November 1995, Series A no. 331, p. 29, § 91).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicant claimed 209,337 euros (EUR) in respect of pecuniary damage,
that is the equivalent of the USD 129,648 and USD 8,330 awarded
by the judgment of 7 June 2001, and penalties for late payment
calculated from 7 June 2001 to 1 August 2004. He presented in details
his method of calculation.
- The
Government considered that the applicant had no basis for being
granted the pecuniary damages sought. In any case, they considered
the claims to be excessive and unsubstantiated. They also recalled
that the applicant had already received ROL 440,000,000 which they
estimated at EUR 16,115 and that to date, he still has
possession of this sum.
- The
Court recalls at the outset that a judgment in which it finds a
breach imposes on the respondent State a legal obligation to put an
end to the breach and make reparation for its consequences in such a
way as to restore as far as possible the situation existing before
the breach (see Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 19, ECHR 2001 I).
In
the present case the reparation should aim at putting the applicant
in the position in which he would have found himself, had the
violation not occurred.
- The
Court also reiterates that it found in the instant case that the
quashing of the final decision of 5 November 2001 that awarded
certain sums of money to the applicant violated the latter's right to
a fair hearing and constituted a deprivation of property in so far as
he could no longer receive the said sums from the debtor. However, it
recalls that the applicant was paid ROL 440,000,000 and, although
proceedings for its return had been started, he is still in
possession of this sum (see also SC Maşinexportimport
Industrial Group SA, cited above, § 52)
- Having
regard to the above circumstances, in particular to the sums awarded
by the domestic courts but never received by the applicant, and
deciding on an equitable basis, the Court awards him EUR 150,000 for
pecuniary damage suffered to date as a result of the quashing of the
final decision of 5 November 2001.
B. Non-pecuniary damage
- The
applicant claimed EUR 130,000 in respect of non-pecuniary damage.
- The
Government considered that there was no causal link between the facts
examined by the Court and the claims for non-pecuniary damage and
asked the Court to reject them as manifestly ill-founded.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the quashing of the
final decision of 5 November 2001. It awards him EUR 7,000 for
non-pecuniary damage (see, mutatis mutandis, SC Maşinexportimport
Industrial Group SA, cited above, § 57).
C. Costs and expenses
- The
applicant also claimed EUR 11,956 for the costs and expenses incurred
before the domestic courts, of which EUR 3,939 representing the costs
awarded by the judgment of 7 June 2001, EUR 779 in bailiff's fee,
EUR 534 for the supplementary court fees paid before the
Bucharest Court of Appeal on 10 December 2002, EUR 894 the costs that
he was ordered to pay to the Association by the final decision of 12
March 2003 and EUR 5,810 in respect of lawyers' fees.
Lastly,
he claimed EUR 3,174 for costs and expenses incurred before the
Court.
He
sent justifications for payment of the domestic courts' and the
bailiff's fees. However, he adduced no evidence of the payment of
lawyers' fees and the costs awarded to the Association on 12 March
2003.
- The
Government requested that the claims unsupported by evidence be
dismissed.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 5,252 for costs and expenses in
the domestic proceedings.
As
for the proceedings before the Court, on 9 December 2004, the
applicant has received EUR 198 in legal aid. He did not justify
having incurred any other expenses. The Court will thus reject the
claim related to the proceedings before it.
D. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the applicant's complaints concerning
his right to a fair hearing and his right to the peaceful enjoyment
of his possessions admissible;
- Holds that there is no need to examine the other
complaints;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 150,000
(one hundred and fifty thousand euros) in respect of pecuniary
damage, EUR 7,000 (seven thousand euros) in respect of
non-pecuniary damage and EUR 5,252 (five thousand two
hundred and fifty two euros) in respect of costs and expenses, plus
any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
