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THIRD
SECTION
CASE OF TRIPON v. ROMANIA (No. 2)
(Application
no. 4828/04)
JUDGMENT
STRASBOURG
23
September 2008
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 Tripon v. Romania (no. 2),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4828/04) 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 German national, Mr Vasile Tripon (“the
applicant”), on 5 December 2003.
- The
applicant was represented by Mr Nicolae Ionescu, a lawyer practising
in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu,
from the Ministry of Foreign Affairs.
- The
German Government, to whom a copy of the application was transmitted
under Rule 44 § 1 (a) of the Rules of Court,
did not exercise their right to intervene in the proceedings.
- The
applicant alleged that the quashing of a final and enforceable
decision favourable to him by means of an extraordinary appeal had
violated his right to a fair hearing and his property right.
- On
9 October 2006 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Haiger, Germany.
- On
12 November 1996, the applicant bought 7,000 shares having the value
of 3,500,000,000 Old Romanian Lei (ROL), in a Romanian company, L.
(“the company”). On 24 January 1997 and 21 September 1998
these shares, representing 87.5% of the total value of the company’s
nominal capital, were recorded in the trade register (Registrul
Comerţului).
- On
26 September 1999 the other shareholders decided, in the applicant’s
absence, to increase the company’s capital by assets
contributed by one of the shareholders, thus devaluating the
applicant’s share in the company from 87.5 % to 10.29% of its
capital. On 4 October 1999 mention of this modification was made in
the trade register.
- On
4 November 1999 the applicant lodged an action with the Bucharest
County Court, seeking the annulment of the 26 September 1999
decision.
- The
action was allowed on 22 October 2001. The County Court considered
that the decision under review had not observed the requirements of
Law no. 31/1990 on companies (“Law no. 31”). It therefore
cancelled it.
The
solution was upheld by the Bucharest Court of Appeal on 25 February
2000 and also by the Supreme Court of Justice, in a final decision
of 27 June 2001, upon appeals by the company.
- On
6 November 2000 the applicant lodged a request with the Trade
Register Office for the 4 October 1999 entry to be removed from the
trade register. On 18 January 2001 the request was allowed, on the
ground that the shareholders’ decision of 26 September 1999 had
been annulled by the courts. Upon an appeal by the company, that
solution was upheld by the Bucharest County Court in a final decision
of 8 March 2001.
On an
unspecified date, the Procurator General lodged an extraordinary
appeal with the Supreme Court of Justice, with a view to having the
final decision of 27 June 2001 quashed (recurs în anulare),
on the grounds that the ordinary courts had been wrong in considering
that the shareholders’ decision had not complied with the legal
requirements and that, in any case, the applicant had lacked standing
to bring his initial action.
- The
Supreme Court considered that the evidence in the case confirmed that
the 26 September 1999 decision had observed Law no. 31. Therefore, in
a final decision of 9 June 2003, it allowed the extraordinary appeal
and, on the merits of the case, rejected the applicant’s
initial action.
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. when 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
- 1. The
applicant complained that his right to a fair hearing had been
breached in so far as the final decision of 27 June 2001 of the
Supreme Court of Justice had been quashed and reversed by means of an
extraordinary appeal (recurs în anulare). He 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
- 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.
B. Merits
1. The parties’ submissions
- The
Government contended that several aspects distinguished this case
from Brumărescu v. Romania ([GC], no. 28342/95, ECHR
1999 VII) and SC Maşinexportimport Industrial Group SA
v. Romania (no. 22687/03, 1 December 2005) where the
Court found that the same extraordinary appeal had violated the
applicant’s right to a fair hearing.
- Accordingly,
in the case at hand the Procurator General had not acted on his own
initiative but at the request of one of the parties to the
proceedings. Furthermore, this case concerned a private dispute, both
parties to the procedure having equal rights to ask the Procurator
General to institute the review.
They
also considered that the final decision had been quashed because it
had seriously infringed the law and in order to correct judicial
mistakes and miscarriages of justice.
- Lastly,
they informed the Court that this extraordinary procedure had been
repealed from the Civil Code.
- The
applicant contested the Government’s position and pointed out
that a State authority had intervened in a private-law dispute.
2. The Court’s assessment
- The
Court reiterates 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).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case, as it has considered that the extraordinary
appeal under review has infringed the principle of legal certainty in
so far as it was not open to the parties to the procedure but to the
Procurator General alone and as 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, among many others,
Brumărescu, § 62; SC Maşinexportimport
Industrial Group SA, § 36, judgments cited above
and Cornif v. Romania, no. 42872/02, §§ 29-30,
11 January 2007).
- 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 v. Russia,
no. 52854/99, § 52, ECHR 2003 IX).
- In
the present case the Court notes that, after being determined by the
courts that dealt with the merits of the case in the ordinary
proceedings, the relevant law and the applicant’s right to
lodge the initial action were reassessed by the Supreme Court of
Justice, which expressed a different view than that of the previous
courts and allowed the extraordinary appeal on this point.
Despite
the Government’s claim to the contrary, the Court considers
that this situation is nothing but a mere reinterpretation of the
facts and applicable law, which, bearing in mind the circumstances of
the case, does not justify the quashing of a final and binding
decision.
- Furthermore,
the Court considers the Procurator General’s intervention in a
private dispute to be an aggravating factor. Moreover, it does not
share the Government’s view that no issue arose in the matter
as both parties could request the Procurator General’s
intervention. Although this State official acted upon the company’s
request, the fact remains that the exercise of the extraordinary
appeal was solely at his discretion (see also Brumărescu,
§ 20, and Ryabykh, § 56, judgments cited above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the quashing of the final decision of 27 June 2001
infringed the applicant’s right to a fair hearing.
There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant also considered that the quashing by means of an
extraordinary appeal of the final decision whereby he had been
implicitly recognised as the owner of 87.5 % of the company’s
nominal capital, violated his right to peaceful enjoyment of his
possessions, as guaranteed by 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.”
A. 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.
B. Merits
1. The parties’ submissions
- The
Government contended that no interference with the applicant’s
possession occurred, in so far as even after the change in the
company’s capital composition the applicant had remained the
owner of 7,000 shares worth ROL 3,500,000,000.
Should
the Court consider that there was an interference with the
applicant’s right, the Government argued that it had been
provided by law and had pursued a legitimate aim, to which it had
been proportionate.
- The
applicant contested the Government’s argument and contended
that he had lost his possession because of the quashing of the final
decision favourable to him.
2. The Court’s assessment
- The
Court notes that the final decision of 27 June 2001 recognised
implicitly that the applicant’s shares were worth 87.5% of the
company’s value. Therefore, as a consequence of the
extraordinary appeal, the applicant’s share in the company was
reduced to 10.29% of the company’s capital, which affected his
shareholder power, in particular his ability to influence the company
and control its assets (see, mutatis mutandis, Sovtransavto
Holding v. Ukraine, no. 48553/99, § 92,
ECHR 2002 VII).
- In
the light of the above, the Court considers that quashing this
decision after it has become final and irrevocable will constitute an
interference with the applicant’s right to the peaceful
enjoyment of his possession (see Brumărescu, cited above,
§ 74). Even assuming that such an interference may be regarded
as serving a public interest, the Court finds that it was not
justified since a fair balance was not preserved and the applicant
was required to bear an individual and excessive burden
(ibid.,
§§ 75-80).
- It
follows that there has been a violation of Article 1 of
Protocol
No. 1 to the Convention.
III. 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. Damage
- The applicant claimed the following amounts in respect
of pecuniary damage:
– 487,500
euros (EUR) for the value of his shares, and
– EUR
500,000 for loss of profit.
He
asked the Court to establish the amount to be awarded to him in
respect of non-pecuniary damage.
- The
Government reiterated that even after the quashing of the final
decision the applicant remained the owner of his 7,000 shares, no
causal link having been established between any pecuniary damage he
might have incurred and the violation alleged. They also asked the
Court to make no award in respect of non-pecuniary damage, as the
applicant had failed to make a valid request under that head.
- The
Court notes that, although having been informed, on 26 February
2007, about the Court’s requirements concerning the just
satisfaction claims, the applicant did not send the required
supporting documents. The Court thus considers that the claims in
respect of pecuniary damage are unsubstantiated and rejects them. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage (see,
mutatis mutandis, Arsenovici
v. Romania, no. 77210/01, § 55,
7 February
2008).
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for costs and expenses without
specifying or itemising the claim.
- The
Government asked the Court not to grant any sum under this head.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects as unsubstantiated the claim for costs and expenses.
C. 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 application admissible;
- 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 to the Convention;
- 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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the respondent State’s
national currency at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 23 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
