[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF S.C. APRON DYNAMICS SRL BAIA MARE v. ROMANIA
(Application
no. 21199/03)
JUDGMENT
STRASBOURG
2 November
2010
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 S.C. Apron Dynamics
SRL Baia Mare v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 12 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21199/03) 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 company, S.C. Apron Dynamics SRL
Baia Mare (“the applicant”), on 16 May 2003.
- The
applicant company was represented by Mr Georg Valentin Coza, its
administrator. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu, of
the Ministry of Foreign Affairs.
- On
2 April 2009 the President of the Third Section decided to
communicate to the Government the complaints concerning the alleged
lack of access to court and the length of the civil proceedings as
well as the complaint under Article 1 of Protocol No. 1 to the
Convention relative to the proceedings mentioned above. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company was founded in 1992 and is based in Baia Mare.
A. Action for recovery of debt
- On
14 March 1996 the applicant company lodged an action seeking to
compel company A. (a State-owned private company) to return
2,934,854,487 Romanian lei (ROL), representing the price of
merchandise delivered by the applicant and not paid by A., plus
interest. The defendant objected, claiming that the debt had already
been paid.
- The
applicant paid ROL 10,000 in court fees but was asked by the court to
make a supplementary payment to cover a percentage of the total
claim. On 31 May 1996 the court calculated the fee at
ROL 270,162,136.
On 28
June 1996 the company contested the new court fee and argued that
according to the law, as interpreted by the higher courts, it should
only pay ROL 10,000.
On 4
October 1996 it reiterated its position on the matter.
- On
the same day the court started deliberations in the case.
- On
11 October 1996 the court restored the case to its list and summoned
the parties to a hearing on 29 November 1996 to discuss the need for
an expert evaluation of the claims.
- On
20 January 1997 company A. accepted the calculation of the debt.
- An
evaluation of the debt was ordered and the report was submitted to
the court on 11 December 1997.
- On
several occasions during the proceedings the defendant asked that the
applicant company be requested to pay court fees. Several
adjournments were granted to this end.
- On
26 September 1997 the defendant informed the court that insolvency
proceedings had been initiated against it (see paragraph 19 below).
- On
5 February 1998 the Maramureş County Court cancelled the action
for failure to pay the court fees. It also noted that the applicant
company had never contested the level of the court fee.
- The
applicant company appealed, arguing that according to the law on
which it based its initial action the court fee was set at a lump sum
of ROL 10,000 irrespective of the amount claimed, a sum which it had
already paid over at the start of the proceedings. The applicant paid
the court fees for the appeal in the amount of ROL 10,000 and ROL
3,000 in judicial stamps.
- On
27 May 1998 the Cluj Napoca Court of Appeal dismissed the appeal as
unfounded. The decision was enforceable.
- On
24 June 1998 the applicant company lodged an appeal on points of law.
- On
9 May 2006 the applicant company sought information on the
proceedings from the Maramureş County Court. In reply, on 12 May
2006 the County Court informed the applicant company that due to
an administrative error the appeal on points of law had only
been forwarded to the Supreme Court of Justice on 12 May 2006.
- In
a final decision of 15 February 2008 the High Court of Cassation and
Justice dismissed the appeal as ill-founded. It noted that in so far
as the debtor contested the claim, the first instance court was
correct in seeking court fees proportionate to the value of the
claim.
B. Winding up of company A.'s business
- On
5 April 1995 one of company A.'s creditors sought institution of
insolvency proceedings against company A., under the relevant
Articles of the Commercial Code.
- From
10 May 1995 to 25 June 1997 the proceedings were stayed at company
A.'s request, as the Government had adopted programmes for the
financial rehabilitation of the company (Government Ordinance
no. 13/1995 on restructuring State-owned companies).
- On
18 March 1998 the Maramureş County Court declared company A.
insolvent. Following the reports on the company's financial
situation, on 9 July 1998 it started winding-up proceedings.
- On
11 June 1998 the applicant company requested the inclusion in the
creditors' list of its claim of 1,474,012.64 United States dollars
(USD). The claim was contested by the “debtor”, company
A.
On 9
February 1999 the applicant reiterated its claim, which was included
provisionally in the creditors' list pending examination of the
objections raised.
- On
16 February 2000 the County Court rejected the applicant company's
claim as no longer enforceable (prescrisă). It considered
that enforcement time had not been interrupted by the action for
recovery of debt, in so far as that action had been annulled for
failure to pay the court fees.
- On
22 November 2000 the Cluj Napoca Court of Appeal upheld the judgment.
It reiterated that the claim was no longer enforceable. It also
considered that the claim, which had been contested by the debtor,
had not been certified and quantified in the proceedings for recovery
of debt, because the applicant's action had been cancelled.
- On
20 November 2002 the Supreme Court of Justice upheld the decision,
which thus became final.
C. Insolvency proceedings against the applicant company
- On
30 May 2000 the Oradea Customs Office (Direcţia Generală
Vamală Oradea) sought the winding up of the applicant
company's business for an unpaid debt of ROL 458,121,902.
- On
26 June 2000 the proceedings were stayed as the applicant company
contested the debt (the applicant company won that action on
18 September 2002).
- On
3 November 2003 the Maramureş County Court started the
winding-up proceedings. On 21 January 2004 the Cluj Napoca Court of
Appeal quashed the decision and rejected the 30 May 2000 request.
II. RELEVANT DOMESTIC LAW
- The
relevant legislation on court fees is described in Iorga
v. Romania, no. 4227/02, §§ 22 25,
25 January 2007.
- The
relevant articles of the Commercial Code, as in force before the 1995
amendments (see paragraph 31 below), read as follow:
Article 717
“From the date the insolvency is declared no
action shall be allowed against the insolvent entity concerning its
movable or immovable property or any enforcement action concerning
the same property, unless the action is lodged before the insolvency
judge (judecătorul sindic). Such actions that have
already started against the insolvent entity shall continue before
the insolvency judge.”
Article 780
“Even after the expiration of the time-limits ...
creditors who have not presented their claims may ask the judge to
verify them ...”
- The
insolvency procedure regulated by the Commercial Code was replaced by
the Insolvency Act (Law no. 64/1995) published in 1995 and amended
and republished in 1999. Its relevant articles, after republication,
read as follows:
Article 42
“When the procedure is started all judicial or
extrajudicial actions aimed at recovering debts from the debtor or
his possessions shall be suspended.”
Article 131
“Insolvency proceedings started before the present
law has entered into force shall continue under the provisions of the
Romanian Commercial Code.”
The text of Article 131 was present in the initial version of the law
as well, under Article 130.
- Law
no. 64/1995 has been replaced by Law no. 85 of 20 July 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained mainly about the way the domestic courts
set the court fees in the proceedings initiated by it against company
A., about the length of those proceedings and about the rejection of
its claims against company A. in the insolvency proceedings.
It
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 within a
reasonable time 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 argued that the domestic courts examined the applicant's
claims on the merits and that the fact that the applicant was
unsatisfied with the outcome of the proceedings did not impair its
access to court.
- They
submitted that the applicant company had never contested the amount
of the court fee and that the imposition of such fees was an accepted
limitation of the right of access to court.
- The
Government further contended that the proceedings in restitution of
debt were very complex and that besides the one administrative
error made by the Court of Appeal, which postponed referring the
appeal on points of law to the Supreme Court, the authorities had not
had any long periods of inactivity. They also considered that the
applicant company had caused essential delays in the proceedings; in
particular they claimed that it had been aware for a long time that
that appeal had not been sent to the High Court, but, in bad faith,
preferred to wait for eight years before urging continuation of the
proceedings.
- The
applicant claimed that the fact that the insolvency court did not
inform it of the winding-up proceedings alone prevented it from
effectively claiming its right and thus denied it access to a court.
- It
contended that the court fees imposed by the court, worth
ROL 270,162,136, were exaggerated and constituted a
disproportionate restriction of its right of access to court. It also
considered that the insolvency court was wrong in dismissing the
action on enforcement grounds, as the time-limit had not been reached
so long as company A. had accepted the expert examination on 20
January 1997.
The
applicant argued that its claims had never been examined on the
merits.
- Lastly,
the applicant refuted the Government's arguments on the length of the
proceedings and put forward that the authorities had failed to
examine its claims promptly.
2. The Court's assessment
(a) General principles
- The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect (see Golder v. the United Kingdom,
21 February 1975, §§ 35-36, Series A no. 18).
- However,
the “right to a court” is not absolute. It is subject to
limitations permitted by implication, in particular where the
conditions of admissibility of an appeal are concerned, since by its
very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard (see Ashingdane v.
the United Kingdom, 28 May 1985, § 57, Series A no.
93). However, these limitations must not restrict or reduce a
person's access in such a way or to such an extent that the very
essence of the right is impaired (see Levages Prestations Services
v. France, 23 October 1996, § 40, Reports of
Judgments and Decisions 1996 V).
The
Court has recognised both the imposition of court fees and the
institution of prescription rules as acceptable limitations of the
right of access to court (see Weissman and Others v. Romania,
no. 63945/00, § 35, ECHR 2006 VII (extracts), and Yagtzilar
and Others v. Greece, no. 41727/98, § 23-24, ECHR
2001 XII).
The
Court has also established that under Article 6 of the Convention,
everyone has the right to a final decision, within a reasonable time,
on disputes over civil rights and obligations. The Contracting States
accordingly have the obligation to organise their legal systems so as
to allow the courts to comply with this requirement. In particular,
the Court has considered that it was for the domestic courts to
identify related proceedings and, where necessary, join them, suspend
them or reject the further institution of new proceedings on the same
matter (see Gjonbocari and Others v. Albania, no.
10508/02, § 67, 23 October 2007).
(b) Application of the principles to the
present case
- The
Court notes at the outset that both the proceedings for recovery of
debt and the request for participation in the insolvency proceedings
pursued the same goal, that is for the applicant company to recover
its alleged debt from company A. Therefore, in order to assess the
applicant's effective access to court, the two sets of proceedings
should be examined globally, in the light of the principles
enunciated above (see SC Concept Ltd SRL and Manole v. Romania,
no. 42907/02, § 47, 22 November 2007).
- The
Court notes that the applicant lodged its initial claim on 14 March
1996 and the insolvency proceedings were initiated against company A.
(after suspension) on 25 June 1997. From 26 September 1997 the County
Court was informed of the insolvency proceedings. The applicant must
have thus also learned about them at the latest at that date.
The
applicant sought participation in both sets of proceedings which,
given the importance of expediency in commercial actions, can be seen
as a diligent approach on its part.
- The
Court will assume that the initial court remained competent to decide
on the applicant's claim at least until 18 March 1998, when company
A.'s insolvency was declared. Therefore, it will look, from the point
of view of Article 6 rights, at the initial set of proceedings up to
that date. It thus notes that during this time the County Court did
nothing but cancel the action, without examining it on the merits or
answering the applicant's objection as to the imposition of the new
fee.
The
Court considers that the level of the court fee as established by the
court on 31 May 1996 was significant even for a company (see SC
Marolux SRL and Jacobs v. Romania, no. 29419/02, §§
33-34, 21 February 2008).
- The
Government points out that the applicant did not contest the amount
of the court fee. However, the Court has already concluded that at
that time there was no effective means of objecting to the court fee
or seeking recalculation, and for that reason found a violation of
Article 6 § 1 of the Convention in a number of cases lodged
against Romania (see Weissman and Others v. Romania (dec.),
no. 63945/00, 28 September 2004; Iorga, cited above, §
47; and Rusen v. Romania, no. 38151/05, §§
23-24, 8 January 2009). It follows that any attempt by the
applicant company to act to that end would have more likely failed.
- In
fact in was not until 29 May 2004 that such a remedy was available to
the applicant (see Iorga, cited above, §§ 22-25). By
that time, the decision on appeal, which was enforceable, had already
been taken on the first set of proceedings and the applicant's
participation in the winding up proceedings had already been
terminated by a final decision.
- The
Court further notes that when the new remedy against the court fees
became available, the applicant's initial action had already been
pending with the domestic courts for ten years, of which a six-year
delay was due exclusively to administrative failures for which the
applicant was not responsible but never received compensation. At the
time the remedy became available the case had also been pending with
this Court for one year.
Furthermore,
until 2006, when the appeal on points of law lodged by the applicant
was forwarded to the High Court for examination, the company had no
means of using the new remedy.
- The
Court has received no information from the parties on the stage the
winding-up proceedings had reached in 2008. Therefore, even assuming
that the applicant had successfully used the remedy above and had its
claim established, the Court cannot speculate on what effective
opportunity the applicant would have had in 2008 to seek re-inclusion
in the creditors' list in the winding-up proceedings.
However,
at that time the applicant company had already spent twelve years
trying to recover its debt.
- The
Court has already found that even in complex winding-up proceedings
such a delay is not justified (see SC Concept Ltd SRL and Manole,
cited above, § 51).
- This
is sufficient for the Court to conclude that the applicant lacked
effective access to court both during the first action for recovery
of debt and during the winding-up proceedings, and that the
proceedings it initiated had lasted too long.
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 complained of a violation of its rights protected by
Article 1 of Protocol No. 1 to the Convention, in connection with the
two proceedings aimed at recovering its debt from company A.
- Both
parties presented observations on this complaint.
- Having
regard to the finding relating to Article 6 § 1 (see
paragraph 51 above), the Court considers that this complaint is
admissible but that it is not necessary to examine whether, in this
case, there has been a violation of Article 1 of Protocol No. 1 to
the Convention (see, among other authorities, SC Marolux SRL and
Jacobs, cited above, § 43).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant company complained that the winding-up proceedings
initiated against it were illegal and infringed its rights guaranteed
by Articles 6 of the Convention and 1 of Protocol No. 1.
- 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.
It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
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. Damage
- The
applicant company claimed, in respect of pecuniary damage:
– 984,881.39 euros (EUR), representing company
A.'s debt towards it;
– EUR 369,325.57, representing its loss from the
USD-EUR exchange rate;
– EUR 505,000, representing loss of profit.
It
also claimed EUR 15,000 in respect of non-pecuniary damage.
- The
Government argued that the claims were excessive and were not
causally linked with the alleged violations.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it acknowledges that the applicant suffered distress
as a result of the manner in which the various proceedings were
conducted, and, ruling on an equitable basis, it awards EUR 5,000 in
respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 45,652.37 for the costs and expenses
incurred before the domestic courts, namely court fees, legal
assistance, transport and secretarial expenses and EUR 676.16 for
costs incurred before the Court, in particular stamps and secretarial
expenses.
- The
Government contested the claim, considered that it was speculative
and exaggerated and not fully justified with evidence.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 covering costs
under all heads.
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 complaints under Article 6
§ 1 regarding access to justice and length of the proceedings
and under Article 1 of Protocol No. 1 relative to the action on
recovery of claims and the winding up of company A. admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, for costs and expenses;
(b) that
the above amounts are to be converted into the respondent State's
national currency at the rate applicable on the date of settlement;
(c) 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 2 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
