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THIRD
SECTION
CASE OF BERCARU v. ROMANIA
(Application
no. 8870/02)
JUDGMENT
STRASBOURG
16
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 Bercaru v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 26 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8870/02) against Romania
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
Ms Maria Bercaru (“the applicant”), who has both
Romanian and Canadian nationality, on 29 June 2001.
- The
applicant was represented by Ms Anca Angelica Andrei, a lawyer
practising in Constanţa.
The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu.
- On
23 May 2007 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Montreal.
- On
27 August 1993 the applicant's mother lodged a civil action against
her niece, A.M., to have set aside a sale contract concerning a flat
entered into on 3 April 1986 between the applicant's parents and A.M.
On 9 September 1993 the applicant's mother died and the
applicant pursued the application.
- On
14 September 1993 the bailiff certified the existence of an action
regarding the flat, and on 13 October 1993 the applicant notified
A.M. not to enter into the flat, as it contained the goods inherited
from her parents.
- In
1994, on an unknown date, she also filed a criminal complaint against
A.M. According to the applicant, she had not received any answer to
her letters from the prosecuting authorities.
- On
9 November 1994 the applicant supplemented the civil action, seeking
to have the sale contract set aside for vitiated consent. She alleged
that A.M. had deluded her parents into thinking that she would take
care of them until their death and had thus persuaded them to sell
her their flat.
- On
21 December 1994 the Câmpina Court of
First Instance rejected the applicant's action as being brought by a
person with no capacity to take part in court proceedings.
- The
applicant appealed. The five hearings held between
22 March 1996
and 29 May 1998 were adjourned on account of the lack of an
acknowledgment of receipt in respect of summonses served on the
applicant in Canada. Between 26 June 1998 and 31 May 1999 the
proceedings were stayed for unjustified absence of the parties.
- On
31 May 1999 the applicant requested resumption of the proceedings.
According to the applicant, on 17 December 1999 the proceedings were
stayed again and on 13 October 2000 she requested resumption of
proceedings. The applicant expressed her wish to be summoned at her
address in Canada.
- On
19 April 2001 the judges entrusted with the archives informed the
President of the Prahova Regional Court of the disappearance of the
file and of the necessity to reconstruct it. Of the seven hearings
held between 4 May 2001 and 6 March 2002 for the reconstruction
of the file, two were adjourned at the applicant's request.
- On
25 April 2002 the Prahova Regional Court upheld the applicant's
appeal and quashed the judgment of the first-instance court, keeping
the case for retrial. This ruling was upheld on 12 September
2002 by a final decision of the Ploieşti
Court of Appeal.
- During
retrial, of the seventeen hearings held between 22 May 2002 and 27
June 2003 three were adjourned at the applicant's request.
- On
30 June 2003 the Prahova Regional Court allowed in part the
applicant's action and declared the sale contract partly null and
void. As to the plea of limitation, the court considered that the
three-year time-limit had to be calculated from 1993, when the
applicant's mother died, and not from the date of the sale contract,
as the applicant had heard of this contract only in 1993.
On
the merits, the court considered that the lack of discernment of the
applicant's father, when executing the sale contract, had been
certified by a medical report, whereas there was insufficient medical
data of a psychiatric nature to establish the mental capacity of the
applicant's mother in understanding the legal content and
consequences of the contract.
- On
16 September 2003 the Ploieşti Court
of Appeal by a final decision allowed A.M.'s appeal and therefore
rejected the applicant's action as time-barred. In so doing, it noted
that according to Articles 3 and 9 of Decree no. 167/1958 the
limitation period for the annulment of the sale contract had expired,
at the latest, three years after a period of eighteen months
following the date when the contract had been executed.
- The
applicant used two extraordinary remedies, lodging applications for
the setting-aside and review of the final decision of 16 September
2003, but on 10 December 2003 and 27 February 2004, respectively, the
Ploieşti Court of Appeal rejected
those applications as groundless.
- On
an unknown date, A.M. notified the applicant at least twice to
delegate a person in Romania to take her possessions out of the flat,
as the applicant had been evicted from it, or otherwise A.M. would
have to sell them and to pay the applicant according to their value.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument, considering the case rather
complex, in particular as the applicant had chosen to be summoned in
Canada, which increased the time allowed for appearance to about
six months, and as medical reports concerning her deceased
parents had to be produced.
- The
applicant disagreed.
- The
period to be taken into consideration began on 20 June 1994, when
Romania ratified the Convention. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of the proceedings at the time.
The
period in question ended on 16 September 2003. It thus lasted nine
years, two months and twenty-seven days for three levels of
jurisdiction.
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
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court does not consider the subject matter of the case to be complex
and observes the substantial periods of inactivity for which the
Government have not submitted any satisfactory explanation and which
are attributable to the domestic courts. It took them up to fifteen
months to fix hearings (see paragraph 10 above).
- In
respect of the disappearance of the file, the Court considers that
the responsibility rested entirely with the authorities. Moreover, it
took the courts at least one year to reconstruct the file (see
paragraph 12 above).
- The
Court further notes a delay of approximately two years and
three months caused by the court's inability to properly summon
the applicant in Canada. It has been the Court's constant approach
that an applicant cannot be blamed for taking full advantage of the
resources afforded by national law in the defence of his interests
(see,
mutatis mutandis, Yağcı and Sargın
v. Turkey, judgment of 8 June 1995, Series A no. 319-A, §
66). However, it is true that this delay may have been imputable
partly to the applicant who had insisted on being summoned in Canada,
although she had been represented in proceedings by lawyers residing
in Romania. Together with the Government, the Court notes that when
the applicant chose to be summoned in Romania, the periods of notice
for hearings were significantly shorter.
- The
Court considers, therefore, that while the applicant bore
responsibility for delays of several months, the delay accumulated
between 1994 and 2003 was in most part imputable to the authorities.
- 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 (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to the foregoing considerations and to its case-law on
the subject, the Court considers that in the instant case the length
of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that she had
not received any answer from the prosecuting authorities regarding
her criminal complaint lodged with the Câmpina
Prosecution Office in 1994 against A.M. and that the courts had lost
her file. On 14 December 2007, in her observations in response to the
Government's observations, she also complained of the lack of
domestic remedies by which to complain of the unreasonable length of
the proceedings.
- The
Court considers that the complaint concerning the loss of the file
should be addressed from the standpoint of Article 6 § 1 of the
Convention and, as it was also raised under that Article, it will be
examined below.
- As
regards the applicant's allegations in respect of the criminal
complaint lodged in 1994 against A.M., the Court is of the opinion
that, assuming that there were no effective remedies in the present
case, although she could have challenged the lack of an answer before
the competent superior prosecutor, the applicant must be considered
to have been aware of the lack of any effective criminal
investigation long before she lodged the application with the Court
on 29 June 2001 (see Bayram
and Yıldırım v. Turkey (dec.), no. 38587/97,
29 January 2002). If the applicant had not become aware of this
situation until 2001, the Court considers that that was a result of
her own negligence. Furthermore, the applicant has failed to
substantiate the existence of specific circumstances which might have
prevented her from observing the time-limit laid down in Article 35 §
1 of the Convention.
- As
regards the lack of domestic remedies in respect of the length of the
proceedings, the Court notes that the complaint refers to the
proceedings which ended on 16 September 2003. It was therefore raised
more than six months after the situation complained of had
ended.
- It
follows that this part of the application is outside the six-month
time-limit and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
36. The
applicant complained under Article 6 § 1 that she had not had
access to a court, as her case had not been judged on the merits and
as the courts had lost her file. She also complained that the
proceedings and the solution had been unfair, that the domestic
courts had not been independent and impartial, had failed to assess
the facts correctly, and had misinterpreted the domestic law, that
she had never been summoned, that the Prahova Regional Court had not
examined the witnesses on her behalf, and that the same two judges
had ruled on the two extraordinary remedies.
- The
applicant further alleged a violation of Article 3 in respect of her
parents, of Article 8 on account of the deprivation of her domicile
in Romania in her parents' flat, of Article 14 on account of the
deprivation of that flat in view of the fact that she had married in
Canada and that her parents had been very ill, and of Article 1
of Protocol No. 1 in so far as the proceedings had not allowed her to
recover the flat and all her possessions, inherited from her parents,
which had eventually been stolen by A.M.
The
applicant also relied on Articles 7, 17 and 34 of the Convention, and
on 14 December 2007 she relied on Article 2 of Protocol No. 4,
Article 3 of Protocol No. 7, and Article 1 of Protocol No. 12.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, 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 this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
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 claimed 40,000 euros (EUR) in respect of pecuniary damage,
representing half the value of the flat and of the property inherited
from her parents. She also claimed EUR 20,000 in respect of
non-pecuniary damage.
- The
Government contested the claim in respect of pecuniary damage on the
ground that no causal link between that damage and the alleged
unreasonable length of proceedings could be found. Further, they
considered that the amount claimed in respect of non-pecuniary
damage was too high.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained
non-pecuniary damage in respect of the violation found. Ruling on an
equitable basis, it awards a total sum of EUR 2,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 3,300 for costs and expenses, broken down
as follows: EUR 3,033.87 for lawyers' fees and EUR 239.68 for postal
fees. She submitted invoices for payment of fees to several lawyers
and for expert reports, as well as for postal expenses.
- The
Government contested these claims on the ground that no causal link
between the payment of fees to five lawyers and the present case
could be found, that the applicant had not submitted the contracts of
judicial assistance entered into with these five lawyers, and that
the contracts of judicial assistance entered into with another two
lawyers had not been signed by the latter.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and to the above criteria, and
making an assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant EUR 1,000 in
respect of 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of 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;
(b) that
the respondent State is to pay the applicant, within the same three
months, the amount of EUR 1,000 (one thousand euros), plus any tax
that may be chargeable, in respect of costs and expenses;
(c) that
the aforementioned amounts shall be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(d) 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 16 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
