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THIRD
SECTION
CASE OF URBANOVICI v. ROMANIA
(Application
no. 24466/03)
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 Urbanovici v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
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. 24466/03) 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 national, Mrs Erzebet Gyongyike
Urbanovici (“the applicant”), on 11 July 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry
of Foreign Affairs.
The
applicant alleged that the quashing of a final and enforceable
decision favourable to her by means of an extraordinary appeal had
violated her right to a fair hearing and her property right.
- On
29 June 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Oradea.
A. Action for recovery of possession
- On
14 May 1999, the applicant lodged with the Oradea District Court an
action for recovery of possession (acţiune în
revendicare) of a plot of land that, although recorded in the
land register (cartea funciară) as belonging to the
Oradea Local Council, she claimed she had inherited it from E.S. who
had received it from the State in exchange for another plot of land.
The
three courts that dealt with the case found in favour of the
applicant. The District Court gave its decision on 4 July 2000. Upon
appeals by the Local Council, the Bihor County Court upheld it on 16
February 2001 and the Oradea Court of Appeal on 21 May 2001, the
latter by means of a final and irrevocable decision.
- Before
all the courts that dealt with the case, the Local Council argued
that certificate no. 10524 of 14 May 1955, used by the applicant in
order to prove her ownership title, was false as it contained a
series of irregularities.
- The
first-instance court and the appeal court rejected the argument on
the ground that the defendant had not brought evidence to prove the
allegations. Moreover, the courts noted that, according to the
information in their possession, no criminal proceedings had been
started on the matter.
- The
court of last resort rejected the Local Council’s request that
the proceedings be stayed until the courts had ruled on the nullity
of the certificate (procedure described at paragraphs 10 to 12
below). On the merits, it noted as follows:
“The [defendant’s] allegations about the
existence of irregularities in certificate no. 10524 of 14 May
1955 ... seem well-founded. However, this certificate established a
prima facie case [început de probă scrisă]
which entitled the first instance court to examine additional
evidence; witness testimonies confirmed that the property title in
dispute had been transferred from the State to E.S., who exercised
public and peaceful possession without causing any nuisance ... This
situation is also confirmed by the evidence on the consolidations of
land that had taken place. The fact that the exchange of land
occurred is undoubtedly proved by letter no. 28182 of 18 October
1949, issued by the Ministry of Agriculture ..., which cannot be
contested...”
It
also noted that the criminal investigation into the alleged forgery
of the 1955 certificate had been terminated on 17 March 2001 as the
time-limits for criminal responsibility had expired. However, the
Court of Appeal considered that the evidence adduced, in particular
the letter of
18 October 1949, rendered that investigation devoid
of relevance in any case.
- On
an unspecified date the applicant’s ownership title was
recorded in the land register.
B. Action for the nullity of the 1955 certificate
- On
19 April 2001 the Oradea Local Council lodged with the Oradea
District Court an action against the applicant, seeking that the 14
May 1955 certificate above be set aside because it contained
irregularities. The applicant argued that the issue was res
judicata in so far as the courts ruling on the action for
recovery of possession had already dealt with the matter.
- The
case was transferred to the Arad District Court which, on 28 March
2002, allowed the action, established that the document was false and
set it aside.
- Appeals
by the applicant were rejected successively by the Arad County Court,
on 10 July 2002, and by the Timişoara Court of Appeal, in a
final decision of 3 December 2002.
C. Extraordinary appeals against the 21 May 2001
decision
- Following
the ruling of the Timişoara Court of Appeal, the Oradea Local
Council sought the revision of the final decision of 21 May 2001
(cerere de revizuire). It also asked the Procurator General to
lodge an application with the Supreme Court of Justice to have that
decision set aside (recurs în anulare).
- In
a final decision of 19 February 2003, the Supreme Court of Justice
allowed the Procurator General’s request, noted that the 1955
certificate had been declared false, quashed all the decisions
rendered in the action for recovery of possession and, ruling on the
merits, rejected the initial action on the ground that the applicant
had failed to prove her ownership title.
The
Supreme Court considered as follows:
“Although according to Article 129 (5) of the
Civil Procedure Code the judges have an obligation to use all legal
means in order to prevent any error in establishing the truth, by a
correct determination of facts and application of law, the court of
last resort rejected as ill-founded the request for a stay in the
proceedings, although the ruling in the [parallel] action for nullity
was essential for adopting a lawful decision.”
- On
20 March 2003, at the Local Council’s request, the Oradea
District Court took note of the Supreme Court’s decision and
struck off the request for revision.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Civil Procedure read as follows:
Article 322
“A final decision ... shall be revised in the
following cases:
...
4. ... if the decision was adopted based on
an act which was declared false either during or after the
proceedings.”
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
330 has been repealed by Article I § 17 of the Government’s
Emergency Ordinance no. 58 of 25 June 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 OF THE
CONVENTION AND 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- Under
Articles 6 § 1 of the Convention and 1 of Protocol No. 1, the
applicant complained that her right to a fair hearing and her
property right had been breached in so far as the final decision of
21 May 2001 of the Oradea Court of Appeal had been quashed and
reversed by means of an extraordinary review.
Article
6 § 1 reads as follows, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article
1 of Protocol No. 1 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
- Relying
on Stoicescu v. Romania ((revision), no. 31551/96,
21 September 2004), the Government contended that the applicant
was not a victim of a violation of the above provisions, in so far as
she could not prove that she had inherited an ownership title.
- The
applicant contested this position and reiterated that the evidence
presented during the domestic proceedings had confirmed her
inheritance rights.
- The
Court considers that the Government’s plea of inadmissibility
raises issues that are closely linked to the merits of the
application.
Therefore
it joins the preliminary objection to the merits of the case.
- The
Court notes that the application 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 reiterated the Court’s principles with regard to
extraordinary appeals whereby final and irrevocable decisions had
been cancelled. They informed the Court that the extraordinary
procedure used in the case had been repealed from the Civil Code.
- They
also averred that in so far as the applicant had failed to prove her
property title, she could not claim to have a “possession”
within the meaning of Article 1 of Protocol No. 1. Therefore, no
interference with her property right occurred as a consequence of the
quashing of the final decision.
However,
should the Court consider that the applicant had a “possession”,
the Government contended that the interference had been provided by
law and had pursued a legitimate aim, to which it had been
proportionate. In particular they pointed out that, as the
certificate used by the applicant had been declared false, the
Supreme Court of Justice had quashed the final decision only in order
to correct a judicial error committed by the ordinary courts.
- The
applicant contested the Government’s position. She contended
that by allowing the extraordinary appeal, the Supreme Court had set
at naught all the previous decisions that had been favourable to her,
which had infringed her right to a fair hearing and had also caused
her to lose her property title over the land in question.
2. The Court’s assessment
a) General principles
- 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 v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII).
- 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 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, cited above, § 62; SC
Maşinexportimport Industrial Group SA v. Romania,
no. 22687/03, § 36, 1 December 2005; and Cornif v.
Romania, no. 42872/02, §§ 29-30, 11 January
2007).
- It
also considered that quashing such a decision after it had become
final and irrevocable constituted deprivation of property within the
meaning of the second sentence of the first paragraph of Article 1 of
Protocol No. 1, which could only be justified if it was 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 §§ 77-78;
Maşinexportimport Industrial Group SA, § 44;
and Cornif, §§ 39-40, judgments cited above).
- 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).
- Even
if such a review were justified, certain special circumstances of the
case may reveal that the actual manner in which it was used impaired
the very essence of a fair trial. In particular, the Court has to
assess whether, in a given case, the power to launch and conduct a
supervisory review was exercised by the authorities so as to strike,
to the maximum extent possible, a fair balance between the interests
at stake (see, mutatis mutandis,
Nikitin v. Russia,
no. 50178/99, § 57, ECHR 2004 VIII).
b) Application of these principles to the
present case
- In
the case at hand, the courts found in favour of the applicant in an
action for recovery of possession and considered irrelevant to the
case the fact that one of the documents used as evidence was possibly
false.
Therefore,
the Court considers that the Supreme Court’s intervention was
not necessary in order to address this issue, the ordinary courts
having had enough opportunities to remedy the alleged error in their
interpretation.
- Even
assuming, as the Government argues, that the judges were wrong in
refusing to suspend the appeal proceedings, such an oversight is not
imputable to the applicant, who moreover informed the courts of the
existence of the two parallel sets of proceedings (see, in
particular, paragraph 10 above).
- On
this point the Court emphasises that the State should organise the
legal system in such a way as to identify related proceedings and
where necessary to join them or prohibit further institution of new
proceedings related to the same matter, in order to circumvent
reviewing final adjudications treated as an appeal in disguise, in
the ambit of parallel sets of proceedings (see, mutatis mutandis,
Roşca v. Moldova, no. 6267/02, § 25,
22 March 2005; Gjonbocari and Others v. Albania,
no. 10508/02, § 59, 23 October 2007; and Driza
v. Albania, no. 33771/02, § 69, ECHR 2007 ...
(extracts)).
- Furthermore,
the Court notes that, while the ordinary courts, in particular the
court of last resort, based their decisions on several documents and
witness testimonies, the Supreme Court rejected the action on the
sole ground of the nullity of the false act, without expressing an
opinion on the other elements of proof or, at least, explaining why
it set them aside.
- For
the same reason, the Court considers that the present case differs
significantly from Stoicescu, cited above, where the
applicant’s only entitlement to the property in dispute, namely
the inheritance certificate, was subsequently annulled (see
Stoicescu, cited above, §§ 57-58).
- The
Court cannot speculate on what the outcome of the case would have
been should the Supreme Court (or ordinary courts in a new action for
recovery of possession) have reconsidered the remaining evidence in
the file. It notes, however, that the situation created is not
imputable to the applicant and considers that lodging a new action
for recovery of possession would place a disproportionate burden on
her which is not justified in the particular circumstances of the
case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the quashing of the final decision of 21 May 2001 is
nothing more than an appeal in disguise and by using it the
authorities failed to strike a fair balance between the interests at
stake and thus infringed the applicant’s right to a fair
hearing.
- Furthermore,
as by means of the final decision of 21 May 2001 the applicant was
recognised as the owner of the land in dispute, the applicant can
claim to have a “possession” for the purpose of Article 1
of the Additional Protocol, and the quashing of that decision after
it became final and irrevocable and was executed will constitute an
interference with the decision’s beneficiary’s right to
the peaceful enjoyment of that 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
(Brumărescu, cited above, §§ 75-80).
- For
all these reasons, the Court dismisses the Government’s
preliminary objection, and concludes that there has been a violation
of Article 6 § 1 of the Convention as well as a violation of
Article 1 of Protocol No. 1 to the Convention.
II. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account (see, mutatis mutandis, Arsenovici v. Romania,
no. 77210/01, § 55, 7 February 2008).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits and rejects the
Government’s preliminary objection;
- 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;
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
