THIRD SECTION

CASE OF ŞERCARU v. ROMANIA

(Application no. 13088/09)

JUDGMENT

STRASBOURG

2 April 2013

This judgment is final but it may be subject to editorial revision.

In the case of Şercaru v. Romania,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Alvina Gyulumyan, President,
	Kristina Pardalos,
	Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 13088/09) 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, Ms Mihaela Şercaru (“the applicant”), on 2 March 2009.
2.  The Romanian Government (“the Government”) were represented by their Agent, Mrs Irina Cambrea, from the Ministry of Foreign Affairs.
3.  On 6 December 2011 the application was communicated to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1970 and lives in Bucharest.
5.  On 31 July 2002 she lodged a criminal complaint against her husband accusing him of stealing from their common household. A civil claim was joined to the complaint.
6.  On 17 June 2003 the prosecution brought the case to court on charges of theft between spouses.
7.  On 16 February 2004 the Galaţi District Court convicted the defendant to two years and two months’ imprisonment and awarded the applicant 20,000 Romanian lei (RON) – around 4,500 euros (EUR) – as pecuniary damage.
8.  The judgment became final at first instance as no appeal had been filed against it.
9.  Subsequently, the defendant appealed on points of law outside the statutory time-limit alleging that the first-instance court had not observed the guarantees of a fair trial in his respect. He claimed that he had been convicted in absentia and that he had not benefited from legal representation.
10.  On 4 May 2005 the County Court of Galaţi allowed the appeal. It thus quashed the first-instance judgment and remitted the case to the lower court for re-trial.
11.  On 26 October 2007 the defendant was convicted to one year’s imprisonment for breach of trust between spouses. The applicant was awarded RON 400 (around EUR 91) as pecuniary damage. Both the defendant and the applicant appealed on points of law.
12.  On 5 June 2008 the applicant withdrew her complaint as well as her appeal on points of law.
13.  On 12 September 2008 the Galaţi District Court granted the motion of withdrawal of charges and thus terminated the criminal proceedings. The judgment became final.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14.  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...”
15.  The period to be taken into consideration began on 31 July 2002 when the applicant filed the criminal complaint with her civil claims. The proceedings were terminated on 12 September 2008. It thus lasted six years and more than one month for two levels of jurisdiction.
A.  Admissibility
16.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
17.  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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
18.  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 Pélissier and Sassi and Frydlender, cited above, Abramiuc v. Romania, no. 37411/02, § 103-109, 24 February 2009).
19.  Turning to the facts of the present case and in the absence of any additional submissions from the parties, the Court notes that the criminal complaint filed by the applicant did not raise particularly complex aspects. Further, it observes that while the applicant did not show a dilatory conduct, the judicial authorities were responsible for the delays as the case was remitted to the lower court owing to procedural errors.
20.  Having examined all the material submitted to it and in the light of 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.
21.  There has accordingly been a breach of Article 6 § 1.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
22.  Relying on Article 6 § 1, the applicant further complained about the outcome and the lack of fairness of the proceedings, alleging that the domestic courts had failed to conduct a proper examination of the evidence submitted before them. She also relied on Article 1 of Protocol No. 1 to the Convention to claim an infringement on her property rights, since the courts had not awarded any of her civil claims.
23.  Having regard to all the materials in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the applications must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
24.  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
25.  The applicant claimed 4,500 euros (EUR) in respect of pecuniary damage. She also sought to be awarded a sum in respect of non-pecuniary damage, the amount of which she left for the Court to consider.
26.  The Government did not express an opinion on the matter.
27.  The Court does not discern any causal link between the violation found in respect of the length of civil proceedings and the pecuniary damage alleged; it therefore rejects this claim.
28.  The Court considers that the applicant must have certainly sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Ruling on an equitable basis, it awards her EUR 1,500 under that head.
B.  Costs and expenses
29.  The applicant also claimed reimbursement of the costs and expenses incurred before the domestic courts as well as before the Court. She did not submit any supporting documents and left the matter at the Court’s discretion.
30.  The Government did not express an opinion on the matter.
31.  According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
32.  Regard being had to the documents in its possession and to its 
case-law, the Court considers that there is no call to award any sum under this head.
C.  Default interest
33.  The Court considers it appropriate that the default interest rate 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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Alvina Gyulumyan
	Deputy Registrar	President