FOURTH SECTION

DECISION

Application no. 54640/13 Radu-Horaţiu MUNTEANU against Romania

The European Court of Human Rights (Fourth Section), sitting on 11 February 2020 as a Chamber composed of:

Jon Fridrik Kjølbro, President, Faris Vehabović, Iulia Antoanella Motoc, Branko Lubarda, Carlo Ranzoni, Georges Ravarani, Péter Paczolay, judges, and Andrea Tamietti, Section Registrar ,

Having regard to the above application lodged on 9 August 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Radu-Horaţiu Munteanu, is a Romanian national, who was born in 1971 and lives in Bucharest. He was represented before the Court by Mr N. Popescu, a lawyer practising in Bucharest.

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms Simona-Maya Teodoroiu, from the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 28 July 2001 the Bucharest Court of Appeal annulled an employment termination decision of 11 January 2001 concerning the applicant and ordered that the applicant be reinstated in his position as Secretary General of the National Agency for Development. In a final judgment of 14 March 2003 (“the outstanding judgment”) the High Court of Cassation and Justice (hereinafter “the High Court”) upheld the decision given by the appellate court.

5 . On 18 October 2004 the High Court allowed an extraordinary appeal lodged by the Prosecutor General in accordance with Articles 330 and 330¹ of the Code of Civil Procedure (herei nafter “the CCP”, see paragraph 14 below) and quashed the final judgment of 14 March 2003.

6 . On 4 April 2005 the applicant lodged an application with the Court, complaining under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. On 27 March 2012 the Court adopted its judgment (“the principal judgment”) in respect of the application lodged by the applicant (see the case of S.C. Aectra Agrochem icals S.A. and Munteanu v. Romania [Committee], nos. 18780/04 and 13111/05, 27 March 2012). It found that the above-mentioned quashing of the outstanding judgment constituted a breach of the principle of legal certainty, as set out in Article 6 of the Convention, as well as of the applicant ’ s property rights , protected by Article 1 of Protocol No. 1 to the Convention.

7 . The Court further considered that in the light of its aforementioned findings, there was no need to examine whether the re was also a breach of Article 6 on account of the non-enforcement of the outstanding judgment of 14 March 2003 (see paragraph 4 above).

8 . It awarded the applicant compensation in respect of the violations found, namely pecuniary damage, in the amount of 38,500 euros (EUR), owed in respect of salary claims to which he would have been entitled, had the annulment by way of the extraordinary appeal not intervened, as well as non-pecuniary damage , in the amount of EUR 2,000 (see, for more details, S.C. Aectra Agrochemicals S.A. and Munteanu, cited above, § § 28-29).

9 . On 19 November 2012 the applicant lodged a request with the High Court for the reopening of the proceedings which led to the judgment of 18 October 2004 (see paragraph 5 above), relying on Article 322 § 9 of the CCP (see paragraph 15 below). He claimed that as long as that judgment, which had been impugned by the Court, was still in force, the consequences of the violation found persisted; in particular, he was prevented from exercising his duties and enjoying the career of a high-ranking State official, as ordered in the outstanding judgment of 2003 (see paragraph 4 above). He considered therefore that the only possible redress was the review and setting aside of the judgment of 18 October 2004.

10 . In a final judgment of 11 February 2013 the High Court dismissed as inadmissible the request for the reopening of the proceedings lodged by the applicant.

11 . The High Court held that not all the conditions set out in Art 322 § 9 of the CCP were fulfilled; in particular, there were no severe consequences of the violation found by the Court which persisted and could not otherwise be remedied. The fact that the Court itself had decided that it was not necessary to examine the non-enforcement head of the claim lodged by the applicant (see paragraph 7 above) proved that there were no severe consequences. Furthermore, the outstanding judgment of 2003 ordered the reinstatement of the applicant, without however granting him any amount for loss of salary (see paragraph 4 above); it followed that the amount awarded by the Court to the applicant under Article 41 in respect of pecuniary and non-pecuniary damage (see paragraph 8 above) constituted fair and sufficient redress for the harm caused by the breach in question.

12 . On 6 December 2012, that is, at a time when the reopening proceedings were pending before the High Court (see paragraph 9 above) the Committee of Ministers of the Council of Europe, in its 1157 th session, concluded its examination of the execution of the Court ’ s judgment of 27 March 2012 (see paragraphs 6-8 above) by adopting Resolution ResDH(2012)212, the relevant parts of which read:

“The Committee of Ministers, ...

Having examined the measures taken by the respondent state ..., the details of which appear in Appendix;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.”

13 . The Appendix to Resolution ResDH(2 012 ) 212 on information about the measures taken to comply with the judgment in the present case provides:

“...b) Individual measures

In the Ionescu case, the property at issue was returned to the applicant.

In the Baragan, Budescu and Petrescu, Falcoianu and others and Popea cases, the Romanian authorities paid the just satisfaction for pecuniary damage corresponding to the value of the real property at issue.

The European Court awarded just satisfaction covering all heads of damage to the applicants Gaciu and for pecuniary damage to the applicant Munteanu.

In the case of S.C. Aectra Agrochemicals S.A. and Munteanu , the European Court did not award just satisfaction to the first applicant, having noted that it did not submit any claim to this end within the time-limit set. In the Tripon (No.1) case, the European Court observed that the applicant ’ s claim in respect of pecuniary damage was not accompanied by the required supporting documents and therefore it did not award any sum on that account. With respect to these cases, it should be noted that Article322§9 of the Code of Civil Procedure allows the applicants to lodge an extraordinary appeal ( revizuire ) following a European Court ’ s judgment finding a violation of the Convention, in order to obtain restitutio in integrum.

In the Leca and Filipescu case, the European Court did not award pecuniary damage, having considered that the applicants should first bring a case before the domestic courts in conformity with Article 322§9 of the Code of Civil Procedure.

The European Court awarded the applicants in the Baragan, Budescu and Petrescu, Falcoianu and others, Ionescu, Leca and Filipescu, Popea and Tripon no. 1 cases as well as to the applicant Munteanu just satisfaction for non-pecuniary damage.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The government referred to the measures that had been taken to avoid new similar violations, as set out in Resolution CM/ResDH(2007)90 (in particular the fact that Articles 330 and 330¹ of the Code of Civil Procedure were repealed by Article 1 § 17 of Emergency Ordinance No. 58 of 25/06/2003 passed by the government, published in the Official Journal on 28/06/2003, which received parliamentary approval on 25/05/2004).”

14 . Articles 330 and 330¹ of the CCP, concerning extraordinary appeals, were repealed by Article 1 § 17 of Emergency Ordinance No. 58 of 25/06/2003. These provisions are summarised in the case of SC Maşinexportimport Industrial Group SA v. Romania (no. 22687/03, § 22, 1 December 2005).

15 . Article 322 § 9 of the CCP, as in force at the time of the applicant ’ s request for reopening, provided that a case could be reopened before the domestic courts if the European Court of Human Rights had found that a specific domestic decision violated fundamental rights or liberties, and if the severe consequences of the violation were still ongoing and could not be remedied otherwise but by reviewing the domestic decision.

16 . Under Article 326 of the CCP, the court ’ s examination is limited to the admissibility of the request for reopening and to the facts on which it is based. Article 327 of the CPP provides that if the request is granted, the court must amend, in full or in part, the impugned domestic decision.

17 . The applicant submitted several judgments given by the High Court in 2009–2010, in which the claimants ’ requests for the reopening of the proceedings following the finding of a violation by the Court had been allowed and the proceedings reopened, the impugned decisions thus being set aside. Such examples concerned various breaches of the legal certainty principle on account of the quashing of final judgments following extraordinary appeals lodged by the Prosecutor General. In these cases, the High Court held that, as the decisions in respect of which the requests for review had been lodged remained in force, they continued to produce effects and the serious consequences of the violation found by the Court persisted, therefore the removal of such consequences could only be achieved by reviewing the impugned decisions.

COMPLAINT

18 . The applicant complained under Article 6 § 1 of the Convention about the High Court ’ s refusal to reopen the domestic proceedings in the light of the Court ’ s judgment finding a violation in his case.

19 . He further complained under Article 13 of the Convention that he did not have at his disposal an effective domestic remedy capable of offering him appropriate redress for the non-enforcement of the outstanding judgment of 2003.

THE LAW

20 . The applicant complained that the High Court had refused to reconsider the decision of 18 October 2004 (see paragraph 5 above), which had quashed the outstanding judgment ordering his reinstatement (see paragraph 4 above), despite the Court ’ s finding that it had been taken in violation of his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraphs 6-8 above). He further claimed that he had no remedy capable of affording him appropriate redress in the form of the enforcement of the 2003 judgment, following the violation found by the Court. He referred to Articles 6 § 1 and 13 of the Convention, which, in so far as relevant, provide as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

21 . Moreover, Article 46 of the Convention reads as follows:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”

22 . The Government argued that the case fell outside the Court ’ s jurisdiction ratione materiae since no new breach of Article 6 in respect of the applicant ’ s right of access to a court had taken place. The mere fact that the applicant ’ s request for the review of the judgment had failed to comply with the related admissibility criteria did not amount to a fresh violation of the Convention.

23 . Furthermore, the applicant ’ s request had sought essentially to remove the consequences of the violation previously found, which implied that it referred to the execution of the Court ’ s judgment, a matter which fell outside the Court ’ s jurisdiction.

24 . The Government also stressed that the request for review was an opportunity offered to the applicant to remedy the harm caused by a breach found by the Court; however, this did not imply that any such request would be accepted by default, or that the effectiveness of the remedy was undermined by a potential rejection of the request.

25 . Lastly, the Government reiterated that the right to the reopening of civil proceedings was not guaranteed by Article 6 of the Convention.

26 . The applicant considered tha t as long as the judgment of 18 October 2004 (see paragraph 5 above) remained valid, in spite of its being impugned by the Court in the principal judgment, the consequences of the breach found by the Court persisted. In particular he had been denied his right to be reinstated, as ordered in the outstanding judgment of 2003 (see paragraph 4 above), and to receive the related salaries. Such harm could only be remedied if the judgment of 18 October 2004 was reviewed and set aside.

27 . The applicant contended that his application did not refer to the execution of the Court ’ s judgment, which had found a breach of the principle of legal certainty, but to the new circumstances mentioned above, which were chronologically subsequent to and distinct from the domestic proceedings assessed by the Court in the principal judgment. Furthermore, the grounds for the dismissal of his request referred mainly to the fact that the award given by way of just satisfaction represented, in the High Court ’ s opinion, restitutio in integrum , in spite of the fact that the impugned decision remained in force and continued to have serious consequences for the applicant, while the outstanding judgment remained unenforced. The High Court ’ s reasoning thus constituted a “new issue” within the meaning of the Court ’ s case-law and by dismissing his request as inadmissible, the High Court had denied the applicant his right of access to a court.

28 . The applicant further argued that the remedy offered by Article 322 § 9 of the CCP (see paragraph 15 above) became illusory in his case, in view of the fact that his request for the review of a judgment found by the Court to be in breach of his Convention rights had been dismissed as inadmissible.

29 . In examining the admissibility of the present application, the Court must first ascertain whether it has jurisdiction to consider the applicant ’ s complaint without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention, and if so, whether the safeguards of Article 6 of the Convention were applicable to the proceedings in question.

30 . The Court refers to its case-law concerning the execution of the Court ’ s judgments and the Court ’ s competence to examine a new issue undecided by the previous judgment (see, for instance, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § § 61-63, ECHR 2009; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 33 and 34, ECHR 2015; and Egmez v. Cyprus (dec.), no. 12214/07, §§ 48-56, 18 September 2012). These principles have been summarised most recently in the case of Moreira Ferreira v. Portugal (no. 2) ([GC] , no. 19867/12, § 47, 11 July 2017) as follows:

“(a) Findings of a violation in its judgments are essentially declaratory and, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2) , cited above, § 61).

(b) The Committee of Ministers ’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (ibid, § 62; see also Bochan (no. 2) , cited above, § 33, and Egmez , cited above, § 51).

(c) On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases, for example where the domestic authorities had carried out a fresh examination of the case by way of implementation of one of the Court ’ s judgments, whether by reopening the proceedings or by initiating an entirely new set of proceedings (see Egmez , cited above, § 52, and the references therein).

(d) It transpires from the Court ’ s case-law that the determination of the existence of a ‘ new issue ’ very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut (see Bochan (no. 2) , cited above, § 34, and, for an examination of that case-law, Egmez , cited above, § 54). The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court ’ s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2) , cited above, § 67).”

31 . Turning to the present case, the Court notes that by applying for the reopening of the proceedings which led to the adoption of the domestic decision of 18 October 2004 (see paragraph 9 above), the applicant sought to obtain a ruling by the High Court on the fact that, in spite of the shortcomings found by the Court in respect of that decision, it was still in force, thus preventing the outstanding judgment of 2003 from being enforced.

32 . However, the Court observes that an essentially identical non ‑ enforcement complaint had been brought in the applicant ’ s previous application (no. 13111/05); in its principal judgment, the Court considered that it was no longer necessary to assess the non-enforcement complaint, having regard to the finding of a violation of Article 6 § 1 on account of the breach of the principle of legal certainty (see paragraph 7 above).

33 . In the light of the foregoing, the Court considers that some of the applicant ’ s pleadings in the present case may be understood as complaining of an alleged lack of proper execution of the Court ’ s judgment of 27 March 2012 in his previous case (see, mutatis mutandis, Bochan (no. 2) , cited above, § 35).

34 . The Court reiterates that complaints essentially pointing to a failure either to execute the Court ’ s judgment or to redress a violation already found by the Court fall outside the Court ’ s competence ratione materiae (ibid . ), rather being subject to the supervision of execution by the Committee of Ministers under Article 46 of the Convention.

35 . Accordingly, the applicant ’ s complaints, in so far as they concern the failure to remedy the original violation of Article 6 of the Convention as found in the Court ’ s judgment of 27 March 2012, must be declared incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4.

36 . In so far as the applicant ’ s complaint concerning a violation of his right of access to a court under Article 6 of the Convention can be read as a new grievance, going not so much to the outcome of the proceedings decided on 11 February 2013 by the High Court (see paragraphs 10-11 above) as to the conduct and fairness of those proceedings – which were chronologically subsequent to and distinct from the domestic proceedings impugned in the Court ’ s 2012 judgment – the Court reiterates that Article 6 § 1 of the Convention is, in principle, not applicable ratione materiae to proceedings concerning an application to reopen civil proceedings following the finding of a violation by the Court. This is because, in so far as the matter is covered by the principle of res judicata of a final judgment in national proceedings, it cannot in principle be maintained that a subsequent extraordinary application or appeal seeking revision of that judgment gives rise to an arguable claim as to the existence of a right recognised under national law or that the outcome of the proceedings in which it is decided whether or not to reconsider the same case is decisive for the “determination of ... civil rights or obligations” (see Bochan (no. 2), cited above, §§ 44-45).

37 . However, there are exceptions to this rule, namely concerning the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned, which may be such as to bring the proceedings on that kind of app eal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants (see Bochan (no. 2), cited above, § 50). These exceptions essentially refer to the situation where an extraordinary remedy leads automatically or in the specific circumstances to a full reconsideration of the case or, in certain instances, where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings, the national characterisation of the proceedings not being regarded as decisive for the issue of applicability (see Moreira Ferreira , cited above, § 60).

38 . However, no such exception is revealed by the circumstances of the present case, as shown below.

39 . The Court notes that the Romanian law provided at the material time for the right to request the reopening of a final court judgment following the Court ’ s finding of a violation of a Convention right. While the proceedings in such a case were to follow the rules for the examination of any court action, their subject - matter was expressly limited to the admissibility of the request to reopen the proceedings (see paragraph 15 above). This was further reflected in the extent of the powers of the court examining the request for review under Article 327 of the CCP (see paragraph 16 above), which were limited to either dismissing such a request as inadmissible or accepting it and amending the impugned judgment. It follows that, unlike in Bochan (no.2) (cited above, §§ 51-56), Romanian law did not treat review proceedings as a prolongation of the original (terminated) civil proceedings, but expressly limited their scope to verifying the grounds for reopening a case and to adopting a separate decision accepting or rejecting a request for reopening.

40 . In particular, the High Court considered that the applicant ’ s request for the review of the domestic decision did not meet all the admissibility criteria required by law and dismissed it as inadmissible on procedural grounds, without carrying out a fresh consideration of the case (see paragraph 11 above; compare and contrast Bochan (no.2) , cited above, §§ 51-56).

41 . From that respect, the present case must be distinguished from the case of Moreira Ferreira (cited above), not only on account of the nature of the proceedings at stake, namely civil in the present case and respectively criminal in the latter, nature which impacts on the safeguards provided to the applicants on that account, but also because in the Grand Chamber case, the Portuguese Supreme Court assessed a substantive rather than a procedural issue, namely the very validity of the applicant ’ s conviction in the light of the finding of a violation of the right to a fair trial, assessment which the Court found, on account of its nature, to constitute a “new issue”(ibid., § 55 ).

42 . The Court therefore finds that the High Court ’ s refusal to reopen the applicant ’ s civil case on account of admissibility criteria of a procedural nature was not connected with relevant new grounds capable of giving rise to a fresh violation of Article 6 § 1 of the Convention (see, mutatis mutandis , Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010 and, by way of contrast, Verein Gegen Tierfabriken Schweiz (VgT), cited above, § 65).

43 . In view of the foregoing considerations , the High Court ’ s refusal in the present case cannot be regarded as constituting a relevant new fact .

44 . Accordingly, in line with its case-law cited in paragraph 30 above, the Court finds that Article 6 of the Convention is not applicable ratione materiae to the reopening proceedings at issue.

45 . Having declared the complaint under Article 6 of the Convention inadmissible, the Court concludes that the applicant had no arguable claim for the purposes of Article 13 of the Convention. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 5 March 2020 .

Andrea Tamietti Jon Fridrik Kjølbro Registrar President