THIRD SECTION

DECISION

Application no . 43768/06 Nicolae POPA against Romania

The European Court of Human Rights ( Third Section), sitting on 9 December 2014 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Dragoljub Popović , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges ,

and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 15 September 2006 ,

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 Nicolae Popa , is a Romanian national who was born in 1955 and lives in OrÅŸova .

A. The circumstances of the case

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

3. By an order issued on 19 June 2001 the applicant was discharged from the position of deputy chief of the CaraÅŸ Severin Border Police Department. T he discharge order was n ot communicated to him.

4. From July 2001, the applicant began to submit letters to different authorities asking to be sent a copy of the order and contesting the discharge measure.

5. On 11 February 2002, the applicant lodged an action with the domestic courts seeking the withdrawal of the discharge order of 19 June 2001 and the recalculation of his salary rights.

6 . After a first set of proceedings, b y a judgment of 30 July 2005 the Mehedin ţ i County Court dismissed the applicant ’ s action on the ground that it had not been lodged within thirty days of the communication of the order, as required by law. It held that the applicant ’ s enquiries to the authorities proved that he had become aware of the discharge order more than thirty days before lodging his action.

7. The applicant lodged an appeal on points of law on the ground that the order of 19 June 2001 had never been communicated to him , and stated that in his letters to the authorities he had in fact been request ing them to communicate to him the reasons for his discharge . Moreover, the authority that had issued the order had an obligation to prove that it had communicated such reasons to him, which it had not done.

8 . On 22 March 2006, the Craiova Court of Appeal dismissed the appeal . It found that the applicable legislation was section 5 of the Administrative Litigation Act (Law no. 29/1990). The relevant excerpts of its decision read as follow:

« T he applicant was discharged by O rder no. 231645 of 19 June 2001 ...

On 9 September 2001 the applicant complained of [his discharge] to the Ministry of the Interior. On page 3 of his written complaint ( memoriu ) he claimed to have been unjustly discharged, which proves that the applicant was already aware of the order on 9 September 2001. The time-limit for administrative complaint ( contestare pe cale administrativ ă ) runs from this date.

Having in mind the date on which the applicant was aware of the content of O rder no. 231645 / 19 June 2001 , more precisely on 9 September 2001 at the latest, the first ‑ instance court correctly allowed the exception and found that the action was lodged out of time ...

The applicable legal norm ... is section 5 of Law no. 29/1990.

According to section 5 paragraphs 1 and 2 of Law no. 29/1990, an individual who is deemed to have suffered as a result of an administrative act ... is to address himself to the administrative litigation tribunal within thirty days of the communication of the decision or within thirty days of the expiry of the time-limit for the administrative complaint ( contesta ţ ia administrativ ă ).

Therefore, [the applicant] should have lodged the action on 10 November 2001 at the latest.”

B. Relevant domestic law and practice

9 . The relevant provisions of the Administrative Litigation Act , in force at the material time, read as follows:

Section 1

“ (1) Every individual or legal person who considers that his or her rights recogni s ed by law have been prejudiced by an administrative act or by the unjustified refusal of a public authority to re solve a n issue related to a right recogni s ed by law may address himself to the competent court to seek the quashing or withdrawal of the act, the recognition of the right that is claim ed, or the reparation of the damage thus caused.

(2) If the public authority does not respond to the petitioner within thirty days of the registration of the claim , unless the law set s a different time-limit , this is also considered to be an unjustified refusal to solve a request related to a right recogni s ed by law .”

Section 5

“ (1) Before requesting the courts to quash or withdraw an act or to render its delivery mandatory, the person who is deemed to have suffered damage sha ll address himself to the authority that issued it [the act], within thirty days of the communication of the administrative act or within thirty days of the expiry of the time-limit set out in s ection 1 paragraph 2; the authority that issued the act must re solve the claim within thirty days.

(2) If the person who is deemed to have suffered damage is not satisfied with the re solution of his or her claim , he or she can address the courts within thirty days of communication of the outcome ...

(4) The courts may be addressed even when the administrative authority that issued the act or its hierarchical superior have not re solve d the claim within the time ‑ limit set out in paragraph 1.

(5) In all instances, the courts may be addressed no later tha n one year from the day of the communication of the act in question.”

Section 8

“ The petitioner shall simultaneously attach the contested administrative act or, as the case may be, the response of the administrative authority which communicate d the refusal to re solve the claim (which is related to a right recognised by law ) . If the claimant does not receive a response, he or she shall attach a copy of the re quest, certified for conformity ... ”

COMPLAINTS

10. The applicant complains, under Article 6 § 1 of the Convention, that the domestic courts did not examine the merits of his case. Also under Article 6 § 1, he alleges that the length of proceedings concerning the terms of his employment as a civil servant was excessive.

11. Lastly, under Article 1 of Protocol no. 1 to the Convention, he complains that he has been unlawfully deprived of his possessions , as he has lost his entitlement to the recalculation of his salary and pension rights.

THE LAW

A. C omplaint of lack of access to court

12. The applicant complains that the domestic courts did not examine the merits of his case. He relies 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 ... by [a] ... tribunal ...”

13. The Government acknowledged that the discharge order was not formally communicated to the applicant. However, they contended that the domestic courts had adequately established, on the basis of the evidence submitted by the parties and through well-reasoned decisions, the date on which the applicant had become aware of the decision on his discharge. The domestic courts had therefore calculated the time-limit of thirty days provided for by the applicable legislation from that particular date. Lastly, the Government argued that neither before the domestic courts nor before the Court had the applicant explained why it had taken him more than eight months to lodge his action.

14 . The applicant argued that according to the Labour Code, his discharge order should have been communicated to him either in person or by registered letter requiring acknowledgement of receipt, and that the authorities had not met that requirement. He contended that a distinction should be made between the notification of an act according to the legal requirements and the simple fact of becoming aware of that act. He considered that his inquiries to the police authorities and the Ministry of the Interior could not alter the fact that the discharge order had not been duly communicated to him.

15. The Court reiterates that the “right to a tribunal”, of which the right of access is one aspect (see , among many other authorities, Golder v. the United Kingdom , 21 February 1975, § 36 , Series A no. 18 , and Stubbings and Others v. the United Kingdom , 22 October 1996, § 50 , Reports of Judgments and Decisions 1996 ‑ IV ), is not absolute; it is subject to limitations, for example statutory time-limits or time bars . Where an individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Levages Prestations Services v. France , 23 October 1996, § 40 , Reports 1996 ‑ V ; ZwiÄ…zek Nauczycielstwa Polskiego v. Poland , no. 42049/98, § 29 , ECHR 2004 ‑ IX ; and Freitag v. Germany , no. 71440/01, § 35, 19 July 2007 ).

16. I t is in the first place for the national authorities, and notably the courts, to interpret domestic law , and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This applies in particular to the interpretation by the courts of rules of a procedural nature , such as time-limits governing the submission of documents or the lodging of appeals (see Tejedor García v. Spain , 16 December 1997, § 31 , Reports 1997 ‑ VIII ). The Court ’ s role is confined to ascertaining whether the effects of such interpretation are compatible with the Convention (see Leoni v. Italy , no. 43269/98, § 21 , 26 October 2000 ; Tricard v. France , no. 40472/98, § 29 , 10 July 2001 ; and Paljic v. Germany , no. 78041/01, § 45 , 1 February 2007 ) .

17. The Court further reiterates that the rules governing the formal steps to be taken in lodging an action are aimed at ensuring the p roper administration of justice, and that l itigants should expect the existing rules to be applied (see, mutatis mutandis , Société Anonyme Sotiris and Nikos Koutras Attee v. Greece , no. 39442/98, § 20 , ECHR 2000 ‑ XII ) .

18. In the instant case, the domestic courts dismissed the applicant ’ s action as lodged out of time. In this regard, the Court notes that the Government did not contest that the discharge order had not been communicated to the applicant.

19. The Court further notes that the Administrative Litigation Act , which the Craiova Court of Appeal found to be the applicable legislation, does not specify any time-limits for bringing legal action in situations such as the applicant ’ s, namely when the administrative act is not communicated to the individual. Indeed, section 5 of the Act considers two possibilities for the individual claimant: on the one hand , he or she can apply for the quashing or withdrawal of an administrative act that has been communicated but whose content is likely to cause prejudice; and, on the other hand, he or she can ask for the execution of an administrative act when the administrative authority has fail ed to re solve his or her individual claim (which is related to a right recogni s ed by law ) .

20. The Court must therefore decide whether, when they calculated the time-limits applicable to the applicant ’ s case in absence of a clear legal provision for his situation, the domestic courts did so in a manner devoid of arbitrariness and compatible with its case-law under Article 6 of the Convention.

21. The Court notes that the Craiova Court of Appeal decided that the applicant had been aware of the discharge order on 9 September 2001, when he complained to the Ministry of the Interior (see paragraph 8 above). The Court takes the view that the Court of Appeal relied on objective evidence. The applicant himself did not argue that the domestic courts had established the date on which he became aware of the discharge order in an arbitrary manner, or that he had not in fact been aware of the order at that date. The Court also notes that, while the applicant did not receive a copy of the discharge order and was thus not aware of the reasons having justified his discharge, this lack of information was not, according to the applicable legislation, an impediment to bringing his case before the domestic courts.

22. Furthermore, the Craiova Court of Appeal decided that the time-limit to be taken into account with respect to the administrative complaint had to be counted starting from 9 September 2001, when the applicant complained to the Ministry of the Interior . In this regard, the Court takes note that s ection 1 paragraph 2 of the Administrative Litigation Act explains that if an authority d oes not respond to a claimant within thirty days of the registration of a claim this is considered to be an unjustified refusal to re solve that claim . Since the Ministry of the Interior did not respond to the applicant by 9 October 2001, the Craiova Court of Appeal concluded that he should have then lodged an action before the courts within thirty days of the expiry of the deadline for the administration to respond to him, which would have been on 10 November 2001 at the latest. The Court takes the view that, in so deciding, the Court of Appeal interpreted the applicable domestic legislation in a manner that i s devoid of any arbitrariness.

23. Moreover, the applicant did not provide any explanation , either before the domestic courts or before the Court, as to why he waited until February 2002 to lodge an action against his discharge order (see Seal v. the United Kingdom , no . 50330/07 , § 82, 7 December 2010 , and Wyssenbach v. Switzerland , no. 50478/06 , §§ 39-40, 22 October 2013) .

24. Therefore, the Court finds that the essence of the applicant ’ s right of access was not impaired, and that the restriction in question was based on the domestic law, pursued a legitimate aim and was proportionate. Moreover, it is not the task of the Court to substitute its own view for that of the State authorities as to the calculation of time-limits for lodging an action (compare and contrast Tricard , cited above, §§ 32-33, and Stubbings and Others , cited above, § 56).

25. It follows that this complaint is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

26 . Relying on Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention, t he applicant also complained about the length of proceedings , and that he had been unlawfully deprived of his salary and pension rights .

27. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that this complaint does 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously ,

Declares the application inadmissible .

Stephen Phillips Josep Casadevall Registrar President