THIRD SECTION

DECISION

Application no . 26873/06 Aurel TRIF and Viorica TRIF against Romania

The European Court of Human Rights ( Third Section ), sitting on 12 November 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Luis López Guerra, Nona Tsotsoria , Johannes Silvis, Valeriu Griţco , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 22 June 2006 ,

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

Having deliberated, decides as follows:

THE FACTS

1. T he applicants, Mr Aurel Trif and Mrs Viorica Trif , are Romanian nationals who were born in 1950 and 1924 respectively and live in Che ț ani . They were represented before the Court by Mr V . F . Chirilă , a lawyer practic ing in T â rgu-Mure ş .

2. The Romanian Government (“the Government” ) were represented by their Agent, M s C. Brumar , from the Ministry of Foreign Affairs .

A. The circumstances of the case

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

4. On 16 October 2003 , following their divorce, the ex-wife (“the third party”) brought proceedings ag ainst Mr Aurel Trif (“the first applicant”) seeking the division of joint movable and immovable property .

5. On 18 November 2003 the first applicant, assisted by a legal representative of his choosing, lodged a counterclaim against the third party, and argued, inter alia , that the collective value of the movable and immovable property in dispute was 689,800,000 Romanian lei (ROL) (approximately 19,000 euros (EUR)) out of which the value of the main immovable property in dispute, in particular an apartment, was ROL 480,000,000 (approximately EUR 13,500).

6. On 16 December 2003 the third party asked the first-instance court for the first applicant ’ s mother Mrs Viorica Trif (“the second applicant”) to join the proceedings. The third party argued, inter alia , that the ROL 60,000,000 spent by her and the first applicant at the start of their marriage to extend the second applicant ’ s home, where they lived for a while, should also be considered joint property. The Luduş District Court allowed the third party ’ s request by an interlocutory judgment on the same day.

7. The Luduş District Court , in an interlocutory judgment of 4 May 2004, granted a request by the parties and their chosen legal representatives for a building expert report concerning the market value of the apartment and the extension work carried out on the second applicant ’ s home to be produced in the case.

8. On an unspecified date the expert report was submitted to the first-instance court. The applicants objected to the report. They argued that the said report on the one hand undervalued the apartment because it did not take into account the improvement work carried out after the apartment had been purchased by the first applicant and his former wife, and on the other hand overvalued the extension work carried out on the second applicant ’ s home.

9. By an interlocutory judgment of 7 December 2004 the Luduş District Court allowed in part the applicants ’ objection concerning the apartment, and ordered the building expert to supplement the report.

10. On 1 February 2005 the building expert produced a second expert report and concluded that the market value of the disputed apartment, taking into account the improvement work carried out after it had been bought, was ROL 502,050,000. The applicants objected to the new expert report and argued that the improvement work had been undervalued by the building expert. Consequently, they requested the court to order a third expert report.

11. By an interlocutory judgment of 23 February 2005 the Luduş District Court dismissed the applicants ’ request for a new expert report and held that it was unnecessary.

12. On 24 February 2005 the first applicant submitted written observations to the first-instance court and argued, without providing a total estimated value of the disputed properties, that the market value of the apartment in dispute was in his opinion between ROL 700,000,000 and 750,000,000. In addition, he argued that the extension work carried out on the second applicant ’ s house had been paid for by her, and that with some exceptions the value of the remaining properties to be divided had been overestimated.

13. By a judgment of 2 March 2005 the Luduş District Court , on the basis of witness statements, documents, the statements of the parties and the building expert report available to the file, allowed the third party ’ s action. It decided that the total value of the movable and immovable property disputed by the p arties was ROL 791,288,000 (approximately EUR 22,000 ). It awarded the apartment to the th ird party, together with part of the movable as sets, and ordered her to pay the first applicant a sum of ROL 192,006,000 (approximately EUR 5,000) in compensation. The operative part of the judgment expressly stated that it was subject to appeal within fifteen days following notification.

14. On an unspecified date in May 2005 the applicants , assisted by a legal representative of their choosing, appealed against the judgment of 2 March 200 5 before the T â rgu- MureÅŸ County Court. They argued that the first-instance court should have divided the apartment in dispute and awarded one half to each of the parties. In addition, without providing a total estimated valuation of the disputed properties, they contended that the extension work carried out on the second applicant ’ s home and valued by the first-instance court at ROL 58,638,000 had been paid for exclusively by the second applicant, and should not have been included in the common property to be divided between the first applicant and his former wife. Moreover, other properties had been overvalued or undervalued or should also not have been considered joint property. Lastly, they asked the second ‑ instance court to order a new expert report to determine the value of the apartment in dispute.

15. At a hearing o n 9 June 2005 the third party ’ s lawyer argued before the second- instance court sitting in a bench of two judges that the disputed property was worth no more than ROL 1 ,000,000,000 (approximately EUR 27,000). Consequently, according to Article 282 1 (1) of the Romanian Code of Civil Procedure the applicants ’ appeal needed to be re-qualified by the court from appeal to appeal on points of law ( recurs ).

16. The applicants ’ legal representatives argued that the provisions of the Romanian Code of Civil Procedure cited by the third party did not apply in respect of proceedings concerning division of the property.

17. By an interlocutory judgment of 9 June 2005 , after hearing submissions from both parties, the T â rgu- Mureş County Court re-qualified the applicants ’ appeal as an appeal on points of law and referred the case to a bench of three judges competent to examine an appeal on points of law.

18. On 21 June 2005 the applicants raised a constitutional objection against the provisions of Article 282 1 (1) of the Romanian Code of Civil Procedure . They argued that the limitation of their right to lodge an appeal against the judgment of the first-instance court on account of the value of the disputed property amounted to a discriminatory limitation of their right of access to court.

19. By an interlocutory judgment of 27 September 2005 the T â rgu ‑ MureÅŸ County Court suspended the proceedings and referred the applicants ’ constitutional objection to the Constitutional Court.

20. By a final judgment of 26 January 2006 the Constitutional Court dismissed the applicants ’ constitutional objection. It held that the distinction between the types of proceedings that could or could not be subjected to appeal was made on the basis of the value of the object in dispute and not on the basis of the applicants ’ social status or wealth. The legal regime in question was required by the particular circumstances, which needed different legal solutions in order to ensure the speediness of the proceedings. In addition, neither the Romanian Constitution nor the international legal instruments required access to three levels of jurisdiction.

21. On 14 March 2006 the applicants argued, inter alia , before the T â rgu- Mureş County Court that reasons of public order, in particular contradictions between the operative and the reasoning part of the lower court ’ s judgment in respect of the total value of the disputed properties and the wrongful indication of the type of appeal that could be exercised by the applicants, justified the quashing of the said judgment. Alternatively, the applicants asked the second-instance court for the time-limit for an appeal on points of law to be reinstated.

22. By a final judgment of 28 March 2006 the T â rgu- Mureş County Court, sitting in a bench of three judg es, declared null the applicant s ’ appeal on points of law. It held that the applicants had not submitted their reasons for appeal on points of law within the allowed time-limit. Moreover, none of the arguments raised by them amounted to reasons of public order, and the contradiction referred to by them could be corrected by proceedings seeking the elimination of material errors. Furthermore, it dismissed the applicants ’ request for the time-limit for an appeal on points of law to be reinstated , on the ground that the first-instance court had re-qualified their appeal in accordance with the requirements set out by the legislation in force , and by observing the principle of lawfulness. Consequently, it considered that there was no circumstance of public order or unlawfulness justifying the said request.

23. On 22 June 2006 the applicants informed the Court that although they had repeatedly requested the first-instance court to allow them to prove that the value of the disputed property was greater than EUR 27,000, their requests had been refused .

B. Relevant domestic law

24. Article 103(1) and (2) of the former Romanian Code of Civil Procedure provides that failure to lodge any form of appeal within the lawfully allowed time-limit results in deprivation of the said right, except when the law provides otherwise or the party proves that it has been impeded from doing so by an unforeseen circumstance. In the latter case the right can be exercised within fifteen days of the date the impediment ceased to exist.

25. Articles 282, 287 and 292 of the former Romanian Code of Civil Procedure provide that judgments of a first-instance court are subject to appeal within fifteen days of the date of notification. The reasons for appeal must be submitted by the parties at the latest at the time of the first hearing before the court. The failure to submit the reasons for appeal within the allowed time-limit does not lead to annulment of the appeal, but removes the opportunity to raise additional issues of fact and law that had not been raised before the first-instance court.

26. Articles 282 1 (1) (amended by Law no. 195/2004 which entered into force on 29 May 2004) , 299, 301 and 302 1 of the former Romanian Code of Civil Procedure provide that judgments delivered in respect of disputes where the object of the dispute is valued at less than one billion Romanian lei (approximately EUR 27,000) are not subject to appeal. J udgments not subject to appeal are subject to appeal on points of law ( recurs ). An appeal on points of law may be lodged within fifteen days of the date the judgment was notified to the parties. The reasons for the appeal on points of law must be submitted within the same fifteen - day period, or the appeal on points of law will be declared null.

27. Article 303(5) of the former Romanian Code of Civil Procedure provides that the president of the court which receives the request for an appeal on points of law can return it for changes to the party presenting it if it does not meet the lawful requirements extending the time-limit for the appeal on points of law by five days.

COMPLAINTS

28. The applicants complain ed under Article 6 § 1 of the Convention that the proceedings were unfair in so far as their right of access to court was restricted because the appellate court failed to examine their case after it had re-qualified and annulled their appeal.

29. The applicants complain ed under Article 1 of Protocol No. 1 to the Convention of an alleged breach of their right of property in so far as they were de prived of the apartment which was awarded to the third par ty by the first-instance court.

THE LAW

A. Alleged violation o f Article 6 of the Convention

30. The applicants complain ed that the proceedings were unfair, in so far as their right of access to court was restricted because the appellate court had failed to examine their case after it had re-qualified and annulled their appeal. They relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law .”

1. The parties ’ submissions

31. The Government submitted that the restriction imposed on the applicants ’ right of access to court was prescribed by law, pursued a legitimate aim, and was proportionate. The re-qualification of the applicants ’ appeal was made on the basis of the applicable civil procedural rules during a public hearing, after the applicants had been allowed to submit arguments on that point. The aim of the measure was to ensure the proper administration of justice, particularly to guarantee the parties ’ speediness in examining their appeal on points of law. The re-qualification of their appeal and the consequences of failure to submit reasons within the lawfully allowed time-limit in respect of their appeal on points of law could have been predicted by them, given that they had been assisted by a legal representative during the proceedings and the provisions of Articles 282 1 (1) of the former Romanian Code of Civil Procedure were sufficiently clear and had entered into force on 29 May 2004, a year prior to their appeal.

32. The Government also argued that at no stage of the proceedings did the applicants argue that the total value of the disputed properties was higher than one billion Romanian lei, and the first applicant had himself estimated before the first-instance court a value of ROL 689,800,000. Consequently, the form of appeal they had to pursue had been foreseeable. Also the restriction of the applicants ’ right of access to court had happened at an advanced stage of the proceedings and only after the first-instance court had examined the merits of the case.

33. They further contended that the last-instance court had examined the applicants ’ arguments contesting the re-qualification, and had provided adequate reasons when dismissing them.

34. The applicants argued that where two or three levels of jurisdiction are provided by the domestic legislation judicial review has to be carried out effectively. By re-qualifying their appeal as an appeal on points of law the last-instance court deprived the applicants of the opportunity to have the merits of their complaints raised against the judgment of the first-instance court examined by a higher jurisdiction, and had therefore denied them access to court.

2. The Court ’ s assessment

35. The Court notes in the instant case that by re-qualifying the applicants ’ appeal as an appeal on points of law the last-instance court had deprived them of the opportunity to have the merits of the case re-examined by a higher level of jurisdiction as a result of the different formal requirements that had to be fulfilled by the applicants in respect of the applicable time-limits for providing reasons for the different forms of appeal. Consequently, there has been an interference with the applicants ’ right of access to court guaranteed by Article 6 § 1 of the Convention.

37. The Court notes, on the basis of the available evidence in the file, that the decision of the T â rgu- Mureş County Court to re-qualify the applicants ’ appeal as an appeal on points of law was prescribed by law and was foreseeable. In this respect the Court observes that Article 282 1 (1) of the former Romanian Code of Civil Procedure provided clear instructions in respect of the type of proceedings that were not subject to appeal. In addition, the said decision pursued a legitimate aim, given that it observed the principle of lawfulness for lodging various forms of appeal on a national level and aimed at ensuring a proper administration of justice. In this context, the Court notes that during the proceedings the applicants had always been represented by lawyers of their choosing, and therefore could have asked for and obtained detailed legal advice clarifying the appropriate form of appeal they could have chosen to challenge the judgment of the first-instance court.

38. The Court also notes that the main criteria in determining the appropriate form of appeal that could be lodged against the judgment of the first-instance court was the total value of the movable and immovable properties disputed by the applicants. In this context, the Court observes that the first applicant himself estimated the total value of the said properties to be well below one billion Romanian lei. While at a later stage of the proceedings he reviewed some of his claims, in particular those concerning the main immovable property disputed by the parties, there is no evidence in the file that either of the applicants expressly claimed at any stage of the proceedings before the ordinary courts or indeed before the Constitutional Court that the total value of the disputed properties was in excess of one billion Romanian lei.

39. The Court observes that the T â rgu- Mureş County Court re-qualified the applicants ’ appeal during a public hearing, after it had allowed the parties to submit observations on that point. In addition, the County Court examined and provided reasons for dismissing the applicants ’ request for the time-limit for an appeal on points of law to be reinstated, and these do not appear arbitrary or erroneous, given that the amended provisions of Article 282 1 (1) of the former Romanian Code of Civil Procedure had entered into force a year prior to the challenge lodged by the applicants against the judgment of the first-instance court. Given the special nature of the County Court ’ s role as a court of appeal, the Court is able to accept that the procedure followed before it may be more formal, including in respect of the interpretation of the applicable legislation (see mutatis mutandis Negreanu v. Romania , ( dec. ) no. 30164/03, § 34, 14 May 2013).

40. In the light of the above, the Court considers that the applicants have not suffered a disproportionate interference with their right of access to court.

41. 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.

B. Alleged violation o f Article 1 of Protocol No. 1 to the Convention

42. The applicants complain ed of a breach of their right of property in so far as they were deprived of the immovable property which was awarded to the third par ty by the first-instance court. They relied on Article 1 of Protocol No. 1 to the Convention, which 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.”

1. The parties ’ submissions

43. The Government contended that the first-instance court examined the merits of the applicants ’ case and provided ample reasoning for its decision. In addition, the proceedings resulting in the decision of the last ‑ instance court to annul the appeal lodged by the applicants against the judgment of the first-instance court had not been unfair. Lastly, despite the fact that the immovable property in question was awarded to the third-party, the first applicant was fairly compensated for his loss.

44. The applicants disagreed.

2. The Court ’ s assessment

45. The Court notes that this complaint is closely linked to the one examined under Article 6 of the Convention. It has already found that the assessment of the applicant s ’ case by the domestic courts was in conformity with the requirements of that provision. In addition, it appears from the evidence in the file that the first applicant received appropriate compensation in exchange for the immovable property being awarded to the third party. Consequently, the Court considers that there is no indi cation of a breach of Article 1 of Protocol No. 1 to the Convention.

46 . It follows that this part of the app lication is also 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.

Marialena Tsirli Josep Casadevall Deputy Registrar President