THIRD SECTION

DECISION

Application no . 1867/06 Maria MOLDOVAN against Romania

The European Court of Human Rights ( Third Section ), sitting on 15 October 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Ján Šikuta , Nona Tsotsoria , Kristina Pardalos , Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 30 December 2005 ,

H aving 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. T he applicant, Ms Maria Moldovan , is a Romanian national, who was born in 1942 and lives in Deva . She was represented before the Court by Mr P. Bota , a lawyer practic ing in Bucharest .

2 . The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea , and by their Agent, Ms 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 an unspecified date in 2003 the applicant brought proceedings against third parties seeking the acknowledgment that the will and a maintenance agreement signed by her deceased step-grandfather prior to 1972 in favor of the third parties were null. She argued that the third parties had forged her step-grandfather ’ s signature on the aforementioned documents.

5 . On an unspecified date the HaÅ£eg District Court asked the parties if they wished for a graphological expert report of the applicant ’ s step ‑ grandfather ’ s signature to be carried out. The applicant informed the court that she did not have the financial resources to pay for the said expert report.

6 . By a judgment of 2 October 2003 the Haţeg District Court dismissed the applicant ’ s action on the grounds that she had not proposed any evidence in support of her allegations. The applicant appealed against the judgment and motioned the appellate court to order a graphological expert report of her step-grandfather ’ s alleged s ignatures on the documents in question .

7 . On 4 June 2004 the Cluj Forensic Laboratory carried out a graphological expert report of the contested signatures. It concluded, based on other documents signed by the applicant ’ s step-grandfather, that in spite of some discrepancies between the signatures they all belonged to him.

8 . On 1 September 2004 the Alba-Iulia Court of Appeal allowed the applicant ’ s request to adjourn the proceedings to 20 October 2004 in order for her to be able to submit objections to the graphological expert report.

9 . On 18 October 2004 the applicant informed the Alba-Iulia Court of Appeal that she was unable to attend a hearing scheduled f or 20 October 2004 because of her poor state of health and requested that the proceedings continue in absentia . In addition, she informed the court that because she could not attend the hearing and because she was not assisted by a legal representative, she had also attached a separate document to her note, for the court ’ s consideration, contesting the graphological expert report, which in her opinion was mistaken.

10 . On 20 October 2004 the appellate court acknowledged the applicant ’ s motion for the proceedings to continue in absentia. It did not mention or acknowledge the separate document submitted by the applicant contesting the graphological expert report.

11 . By a judgment delivered on the same date, the Court of Appeal dismissed the applicant ’ s appeal on the grounds that according to the graphological expert report all the signatures on the documents belonged without a doubt to her step-grandfather. The appl icant appealed on points of law ( recurs ) against the judgment. Relying on expert literature, she contested the graphological expert report and argued that the discrepancies identified in the expert report in respect of her step-grandfather ’ s signatures, taken in conjunction with the fact that he had been illiterate, should have lead the expert to conclude that the signatures in question had been forged.

12 . By a final judgment of 8 July 2005 the Court of Cassation acknowledged that the applicant contested the graphological expert report. It dismissed the applicant ’ s appeal on points of law a s ill-founded. It held that according to the graphological expert report all the signatures on the documents belonged to her step-grandfather. In addition, t he applicant had the opportunity to submit objections to the graphological expert report as the second instance court had allowed her request to do so. However, on 20 October 2004 she asked the second instance court to examine the case in absentia , without taking advantage of the decision of the said court to allow her to submit objections to the graphological expert report. Therefore, she had agreed with the expert ’ s findings.

13 . On 21 May 2012 the Government informed the Court and provided evidence that while the applicant submitted and registered her request of 18 October 2004 for the proceedings to continue in absentia with the second instance court, she had failed to do the same with the attached document containing her objections to the graphological expert report.

B. Relevant domestic law

14 . Article 304 (10) of the Romanian Code of Civil Procedure provides that an appeal on points of law can be lodged if inter alia the lower courts failed to examine a means of defence or administered evidence which were decisive for the outcome of the case.

15 . Article 305 of the Romanian Code of Civil Procedure provides that no new evidence can be administered before the court examining the appeal on points of law, except for documents.

COMPLAINTS

16. Relying on Article 6 § 1 of the Convention, the applicant complained that she did not have a fair hearing before the domestic courts inasmuch as the said courts dismissed her action by relying on the incorrect findings that she had failed to object to the handwriting analysis report before the Court of Appeal and that she had therefore agreed with the expert ’ s findings.

17. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that the dismissal by the domestic courts of her action against certain third parties breached her property rights in so far as she was unable to recover part of her step-grandfather ’ s inheritance that she claims she was entitled to.

THE LAW

A . Alleged violation o f Article 6 of the Convention

18 . The applicant complained that she did not have a fair hearing before the domestic courts inasmuch as the said courts dismissed her action by relying on the incorrect findings that she had failed to object to the graphological expert report before the Court of Appeal. She relied on Article 6 of the Convention , which in so far as relevant reads as follows:

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

1. The parties ’ submissions

19 . The Government submitted that Article 6 was not applicable to the present case. The applicant was not a lawful heir of her step-grandfather as he had not adopted her father and therefore there was no parental line established between him and the applicant. In addition there was no evidence of a court decision acknowledging the applicant ’ s succession rights. In addition, the proceedings opened by the applicant against third parties concerned the acknowledgement that her step-grandfather ’ s signatures on the documents in question had been false and did not seek to establish that she was his lawful heir. Moreover, even if she had sought the acknowledgement of her succession rights , given th e time elapsed since her step-grandfather signed the impugned documents , the relevant proceedings would have been time-barred.

20 . The Government further argued that the domestic courts examined the applicant ’ s action and provided reasons for their decisions. In addition they did not fail to properly examine her submissions considering that the applicant never registered her objections against the graphological expert report before the second instance court.

21 . The applicant partly disagreed. She acknowledged, however, that she had failed to register the objections against the graphological expert report before the second instance court.

2. The Court ’ s assessment

23 . The Court notes from the outset th at the Government raised a preliminary objection in respect of the applicant ’ s complaint. However, it finds that it is not necessar y to examine the said objection as, even assuming that it was dismissed, the complaint is in any event inadmissible for the following reasons.

24 . T he Court notes that following the applicant ’ s request, the second instance court adjourned the proceedings in order to allow her to submit objections to the graphological expert report. However, the applicant acknowledged that she had failed to register her objections to the said report before the second instance court within the imparted time limit. In addition, there is no evidence in the file that she attempted to obtain an extension of the time limit allowed for the submission of her objections and she did not argue that she had been obstructed from submitting the said objections by a compelling reason. Consequently, the decision of the second instance court to continue with the proceedings as motioned by the applicant herself and to examine the case in the absence of her objections to the expert report does not appear arbitrary.

25 . The Court observes that according to the domestic rules of civil procedure law in force at the relevant time, the last instance court was called to examine only the lawfulness of the judgment delivered by the lower court and not touch on the merits of the case or to administer additional evidence. In this context, the Court notes that the applicant ’ s appeal on points of law did not rely on the argument that the second instance court had failed to address the objections raised by her to the graphological expert report.

26 . In these circumstances, the Court observes that the Court of Cassation acknowledged the objections raise d by the applicant against the graphological expert report, examined the applicant ’ s arguments and her appeal on points of law and dismissed it by providing clear, albeit succinct, reasons which d o not appear arbitrary or in breach of the applicable civil procedure rules.

27 . Thus, the Court considers that it cannot be maintained in the circumstances of the present case that the domestic courts failed to properly examine the essence of the applicant ’ s submissions and evidence.

28 . It follows that this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

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

29. The applicant complained that the dismissal by the domestic courts of her action against the third parties had breached her property rights in so far as she had been unable to recover part of her step-grandfather ’ s inheritance that she claimed she was entitled to. She 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.”

30 . The Court has examined this complaint as submitted by the applicant. However, having regard to the available evidence, it notes that following the judgment delivered by the domestic courts the applicant cannot claim to have a possession within the meaning of Article 1 of Protocol No. 1 to the Convention in respect of the part of her step grandfather ’ s inheritance that she claimed she was entitled to. It follows that this part of the application must be rejected as incompatible ratione materiae pursuant to Article 35 § 3(a) of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President