FOURTH SECTION

DECISION

Application no. 26817/17 Florica ROMAN and Ioan ROMAN against Romania

The European Court of Human Rights (Fourth Section), sitting on 5 May 2020 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 29 March 2017,

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 . The applicants, Ms Florica Roman and Mr Ioan Roman, are two Romanian nationals, who were born in 1944 and 1945 respectively and live in Lipia. They were represented before the Court by Ms C.G. Roman, a lawyer practising in Bucharest .

The Romanian Government (“the Government”) were represented by their Agent, most recently Ms O. Ezer, from the Ministry of Foreign Affairs.

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

3 . On 8 April 1997 the applicants, tenants of an immovable property, bought that property from the State pursuant to Law no. 112/1995 (see paragraph 23 below) .

4 . On 13 November 2003 the sale contract was annulled, in accordance with the provisions of Law no. 10/2001 (see paragraph 23 below).

5 . Based on the same Law no. 10/2001, the applicants lodged on 12 May 2008 civil proceedings against the State seeking to obtain reimbursement of the value of the upgrades to the property, as well as either the current value of the property, or of the price they had paid when they had bought it.

6 . On 10 February 2010 the Bucharest County Court partly allowed the applicants ’ claims and ordered the State to reimburse the price paid by the applicants, namely 2,556.94 RON (Romanian lei) [1] , which was to be adjusted for inflation. It dismissed however the claims concerning the value of the upgrades brought to the house.

7 . On 6 January 2011 the Bucharest Court of Appeal sent the case for re ‑ trial in respect of the value of the upgrades, and it maintained the lower court ’ s decision concerning the reimbursement of the price paid by the applicants.

8 . This latter decision was confirmed by the High Court of Cassation and Justice on 2 December 2011 in an appeal on points of law lodged by the applicants.

9 . The case was consequently sent back for retrial in respect of the value of the upgrades. These claims were allowed by the courts at all levels, the final judgment being given on 24 October 2013 by the High Court of Cassation, confirming the applicants ’ entitlement to an amount of 23,146 RON [2] .

10 . On 21 January 2014 the applicants notified the State to pay the two amounts fixed by the domestic courts in respect of the price paid as well as the value of the upgrades.

11 . On 23 March 2014 the State informed the applicants that the right to request the enforcement of the outstanding judgment of 2011 relating to the reimbursement of the price paid by the applicants (see paragraph 7 above) was time barred.

12 . However, the amount granted as value of the upgrades was willingly enforced by the State on 22 July 2014.

13 . In so far as they considered that the outstanding judgment of 2011 had to be enforced, the applicants lodged an enforcement request with the bailiff ’ s office on 27 August 2014. The bailiff launched enforcement proceedings against the State on 3 October 2014. The amount calculated by the bailiff as value of the price paid for the property, adjusted for inflation, was of 25,051.11 RON [3] . The enforcement costs and expenses were set in an amount of 4,554.65 RON [4] .

14 . On 22 December 2014, the total amount of 29,605.76 RON was paid to the applicants.

15 . However, concomitantly, the State challenged the enforcement proceedings, arguing that the right to ask for enforcement became time ‑ barred on 6 January 2014, namely three years after the Bucharest Court of Appeal ’ s judgment of 6 January 2011 (see paragraph 7 above).

16 . The applicants argued that the correct calculation was starting from the moment when the High Court gave its final judgment on 2 Dece mber 2011, by which it confirmed the appeal judgment (see paragraph 8 above). From that perspective, the right to ask for enforcement became time-barred on 2 December 2014. Since they had initiated enforcement proceedings first on 21 January 2014 (see paragraph 10 above) and then, with the assistance of a bailiff, on 3 October 2014 (see paragraph 13 above), their request had been lodged within the statutory time-limit.

17 . On 28 April 2015 the Bucharest District Court allowed the State ’ s challenge to enforcement; relying on the provisions of Article 405 of the Code of Civil Procedure (see paragraph 24 below), the court found that the right to ask for enforcement became time-barred on 6 January 2014, thus calculated from the appeal court ’ s judgment, which was final ( definitiv ă ) and thus enforceable in respect of the reimbursement of the price paid by the applicants, irrespective of the fact that it was challenged before a higher court and thus not yet irrevocable ( irevocabil ă ).

18 . On 30 September 2016 the Bucharest County Court held in a final judgment that the approach taken by the lower court had been in compliance with the rules of procedure set out in the law.

19 . The State therefore initiated new proceedings against the applicants, seeking to be reimbursed the amount of 29,605.76 RON, which was considered as undue payment as a consequence of the domestic courts ’ findings in challenge to enforcement proceedings (see paragraphs 17 ‑ 18 above).

20 . On 5 March 2019 the Bucharest First Instance Court allowed the State ’ s request and ordered the applicants to re imburse the amount of 29,605.76 RON , which would be adjusted for inflation.

21 . On 29 November 2019 the Bucharest County Court dismissed the applicants ’ appeal and confirmed the lower court ’ s findings, thus allowing the State ’ s request.

22 . The parties have not submitted further information whether any appeal on points of law was filed against the county court ’ s findings. It does not follow from the file whether or not the applicants have reimbursed the amount at issue (see paragraph 20 above).

23 . Law no. 112 of 25 November 1995 on the legal status of certain residential property authorised the sale of such properties to the tenants. Law no. 10/2001, entitled the former owners of residential property to claim their property rights back from the State or, where applicable, from those who had bought that property from the State. It also provided for a procedure allowing the former tenants to be reimbursed respectively the amount of money paid as price for the property, or the market value of the property (only if they had purchased the property in good faith) and the value of the upgrades brought to the said property.

24 . The relevant parts of the Code of Civil Procedure as in force at the material time are described in detail in the case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania , nos. 2699/03 and 43597/07, § 38, 7 January 2014.

In particular, Articles 374-377 describe the domestic judgments in respect of which enforcement proceedings could be started, which are, essentially, the final judgments ( definitive ), as well as the procedure to be followed in case of enforcement. According to Article 377, final judgments ( definitive ) are, inter alia , those judgments given in an appeal lodged against the first instance court ’ s judgments.

Article 405 set out the statutory limitation period for submitting a request to have enforcement proceedings started and read as follows:

Article 405

“(1) The enforcement proceedings must be started within three years, unless the law provides otherwise. ...

(2) The time-limit starts running from the date when the right to seek enforcement begins.”

25 . Both before the domestic courts as well as before the Court, the applicants relied on a judgment given by the High Court of Cassation and Justice in 2008 in which the highest court had established in a specific case that the three year limitation period set out for starting enforcement proceedings started once the judgment in appeal was confirmed or quashed by the higher court, thus when it became irrevocable. The High Court argued that so long as the appeal judgment was not confirmed, the judgment was not binding in the sense of res judicata and the title to enforcement was uncertain. In that connection, the passivity of a claimant who would wait that his title to enforcement become certain upon confirmation from a higher court could not be held against him or her; moreover, in such a situation, the claimant should not be sanctioned by applying the rules of prescription against him or her.

According to the civil rules of procedure, the judgments rendered in an appeal on points of law, even if the proceedings are before the High Court of Cassation and Justice in ordinary proceedings, are binding only to the parties of those proceedings .

COMPLAINTS

26 . The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgment of 6 January 2011, which became irrevocable on 2 December 2011 .

THE LAW

27 . The applicants raised complaints under Article 6 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, provide as follows :

Article 6 § 1

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

Article 1 of Protocol No. 1

“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.”

28 . The Government argued that the amount to be reimbursed by the applicants was still in their possession, because the procedure for reimbursement based on the court ’ s judgment of 29 November 2019 (see paragraph 21 above) had not been launched yet.

29 . The applicants submitted that the State had successfully challenged the enforcement of their outstanding judgment, being only a matter of time until the reimbursement of the amount they considered to have been entitled to would be sought.

30 . The Court will first examine the applicant ’ s complaint under Article 6 of the Convention. It notes at the outset that on 22 December 2014 the applicants have obtained enforcement of the outstanding judgment of 6 January 2011, as the authorities paid them at that moment the amount awarded as reimbursement of the price paid for the property, adjusted for inflation, as well as the enforcement costs and expenses (see paragraph 14 above). However, the applicants are currently under an obligation to repay the sum received, owing to the domestic court ’ s finding that they had lodged their request for enforcement when it had already become time ‑ barred.

31 . In that sense, the Court considers that the application concerns the applicants ’ “right to a court”, derived from Article 6 of the Convention, which comprises a duty of the State to implement final decisions (see Hornsby v Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997-I ; and Burdov v. Russia (no. 2) , no. 33509/04, § 65 , ECHR 2009).

32 . However, this duty is not absolute and may be subject to certain limitations permitted by implication. The Court has accepted that a successful litigant may be required to undertake certain procedural steps in order to recover the judgment debt. At the same time the formalities required from the creditor may not restrict or reduce his access to the enforcement proceedings in such a way or to such an extent that the very essence of the “right to a court” is impaired (see Shvedov v. Russia , no. 69306/01, § 32, 20 October 2005).

33 . The Court has found, for example, that the authorities should not have been held responsible for the applicants ’ unexplained failure to follow the domestic enforcement procedure and, notably, for their deliberate and persistent refusal to provide the writs of enforcement (see for instance Gadzhikhanov and Saukov v. Russia , nos. 10511/08 and 5866/09, §§ 27 ‑ 31 , 31 January 2012).

34 . Moreover, the Court notes that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging a request before the domestic courts are aimed at ensuring the proper administration of justice and compliance with the principle of legal certainty for all parties involved in a dispute (see, mutatis mutandis , Muscat v. Malta , no. 24197/10, § 44, 17 July 2012).

35 . The Court reiterates that these are legitimate aims for regulating the access to court. However, these aims are directed not only to protect creditors but also to protect the debtors, because while creditors have an interest to enforce their rights speedily and efficiently, the debtors also have to be able to protect correctly their interests (see, mutatis mutandis , Olsby v. Sweden , no. 36124/06, § 50, 21 June 2012).

36 . Turning to the present case, the Court notes that the applicants have lodged their request for the enforcement of the outstanding judgment of 6 January 2011 (see paragraph 7 above) for the first time on 21 January 2014 (see paragraph 10 above), thus more than three years after that judgment had been pronounced.

37 . The Court further notes that the parties ’ disagreement in essence turned on the interpretation and application of specific procedural regulations in relation to the statutory limitation period set out for lodging a request for enforcing an outstanding judgment, more particularly, on the moment which triggers the calculation of the said limitation period. Hence, while the domestic courts examining the applicants ’ case considered that the three years period started when the final judgment was rendered, thus on 6 January 2011, the applicants, relying on a judgment given by the High Court of Cassation and Justice in another case, argued that the limitation period started once the proceedings were terminated, namely when the judgment became irrevocable (see paragraphs 16 and 25 above).

38 . In that connection however, the Court cannot but reiterate that it is primarily for the national authorities, notably the courts, to resolve problems of the interpretation and application of procedural rules, such as time ‑ limits for filing documents or for lodging appeals. The role of the Court is limited to verifying whether the effects of such an interpretation are incompatible with the Convention (see for instance Muscat , cited above, § 43).

39 . In view of the above principles and turning to the facts of the present case, including the applicable domestic law which refers explicitly to the fact that a judgment becomes enforceable once it is final, namely, once the appellate court gives its judgment in appeal (see paragraphs 17 and 24 above), the Court finds no element in the case file which might suggest that the domestic courts ’ assessment of the procedural rules to be applied, in particular to the manner of calculating when the three year limitation period started and expired, respectively, was arbitrary or unreasonable in the circumstances. In that connection, the Court also notes that according to the domestic law, the interpretation of the provisions in question given by th e High Court in its judgment of 2008 (see paragraph 25 above) was not binding on the domestic courts.

40 . Furthermore, the Court underlines that it is incumbent on the interested party to display special diligence in the defence of his or her interests (see, mutatis mutandis , Teuschler v. Germany (dec.), no. 47636/99 , 4 October 2001, and Sukhorubchenko v. Russia , no. 69315/01, § 48, 10 February 2005). In the present case, nothing prevented the applicants from requesting that the outstanding judgment be enforced at an earlier stage, so as to ensure compliance with the relevant domestic procedural rules. Therefore it cannot be said, that the very essence of the applicants ’ right to a court has been impaired.

41 . The applicants ’ complaint under Article 6 of the Convention is therefore manifestly ill- founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

42 . Turning to the applicants ’ complaint under Article 1 of Protocol No. 1, the Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301 - B).

43 . However, in view of its findings concerning the applicants ’ lack of diligence in appropriately pursuing the enforcement proceedings, the Court considers that their claims under Article 1 of Protocol No. 1 were no longer sufficiently established to be enforceable, their request having become time ‑ barred, as found by the domestic courts. As a result they were ordered to reimburse the sum already paid by the authorities (see paragraphs 20 ‑ 21 above). Having regard to the considerations set out under Article 6 of the Convention, the Court considers that the facts of the case do not disclose any appearance of a breach of Article 1 of Protocol No. 1.

44 . Consequently, the applicants ’ complaint raised under Article 1 of Protocol No. 1 to the Convention 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.

Done in English and notified in writing on 28 May 2020 .

Ilse Freiwirth Faris Vehabović Deputy Registrar President

[1] approximately 600 EUR

[2] approximately 5,400 EUR).

[3] (approximately 5,400 EUR).

[4] approximately 1030 EUR