FOURTH SECTION

DECISION

Application no. 53831/12 Eugenia-Claudia TOMA against Romania

The European Court of Human Rights (Fourth Section), sitting on 12 November 2019 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 13 August 2012,

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, Ms Eugenia-Claudia Toma, is a Romanian national who was born in 1973 and lives in Pîclișa, in Alba County. She was represented before the Court by Ms A.D. Culcea, a lawyer practising in Alba Iulia. The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, from the Ministry of Foreign Affairs.

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

3 . On 27 August 2008 the applicant ap plied to her employer, the Alba County Pension Authority (hereinafter “the pension authority”), a State agency, asking to have her entitlement to certain wage-related rights acknowledged. She asked that the above-mentioned allowances be paid retrospectively, as of 1 January 2004, the date when the relevant legal provision had been enacted.

4 . On 7 October 2008 the Alba County Court allowed the applicant ’ s claims in part, and held that she was entitled to receive the requested allowances from 27 August 2005 onwards up to the day of the judgment.

5 . Both the applicant and the pension authority appealed against that judgment before the Alba Iulia Court of Appeal (hereinafter “the Court of Appeal”). Relying on the provisions of Article 242 of the Code of Civil Procedure (“the CCP”, see paragraph 16 below), both parties asked the court to examine the case in their absence.

6 . On 27 April 2009 the applicant asked the Court of Appeal to suspend the examination of the appeals until the High Court of Cassation and Justice had rendered its decision on an appeal in the interests of the law lodged by the Procurator General concerning the divergent interpretation of the applicable law (notably Article 31 § 1 (c) of Law no. 188/1999, the Public Servants ’ Statute – see paragraph 21 below ).

7 . On 29 April 2009 the appellate court allowed the application by the applicant to have the proceedings suspended, holding:

“the proceedings shall be suspended in accordance with Article 242 point 2 [of the CCP] and the file shall be sent to the archives until the parties lodge a new application showing that they want to pursue the proceedings ( până la o nouă stăruinţă a părţilor )”.

8 . At a hearing on 19 May 2010, of which the parties had been duly notified, the Court of Appeal examined on its own initiative whether the appeal filed by the applicant had lapsed ( perimarea cererii ). The applicant agreed to there being such an examination. The pension authority was not present at the hearing.

9 . In a final decision rendered on 19 May 2010, the Court of Appeal held that, in accordance with Article 248 § 1 of the CCP (see paragraph 18 below), the applicant ’ s appeal had lapsed owing to her lack of participation. It found as follows:

“Of its own motion, the court raises the issue of the appeal having lapsed.

Examining this issue, the court observes that under Article 248 § 1 of the CCP, ‘ any action, objection, appeal, appeal on points of law, revision or any other request to change a decision or [request for] cassation will automatically lapse, even [an action] against persons lacking legal capacity, if [that action] is left unexamined for a year through the fault of the party bringing the action ’

In the present case, the examination of the appeal was suspended by the interlocutory judgment of 29 April 2009, under Article 242 § 1 (2) of the CCP, on the grounds that the parties were not present before the court although they had been correctly summoned to appear, and neither of them had requested, under Article 242 § 2 of the CCP, that the case be examined in their absence.”

10 . On 18 August 2011 the pension authority filed an application under Article 281 2 § 1 of the CCP, which concerned obvious omissions in court decisions (see paragraph 19 below), and asked the Court of Appeal to decide on the appeal which it had previously lodged.

11 . On 28 September 2011 the Court of Appeal allowed that application. It found that the appeal lodged by the pension authority had also lapsed, owing to the authority ’ s lack of participation.

12 . On 4 October 2011 the pension authority lodged an application to set aside the decision of 28 September 2011 (see paragraph 11 above). It relied on Article 318 of the CCP (see paragraph 20 below). The pension authority argued that the Court of Appeal had ignored its request for the appeal to be examined in its absence ( see paragraph 5 above) and argued that that request should have rendered the lapse impossible. Consequently, the pension authority contended that the Court of Appeal had bas ed its decision of 28 September 2011 on a material error.

13 . On 15 February 2012 the Court of Appeal allowed the application, on the following grounds:

“... the court notes that the pension authority ’ s appeal was found to have lapsed on the grounds that the parties, although correctly summoned to the appeal [hearing], had not attended the hearing and had not asked for the case to be examined in their abse nce, as provided for by Article 242 § 2 of the Code of Civil Procedure.

Examining the appeal lodged by the pension authority and the other submissions by [that authority], it is noted that [the authority] requested that the case be examined in its absence. Therefore, the court of appeal committed a material error [in its decision of 28 September 2011], in that it failed to take into consideration the legal provision expressly relied on in [the pension authority ’ s] submissions.”

14 . Consequently, the Court of Appeal set asi de the judgment of 28 September 2011 and set a new date for the hearing on the examination of the admissibility of the appeal lodged by the pension authority .

15 . On 21 March 2012 the Court of Appeal rendered the final decision in the case. It found that, in accordance with the applicable provisions, the appeal lodged by the pension authority had not lapsed. Consequently, it examined the merits of that appeal and, relying on a judgment of the High Court of 21 September 2009 which set obligatory guidelines for interpreting the applicable law, it dismissed the applicant ’ s original application.

16 . The relevant parts of Article 242 of the Code of Civil Procedure, as in force at the material time, provided:

“[A court examining a civil action may suspend the proceedings:]

1 if all parties ask for a suspension; [or]

2 . if none of the parties are present at a hearing.

(2) However, the case shall be decided if [either] the claimant or the defendant has asked in writing that the case be assessed in his or her absence”.

17 . Article 244 of the CCP set out another reason to suspend civil proceedings:

“(1) When the assessment of the case depends in whole or in part on the existence or non-existence of a right which is the subject of other court proceedings ...

(2) The suspension will last until the judgment given in the [other court proceedings mentioned above] becomes final.”

18 . Article 248 of the CCP provided that any application which was being dealt with by a court but which had been left unexamined for one year through the fault of the party bringing the application should lapse ( perimat ă ). A party was not considered to be at fault if the court was expected to perform a procedural act on its own initiative.

19 . Article 281 2 instituted a special procedure for amending obvious omissions in a court decision ( completarea hot ă r â rii ):

“(1) When a court has omitted to consider a complaint or an incidental application in its judgment, the judgment may be amended upon request [if an application to amend the judgment is] lodged within the same time-limit set for an appeal or appeal on points of law against that judgment”.

20 . Article 318 defined a “material error” as one of the grounds for having a final decision quashed by means of an application to set aside ( contestaţie în anulare ):

“Decisions rendered by a court of final instance may also be contested when a decision was based on a material error, or when the court, in dismissing or admitting an appeal in part, mistakenly omitted to examine one of the reasons for ... [the] appeal.”

21 . The relevant legislation and domestic practice concerning the allowances claimed by the applicant may be found in Albu and Others v. Romania (no. 34796/09, §§ 12-15, 10 May 2012).

COMPLAINT

22 . The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the quashing of the final decision of 28 September 2011 had been based on an incorrect interpretation of what constituted a “material error”.

THE LAW

23 . The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the quashing of the final decision of 28 September 2011.

24 . The relevant part of Article 6 § 1 of the Convention reads as follows:

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

25 . Article 1 of Protocol No. 1 to the Convention 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.”

26 . The Government argued that the extraordinary appeal – the application to set aside – had been needed in order to correct a fundamental factual error committed by the Court of Appeal in its decision of 28 September 2011.

27 . The Government further observed that the error made by the Court of Appeal had caused the pension authority to lose the opportunity to have its appeal examined, through no fault of its own. They pointed out that the extraordinary appeal had been lodged by one of the parties to the proceedings, within the strict time-limits set by law, against a decision which had not determined the merits of the case, but had instead left matters undecided.

28 . The applicant argued that the Court of Appeal had not explained why the non-examination of the appeal lodged by the pension authority had constituted a material error for the purposes of Articles 281 and 318 of the CCP (see paragraphs 19 and 20 above). Moreover, she argued that the Court of Appeal had not interpreted the law correctly, as even if it had allowed the extraordinary appeal, the solution would have been to maintain the suspension of the examination of the case until one of the parties had asked once again for the case to be examined on the merits.

(a) General principles

29 . The Court reiterates that the right to a fair hearing before a tribunal, as guaranteed by Article 6 § 1 of the Convention, must be interpreted in the light of the Preamble to the Convention, the relevant part of which declares that the rule of law is part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

30 . Legal certainty presupposes respect for the principle of res judicata (ibid., § 62), that is to say the principle of the finality of judgments. This principle emphasises the fact that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts ’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. A review should not be treated as an appeal in disguise, and the mere possibility of two views on the subject is not grounds for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, for instance, Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003 ‑ IX). Higher courts ’ powers to quash or alter binding and enforceable judicial decisions should be exercised for the purpose of correcting fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice (see Giuran v. Romania , no. 24360/04, § 30, ECHR 2011 (extracts)).

(b) Application of the general principles to the present case

31 . Turning to the facts of the ca se under examination, the Court notes that both parties to the domestic proceedings requested that their appeals be examined in their absence (see paragraph 5 above). The Court of Appeal, in its final decisions of 19 May 2010 and 28 September 2011 (see paragraphs 9 and 11 above), declared that the appeals had lapsed because the parties, who had been absent from the court hearing, had not asked the court to examine the appeals in their absence. In this context, the Court considers that it is reasonable to find that in making the final decision of 28 September 2011, the Court of Appeal omitted relevant information and thus committed a factual error (see paragraph 13 above).

32 . The Court further notes that the extraordinary appeal at issue in the present case was lodged by a party to the proceedings, and not by a third ‑ party State official with no connection to the proceedings, as was the case, for instance, in Androne v. Romania (no. 54062/00, § 47, 22 December 2004), where the extraordinary appeal in question was lodged by the Procurator General. The appeal in the present case was lodged within a short period of time, that is to say within a week of the contested decision being issued (see paragraph 12 above and, mutatis mutandis , Trapeznikov and Others v. Russia , nos. 5623/09 and 3 others, § 36, 5 April 2016, with further references). The Court further notes that the extraordinary appeal proceedings did not last an unreasonably long time – the application was lodged on 4 October 2011 (see paragraph 12 above) and the decision was rendered on 15 February 2012 (see paragraph 13 above), four months and eleven days later. The ensuing re-examination of the appeal and the initial application resulted in a final decision just over a month later, on 21 March 2012 (see paragraph 15 above). As a result, the extraordinary appeal procedure as applied in the particular circumstances of this case constituted the next logical element in the chain of domestic remedies which the parties in the case had at their disposal, rather than an extraordinary means of reopening the proceedings (see, mutatis mutandis , Trapeznikov and Others , cited above, § 37, with further references), and was therefore not incompatible with the principle of legal certainty enshrined in the Convention or the right to a fair hearing guaranteed by Article 6 § 1 of the Convention (see, mutatis mutandis , Elisei Uzun and Andone v. Romania , no. 42447/10, § 45, 23 April 2019).

33 . Consequently, the special circumstances of the present case can be regarded as exceptional grounds justifying the quashing of the final decision of 28 September 2011 and the dismissal of the applicant ’ s initial action. For those reasons, the Court finds that the domestic courts struck a fair balance between the applicant ’ s right to the protection of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, and the general interest in correcting miscarriages of justice (see, mutatis mutandis , Giuran , § 48, and Elisei Uzun and Andone , § 47, both cited above).

34 . In the light of the above considerations and all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

35 . Accordingly, 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.

Done in English and notified in writing on 5 December 2019 .

Andrea Tamietti Faris Vehabović Deputy Registrar President