FOURTH SECTION

DECISION

Application no . 36747/08 Mircea PARASCHIV and Smaranda PARASCHIV against Romania

The European Court of Human Rights (Fourth Section), sitting on 27 June 2017 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris , Iulia Motoc , judges, and Andrea Tamietti , Deputy Section Registrar ,

Having regard to the above application lodged on 28 July 2008,

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, husband and wife, Mr Mircea Paraschiv (“the first applicant”) and Ms Smaranda Paraschiv (“the second applicant”), are Romanian nationals, who were born respectively in 1954 and 1958 and live in Bucharest. They were represented before the Court by Mr I. Olteanu , a lawyer practising in Bucharest.

2. The Romanian Government (“the Government”) were represented 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 22 November 2005 the applicants brought an action against a private company, asking the Buftea District Court to find that they had become owners of the plot of land they had bought from the defendant. The applicants argued that although they had paid the whole purchase price, which had been set at 8,711 euros (EUR) plus VAT, the company had unjustifiably refused to sign the purchase contract.

5. The applicants were represented by counsel throughout the proceedings.

6 . On 17 March 2006 the Buftea District Court dismissed their action, as it considered that the applicants had failed to prove that they had paid the full purchase price. The court indicated that the judgment could be challenged by means of an appeal ( apel ).

7 . On 23 March 2006 the applicants, assisted by their lawyer, appealed to the Bucharest County Court. On 31 October 2006 the County Court examined the merits of the case and upheld the judgment rendered by the District Court.

8. Ruling on prior cassation appeals ( recurs ) lodged by both parties to the proceedings, the Bucharest Court of Appeal found on 9 October 2007 that, according to the rules on civil procedure, the judgment rendered by the District Court could only have been challenged by means of a cassation appeal. As a cassation appeal had to be tried by a three-judge bench (and not by a two-judge bench as an appeal), it declared the County Court ’ s decision null and void and sent the case back to that court in order to allow it to examine the cassation appeal in the correct judicial formation.

9 . The Bucharest County Court sitting as a three-judge bench took the case for examination. It asked the parties for their positions concerning the nullity of the appeal introduced by the applicants, on the grounds that they had not indicated the reasons for their appeal within the time-limits prescribed (see paragraph 11 below). In its final decision of 11 February 2008 the Bucharest County Court declared the appeal on points of law inadmissible. It considered that the applicants had failed to respect the procedural requirements for lodging it.

B. Relevant domestic law and practice

10 . According to Article 282 1 of the Code of Civil Procedure (“the CCP”) the nature of the remedies available to the parties depends on the pecuniary value of the object of the litigation. In its version applicable since 17 July 2005, this Article provided that litigation with a pecuniary value of one billion Romanian lei (ROL) (approximately EUR 30,500) or less was not susceptible of being challenged by means of an appeal ( apel ). The only remedy available to the unsatisfied party was that of a cassation appeal ( recurs ).

11 . According to the provisions of the CCP, as applicable at the time of the facts of the present case, the time-limits for lodging an appeal or a cassation appeal were fifteen days from the date the contested decision was served (Article 284 § 1 for the appeal and Article 301 for the cassation appeal). The reasons for the appeal needed to be presented to the court at the latest at the first hearing (Article 287), whereas the reasons for lodging a cassation appeal had to be presented within the fifteen-day time-limit for making use of this remedy (Article 303).

12 . Under Article 103 of the CCP, the time-limits for lodging an appeal or for any other procedural act (for example filing the reasons for appeal) may be renewed if a party can prove having been prevented “outside his or her control” ( mai presus de voinţa ei ) from complying with those requirements.

13. In Dumitrescu v. Romania ( dec. ) (no. 67939/10, §§ 22 and 23, 17 September 2013), the Court summarised the practice of the domestic courts which, at that time, consistently ruled that the only remedies available to the parties were those provided for by law, irrespective of what the courts might indicate in the operative part of their decisions. Furthermore, if the remedy was re-classified by the courts to the plaintiffs ’ detriment, the latter could avail themselves of the possibility offered by Article 103 of the CCP to ask for a resetting of the time-limits for filing the reasons for appeal.

COMPLAINT

14. Relying on Article 6 § 1 of the Convention, the applicants complained that they had not had access to a court. They also considered that the proceedings as a whole had not been fair, in so far as the courts had refused to examine all the appeals which were available in the domestic law.

THE LAW

15. The applicant complained of lack of access to Court, guaranteed by Article 6 § 1 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 [a] ... tribunal ...”

A. The parties ’ submissions

16. The Government argued that the fact that a court indicated a wrong appeal procedure in its decision could neither create an additional appeal nor deprive the parties of an existing one. Therefore the applicants could not avail themselves of a non-existent appeal only because the domestic court had erroneously mentioned it in its decision. The applicants should have been aware of the correct procedure to follow in their case, as they had been represented by counsel. The applicant ’ s lawyer had omitted to request reinstatement within the time-limit to file the reasons for their appeal, although that constituted an effective remedy.

17. The applicants considered that the domestic courts had been excessively formalistic in re-classifying and subsequently dismissing their appeal. Moreover, they should have reset the applicants in the time-limits for filing the reasons for appeal, even without a formal request from their counsel to this end. They considered that their representative ’ s fault in not assessing correctly the applicable appeal procedure had affected their fundamental rights and they should not be made to bear the cost of his error. Lastly, they argued that the law concerning the appeal procedure was not clear and lacked the requisite safeguards for allowing a correct assessment and interpretation of the remedies available to the parties.

B. The Court ’ s assessment

18. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This applies in particular to the interpretation by courts of rules of a procedural nature such as time-limits governing the filing of documents or lodging of appeals. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Yagtzilar and Others v. Greece , no. 41727/98, § 25, ECHR 2001 ‑ XII). Moreover, the Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, ECHR 2016 (extracts)).

19. Turning to the facts of the present case, the Court notes that the applicants, following the indications given by the District Court which examined their case as a court of first instance (see paragraph 6 above), lodged an appeal ( apel ) against the decision rendered by that court and the remedy was examined as such by the County Court (see paragraph 7 above). Both the District Court and the County Court appear to have departed from the procedural rules applicable at that time, according to which litigation with a pecuniary value of less of ROL one billion, as in the applicants ’ case, was not susceptible of being challenged by means of an appeal ( apel ), but only by means of a cassation appeal ( recurs – see paragraph 10 above). The Court considers that, regrettable as it may be, this mistake cannot be construed as creating a new remedy in the applicants ’ favour. In particular, the Court notes that the rules applicable to the applicants ’ situation had already been in place for eight months before they lodged the disputed remedy, thus allowing them sufficient time to have become acquainted with the new requirements. Furthermore, the applicants were assisted by a lawyer who, by virtue of his profession, should have been aware of the updated rules of procedure.

20. For these reasons, the applicants cannot legitimately claim having been unable to observe the rules applicable to the cassation appeal (see, mutatis mutandis , Negreanu c. Romania , no. 30164/03 , § 32, 14 May 2013).

21. Moreover, the Court notes that in the second set of proceedings, the County Court granted the applicants the possibility to discuss the reclassification of their appeal (see paragraph 9 above). However, they failed to avail themselves of the possibility offered by Article 103 of the CCP to seek renewal of the time-limits for filing the reasons for their cassation appeal (see paragraph 12 above). The applicants did not argue, either before the domestic courts or before the Court, that such a request would have been bound to fail. The Court cannot speculate on what the outcome could have been had the applicants availed themselves of this possibility.

22. For these reasons, the Court concludes that the applicants failed to observe the procedural rules in place and subsequently failed to avail themselves of the remedies at their disposal. Making an overall assessment, the Court considers that they did not suffer a disproportionate interference with their right of access to court. It follows that 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 20 July 2017 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President