FOURTH SECTION

DECISION

Application no . 13122/03 Adina Sorana RADLEY against Romania

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Egidijus KÅ«ris, Gabriele Kucsko-Stadlmayer, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 12 March 2003,

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, Mrs Adina Sorana Radley, is a Canadian and Romanian national who was born in 1950 and lives in Toronto, Canada. She was represented before the Court by Mr D. Bogdan, 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 23 October 1948 a contract of sale concerning a plot of land of 44,831 sq. m was concluded between the joint sellers, namely the applicant ’ s father, Ş .F., and her aunt, D.S., and the buyer, the Cooperative Society for Provisioning and Consumption Militari Ilfov.

5. On 31 March 1998 the applicant, represented by V.W.F., lodged a civil action against the General Council of Bucharest and the Local Council of the First District of Bucharest, seeking the annulment of the contract of sale concluded in 1948 on account of a lack of consent on the part of the sellers.

6. On 26 June 1998 the Bucharest First District Court allowed the applicant ’ s claims and annulled the contract of sale.

7. A stamp applied by this District Court in 1998 stated that “the judgment became final, no appeal having been filed against it” ( definitiv ă prin neapelare ).

8. On an unspecified date in 2001 V.W.F. lodged an appeal against the judgment of 26 June 1998.

9. On 29 March 2001 the Local Council of the First District of Bucharest also lodged an appeal against the above-mentioned judgment, arguing that it did not have legal standing in the trial, since it was neither a party to the impugned contract of sale, nor did it have possession of the impugned plot of land. Furthermore, under the Public Local Administration Act, it was only the City of Bucharest that could have legal standing in proceedings concerning the right of property in respect of immovable goods.

10. On 15 February 2002 the Bucharest County Court delivered its judgment. It firstly noted that V.W.F. could not prove that she had a legal mandate from the applicant entitling her to file an appeal on her behalf. The court therefore dismissed this appeal as being lodged by a person who did not have legal standing.

11 . The court allowed the appeal lodged by the Local Council and held that since neither the Local Council nor the General Council of Bucharest had been parties to the contract of sale, they did not have legal standing in the civil action instituted by the applicant.

12. The applicant filed an appeal on points of law against this latter judgment. She contended that the 1998 judgment had been served on the defendants on 16 April 1998 and on 18 September 1998 respectively, as evidenced by the notifications that had been stamped in order to acknowledge receipt by the two State entities. The appeal lodged by the Local Council should therefore have been dismissed as out of time, it being deprived of its right to lodge an appeal in accordance with Article 103 of the Romanian Code of Civil Procedure (hereinafter “the RCCP”, see paragraph 15 below).

The applicant further argued that the two defendants did have legal standing, in so far as the buyer had ceased to exist and the land had become State property.

13 . On 1 October 2002 the Bucharest Court of Appeal dismissed the applicant ’ s appeal on points of law as ill-founded.

The court held that the notification procedure had been invalid because the notification of the service of the judgment did not mention the name and the capacity of the person who had received it, as required by Article 100 § 3 of the RCCP (see paragraph 15 below). The court therefore considered that the Local Council had lodged its appeal within the time-limit set by Article 284 of the RCCP (see paragraph 15 below).

The court furthermore held that the two defendants lacked legal standing in so far as they had not been parties to the contract of sale and because the applicant had not proved that either of the two was the legal successor of the 1948 buyer (see paragraph 4 above).

14 . On 12 November 2008 the applicant filed a civil action against UJCC Ilfov and CENTROCOOP, the apparent legal successors of the 1948 buyer (see paragraph 4 above), requesting that the contract of sale of 1948 be annulled on account of a lack of consent on the part of the selling parties. These proceedings were, at the date of the last information available to the Court (11 December 2014), still pending before the domestic courts.

B. Relevant domestic law

15 . The Romanian Code of Civil Procedure in force at the relevant time prescribed in its relevant parts the following:

Article 100

“1. The notification of any procedural act must include:

...

7. the full name and the capacity of the person who received it;...

3. The details enumerated at points nos...7 are to be mentioned in the notification, failing which it shall be invalid.”

Article 103

“1. If a party fails to lodge an appeal or to file a procedural act within the time ‑ limit set by the law, the right to file such appeal or act shall result in deprivation of that right ( dec ă dere ), unless the law provides otherwise or unless the party proves that he or she has been prevented from complying with the respective time-limit by circumstances beyond his or her control.

2. For the latter situation, the procedural act shall be filed within fifteen days from the moment when the circumstance preventing the party from complying came to an end; the reasons why the party was prevented from complying with the time-limits must be provided within the same time-frame.”

Article 284

“The legal time-limit for lodging an appeal is fifteen days from the date when the judgment is served on the party, unless the law provides otherwise.”

COMPLAINTS

16. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the quashing of the judgment of 26 June 1998, which had become final, breached the principle of legal certainty as well as her right to the peaceful enjoyment of her possessions, namely of the plot of land of 44,831 sq. m.

THE LAW

17. The applicant argued that the reopening of the proceedings that had terminated with the judgment of 26 June 1998 three years after this judgment had been delivered constituted a violation of her rights protected by Article 6 § 1 of the Convention and by Article 1 of Protocol No. 1 to the Convention. These articles read in their relevant parts 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.”

18. The Government essentially argued that the present case did not follow the well-established case-law settled by the Court in Brumărescu v. Romania ([GC], no. 28342/95, ECHR 1999 ‑ VII) because in this case the reopening of the proceedings had been allowed following an ordinary appeal lodged by one of the parties in the case, in accordance with the provisions of the domestic law. The proceedings were therefore in compliance with Article 6 of the Convention.

In connection with the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention, the Government contended that, on the one hand, the judgment of 26 June 1998 did not acknowledge the applicant ’ s entitlement to any possession and on the other hand, in view of the existence of the pending domestic proceedings seeking the annulment of the 1948 contract of sale, this complaint was premature.

19. The applicant disagreed and maintained her claims.

20. 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, which declares, in its relevant part, the rule of law to be 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, in principle, not be called into question (see Brumărescu , cited above, § 61).

21. Legal certainty presupposes respect for the principle of res judicata (ibid., § 62), that is the principle of the finality of judgments. This principle underlines 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. The review should not be treated as an appeal in disguise and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is 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).

22. The Court has to assess whether in the present case the quashing of the judgment of 26 June 1998 by way of an appeal lodged by the defendant in 2001 was justified by the circumstances and whether a fair balance between the interests of the applicant and the need to ensure the proper administration of justice, which includes the interest of the third parties, has been achieved (see, for instance, Protsenko v. Russia , no. 13151/04, § 29, 31 July 2008).

23. The Court notes that the judgment of 26 June 1998 was set aside following an appeal lodged by one of the parties to the proceedings, and that this was done in compliance with the provisions of the domestic law. While it is true that the reopening of the procedure was done three years after the delivery of the first-instance court ’ s decision, the Court takes note of the fact that both the Bucharest County Court and the Bucharest Court of Appeal have confirmed that this was in compliance with the provisions of the relevant domestic law, which allowed a party to lodge his or her appeal within fifteen days from the date when the judgment was duly served on him or her (see paragraphs 11 and 13 above).

24. In any event, it is not the Court ’ s role to decide in the abstract, or in theory, whether the applicable domestic law is compatible with the Convention or whether the domestic law has been complied with by the national authorities. In cases arising from individual petitions it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it. The Court therefore considers that the issue to be addressed by it in the present application is not whether the domestic law prescribing the time-limits for lodging an appeal was compatible as such with the Convention but whether the procedure, as applied in the circumstances of the present case, resulted in a violation of the legal certainty requirement (see Trapeznikov and Others v. Russia , nos. 5623/09, 12460/09, 33656/09 and 20758/10 , § 35, 5 April 2016 ).

25. In this connection, the Court considers it relevant that the Bucharest County Court gave a judgment on points of law only, without (re)assessing the merits of the case; its reasoning focused on whether the parties in the case did or did not have locus standi in the proceedings, more specifically, whether the applicant ’ s action was or was not lodged against the correct defendants. The Bucharest County Court thus considered that the applicant had filed her claims against the wrong defendants since they had not been parties to the impugned contract of sale (see paragraph 11 above). This reasoning was upheld by the Bucharest Court of Appeal, which, after hearing the parties ’ arguments in an adversarial procedure, considered that, given the lack of any evidence proving that the defendants were the legal successors of the 1948 buyer, it could not be held that their locus standi was substantiated (see paragraph 13 above).

26. The Court considers that the circumstances referred to above were in their nature and significance such as to justify the granting of the appeal lodged by the defendant party against the judgment of 26 June 1998 and that this was not inconsistent with the principle of legal certainty (see, mutatis mutandis , Tomescu v. Romania (dec.), no. 36458/03, §§ 22-23 , 4 September 2012; Foundation Epitropia Spitalului Sf. Spiridon Ia ş i v. Romania (dec.), no. 3033/08, § 48, 12 March 2013, and Trapeznikov and Others , cited above, § 37).

27. Furthermore, the fact that the applicant ’ s complaints had not been examined on the merits in the above-mentioned judgments enabled her to lodge yet another civil action having the same object as the impugned proceedings, namely to seek the annulment of the 1948 contract of sale; this time, however, the applicant lodged her action against the apparent legal successors of the purchasing party (see paragraph 14 above). Without speculating on the outcome of the proceedings which on 11 December 2014 were still pending before the domestic courts, the Court is mindful of the fact that in the previous set of proceedings, the applicant ’ s claim failed because, in the domestic courts ’ view, she sued the wrong defendant – an issue which has apparently been corrected in the second set of proceedings.

28 . The Court finds, therefore, that in the circumstances of this particular case, by granting an appeal by the defendant three years after the delivery of the first-instance court ’ s judgment, the domestic courts did not deprive the applicant of the right to a fair trial, as provided for by Article 6 § 1 of the Convention.

29. It follows that the applicant ’ s complaints in this respect are manifestly ill- founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

30. In respect of the applicant ’ s compla int under Article 1 of Protocol No. 1, the Court notes that in the impugned proceedings ‒ which were conducted in a manner compliant with the requirements of Article 6 of the Convention (see paragraph 28 above) ‒ the domestic courts have not acknowledged the entitlement of the applicant to any possession; in fact, no such examination was conducted, the applicant ’ s claims being dismissed on procedural grounds (see paragraphs 11 and 13 above).

31. The Court therefore considers that the applicant cannot claim to have a “possession” within the meaning of Article 1 of Protocol No. 1 (see also Tomescu (dec.), cited above, § 27). Her complaints in this respect are therefore incompatible rationae materiae with the Convention and must be dismissed in accordance with Article 35 §§ 3 and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President