FOURTH SECTION

DECISION

Application no . 7765/10 Adrian Marcel IANCU against Romania

The European Court of Human Rights (Fourth Section), sitting on 24 January 2017 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Iulia Motoc, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 29 January 2010,

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, Mr Adrian Marcel Iancu, is a Romanian national who was born in 1962 and lives in Vidra. He was 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 7 February 2007 the applicant lodged a claim with the Bucharest Court of Appeal for annulment of his professional evaluation report. On 1 April 2009 the Bucharest Court of Appeal dismissed the applicant ’ s claim.

5. The applicant appealed on points of law ( recurs ).

6. A hearing was scheduled on 30 July 2009, and the summons to appear was served on the applicant solely by posting it on his gate (hereinafter “by public notice” – citarea prin afişare ). The applicant did not attend the hearing.

7 . In a final decision adopted on 30 July 2009 the High Court of Cassation and Justice dismissed an appeal by the applicant and upheld the decision of the Court of Appeal.

8 . The applicant did not lodge an application to set aside the final decision of 30 July 2009 ( contestație în anulare ).

B. Relevant domestic law

9. The relevant domestic law in force at the time of service of the judicial documents by public notice is summed up in S.C. Raisa M. Shipping S.R.L. v. Romania (no. 37576/05, § 18, 8 January 2013).

COMPLAINTS

10. The applicant complained under Article 6 § 1 of the Convention that he had been prevented from participating in the proceedings before the High Court of Cassation and Justice because the notification of the hearing had not been properly served on him, and he had not been aware of the date of that hearing. He further complained regarding the length of the proceedings and their outcome. In addition, he complained that he had been discriminated against and had not had at his disposal an effective remedy in respect of his Convention grievances.

THE LAW

A. Alleged infringement of the right of access to court

11. The applicant complained that he could not participate in the domestic proceedings because he had not received the court notification. He invoked Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

12. The Government argued that the applicant had not exhausted the domestic remedies available to him.

13. The applicant contested the Government ’ s assertion.

14. The Court observes that, in the case of S.C. Raisa M. Shipping S.R.L. v. Romania (no. 37576/05, § 25, 8 January 2013) , it found that an application to set aside a final decision constituted an effective remedy in a situation similar to that in the present case (see also Hilote v. Romania (dec.), no. 15838/06, § 11, 13 September 2016). The applicant, who did not use that remedy or any other available remedy (see paragraph 8 above), did not put forward any argument which would allow the Court to reach a different conclusion.

15. Accordingly, the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Other complaints

16. The applicant complained regarding the manner in which the domestic courts had examined his case and the length of the proceedings. Furthermore, he complained that he lacked an effective remedy and that he had been discriminated against.

17. However, in the light of 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. In particular, the Court notes that the proceedings began on 7 February 2007 (see paragraph 4 above) and ended on 30 July 2009 (see paragraph 7 above). They therefore lasted almost two years and six months and were dealt with by two levels of jurisdiction. Their length is not unreasonable in the light of the Court ’ s case ‑ law on the matter (see Vlad and others v. Romania , nos. 40756/ 06, 41508/07 and 50806/07, § 131, 26 November 2013).

18. Furthermore, the Court reiterates that the applicant had an effective remedy at his disposal, namely an application to set aside the final decision. B y not using it, he forfeited his opportunity to allow the domestic courts to re-examine the merits of his action and, if necessary, change the outcome of the proceedings in question and address any other issues that he might have wished to raise, such as the alleged discrimination he had suffered.

19. Accordingly, this part of the application is partly manifestly ill ‑ founded and partly inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1, 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 16 February 2017 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President