FOURTH SECTION

DECISION

Application no . 29281/03 Adriana HALMAGHI against Romania

The European Court of Human Rights (Fourth Section), sitting on 13 September 2016 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 1 August 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, Ms Adriana Halmaghi, was born in 1927 and lives in Timișoara. She holds both Romanian and German nationalities. She was represented before the Court by Ms S. Ajami, a lawyer practising in Frankfurt am Main.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3. The German Government was given notice of the application in the light of the applicant ’ s German nationality, but they did not exercise their right to intervene under Article 36 § 1 of the Convention and Rule 44 of the Rules of Court.

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

5. On 1 November 2002 the Timiş County Court dismissed a civil action lodged by private individuals against the applicant, seeking recognition of their right of way on the applicant ’ s property ( servitute de trecere ).

6. The plaintiffs appealed. The TimiÅŸoara Court of Appeal scheduled a hearing on 20 January 2003. The summons and the documents submitted by the plaintiffs were served on the applicant at an incorrect address.

7 . In a letter sent to the Court of Appeal on 16 January 2003 the applicant asked that the hearing be postponed because of her health problems. Consequently, on 20 January 2003 the Court of Appeal scheduled a new hearing to take place on 3 February 2003. The notification about the new date was sent to the applicant to the same incorrect address. The applicant asked for a new postponement of the hearing informing the court that she would not be able to attend the hearing scheduled on 3 February 2003 due to her health problems.

8. In its final decision of 3 February 2003 the TimiÅŸoara Court of Appeal dismissed the new request for postponement lodged by the applicant, reexamined the case on the merits and allowed the initial action against the applicant.

9. The applicant lodged an objection for the annulment of the final decision of 3 February 2003 ( contestaţie în anulare ), arguing notably that she had not been correctly notified of the date of the hearings.

10 . On 25 April 2003 the TimiÅŸoara Court of Appeal dismissed the objection. It noted that the applicant had not complained, in her requests for postponement, that the address used for correspondence was incorrect.

COMPLAINTS

11. The applicant complained that her right to a fair trial guaranteed by Article 6 § 1 of the Convention had been breached.

12. She further complained that in allowing the right of way on her property, the domestic courts had infringed her right to the peaceful enjoyment of her possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention.

THE LAW

A. Complaint under Article 6 § 1 of the Convention

13. The applicant complained about the unfairness of the proceeding before the Timi ş oara Court of Appeal. She alleged that she had not been lawfully notified about the appeal proceedings and had thus been prevented from participating in them. She invoked 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 ...”

14. The Government considered that the applicant could not claim to be a victim of a violation of her rights, that she had not properly exhausted the domestic remedies, and that she had not suffered a significant disadvantage. The Government underlined that the applicant had been aware of the dates of the hearings held in appeal despite the alleged erroneous address at which the court summonses had been served on her.

15. The applicant contested the Government ’ s allegations.

16. The Court considers that it is not necessary to examine in detail all the objections raised by the Government, in so far as the application is in any case inadmissible for the following reasons.

17. The Court reiterates that it cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action ( Avotiņš v. Latvia [GC], no. 17502/07, § 99, 23 May 2016). It further reiterates that the right of access to a court, the principle of adversarial proceedings and the principle of equality of arms enshrined in Article 6 § 1 of the Convention, are also applicable in the specific sphere of service of judicial documents on the parties (see S.C. Raisa M. Shipping S.R.L. v. Romania , no. 37576/05, § 29, 8 January 2013 and, as a recent example, Avotiņš , cited above, § 119).

18. Turning to the facts of the present case, the Court notes that, even if the summonses were sent to a wrong address, the applicant was aware of the progress of her case and notably of the dates of the court hearings before the Court of Appeal (see paragraph 7 above). Moreover, although she must have known that the summonses were being sent to a wrong address, she failed to raise that matter with the Court of Appeal. As the applicant had reacted promptly after each notification sent to her attention, be it only to ask for a postponement, the Court of Appeal had no reason to suspect that she was not in possession of the judicial documents served on her, including the summonses. Lastly, the Court notes that the domestic courts had examined the lawfulness of the service procedure (see paragraph 10 above). Nothing in the file allows for a departure from their findings on this point.

19. For these reasons, 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 Article 6 § 1 of the Convention.

20. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 1 of Protocol No. 1 to the Convention

21. The applicant complained of a violation of her right to the peaceful enjoyment of her possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention.

22. 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 domestic courts applied the relevant law in a manner consistent with the requirements of Article 1 of Protocol No. 1 to the Convention. There is no indication of arbitrary in the examination of the case at the domestic level.

23. Accordingly, this complaint 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 6 October 2016 .

Andrea Tamietti Paulo Pinto de Albuquerque              Deputy Registrar President