FOURTH SECTION

DECISION

Application no . 15641/04 Aron NAFTULE and Zetti NAFTULE 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 17 February 2004,

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, Mr Aron Naftule and Mrs Zetti Naftule, were born in 1930 and 1939 respectively and live in Aschelon, Israel. They hold both Romanian and Israeli nationality. They were represented before the Court by Ms A. Iuga, a lawyer practising in Buz ă u.

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. The applicants, husband and wife owned together Z., a limited company (hereinafter “Z.”). On 30 January 2000 the applicants decided to dissolve Z. and to nominate a judicial liquidator.

4. On 27 January 1999, alleging fraud in business transactions, Z. brought civil proceedings against its business partner, the company “L.”.

5. On 27 October 1999 the Bucharest County Court found in favour of Z., but in its final decision of 24 October 2001 the Supreme Court of Justice allowed the appeal lodged by the defendant and sent the case back to the County Court for a new examination.

6 . The County Court served a notification on Z., asking for clarifications concerning the object of its initial action. The court ’ s request was left unanswered. For that reason, by an interlocutory judgment of 24 April 2002 the County Court adjourned the examination of the case.

7 . On 27 June 2002 Z. asked the County Court to issue a certificate to attest that the proceedings against L. were pending. In its request, Z. indicated a new address for correspondence. On 31 July 2002 the County Court sent the said certificate with a copy of the interlocutory judgment of 24 April 2002 to the company ’ s new address.

8. On 18 December 2002 Z. asked the County Court to continue the examination of the case. It claimed that it had not received any summons in the proceedings and that it had only found out about the progress of the case when the court had answered to its request of 27 June 2002.

9. On 6 March 2003 the County Court examined the case and terminated the proceedings for lack of participation of the parties ( perimarea ac ţ iunii ), considering that Z. had remained passive for more than six months after the case had been adjourned (Article 248 (3) of the Code of Civil Procedure as in force at that time).

10. Z. appealed against the decision and argued that it had not lost interest in the proceedings, but had not been able to participate in them because the summonses had been served on it at an incorrect address.

11 . In a final decision of 10 September 2003, the Court of Appeal dismissed the motion on the ground that Z. had been aware of the proceedings, as it had asked, on 27 June 2002, and consequently received, information on the proceedings. The time for a reaction from the participants started running on 24 April 2002 and the parties, Z. included, did nothing to interrupt it.

12. Z. lodged a request for the annulment of the final decision ( contesta ţ ie în anulare ), arguing that the court had wrongly adjourned the proceedings and that it had sent the summonses to an incorrect address.

13 . In its final decision of 22 January 2004, the Court of Appeal dismissed the objection, finding, notably, that there was no indication in the file that Z. had properly announced the change of its address before the proceedings had been adjourned. The court further noted that Z. had failed to lodge an appeal against the interlocutory judgment of 24 April 2002 (see paragraph 6 above). It considered that that would have been the appropriate channel to complain about the way the summonses had been served and how the proceedings had been adjourned.

COMPLAINT

14. The applicants complained under Article 6 § 1 of the Convention about a breach of their right of access to court.

THE LAW

15. The applicants considered that the manner in which the domestic courts had terminated the proceedings had infringed their right of access to court. They relied on 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 ...”

16. The Government rejected the allegations, submitting, notably:

- that the applicants could not claim to be victims of a violation of their rights in so far as they had not taken part in the domestic proceedings;

- that Mr Aron Naftule had not lodged the current application validly as he had failed to sign the application form;

- that the applicants had not complained formally before the Court about the lack of proper service of the summonses in the proceedings;

- that the applicants had not contested the validity of the court records attesting the manner in which the summons had been served on Z.;

- that the applicants had not acted diligently in the domestic proceedings, had not properly announced their change of address, and had remained passive in the proceedings, thus allowing for their termination.

17. The applicants contested the Government ’ s allegations

18. The Court considers that it does not need to examine in detail all the arguments put forward by the Government. Even assuming that the applicants can validly lodge the complaint concerning domestic proceedings in which their company, not themselves, was a party (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09 , § 92, ECHR 2012 and the cases cited therein), the application would in any event be inadmissible for the following reasons.

19. 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).

20. Turning to the facts of the present case, the Court notes that, even assuming that the summonses were initially sent to an incorrect address, the applicants became eventually acquainted with the progress of their case when they received the County Court ’ s letter of 31 July 2002 with a copy of the relevant interlocutory judgment (see paragraph 7 above). They did not contest having received this letter at the right time. From that moment on, the domestic legal system allowed them full participation in the proceedings. On this point, the Court has no reasons to depart from the conclusions of the domestic courts concerning the possible avenues opened to the injured party to object to the decision to adjourn the case and thus to prevent the termination of the proceedings. Lastly, the Court notes that the domestic courts thoroughly examined the lawfulness of the service procedure (see paragraphs 11 and 13 above). In this respect, the Court notes that it was held by the Court of Appeal that Z. had failed to notify its change of address in due time (see paragraph 13 above). It is therefore not unreasonable that the consequences of this omission be borne by the plaintiffs.

21. 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 the rights and freedoms set out in the Convention or its Protocols.

22. The application is therefore 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