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THIRD SECTION

DECISION

Application no . 76048/11 Valeriu Marius IELCEAN against Romania

The European Court of Human Rights ( Third Section ), sitting on 7 October 2014 as a Committee composed of:

Alvina Gyulumyan , President, Johannes Silvis , Valeriu Griţco , judges,

and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 2011 ,

Having regard to the declaration submitted by the respondent Government on 12 August 2013 requesting the Court to strike part of the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

1. T he applicant, Mr Valeriu Marius Ielcean , is a Romanian national, who was born in 1968 and lives in Cluj-Napoca. He was represented before the Court by Ms A. Avram , 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.

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

4. On 23 November 2006 the applicant lodged civil claims within the course of criminal proceedings opened against a third party after a car accident he had been involved in. He had claimed 856,897 lei (RON) (approximately 245,800 euros (EUR)) for pecuniary damage and RON 340,000 (approximately EUR 97,500) in non-pecuniary damage. He had also requested that the amounts awarded to him as pecuniary and non ‑ pecuniary damage be increased in line with inflation.

5. By a judgment of 27 March 2009 the Cluj-Napoca District Court sentenced the third party to a suspended two years prison sentence. In addition, by taking into account the pecuniary damage already paid by the third party to the applicant, the applicant ’ s suffering and his inability to work, it ordered the third party to pay him RON 851,897 (approximately EUR 244,800) in pecuniary damage and RON 100,000 (EUR 28,700) in non-pecuniary damage. Lastly, it dismissed the applicant ’ s request to have the amounts of pecuniary and non-pecuniary damage awarded to him increased in line with inflation on the ground that he had not requested it in his application for civil claims lodged before the court. The applicant appealed against the judgment. He argued that the first-instance court had made a calculation error in respect of the base amount awarded to him as pecuniary damage. In addition, it had dismissed his request to have the amounts of pecuniary and non-pecuniary damage awarded to him increased in line with inflation on the ground that he had failed to lodge such a request, although according to the evidence available to the file he had expressly requested it.

6. By a judgment of 14 March 2011 the Cluj County Court dismissed the appeal lodged by the applicant. It held that the base amount for pecuniary damage awarded to the applicant had been correctly calculated by the first instance-court. The court of appeal failed to examine the second appeal point raised by the applicant. The applicant appealed on points of law ( recurs ) against the judgment and reiterated the points raised before the second instance court. In addition he argued that the County Court had failed to examine the second point of his appeal.

7. By a final judgment of 7 June 2011 the Cluj Court of Appeal dismissed the applicant ’ s appeal on points of law. It held that the lower courts had correctly determined the base amounts of pecuniary and non ‑ pecuniary damage awarded to the applicant. In addition, the applicant had failed to request for the said amounts to be increased in line with inflation.

COMPLAINTS

8. Relying on Article 6 § 1 of the Convention , the applicant complained that he had not had a fair hearing before the domestic courts inasmuch as they had dismissed his request to have the amounts of pecuniary and non ‑ pecuniary damage awarded to him increased in line with inflation by relying on the incorrect finding that he had not lodged such a request before the courts. In addition, he complained that the domestic courts had failed to correctly assess the amount of pecuniary damage awarded to him based upon which the increase in line with inflation had to be calculated and that the proceedings he had been a party to had been excessively lengthy.

THE LAW

A. Complaint under Article 6 of the Convention

9. The applicant complained that the domestic courts had dismissed his request to have the amounts of pecuniary and non-pec u niary damage awarded to him increased in line with inflation by relying on t he incorrect finding that he had not lodge d such a request before the courts . He relied on Article 6 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

10. This complaint was communicated to the Government.

11. After the failure of an attempt to reach a friendly settl ement, by letter of 12 August 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further asked the Court to strike out the application in accordance with Article 37 of the Convention.

12. The declaration provided as follows:

“The Government declare – by way of this unilateral declaration – their acknowledgement of a violation of Article 6 § 1 of the C onvention .

The Government is prepared to pay to the applicant , Ielcean Valeriu Marius, as just s atisfaction the sum of EUR 2,160 (two thousand one hundred and sixty euros), which they consider to be reasonable in the light of the Court ’ s case law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable in Romanian lei at the rate ap plicable on the date of payment to the personal account of the applicant , within three months from the date of notificat ion of the decision pursuant t o Article 37 § 1 of the Convention . In the event of failure to pay t his sum within the said period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The refore, the Government respectfully invites the Court to rule that the examination of the present application is no longer ju stified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention. ”

13. By letter of 8 October 2013 the applicant objected to the striking out of this part of the application. He argued th at the amount proposed did not offer him sufficient just satisfaction because it was disproportionate to the serious consequences of the breach which were ongoing.

14. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ ... for any other reason established by the Court, it is no longer justified to continue the examination of the application . ”

15 . The Court also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government – even if the applicant wishes the examination of the case to be continued.

16 . To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( see Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland ( dec. ) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( d ec. ) no. 28953/03, 18 September 2007).

17 . The Court has established in a number of cases, including those brought against Romania , its practice concerning complaints about the violation of Article 6 § 1 of the Convention on account of the failure of the domestic courts to fulfil their duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see, for example, Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005 , and Fei ş an v. Romania ( dec. ), no. 32339/05, § 34, 11 March 2014 ).

20 . In any event, the Court ’ s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases, should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia ( dec. ), nos. 75025/01 et al., 23 March 2006).

21 . In view of the above, it is appropriate to strike the case out of the list in respect of the part of the applicant ’ s complaint s concernin g the dismissal by the domestic courts of his request to have the amounts of pecuniary and non-pecuniary damage awarded to him increased in line with inflation by relying on t he incorrect finding that he had not lodge d such a request before the courts .

B. Remaining complaints

22. Insofar as the applicant ’ s remaining complaints under Article 6 of the Convention a re concerned (see paragraph 8 , above), the Court considers that there is nothing in the fil e to suggest that the provision invoked by the applicant have been violated. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration in respect of the part of the complaints under Article 6 of the Convention concerning the dismissal by the domestic courts of the applicant ’ s request to have the amounts of pecuniary and non-pecuniary damage awarded to him increased in line with inflation by relying on the incorrect finding that he had not lodged such a request before the courts;

Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible .

Marialena Tsirli Alvina Gyulumyan              Deputy Registrar President