FOURTH SECTION

CASE OF HULPE AND OTHERS v. ROMANIA

( Applications nos. 24838/10 and 4 Others – see appended list )

JUDGMENT

STRASBOURG

27 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Hulpe and Others v. Romania ,

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

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris , Iulia Motoc , judges, and Andrea Tamietti , Deputy Section Registrar ,

Having deliberated in private on 6 February 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in five applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals and a Romanian company on the various dates indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar , from the Ministry of Foreign Affairs .

2 . On 17 January 2017 the complaint concerning access to court was communicated to the Government and the remainder of applications nos. 24838/10 ( Hulpe v. Romania ), 66252/11 ( Dolha v. Romania ), and 57813/13 ( Stroe v. Romania ) was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

3 . The German Government was given notice of application no. 24838/10 ( Hulpe v. Romania ) owing to 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 . When Mrs Valeria Dolha , t he applicant in application no. 66252/11 ( Dolha v. Romania ) , died on 14 February 2016, her sole heir, Mr Alin - Eugen Iancu ( great- nephew), expressed the wish to pursue the proceedings on her behalf. For practical reasons, Mrs Dolha will continue to be referred to in this judgment as “the applicant”, although Mr Iancu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The list of applicants and the relevant details of the applications are set out in the appended table.

6 . The applicants lost court cases which had been examined in civil proceedings held in their absence. The notices of the court proceedings had been served on them solely by means of posting them on a gate or fence (hereinafter “by public notice” – citarea prin afi ş are ). They all argued in their subsequent appeals, whether appeals on points of law (where notices had been served during first-instance proceedings or in appeal hearings) or appeals seeking the quashing of the final decision ( contestaţie î n anulare ) (where the notices had been served during proceedings at final instance), that they had not been aware of the date of the court proceedings as they had never received the relevant court summons. Their complaints to that effect were dismissed by the courts on the grounds that service by public notice was provided for by law. Consequently, their appeals were dismissed without an examination of the merits of the cases.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I. JOINDER OF THE APPLICATIONS

8 . In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9 . The applicants complained that their right of access to court had been breached because they had not received summonses and had therefore been unable to participate in the court proceedings.

They relied on Article 6 § 1 of the Convention, which reads as follows:

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

A. Admissibility

1. Objection of non-exhaustion of domestic remedies (applications nos. 24838/10 – Hulpe v. Romania – and 66252/11 – Dolha v. Romania)

10 . The Government argued that the applicants in applications nos. 24838/10 and 66252/11 had failed to exhaust domestic remedies in so far as they had not availed themselves of the possibility of bringing criminal proceedings against the court officer ( agentul procedural ) responsible for the service procedure ( înscrierea în fals ).

11 . The Court has already examined a similar objection and dismissed it on the grounds that an applicant who has used a remedy that is apparently effective and sufficient cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see S.C. Raisa M. Shipping S.R.L. , cited above, §§ 24-25). In the present cases, the applicants in applications nos. 24838/10 and 66252/11 had unsuccessfully made use of objections to final decisions and of appeals of points of law.

12 . For these reasons, the Court dismisses this objection in respect of both applications.

2 . Other reasons for inadmissibility

13 . The Court notes that the complaints concerning access to court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Arguments by the Government

14 . The Government submitted that the right of access to court was not absolute and could be subject to limitations. They argued that the service of court documents by means of public notice was provided for by domestic law as an alternative to direct notification and was a means of preventing the abuse of procedural rights by parties. Moreover, the courts examined systematically the legality of service procedures. The Government pointed out that domestic law allowed for proceedings to take place in the absence of a party, provided that the notification of the judicial proceedings had been carried out correctly.

15 . In addition, they argued as regards cases nos. 24838/10 ( Hulpe v. Romania ) and 66252/11 ( Dolha v. Romania ) that although all the summonses had been served solely by public notice, the applicants had failed to inform the courts about that fact during the court proceedings and had instead only complained about the delivery of the court decisions by that means. Relying on Halmaghi v. Romania (( dec. ), no. 29281/03, 13 September 2016) and Naftule v. Romania (( dec. ), no. 15641/04, 13 September 2016), the Government considered that the domestic courts had had no reason to suspect that the applicants had not been in possession of the judicial documents served on them.

16 . As for cases nos. 32758/13 ( Stoian v. Romania ) and 57813/13 ( Stroe v. Romania ), the Government argued that the applicants should have been more diligent in the proceedings and should have taken steps sooner to obtain copies of the court decisions.

17 . In case no. 49385/13 ( S.C. Vastrans v. Romania ) the Government argued that the applicant had been allowed time to send written submissions before a decision had been taken by the court.

2. The Court ’ s assessment

18 . 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 (see 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 the service of judicial documents on parties (see S.C. Raisa M. Shipping S.R.L. , cited above, § 29, and, as a recent example, Avotiņš , cited above, § 119).

19 . In S .C. Raisa M. Shipping S.R.L. (cited above) the Court found a violation of Article 6 § 1 of the Convention because the applicant company had been summoned to appear in court in proceedings on the merits of its case only by means of a public notice. The Court considered that while the domestic law in force at that time (Article 92 § 4 of the Code of Civil Procedure) provided for summoning by means of public notice, the way in which the Romanian courts applied the law was too formalistic. In particular, the courts had not been diligent in ensuring that defendants had been informed of the date of the hearings and had thus failed in their obligation to ensure effective participation in the proceedings (ibid., §§ 32- 35).

20 . In the present applications, the Court has not found any fact or argument capable of persuading it to depart from its existing case-law. The applicants were summoned only by means of notices posted at their premises and alleged that they had not received the notifications. They were thus unaware of the dates of the hearings and could not be present in court. Despite the absence of the applicants from the proceedings, the domestic courts made no other attempt to ensure that they had been informed of the dates of the hearings and could take part in the proceedings in which their civil rights were at stake, in particular by postponing the hearings and repeating the service of the summonses.

21 . More particularly, the situation in cases nos. 24838/10 ( Hulpe v. Romania ) and 66252/11 ( Dolha v. Romania ) is not comparable to that in Halmaghi where, even if the summonses were sent to a wrong address, the applicant was aware of the progress of her case and had failed to raise that matter of the incorrect address with the Court of Appeal (see Halmaghi , decision cited above, § 18), or to that in Naftule , where the summonses were initially sent to the incorrect address, but the applicants eventually found out about the progress of their case when they received a letter from the court (see Naftule , decision cited above, § 20). In the cases currently under examination the notifications were sent to the correct address. The applicants had nothing to correct in the proceedings and did not suffer any negative consequences until they missed the time-limits to appeal against the court decisions which had been notified by means of a public notice alone.

22 . Moreover, as far as case no. 49385/13 ( S.C. Vastrans v. Romania ) is concerned, the Court notes that because the applicant company was prevented from participating in the hearing, it did not know what oral submissions the other party may have made to the court. That shortcoming could not be corrected by simply allowing the applicant to send its own written submissions.

23 . For those reasons, the Court concludes that there has been a violation of the applicants ’ right of access to court, guaranteed by Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

24 . An additional complain t was raised in application no. 32758/13 ( Stoian v. Romania ) , concerning an alleged violation of the rights guaranteed by Article 1 of Protocol No. 1 to the Convention.

25 . Having regard to the finding that the applicants ’ right of access to court has been breached (see paragraph 23 above), the Court considers that there is no need to give a separate ruling on the admissibility and merits of the complaint raised under Article 1 of Protocol No. 1 (see, mutatis mutandis , S.C. Raisa M. Shipping S.R.L. , cited above, § 38, and S.C. Carbochim S.A. Cluj-Napoca and S.C. Fenega Import-Export S.R.L. v. Romania [Committee], nos. 45621/05, 46691/07, 27314/08 and 1150/09, § 30, 17 January 2017).

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

26 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

27 . The applicants claimed the following amounts in respect of pecuniary and non-pecuniary damage:

(a) in application no. 24838/10 ( Hulpe v. Romania ):

- restitution of the property lost in the court proceedings or EUR 232,821, representing its market value in respect of pecuniary damage; and

- EUR 5,000 in respect of non-pecuniary damage.

(b) in application no. 66252/11 ( Dolha v. Romania ):

- EUR 44,878.36 representing the value of the applicant ’ s goods confiscated by the Communist State, in respect of pecuniary damage; and

- EUR 6,000 in respect of non-pecuniary damage.

(c) in application no. 32758/13 ( Stoian v. Romania ):

- EUR 4,200 representing the value of the applicant ’ s share of the estate, in respect of pecuniary damage; and

- EUR 10,000 in respect of non-pecuniary damage;

(d) in application no. 49385/13 ( S.C. Vastrans v. Romania ):

- EUR 151,413 representing the financial loss incurred by the applicant company, in respect of pecuniary damage; and

- EUR 100,000 in respect of non-pecuniary damage.

(e) in application no. 57813/13 ( Stroe v. Romania ):

- EUR 5,000 in respect of non-pecuniary damage;

28 . The Government contested the amounts sought. They argued that neither the applicants not the Court should speculate about what the outcome of the domestic proceedings would have been. Moreover, they argued that the applicants had failed to prove any causal link between the alleged violations and the loss allegedly incurred. They further argued that the amounts sought in respect of non-pecuniary damage were excessive and that the finding of a violation should constitute sufficient just satisfaction.

29 . The Court notes that the applicants have failed to show the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claims in respect of pecuniary damage. On the other hand, having regard to all the circumstances of the present cases, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards EUR 3,600, plus any tax that may be chargeable thereon, to each applicant in respect of non-pecuniary damage .

30 . The Court further notes that Article 509 § 10 of the New Civil Procedure Code allows for the reopening of domestic proceedings in order to remedy the breaches it has found. Given the nature of the applicants ’ complaints and the reasons for which it has found a violation of Article 6 § 1 of the Convention, the Court considers that in the present cases the most appropriate form of redress would be to reopen the proceedings complained of in due course, should the applicants so request (see, for a similar solution under the provisions of the former Code of Civil Procedure, S.C. Raisa M. Shipping S.R.L. , cited above, § 44).

B. Costs and expenses

31 . The applicants also claimed the following amounts for the costs and expenses incurred before the domestic courts and before the Court:

(a) in application no. 66252/11 ( Dolha v. Romania ): EUR 141.02 representing lawyer ’ s fees and postal costs; the applicant submitted the relevant proof of payment.

(b) in application no. 32758/13 ( Stoian v. Romania ): EUR 124.22 representing court fees, lawyer ’ s fees and postal fees; the applicant submitted the relevant proof of payment.

(c) in application no. 49385/13 ( S.C. Vastrans v. Romania ): EUR 981.25 for lawyer ’ s fees i n the Court proceedings and EUR 218.05 for an expert ’ s fee; the applicant company submitted bills attesting to payment.

32 . No amounts for costs and expenses were sought in applications nos. 24838/10 ( Hulpe v. Romania ) and 57813/13 ( Stroe v. Romania ).

33 . The Government argued that the applicants had failed to prove that they had actually incurred the costs claimed. They further considered that some of the costs claimed had not been proven to be relevant for the violation alleged before the Court.

34 . Regard being had to the documents in its possession and to its case - law, the Court considers it reasonable to award the following amounts, covering costs under all heads:

(a) EUR 141.02 in application no. 66252/11 ( Dolha v. Romania );

(b) EUR 124.22 in application no. 32758/13 ( Stoian v. Romania );

(c) EUR 218.05 in application no. 49385/13 ( S.C. Vastrans v. Romania ).

C. Default interest

35 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Article 6 § 1 of the Convention concerning access to court admissible;

3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 1 of Protocol No. 1 to the Conve ntion raised in application no. 32758/13 ( Stoian v. Romania );

4. Holds that there has been a violation of the applicants ’ right of access to court, guaranteed by Article 6 § 1 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, to each of the applicants in respect of non ‑ pecuniary damage;

( i i) EUR 141.02 (one hundred and forty one euros and two cents), plus any tax that may be chargeable to the applicant, in application no. 66252/11 ( Dolha v. Romania ) in respect of costs and expenses;

( i ii) EUR 124.22 (one hundred and twenty four euros and twenty ‑ two cents), plus any tax that may be chargeable to the applicant, in application no. 32758/13 ( Stoian v. Romania ) in respect of costs and expenses;

( i v) EUR 218.05 (two hundred and eighteen euros and five cents), plus any tax that may be chargeable to the applicant company, in application no. 49385/13 ( S.C. Vastrans v. Romania ) in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 27 February 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President

APPENDIX List of applications

(a) Application number

and

(b) Date of application

Applicants ’ names, dates of birth for individuals and address es

Representatives

(a) Circumstances of the case

(b) Incidents in the service procedure and

(c) Domestic remedy used

(a) 24838/10

(b) 08/04/2010

Constantin Hulpe

1951Enkenbach-Alsenborn (Germany)

---

(a) The applicant sought the annulment of a sale contract he had concluded with a third party. He lost his case before the first-instance court (21 May 2008) and on appeal (15 December 2008);

(b) The decision delivered in the appeal proceedings was served on the applicant ’ s lawyer by public notice; the applicant could not appeal against it within the legal time-limit;

(c) Based on the alleged deficiency in the service procedure, the applicant appealed on points of law after the expiry of the time-limit and at the same time requested an extension of the time-limit for lodging an appeal (both dismissed on 9 October 2009).

(a) 66252/11

(b) 07/10/2011

Valeria Dolha

1929Cluj-Napoca

(heir Alin-Eugen Iancu has pursued the application since the applicant ’ s death on 14 February 2016)

D.S. Chertes

(a) The applicant brought a civil action for compensation for an alleged political conviction under the communist regime;

(b) The decision delivered by the first-instance court was not served on the applicant in person; the applicant could not appeal against it within the legal time-limit;

(c) Based on the alleged deficiency in the service procedure, the applicant appealed after the expiry of the time-limit and at the same time requested an extension of the time-limit for lodging an appeal (both dismissed on 11 June 2010); on the same grounds, she further appealed on points of law (dismissed on 8 April 2011).

(a) 32758/13

(b) 30/04/2013

Georgeta Stoian

1959Slobozia

---

(a) The applicant, a defendant in an action concerning the distribution of an estate, lost her share of the property in proceedings before the first-instance court;

(b) The first-instance judgment was served on the applicant by public notice; the applicant could not appeal against it within the legal time-limit;

(c) Based on the alleged deficiency in the service procedure, the applicant appealed (dismissed on 10 January 2013).

(a) 49385/13

(b) 25/07/2013

S.C. VASTRANS S.R.L.

FocÅŸani

V. Novac

(a) The applicant company sought the annulment of an administrative decision whereby its transport licence was withdrawn (partially granted, 3 April 2012); all parties appealed;

(b) Notification of the appeal proceedings was served on the applicant company by public notice; the applicant company was not represented in the appeal proceedings; its appeal was dismissed (15 March 2013);

(c) The applicant company sought the quashing of the final decision (dismissed on 19 February 2014).

(a) 57813/13

(b) 02/09/2013

Viorel Stroe

1984Baia Mare

---

(a) The applicant sought the annulment of his professional evaluation report; his action was dismissed by the first-instance court;

(b) The first-instance judgment was served on the applicant by public notice; the applicant did not appeal against it within the legal time-limit;

(c) Based on the alleged deficiency in the service procedure, the applicant appealed after the expiry of the time-limit and at the same time requested an extension of the time-limit for lodging an appeal (both dismissed on 19 June 2013).