Lexploria

Information Note on the Court’s case-law 238

March 2020

Munteanu v. Romania (dec.) - 54640/13

Decision 11.2.2020 [Section IV]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Dismissal on procedural grounds of request to reopen civil proceedings following European Court’s judgment finding violation of the Convention: inadmissible

Article 46

Article 46-2

Execution of judgment

Dismissal on procedural grounds of request to reopen civil proceedings following European Court’s judgment finding violation of the Convention: inadmissible

Facts

a) Applicant’s previous case – The applicant challenged the termination of his employment. In July 2001 this decision was annulled by the appellate court, who ordered that he be reinstated in his position. This ruling was upheld by the High Court of Cassation and Justice in March 2003 ( “the outstanding judgment”). Although final, this judgement was quashed in October 2004, upon an extraordinary appeal lodged by the Prosecutor General.

In March 2012 the European Court of Human Rights ( S.C. Aectra Agrochemicals S.A. and Munteanu v. Romani a [Committee], 18780/04 and 13111/05 – “the principal judgment”) found that:

(i) the above-mentioned quashing constituted a violation of Article 6 of the Convention (as being in breach of the legal certainty principle) and Article 1 of Protocol No. 1 to th e Convention;

(ii) given these findings, it was not necessary to examine whether there was also an issue under Article 6 on account of the non-enforcement of the outstanding judgment.

The European Court awarded the applicant compensation in respect of non-pecuniary damage, as well as of the pecuniary damage corresponding to the salary claims to which he would have been entitled, had the annulment by way of the extraordinary appeal not intervened.

In December 2012, the Committee of Ministers of the Co uncil of Europe closed its examination of the execution of the Court’s afore-mentioned judgment, noting that the legislative provisions concerning extraordinary appeal had been repealed and that domestic law allowed the applicants to lodge an extraordinary appeal following a European Court’s judgment finding a violation of the Convention, in order to obtain restitutio in integrum .

b) Applicant’s present case – Following the European Court’s findings, the applicant lodged a request with the High Court for th e reopening of the proceedings in order to have the quashing judgment set aside. He argued that he was still prevented from exercising his duties and enjoying his career as ordered in the outstanding judgment. In February 2013 this request was dismissed as inadmissible since not all the statutory conditions for reopening were fulfilled. In particular, the High Court held that:

(i) the fact that the European Court itself had decided that it was not necessary to examine the non-enforcement head of the claim lodged by the applicant proved that there were no severe consequences of the violation found by the Court which persisted and could not otherwise be remedied;

(ii) the outstanding judgment of 2003 had ordered the reinstatement of the applicant, without ho wever granting him any amount for loss of salary; it followed that the awards made by the European Court already constituted fair and sufficient redress for the harm caused by the violations found.

Law – Article 46: In so far as they concerned the failure to remedy the original violation found of Article 6 of the Convention, the applicant’s pleadings in the present case might be understood as complaining of an alleged lack of proper execution of the Court’s principal judgment. This fell, however, outside th e competence of the Court, rather being subject to the supervision of execution by the Committee of Ministers under Article 46 of the Convention.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 6 § 1 (access to court): In so far as the de nial of access to reopening could be read as a new grievance, referring not so much to the February 2013 judgement outcome as to the conduct and fairness of the underlying proceedings before the High Court – chronologically subsequent to and distinct from the domestic proceedings impugned in the European Court’s 2012 judgment – the Court reiterated that Article 6 § 1 of the Convention was, in principle, not applicable ratione materiae to proceedings concerning an application to reopen civil proceedings foll owing the finding of a violation by the Court. Admittedly, there had been exceptions to this rule (see references hereafter). Those exceptions essentially referred to the situation where an extraordinary remedy led automatically or in the specific circumst ances to a full reconsideration of the case or, in certain instances, where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings. However, no such exception had been revealed by the circumstances of the present case, as shown below.

The Romanian law provided at the material time for the right to request the reopening of a final court judgment following the Court’s finding of a violation of a Convention right. While the proceedings in such a case had been to follow the rules for the examination of any court action, their subject matter had been expressly limited to the admissibility of the request to reopen the proceedings. This had been furthe r reflected in the extent of the powers of the court examining the request for review under the relevant provision of the Code of civil procedure, which had been limited to either dismissing such a request as inadmissible or accepting it and amending the i mpugned judgment.

It follows that, unlike in Bochan (no. 2) , Romanian law did not treat review proceedings as a prolongation of the original (terminated) civil proceedings, but expressly limited their scope to verifying the grounds for reopening a case an d to adopting a separate decision accepting or rejecting a request for reopening. In particular, the High Court had considered that the applicant’s request for the review of the domestic decision did not meet all the admissibility criteria required by law and had dismissed it as inadmissible on procedural grounds, without carrying out a fresh consideration of the case.

From that respect, the present case had to be distinguished from the case of Moreira Ferreira (no. 2) , not only on account of the nature of the proceedings at stake – namely civil in the present case and respectively criminal in the latter, nature which impacted on the safeguards provided to the applicants on that account – but also because the Portuguese Supreme Court had assessed a substanti ve rather than a procedural issue – namely, the very validity of the applicant’s conviction in the light of the finding of a violation of the right to a fair trial –, assessment which the Court had found, on account of its nature, to constitute a “new issu e”.

Therefore the High Court’s refusal to reopen the applicant’s civil case on account of admissibility criteria of a procedural nature had not been connected with relevant new grounds capable of giving rise to a fresh violation of Article 6 § 1 of the Con vention. In view of the foregoing considerations, the High Court’s refusal in the present case could not be regarded as constituting a relevant new fact.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 13: In view of the above conclusion under Article 6, the applicant had no arguable claim.

Conclusion : inadmissible (incompatible ratione materiae ).

(See also Moreira Ferreira v. Portugal (no. 2) [GC], 19867/12, 11 July 2017, Informat ion Note 209 ; Bochan v. Ukraine (no. 2) [GC], 22251/08, 5 February 2015, Information Note 182 ; Egmez v. Cyprus (dec.), 12214/07, 18 September2012, Information Note 155 ; Steck-Risch and Others v. Liechtenstein (dec.), 29061/08, 11 May 2010, Information Note 130 ; contrast Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], 3 2772/02, 4 October 2007, Information Note 101 )

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