Resolution CM/ ResDH ( 2013)232 Androne against Romania

Execution of the judgment of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

54062/00

ANDRONE

22/12/2004

06/06/2005

(Adopted by the Committee of Ministers on 20 November 2013

at the 1185th (Budget) meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)819 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

Androne v. Romania

(Application No. 54062/00, judgment of 22 December 2004, final on 06 June 2005)

This case conc erns the violation of Article 6§1 of the Convention, inso far as the principle of legal certainty is concerned.

The applicants had obtained in 1997 a final judgment regarding their property rights over a building in Bucharest. Although the Local Council, the defendant in the case, had not appealed the court ’ s judgment, the Attorney General asked in 2000 for a revision of the said decision. The revision proceedings were justified by the fact that the State had not been represented at the earlier proceedings and they resulted, in 2002, in the annulment of the 1997 decision (violation of Article 6§1).

The case also concerns a violation of the applicants ’ right to enjoyment of their possessions due to the late reopening of these proceedings (violation of Article 1 of Protocol No. 1).

The European Court has awarded the applicants with €6,000 for non-pecuniary damages and € 6,054 for costs and expenses. The said sums have been paid in conditions which were not contested by the applicants.

The European Court has indicated that the return of the property at issue, as ordered by the court decision of 1997, would put the applicants as far as possible in the situation equivalent to that in which they would have been if there had been no breach of Article 1 of Protocol No. 1. Failing such restitution, the defendant State was to pay the applicants a sum of money corresponding to the value of the building, within three months from the date at which the judgment became final.

The applicants requested the reopening of the proceedings in conformity wit h Article 322§9 of the Code of Civil P roceedings, in order to obtain restitutio in integrum . Their request has been granted by the Brasov Tribunal in a final decision of 31 May 2007.

In addition, the Mayor of Bucharest ordered the restitution of the building to the applicants on 2 September 2005. On 25 April 2006, the applicants obtained the possession of the property whereas a restoration report was drafted. On 7 June 2006, the Bucharest Court of Appeal ordered the eviction of the tenants from the building.

The g overnment therefore submit s that no further individual measures are required.

The Court found a violation of Article 6§ 1 of the Convention, after noting that the request for the review of the proceedings, submitted by the prosecutor, was out of time. Two problems arise from the said findings, namely the prosecutor ’ s power to act on behalf of the State and in cases where judicial decisions were already final and enforced ( A ) and the disregarding of the legal time-limit for the review request formed by the prosecutor ( B ).

In order to bring the domestic practice in line with the requirements set forth by the Convention and the Court ’ s decision, the authorities acted in two directions and undertook both legislative measures and dissemination . While the first issue addressed (the prosecutor ’ s power to act on behalf of the State) seemed more suitably resolved by means of amending the law, the second issue (respect of the legal time-limit) was sooner a problem of applying the law, and therefore dissemination of the Court ’ s assessments was welcome.

A) Regarding the relevant provisions of the law and the limitation to the prosecutor ’ s power to act on behalf of the State, the g overnment submit s that, as of 15 February 2013, a new Civil Procedure Code is in force.

             The Civil Procedure Code now in force contains relevant provisions regarding the prosecutor ’ s judicial powers in Article 92. According to these provisions, the prosecutor may no longer open or reopen a judicial procedure that it was not part of, except for the case of minors, of persons placed under interdiction (i.e. those lacking legal capacity) and of missing persons.

The prosecutor can therefore no longer act on behalf of the State or of public authorities, seeking to reopen final cases.

             In the matter of revision proceedings, A rticle 509 allows for final cases to be reopened if the State or other public authorities have not been defended or their defence was defective due to malice on behalf of their representative (§ 1 subdivision 7). The time-limit for the revision request is one month, beginning from the moment the authorities gained knowledge of the said lack of defence or of their representative ’ s malice, and in any case the reopening of the procedure cannot be requested after one year from the remainder final of the relevant decision.

             The government noted that the general one-year time-limit is a new provision, ensuring that the principle of legal certainty cannot be overlooked by means of interpretation of the special one-month time-limit.

             The recent practice of the national courts also confirms that the condition regarding the time-limit is applied in a strict manner, in several cases such requests made by the authorities having been rejected as belated . [1]

             In addition to the data above, the government further note s that in March 2000, at the time of the facts in the case of Androne v. Romania , i.e. at the time the Attorney General asked for the revision, A rticle 45 of the former Civil Procedure Code allowed the Prosecutor ’ s Office to participate and initiate any type of judicial procedure and at any stage, except for strictly personal ones. The said provision contributed to the violation found b y the Court regarding Article 6§ 1 of the Convention, since it empowered the Prosecutor ’ s Office to act on behalf of the State whenever it deemed it necessary, even though the prosecutor had not been part in the procedure before the request for revision. Thus, the prosecutor could easily ascertain that the said request was made within the time-limit.

The government therefore finally submit s that, under the current provisions of the national law, the reopening of final cases by the Prosecutor ’ s Office is impossible, either before or after the one-year general time-limit [2] provided by law. Therefore, the requirements regarding the principle of legal certainty are now duly complied with.

B) As to the dissemination of the Court ’ s judgment , it was translated and published in the Official Monitor (1st part) No. 875 of 29 September 2005 and was also transmitted to the Superior Council for the Magistracy and the National Institute for Magistrates for further dissemination among magistrates. The said decision is also part of the mandatory curriculum for all examinations regarding the professional career of magistrates (admission with the NIM, final capacity and promotion). The said judgment was also widely published, either in collections of ECHR case-law regarding Romania and on public internet sites, such as www.csm1909.ro (site of the Superior Council for the Magistracy), www.scj.ro (site of the High Court of Cassation and Justice) and both in full and a summary thereof on www.hotararicedo.ro/index.php/article_access/view_article/174 .

Another problem raised by the case was whether the grounds that the State had not been represented at the earlier proceedings can be considered a “ fundamental defect ”, to such extent as to justify the infringement of the principle of legal certainty.

The government made an assessment of the national practice regarding the revision of final decisions for the reason invoked in the Androne case, namely the former A rticle 322 § 1 subdivision 6 of the former Civil Procedure Code, and found that the reopening of final cases on that ground remains exceptional. O ut o f a total of 15 Courts of Appeal in the country, only 4 submitted relevant practice on the subject, while the other 11 stated that no relevant practice exists on the matter for the past years. The High Court for Cassation and Justice also submitted its relevant practice on the matter.

Of the 37 decisions provided by the courts, in 35 cases the request for review was rejected – in 9 cases the time-limit was exceeded and in the other 26 cases the request was unfounded. In one recent case tried by the High Court , specific reference was made to the Court ’ s findings in the case of Androne v. Romania.

Only 2 decisions were in favour of the review, neither having been requested after the legal time-limit . [3] Special note must be made of the fact that in none of the 37 decisions was the review requested by the Prosecutor ’ s Office.

The government found no other case law example granting the review of the case in disregard of the legal time-limit .

As to the “fundamental defect” condition drawn from previous decisions of the Court, such as Lenskaya v. Russia (judgment of 29 January 2009), the government submits that the judicial practice has a uniform interpretation of Article 322 § 1 subdivision 6 of the former Civil Procedure Code to this effect.

The courts interpreted the said provisions of the law as exceptional – due to the exceptional character of the remedy itself – and therefore constantly deemed the conditions for review as restrictive. This means that the notions of “lack of defence”, “defective defence” and “malice” do not enjoy a wide range of interpretations.

For instance, within decision No. 195 of 25 January 2008 [4] of the Commercial Section, the High Court was invited to decide on a similar matter, upon a review request lodged by a State -owned company; the Court stated that the company was notified regarding the date of the hearing and of the amount of tax duty imposed by the court; therefore, after noting that the party never requested a postponement of the hearing or an exemption of tax duty, the decision of annulling the request was deemed lawful. In decision No. 4200 of 2 November 2007, the High Court of Cassation and Justice, through its Section for administrative and fiscal contentious has established that “ the request for review is admissible if the party was entirely and completely denied their defence and is therefore inadmissible if such defence was done in writing, even if it was incomplete or erroneous ”.

The Court of Appeal PloieÅŸti also rejected a request for review , [5] holding that the fact that the party had not received a copy of the request for appeal should have been invoked at the earliest stage of the procedure; the said grounds did not suffice in order to obtain a review of the appeal decision.

On the other hand, the High Court for Cassation and Justice allowed two requests for review on the ground that the state was not duly defended . [6] In both cases, although the State was defendant, the courts did not observe that the writ of summons was never served, while representatives thereof never attended the public hearings; therefore the High Court found that the authorities were entirely deprived of their defence.

As a side note, the government also refers to the current provisions of the Civil Procedure Code in A rticle 509, read together with A rticle 12. Article 12 allows the party who incurred d amages, either pecuniary or non ‑ pecuniary, due to the abusive procedural conduct of their opponent, to seek redress in a separate procedure. Moreover, according to A rticle 187 § 1 subdivision 1 letter a) and A rticle 189, the person affected by the reopening of the case in an abusive manner may request, within the procedure for revision already opened, either the fining of the person responsible, or reparation of all damages, or both. The representative of the authority who requested the revision of the case in bad faith or abusing procedural rights risks being ordered to pay a separate fine, while the authority itself stands the risk of both paying a fine and the damages awarded by the court.

The g overnment therefore conclude s that no further general measures in connection to the Court ’ s findings are required.

In light of the above, the g overnment state s that no further measures are necessary in this case and that the Court ’ s judgment has been duly executed. Consequently, they request that the supervision be closed.

[1] Decision N o. 936 of 29 November 2007 of the Court of Appeal Bacau, the Commercial section; decisions No. 1545 of 13 February 2009 and 8268 of 14 October 2009 of the High Court for Cassation and Justice – the Civil Section; judgments N o. 461 of 7 February 2011, N o. 781 of 21 February 2011, N o. 782 of 21 February 2011 and N o. 1609 of 24 March 2011 of the First Instance Court Buftea ; judgment no. 1410 of 18 April 2012 of First Instance Court C ălăraşi ; decision N o. 4965 of 28 June 2012 of the High Court for Cassation and Justice – the Civil Section.

[2] One year form the remainder final of the relevant decision, i.e. the decision referred to in the request for review.

[3] See infra, footnote 4.

[4] The decisions can be found on the High Court’s internet site, at http://www.scj.ro/cautare_decizii.asp .

[5] Decision No. 522 of 28 January 2013 of the Court of Appeal Ploiesti.

[6] Decision N o. 400 of 27 Janu ary 2009 and N o. 2928 of 2nd May 2012, both available on the High Court’s site.