THIRD SECTION

Application no. 36747/08 Mircea PARASCHIV and Smaranda PARASCHIV against Romania lodged on 28 July 2008

STATEMENT OF FACTS

The applicants, husband and wife, Mr Mircea Paraschiv (the first applicant) and Ms Smaranda Paraschiv (the second applicant), are Romanian nationals, who were born respectively in 1954 and 1958 and live in Bucharest. They are represented before the Court by Mr N . Neamtu , a lawyer practising in Bucharest.

A. The circumstances of the case

The facts of the case, as submitted by the applicant s , may be summarised as follows.

On 19 September 2004 the first applicant signed an agreement with company I., in which the company promised to sell him a plot of land. At that date, the applicant paid 3,000 euros (EUR) towards the total purchase price which was set at EUR 8,711 plus VAT.

On 25 October 2004 the first applicant signed a pre-contract ( antecontract de vânzare-compărare ) with company I. stipulating the company ’ s obligation to sell the land and the first applicant ’ s obligation to pay its full price. It was mentioned in that contract that the applicant paid the remaining of the purchase price on the day of signature.

On 22 November 2005 the applicants filed an action against company I . , asking the Buftea District Court to find that they had become owners of the plot of land. The applicants argued that although they had paid the whole purchase price, the company had refused unjustifiably to sign the purchase contract.

The applicants were represented by counsel throughout the proceedings.

On 17 March 2006 the Buftea Court dismissed their action, as it considered that the applicants had failed to prove that they had paid the full purchase price. The court indicated that the judgment could be challenged by means of an appeal ( apel ).

On 23 March 2006, through the intermediary of their lawyer, the applicants appealed before the Bucharest County Court. On 31 October 2006 the County Court examined the merits of the case and upheld the judgment rendered by the District Court.

Ruling on an appeal on points of law lodged by both parties to the proceedings, the Bucharest Court of Appeal found on 9 October 2007 that, according to the rules on civil procedure, the judgment rendered by the District Court could only be challenged by means of an appeal on points of law ( recurs ). As the appeal on points of law had to be tried by a formation of three judges (and not by a two-judge formation as for the appeal), it declared the County Court ’ s decision null and void and sent the case back to that court in order to allow it to examine the appeal in the correct judicial formation.

The Bucharest County Court sitting as a three-judge bench took the case for examination. It asked the parties ’ position concerning the nullity of the remedy introduced by the applicants, on the ground that the reasons for appeal had not been filed within the time-limits. In its final decision of 11 February 2008 the Bucharest County Court declared the appeal on points of law inadmissible. It considered that the applicants had failed to respect the procedural requirements for lodging it.

B. Relevant domestic law

According to Article 282 1 of the Code of Civil Procedure (“the CCP”) the nature of the remedies available to the parties depends on the pecuniary value of the object of the litigation. In its version applicable since 17 July 2005, this Article provided that the litigations having a pecuniary value of one billion Romanian lei (ROL) or less (approximately EUR 30,500) were not susceptible of being challenged by means of an appeal ( apel ). The only remedy available to the unsatisfied party was that of an appeal on points of law.

According to the provisions of the CCP, as applicable at the time of the facts of the present case, the time-limits for lodging an appeal or an appeal on point of law were fifteen days from the date of communication of the contested decision (Article 284 § 1 for the appeal and Article 301 for the appeal on points of law). The reasons for the appeal needed to be presented to the court at the latest at the first hearing (Article 287) whereas the reasons for lodging an appeal on points of law had to be presented within the fifteen ‑ day time-limit for filing this remedy (Article 303).

Under Article 103 of the CCP, the interested party may be reinstated within the time-limits for lodging an appeal or for any other procedural act (as, for example, filing the reasons for appeal) if that party can prove having been prevented “beyond her will” ( mai presus de voinţa ei ) from complying with those requirements.

COMPLAINT

Relying on Article 6 § 1 of the Convention, the applicants complained that they had not had access to a court. They also considered that the proceedings as a whole had not been fair, in so far as the courts had refused to examine all the appeals which were available in the domestic law.

QUESTION TO THE PARTIES

Did the applicants have access to court in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as their appeal which was initially accepted as such by the court, was subsequently re-qualified by the court of last resort and eve ntually declared null and void?