THIRD SECTION

Application no. 26873/06 Aurel TRIF and Viorica TRIF against Romania lodged on 22 June 2006

STATEMENT OF FACTS

The applicants, Ms and Mr Viorica and Aurel Trif , are Romanian nationals who were born in 1924 and 1950 respectively and live in Cheţani .

A. The circumstances of the case

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

On 12 October 2003 a third party brought proceedings against the applicants seeking the division of movable and immovable property.

By a judgment of 2 March 2005 the Luduş District Court allowed the third party ’ s action. It decided that the total value of the movable and immovable property disputed by the parties was 791,288,000 lei (ROL) (approximately 22,000 Euros (EUR)). It awarded the third party the immovable property together with most of the movable assets and ordered the third party to pay the applicants a sum of ROL 192,006,000 (approximately EUR 5,000) in compensation. The operative part of the judgment expressly stated that it was subject to appeal within fifteen days from notification.

On an unspecified date the applicants app ealed against the judgment of 2 March 2003 befo re th e MureÅŸ County Court. On 9 June 2005 they submitted before the second instance court the reasons for their appeal and contested inter alia the value set by the first-instance court for some of the assets as well as the division decided by it.

At the h earing of 9 June 2005 the lawyer of the third party argued before the second instance court sitting in a bench of two judges that the disputed prope rty was not worth more than ROL 1,000,000,000 (approximately EUR 27,000). Consequently, according to Article 282 1 (1) of the Romanian Code of Civil Procedure the applicants ’ appeal had to be re-qualified by the court from appeal to appeal on points of law ( recurs ).

The applicants ’ legal representatives argued that the provisions of the Romanian Code of Civil Procedure cited by the third party did not apply in respect of proceedings concerning the division of property. Moreover, the first-instance court failed to deliver a preliminary interlocutory judgment in respect of the parties ’ dispute although the applicants had motioned it repeatedly to do so.

By a fi nal interlocutory judgment of 9 June 2005 the Mureş County Court re-qualified the applicants ’ appeal to appeal on points of law and referred the case to a bench of three judges competent to examine an appeal on points of law.

By a final judgment of 28 March 2008 the Mureş County Court , sitting in a bench of three judges, declared null the applicant ’ s appeal on points of law. It held that the applicants had not submitted their reasons for appeal on points of law within the allowed time-limit. Moreover, it dismissed the applicants ’ request to be reinstated to the time-limit for an appeal on points of law on the ground that the first-instance court had re-qualified their appeal in accordance to the requirements set out by the legislation in force. Consequently, their request for reinstatement to the time-limit for an appeal on points of law was unjustified.

On 22 June 2006 the applicants informed the Court that although they had repeatedly motioned the first-instance court to allow them to prove that the value of the disputed property was higher than EUR 27,000, their motions were dismissed.

B. Relevant domestic law and practice

Articles 282, 287 and 292 of the Romanian Code of Civil Procedure provide that the judgments of the first-instance courts are subject to appeal within fifteen days from the date of notification. The reasons for appeal must be submitted by the parties at the latest at the time of the first hearing before the court. The failure to submit the reasons for appeal within the allowed time-limit does not lead to the annulment of the appeal, but to the inability to raise additional issues of fact and law that had not been raised before the first-instance court.

Articles 282 1 (introduced by Law no. 195/2004 which entered into force on 29 May 2004) , 299, 301 and 302 1 of the Romanian Code of Civil Procedure provide that the judgments delivered in respect of disputes where the object of the dis pute is valued at less than ROL 1 billion (approximately EUR 27,000) are not subject to appeal. The judgments that are not subject to appeal are subject to appeal on points of law ( recurs ). The appeal on points of law can be lodged within fifteen days from the date the judgment was notified to the parties. The reasons for the appeal on points of law must be submitted within the same fifteen days delay or the appeal on points of law will be declared null.

COMPLAINTS

1. The ap plicants complain under Article 6 § 1 of the Convention of the unfairness of the proceedings in so far as their right of access to court was restricted because the appellate court failed to examine their case after it had re-qualified and annulled their appeal.

2. The ap plicants complain under Article 1 of Protocol No. 1 to the Convention of an alleged breach of their right of property in so far as they were deprived of the immovable property which was awarded to the third party by the first-instance court.

QUESTIONS

1. Did the appellate court, in determining their civil rights and obligations, disproportionately restrict the applicants ’ right of access to court in breach of Ar ticle 6 § 1 of the Convention by annulling the applicants ’ appeal without examining the merits of their case after it had re-qualified it to appeal on points of law ( recurs )?

2. The Government are invited to provide a complete copy of the file concerning the set of proceedings the applicants were involved in.

3. Did the annulment by the domestic courts of the applicants ’ appeal without touching on the merits of the case after they had re-qualified their appeal to appeal on points of law ( recurs ) constitute a disproportionate interference with their property rights , within the meaning of Article 1 of Protocol No. 1 to the Convention?