THIRD SECTION

Application no . 1051/07 Damian GU Ţ AN against Romania lodged on 15 December 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Damian Guţ an, is a Romanian national who was born in 1926 and lives in Ocniţ a .

A. The circumstances of the case

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

On 17 February 2005 the applicant lodged an action against P.E., seeking to obtain the return of the money the latter had borrowed from him.

P.E. claimed that she had paid back her loan. In this regard she proposed as evidence the transcription of a recorded conversation between her husband and the applicant, in which the latter allegedly had acknowledged that the loan had been paid back. The first ‑ instance court allowed it as evidence.

On 21 October 2005 the Moreni District Court dismissed the applicant ’ s claim, holding that P.E. had paid back her debt. It based its judgment on the witnesses ’ testimonies proposed by P.E. and the recorded conversation.

The applicant lodged an appeal on points of law, claiming that P.E. had not proved that the loan had been paid back. He added that the recorded conversation should not have been allowed as evidence as it had been unlawful.

By a decision deliver ed on 4 April 2 006 the DâmboviÅ£a County Court allowed the appeal on points of law and quashed the judgment of the first ‑ instance court, keeping the file for a fresh consideration on the merits. It allowed the applicant ’ s action, holding that the Moreni District Court had mainly based its judgment on an unlawful recording of a private conversation without taking into account the evidence adduced by the applicant.

On 22 June 2006 the DâmboviÅ£ a County Court allowed t he extraordinary appeal (“ contesta Å£ie î n anulare ” ) lodged by P.E., se t aside the decision of 4 April 2006 and maintained the judgment of the first ‑ instance court. It based its decision on Article 318 of the Romanian Code of Civil Procedure, which provides that the decisions delivered by an appellate court may be appealed against when their reasoning is based on a material error.

It held that the DâmboviÅ£a County Court had allowed the appeal on points of law on a ground, namely the wrong assessment of evidence by the first ‑ instance court, which did not fall within the exhaust ive grounds provided by Article 304 of the Code of Civil Procedure for allowing an appeal on points of law.

B. Relevant domestic law

Article 304 ‑ 1 of the Code of Civil Procedure provides that the court of last resort may analyse the case without being limited to the reasons provided by Article 304 if an appeal on points of law is lodged against the decision delivered by the first-instance court.

Under Article 318 of the Code of Civil Procedure , an extraordinary appeal may be lodged against final decisions in which the reasoning was based on a factual mistake.

COMPLAINTS

1 . The applicant complains under Article 6 § 1 of the Convention that the decision delivered by the Dâmboviţa County Court in the extraordinary appeal proceedings was unlawful and arbitrary. He contends that by wrongly interpreting the provision s of the Romanian Code of Civil Procedure, the court of last resort set aside a final decision which had allowed the action he had lodged.

2 . Relying on Article 1 of Protocol No. 1 to the Convention, he further complains that the outcome of the extraordinary appeal proceedings infringed his right to the peaceful enjoyment of his possessions, consisting in a pecuniary claim allowed by a final decision.

QUESTIONS TO THE PARTIES

1. Did the decision of 22 June 2006 of the Dâmboviţa County Court to quash the final judgment of 4 April 2006 affect the fairness of the proceedings as guaranteed by Article 6 § 1 of the Convention?

2. Did the quas hing of the final judgment of 4 Apri l 2006 constitute an interference with the applicant ’ s right to the peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? If so, was the interference proportionate in its impact on the applicant ’ s right under Article 1 of Protocol No. 1?