ÎCCJ, decizie (scj.ro #86606)
ÎCCJ, decizie (scj.ro #86606) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE
DES
DROITS DE L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
THIRD SECTION
CASE OF
VISAN v.
ROMANIA
(Application no.
15741/03)
JUDGMENT
STRASBOURG
24 April
2008
FINAL
24/07/2008
This judgment may be
subject to editorial revision.
In the case of Visan v.
Romania
,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power,
judges,
and
Santiago
Quesada
,
Section Registrar
,
Having deliberated in private on
27 March
2008
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
15741/03) against
Romania
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mrs Constanta Visan (“the applicant”), on
8 April 2003
.
The applicant was represented by Mr M.L. Draghici,
her son. The Romanian Government (“the Government”) were represented by their
Agent, Mr. R.-H. Radu, of the Ministry of Foreign Affairs.
On
18 May 2005
the Court decided to
communicate the complaint concerning the alleged lack of access to a court to
the Government. Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1949 and lives in
Bucharest
.
A. Criminal proceedings against the applicant
In a final decision of
28 June
1993
, the Bucharest County Court convicted the applicant of fraud,
sentenced her to six years’ imprisonment and awarded damages to the victim. The
court did not address the argument that the offence had been pardoned by Decree
no. 11/1988.
On
5 August 1993
the applicant was
placed in detention, where she remained until
22 July
1994
.
In a final decision of
3 October
1995
, the Supreme Court of Justice acting on an application of the
Procurator General (
recurs în anulare)
, quashed the final decision of
28 June 1993
and ended
the criminal trial against the applicant on the ground that the offences
committed had been pardoned. It upheld the remainder of the decision.
B. Proceedings for compensation for wrongful
conviction
On
6 March 1998
the applicant lodged
an action with the Bucharest County Court, under Articles 998-999 of the Civil
Code, seeking compensation from the State for the damage caused by the “severe
miscarriage of justice which had led to her illegal detention for almost one
year”. She claimed 200,000,000 Romanian lei (ROL).
The case was tried by ten courts, corresponding to
three levels of jurisdiction. The courts examined the case either under Article
504 of the Code of Criminal Proceedings (“CCP”) or under the Civil Code. In her
pleas the applicant invoked the Civil Code supplemented by the CCP provisions
above.
In a final decision of
28 January 2003
the
Supreme Court of Justice rejected the applicant’s action. It considered that
the facts of the case allowed for the application of Article 504 of the CCP as
interpreted by the
Constitutional Court
’s decision no. 45 of
10 March 1998
(see
paragraph 18 below). However, it considered, for the first time, that the
applicant should have brought her claims within one year from the date on which
her conviction had been quashed (Article 505 of the CCP). As she failed to do
so, her action was time-barred.
On
17 February 2003
the Supreme Court of
Justice delivered an attestation informing the applicant that her action had
been rejected as time‑barred.
On
7 November 2003
the applicant obtained
a copy of the final decision of
28 January 2003
, after several
unsuccessful attempts and complaints lodged with the Ministry of Justice and
the Supreme Court of Justice concerning the unreasonable delay in the drafting
of the court decision.
II. RELEVANT DOMESTIC LAW
A. Provisions on the pardon
Decree no. 11/1988 on the pardon of certain
criminal offences and the reduction of various sentences reads as follows, in
so far as relevant:
Article
1
“Criminal
offences for which a sentence of up to ten years’ imprisonment has been imposed
shall be pardoned.”
The relevant provision on the pardon in the
Criminal Code reads as follows:
Article
119
“(1) The
pardon extinguishes the criminal responsibility for the act committed...
(2) The
pardon does not affect ... the rights of the victim.”
B. Provisions concerning the action for damages
The relevant Articles of the Civil Code state as
follows:
Article
998
“Any
act committed by a person which causes damage to another shall render the
person through whose fault the damage was caused liable to make reparation for
it.”
Article
999
“Everyone
shall be liable for damage he has caused not only through his own act but also
through his failure to act or his negligence.”
According to the provisions of Article 3 of
Decree no. 167/1958 the general time-limit for lodging an action for
compensation is three years from the date when the damage occurred.
The relevant Articles of the CCP prescribe:
Article
504
“Anyone
who has been convicted by means of a final decision is entitled to compensation
from the State for any loss or damage sustained where after a retrial it is
held in a judgment against which no appeal lies that he did not commit the
offence in question or that no offence was committed.
Anyone
against whom a preventative measure has been taken, and in whose favour a
decision to discontinue proceedings or of acquittal has been given for the
reasons listed in the preceding paragraph, also enjoys a right to compensation
for damage sustained...”
Article
505
“...
The claim [for compensation] must be lodged within one year from the date of
the final acquittal or from the order discontinuing the proceedings.”
In a decision of
10 March
1998
, published on
18 May 1998
in the Official
Journal, the
Constitutional Court
, to which an objection had been
submitted alleging that the first paragraph of Article 504 of
the CCP was unconstitutional, ruled as follows:
“Under
Article 48 of the Constitution, the State is liable for damage caused by
miscarriages of justice committed in criminal proceedings. It follows that the
principle of the State’s liability towards victims of a miscarriage of justice
in a criminal trial must be applied to all victims of such a miscarriage. ...
The Court notes that the legislature has not brought the provisions of Article 504 of the Code of Criminal Procedure into conformity with those
of Article 48 § 3 of the Constitution. ... Consequently, bearing in mind that
Article 504 of the Code of Criminal Procedure provides for
only two cases in which the State’s responsibility for miscarriages of justice
committed in criminal proceedings may be engaged, it follows that this
restriction is unconstitutional, since Article 48 § 3 of the Constitution does
not allow for any such limitation.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that she had not had access to a court
in so far as her
claims for compensation had been rejected as time‑barred by virtue of a
law which had not been applicable at the date on which she had lodged her
action.
Article 6 § 1 reads as follows:
“In
the determination of his civil rights and obligations ..., everyone is entitled
to a fair ... hearing ... by [a] ... tribunal...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill‑founded within the
meaning of Article 35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
The parties’ submissions
The Government contended that determination of
the legal basis of an action by the court and the time-limits for lodging an
action are among the permitted limitations of the right to a court (see
Pérez de
Rada Cavanilles v. Spain
, judgment of 28 October 1998,
Reports of
Judgments and Decisions
1998‑VIII, p. 3255, §§ 43-45).
The Government also contended that, due to the
active role of the local judges and the margin of appreciation of the State in
the matter, the domestic courts had the power to determine the applicable law
based on the facts of the case and irrespective of the determination made by
the plaintiff. They pointed out that the applicant herself had referred to both
the Civil Code and the CCP articles in her pleas before the courts.
Furthermore, the Government considered that the
time-limit imposed by Article 504 had not been too short (see,
a contrario
,
Pérez de Rada Cavanilles
, cited above, § 47) and had already been met
when the applicant lodged her action, its application not being thus imputable
to the length of the proceedings themselves (see,
a contrario
,
Yagtzilar
and Others v. Greece
, no. 41727/98, § 27, ECHR 2001‑XII).
Lastly, the Government contended that the
procedure instituted by Articles 504 and 505 of the CCP had constituted an
effective remedy for the applicant’s grievances.
The applicant contested the arguments put forward
by the Government and reiterated that Article 504 had not been applicable to
her situation at the date when she had lodged her action.
The Court’s assessment
The Court refers to the principles established in
its case-law regarding the “right to a court”, of which the right of access is
one aspect, in particular that this right is subject to limitations which
should not restrict or reduce a person’s access in such a way or to such an
extent that the very essence of the right is impaired (see, for instance,
Prince
Hans-Adam II of Liechtenstein v. Germany
[GC],
no. 42527/98, §§ 43-50, ECHR 2001‑VIII;
Yagtzilar
, cited
above, § 22;
Brualla Gómez de la Torre v. Spain
, judgment of 19
December 1997,
Reports
1997-VIII, p. 2955, § 31-33;
Edificaciones
March Gallego S.A. v. Spain
, judgment of 19 February 1998,
Reports
1998‑I,
p. 290, § 33-34;
Pérez de Rada Cavanilles
, cited above,
§§ 43-45; and
Lungoci v. Romania
, no. 62710/00, §§ 34-36,
26 January 2006).
The Court notes that the applicant lodged her action
for compensation on
6 March 1998
. At that date, Article 504 of the CCP,
lex specialis
in the matter of compensation for wrongful conviction, did
not cover the applicant’s situation. It follows that at that date the Civil
Code was the only effective remedy at the applicant’s disposal. It was only on
18 May 1998
that the
Constitutional
Court
’s decision widening the applicability of Article 504 became
public.
It is true that the applicant could have
challenged the constitutionality of the CCP provisions herself. She could have
thus lodged her action for compensation under Article 504 within one year of
the date of the final decision in her case, that is, before October 1996, and
filed an objection of non-constitutionality of those provisions with the
courts. However, the Court considers that so long as the applicant had at her
disposal a remedy with more prospects of success, namely the action under the
general tort law, it would be excessive to expect her to make use of a remedy
with a less predictable outcome.
The Court, like the Government, does not deny the
domestic courts’ power to determine the legal basis of an action. However, it
notes that in doing so in the present case, the courts examined the action
under provisions which were not applicable at the date the action was lodged,
and which followed different procedural rules than the general tort law, in
particular different time-limits for lodging the action. The applicant was
therefore expected to foresee the eventual change in the legislation and to
comply with it before this change actually took place.
For this reason, the Court considers that the
degree of access afforded by the national legislation was not sufficient to
secure the applicant’s right to a court (see
Yagtzilar
,
cited above, § 26).
Furthermore, the Court cannot but notice that
none of the courts that dealt with the applicant’s case under Article 504,
except for the Supreme Court of Justice in the last resort, considered the
action to be time‑barred. It reiterates that the fact that the applicant
was told that her action was statute‑barred at such a late stage of the
proceedings deprived her once and for all of any possibility of asserting her
right to compensation (see
Yagtzilar
,
cited above, § 27).
The above conclusion makes it unnecessary for the
Court to examine the Government’s assertions on the quality of the new remedy
(see paragraph 24 above).
The foregoing considerations are sufficient to
enable the Court to conclude that in examining the applicant’s action under a
legal provision that was not known to be applicable at the date of the lodging
of that action, the domestic courts infringed the applicant’s right to a court.
There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that the courts that had dealt with her case had not been
impartial and that she had not had a fair trial. She also considered that her
claims for compensation had not been decided within a reasonable time by the
courts and that the final decision had not been pronounced publicly, as it had
taken more than eight months for her to get a copy of that decision.
Under Article 34 the applicant complained that
the refusal of the authorities to deliver her a copy of the final decision of
28 January 2003
prevented
her from completing her application to the Court for several months.
Lastly, the applicant considered that the courts
had violated her right to receive compensation for miscarriage of justice,
guaranteed by Article 3 of Protocol No. 7 to the Convention.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been
a violation of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured
party.”
A. Damage
The applicant claimed 1,000,000 euros (EUR) in
respect of non‑pecuniary damage caused by the alleged violation of
Article 3 of Protocol No. 7 and EUR 1,050,000 in respect of non-pecuniary
damage caused by the alleged violations of Article 6.
The Government considered that there was no
causal link between the alleged violations and the amounts sought and that the
applicant’s claims were excessive. In their view, a finding of a violation of
the Convention, in itself, constitutes sufficient just satisfaction for the
purposes of Article 41.
The Court reiterates that it has found a
violation of the applicant’s right of access to a court due to the application
of the time-limits, and it can only award reparation in connection with these
facts. It therefore awards the applicant EUR 5,000 in respect of non-pecuniary
damage.
The Court also reiterates that when a violation
of Article 6 § 1 of the Convention is found, the applicant should as far as
possible be put in the position he or she would have been in had the
requirements of Article 6 not been disregarded, in particular, the reopening of
the proceedings should be made possible (see
Piersack v. Belgium
(Article
50), judgment of 26 October 1984, Series A no. 85, p. 16,
;
Gençel v. Turkey
,
no. 53431/99,
, 23 October 2003;
Tahir Duran v. Turkey
, no.
40997/98, § 23, 29 January 2004;
Somogy v. Italy
,
no. 67972/01, § 86,
18 May 2004;
Metaxas v. Greece
,
no. 8415/02, § 35, 27 May 2004;
Caloglu v. Turquie
,
no. 55812/00, § 30, 29 July 2004;
Ilașcu and Others
v. Moldova and Russia
[GC], no. 48787/99, § 487, ECHR 2004‑VII;
and
Lungoci
, cited above, §§ 55-56
).
B. Costs and expenses
The applicant did not make any claims for costs
and expenses. Therefore, no award is made under this head.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Declares
the complaint concerning the right
of access to a court under Article 6 § 1 of the Convention admissible and the
remainder of the application inadmissible;
2.
Holds
that there has been a violation of
Article 6 § 1 of the Convention;
3.
Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the respondent State’s national
currency at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amount at
a rate equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
4.
Dismisses
the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on
24 April 2008
, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall
Registrar President