ÎCCJ, decizie (scj.ro #86596)
ÎCCJ, decizie (scj.ro #86596) (Înalta Curte de Casație și Justiție)
THIRD
SECTION
CASE OF
URBANOVICI v.
ROMANIA
(Application
no. 24466/03)
JUDGMENT
STRASBOURG
23 September 2008
FINAL
23/12/2008
This judgment may be subject to editorial revision.
In the case of Urbanovici v.
Romania
,
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López
Guerra,
judges,
and
Santiago
Quesada
,
Section Registrar
,
Having deliberated in private on
2 September 2008
,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
The case originated in an
application (no. 24466/03) 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 Erzebet Gyongyike Urbanovici (“the applicant”), on
11 July 2003
.
The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horațiu Radu,
from the Ministry of Foreign Affairs.
The applicant alleged that the quashing of a
final and enforceable decision favourable to her by means of an extraordinary
appeal had violated her right to a fair hearing and her property right.
On
29 June 2007
the Court decided to give
notice of the application to the Government. It also decided to examine the
merits of the application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1959
and lives in
Oradea
.
A. Action for recovery of possession
On 14 May 1999, the applicant
lodged with the Oradea District Court an action for recovery of possession (
acțiune
în revendicare
) of a plot of land that, although recorded in the land
register (
cartea funciară
) as belonging to the Oradea Local
Council, she claimed she had inherited it from E.S. who had received it from
the State in exchange for another plot of land.
The three courts that dealt with the case
found in favour of the applicant. The District Court gave its decision on
4 July 2000
. Upon appeals by the Local Council,
the Bihor County Court upheld it on
16 February 2001
and the Oradea Court of
Appeal on
21 May 2001
, the
latter by means of a final and irrevocable decision.
Before all the courts that dealt
with the case, the Local Council argued that certificate no. 10524 of
14 May 1955
, used by the applicant in order to
prove her ownership title, was false as it contained a series of irregularities.
The first-instance court and the
appeal court rejected the argument on the ground that the defendant had not
brought evidence to prove the allegations. Moreover, the courts noted that,
according to the information in their possession, no criminal proceedings had
been started on the matter.
The court of last resort rejected
the Local Council’s request that the proceedings be stayed until the courts had
ruled on the nullity of the certificate (procedure described at paragraphs 10
to 12 below). On the merits, it noted as follows:
“The [defendant’s] allegations about the
existence of irregularities in certificate no. 10524 of
14 May 1955
... seem well-founded. However, this
certificate established a
prima facie
case [
început de probă
scrisă
] which entitled the first‑instance court to examine
additional evidence; witness testimonies confirmed that the property title in
dispute had been transferred from the State to E.S., who exercised public and
peaceful possession without causing any nuisance ... This situation is also
confirmed by the evidence on the consolidations of land that had taken place.
The fact that the exchange of land occurred is undoubtedly proved by letter no.
28182 of
18 October 1949
,
issued by the Ministry of Agriculture ..., which cannot be contested...”
It also noted that the criminal investigation into
the alleged forgery of the 1955 certificate had been terminated on
17 March 2001
as the time-limits for criminal
responsibility had expired. However, the Court of Appeal considered that the
evidence adduced, in particular the letter of
18 October 1949
, rendered that investigation
devoid of relevance in any case.
On an unspecified date the
applicant’s ownership title was recorded in the land register.
B. Action for the nullity of the 1955
certificate
On
19 April 2001
the Oradea Local Council
lodged with the Oradea District Court an action against the applicant, seeking
that the
14 May 1955
certificate
above be set aside because it contained irregularities. The applicant argued that
the issue was
res judicata
in so far as the courts ruling on the action
for recovery of possession had already dealt with the matter.
The case was transferred to the
Arad District Court which, on
28 March 2002
, allowed the action, established that the document was false and
set it aside.
Appeals by the applicant were
rejected successively by the Arad County Court, on
10 July 2002
, and by the Timișoara
Court of Appeal, in a final decision of
3 December 2002
.
C. Extraordinary appeals against the
21 May 2001
decision
Following the ruling of the
Timișoara Court of Appeal, the Oradea Local Council sought the revision of
the final decision of
21 May 2001
(
cerere de revizuire
). It also asked the Procurator General
to lodge an application with the Supreme Court of Justice to have that decision
set aside (
recurs în anulare
).
In a final decision of 19
February 2003, the Supreme Court of Justice allowed the Procurator General’s
request, noted that the 1955 certificate had been declared false, quashed all the
decisions rendered in the action for recovery of possession and, ruling on the
merits, rejected the initial action on the ground that the applicant had failed
to prove her ownership title.
The Supreme Court considered as follows:
“Although according to Article 129 (5) of the
Civil Procedure Code the judges have an obligation to use all legal means in
order to prevent any error in establishing the truth, by a correct
determination of facts and application of law, the court of last resort rejected
as ill-founded the request for a stay in the proceedings, although the ruling
in the [parallel] action for nullity was essential for adopting a lawful
decision.”
On
20 March 2003
, at the Local Council’s
request, the Oradea District Court took note of the Supreme Court’s decision
and struck off the request for revision.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Code
of Civil Procedure read as follows:
Article 322
“A final decision ... shall be revised in the
following cases:
...
... if the decision was adopted
based on an act which was declared false either during or after the
proceedings.”
Article 330
“The Procurator General may, of his own motion
or on an application by the Minister of Justice, apply to the Supreme Court of
Justice for a final decision to be quashed on any of the following grounds: ...
when the decision in question
has seriously infringed the law by giving a wrong solution on the merits of the
case, or when the decision is manifestly ill‑founded; ...”
Article 330 has been repealed
by Article I § 17 of the Government’s Emergency Ordinance no. 58 of
25 June 2003
.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES
6 § 1 OF THE CONVENTION AND 1 OF PROTOCOL NO. 1 TO THE CONVENTION
Under Articles 6 § 1 of the
Convention and 1 of Protocol No. 1, the applicant complained that her right to
a fair hearing and her property right had been breached in so far as the final
decision of 21 May 2001 of the Oradea Court of Appeal had been quashed and
reversed by means of an extraordinary review.
Article 6 § 1 reads as follows, in so far as
relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a] ...
tribunal...”
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to
the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”
A. Admissibility
Relying on
Stoicescu v. Romania
((revision),
no. 31551/96, 21 September 2004), t
he
Government contended that the applicant was not a victim of a violation of the
above provisions, in so far as she could not prove that she had inherited an
ownership title.
The applicant contested this
position and reiterated that the evidence presented during the domestic
proceedings had confirmed her inheritance rights.
The Court considers that the
Government’s plea of inadmissibility raises issues that are closely linked to
the merits of the application.
Therefore it joins the preliminary objection
to the merits of the case.
The Court notes that the
application 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 reiterated the
Court’s principles with regard to extraordinary appeals whereby final and
irrevocable decisions had been cancelled. Th
ey informed
the Court that the extraordinary procedure used in the case had been repealed
from the Civil Code.
24.
They
also averred that in so far as the applicant had failed to prove her property
title, she could not claim to have a “possession” within the meaning of Article
1 of Protocol No. 1. Therefore, no interference with her property right
occurred as a consequence of the quashing of the final decision.
However, should the Court consider that the
applicant had a “possession”, the Government contended that the interference
had been provided by law and had pursued a legitimate aim, to which it had been
proportionate. In particular they pointed out that, as the certificate used by
the applicant had been declared false, the Supreme Court of Justice had quashed
the final decision only in order to correct a judicial error committed by the
ordinary courts.
The applicant contested the
Government’s position. She contended that by allowing the extraordinary appeal,
the Supreme Court had set at naught all the previous decisions that had been
favourable to her, which had infringed her right to a fair hearing and had also
caused her to lose her property title over the land in question.
The Court’s assessment
a) General principles
The Court reiterates that,
under its settled case-law, the right to a fair hearing before a tribunal as
guaranteed by Article 6 § 1 must be interpreted in the light of the Preamble to
the Convention, which declares, among other things, the rule of law to be part
of the common heritage of the Contracting States.
One
of the fundamental aspects of the rule of law is the principle of
legal certainty, which requires,
inter alia
, that where the courts have
finally determined an issue, their ruling should not be called into question (
Brumărescu v.
Romania
[GC], no. 28342/95, § 61, ECHR 1999‑VII
).
The Court has frequently found
violations of Article 6 § 1 of the Convention in cases raising issues similar
to the one in the present case, as it has considered that
the extraordinary appeal under review infringed the principle of
legal certainty in so far as
it was not open to the
parties to the procedure but to the Procurator General alone and as by allowing
the application, the Supreme Court of Justice set at naught an entire judicial
process which had ended in a judicial decision that was
res judicata
and
which had, moreover, been executed (see, among many others,
Brumărescu
,
cited above, § 62;
SC Mașinexportimport
Industrial Group SA v.
Romania
, no. 22687/03, § 36, 1 December 2005; and
Cornif v.
Romania
, no. 42872/02, §§ 29-30,
11 January 2007
).
It also considered that quashing
such a decision after it had become final and irrevocable constituted
deprivation of property within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1, which could only be justified if it was
shown,
inter alia
, to be “in the public interest” and “subject to the
conditions provided for by law”. Moreover, any interference with the property
must also satisfy the requirement of proportionality (see
Brumărescu
§§ 77-78;
Mașinexportimport Industrial Group SA
,
; and
Cornif
, §§ 39-40, judgments cited above).
The Court reiterates that no
party is entitled to seek a review of a final and binding judgment merely for
the purpose of obtaining a rehearing and a fresh determination of the case.
Higher courts’ power of review should be exercised to correct judicial errors
and miscarriages of justice, but not to carry out a fresh examination. The
review should not be treated as an appeal in disguise, and the mere possibility
of there being two views on the subject is not a ground for re-examination. A
departure from that principle is justified only when made necessary by
circumstances of a substantial and compelling character (see
Ryabykh v.
Russia
,
no. 52854/99, § 52, ECHR 2003‑IX
).
Even if such a review were
justified, certain special circumstances of the case may reveal that the actual
manner in which it was used impaired the very essence of a fair trial. In
particular, the Court has to assess whether, in a given case, the power to
launch and conduct a supervisory review was exercised by the authorities so as
to strike, to the maximum extent possible, a fair balance between the interests
at stake (see,
mutatis mutandis
,
Nikitin v.
Russia
, no. 50178/99, § 57, ECHR 2004‑VIII).
b) Application of these principles
to the present case
In the case at hand, the courts
found in favour of the applicant in an action for recovery of possession and
considered irrelevant to the case the fact that one of the documents used as
evidence was possibly false.
Therefore, the Court considers that the
Supreme Court’s intervention was not necessary in order to address this issue,
the ordinary courts having had enough opportunities to remedy the alleged error
in their interpretation.
Even assuming, as the
Government argues, that the judges were wrong in refusing to suspend the appeal
proceedings, such an oversight is not imputable to the applicant, who moreover
informed the courts of the existence of the two parallel sets of proceedings
(see, in particular, paragraph 10 above).
On this point the Court
emphasises that the State should organise the legal system in such a way as to
identify related proceedings and where necessary to join them or prohibit
further institution of new proceedings related to the same matter, in order to
circumvent reviewing final adjudications treated as an appeal in disguise, in
the ambit of parallel sets of proceedings (see,
mutatis mutandis,
Roșca v.
Moldova
, no. 6267/02, § 25, 22 March 2005;
Gjonbocari and Others v.
Albania
, no. 10508/02, § 59, 23 October 2007; and
Driza
v.
Albania
,
no. 33771/02, § 69, ECHR 2007‑... (extracts)
).
Furthermore, the Court notes
that, while the ordinary courts, in particular the court of last resort, based
their decisions on several documents and witness testimonies, the Supreme Court
rejected the action on the sole ground of the nullity of the false act, without
expressing an opinion on the other elements of proof or, at least, explaining
why it set them aside.
For the same reason, the Court
considers that the present case differs significantly from
Stoicescu
,
cited above, where the applicant’s only entitlement to the property in dispute,
namely the inheritance certificate, was subsequently annulled (see
Stoicescu
,
cited above, §§ 57-58).
The Court cannot speculate on
what the outcome of the case would have been should the Supreme Court (or
ordinary courts in a new action for recovery of possession) have reconsidered
the remaining evidence in the file. It notes, however, that the situation created
is not imputable to the applicant and considers that lodging a new action for
recovery of possession would place a disproportionate burden on her which is
not justified in the particular circumstances of the case.
The foregoing considerations
are sufficient to enable the Court to conclude that the quashing of the final
decision of
21 May 2001
is
nothing more than an appeal in disguise and by using it the authorities failed
to strike a fair balance between the interests at stake and thus infringed the
applicant’s right to a fair hearing.
Furthermore, as by means of the
final decision of 21 May 2001 the applicant was recognised as the owner of the
land in dispute, the applicant can claim to have a “possession” for the purpose
of Article 1 of the Additional Protocol, and the quashing of that decision
after it became final and irrevocable and was executed will constitute an
interference with the decision’s beneficiary’s right to the peaceful enjoyment
of that possession (see
Brumărescu
,
cited above, § 74). Even assuming that such an interference may be regarded as
serving a public interest, the Court finds that it was not justified since a
fair balance was not preserved and the applicant was required to bear an
individual and excessive burden (
Brumărescu
,
cited above, §§ 75-80).
For all these reasons, the
Court dismisses the Government’s preliminary objection, and concludes that there
has been a violation of Article 6 § 1 of the Convention as well as a violation
of Article 1 of Protocol No. 1 to the Convention.
II. 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.”
The applicant did not submit a
claim for just satisfaction. Accordingly, the Court considers that there is no
call to award her any sum on that account (see,
mutatis mutandis,
Arsenovici v.
Romania
, no. 77210/01, § 55,
7 February 2008
)
.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Joins
to the merits and
rejects
the Government’s preliminary objection;
2.
Declares
the application
admissible;
3.
Holds
that there has been
a violation of Article 6 § 1 of the Convention;
4.
Holds
that there has been
a violation of Article 1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing
on
23 September 2008
, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada
Josep
Casadevall
Registrar President