Rezoluția CM/ResDH(2013)232 Androne împotriva României Executarea hotărârii Curții Europene a Drepturilor Omului Cerere n Cauza Hotărârea Definitivului la 54062/00 ANDRONE 22/12/2004 06/06/2005 (adoptată de Comitetul de Miniștri la 20 noiembrie 2013 în cadrul celei de a 1185-a.(Budget) ședință a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă transmisă de Curte Comitetului în această cauză și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare care au invitat guvernul din statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației respective După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013) 819 FIȘĂ că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL qualíl și-a îndeplinit funcțiile în temeiul articolului 46 alineatul (2) din convenție în această cauză și DECIDE d . . Acțiune report (numai engleză) Androne v. România (Application No. 54062/00, judgment of 22 decembrie 2004, final on 06 June 2005) Introductory summary of the case Această rubrică se referă la încălcarea articolului 6§1 din Convenție, insofar as the principle of legal certy is ried. The aplicants had obtained in 1997 a final judgment regarding their property rights over a cladire in Bucharest. Although the Local Council, the fondant in the case, had not appealed the quantis judgment, the Attorney General asked in 2000 for a revision of the said decision. The revision procededings were justid by the fact that the State had not been represented at the earlier proceedings and they resulted, in 2002, in the anument of the 1997 decision (violation of Article 6§1). The case also requenings a violation of the applicants right to enjoyment of their depositions due to the late reopening of these procesion (violation of Article 1 of Protocol No. 1). Individual measures The European Court has awarded the applicants with €6,000 for moraly damages and €6,054 for costs and expenses. The said sums ave been paid in conditions which were not contestat by the aplicants. The European Court has indicated that the return of the property at issues, as ordered by the court decision of 1997, would put the aplicants as far as posibil in the situation equivalent to that in which they would have been if there had been no breach of Article 1 of Protocol No. Failing such restitution, the deflance State was to pay the applicants a sum of money coresponding to the value of the cladire, within three months from the data at which the judgment became final. The aplicants requested the reopening of the proceseding in conformity with Article 322§9 of the Code of Civil Proceedings, in order to obtain restitutio in integrum . Their request has been granted by the Brașov Tribunal in a final decision of 31 May 2007. In addition, the Mayor of Bucharest ordered the restitution of the cladition to the aplicants on 2 September 2005. on 25 April 2006, the aplicants obtained the deposition of the property whereas a restoration report was drafted. On 7 June 2006, the Bucharest Court of Appeal ordered the eviction of the tints from the cladire. The government prin urmare submits that no further individual measures are required. General Measures Measures regarding the general proces for review The Court found a violation of Article 6§1 of the Convention, after noting that the request for the review of the proceseedings, submitted by the prosecutor, was out of time. Two problems arise from the said findings, namely the prosecutors power to act on behalf of the State and in cases where judicial decides were already final and enforced ( ) and the disregarding of the legal time-limit for the review request formated by the prosecutor (In Order to brig the domestic Practice in line with the requirements set forth by the Convention and the Court . While the first issue addressed (the prosecutor mais power to act on behalf of the State) seemed more urmably resolved by means of amending the law, the second (respect of the legal time-limit) was sooner a problem of application the law, and prin urmare dissemination of the Court and the limitation to the prosecutor mais power to act on behalf of the State, the government submits that, as of 15 February 2013, a new Civil Procedure Code is in force. The Civil Procedure Code now in force continents supports regarding the prosecutor.s judicial powers in Article 92. According to these prosecutor may no longer open or reopen a judicial procesure that it was not part of, except for the case of minors, of persons placed under interdiction (i.e. those lacking legality) and of missing persons. The prosecutor can prin urmare no longer act on behalf of the State or of public authorities, seeking to reopen final cases. In the matter of revision procedeedings, Article 509 allows for final cases to be reopened if the State or other public authorities have not been defended or their defence was defective due to malice on behalf of their representative (§ 1 subslition 7). The time-limit for the revision request is one month, beginning from the moment the authorities tenced knowledge of the said lack of defence or of their representative The government noted that the general one-year time-limit is a new provision, ensuring that the principle of legal certy cannot be over makeed by means of interpretation of the special one-month time-limit. The rent Practice of the national scurts also confirms that the condition rejecting the time-limit is applied in a strict manner, in several cases such requests made by the authorities having been rejected as belated. [1] In addition to the data above, the government further note that in March 2000, at the time of thefacts in the case of Androne v. România, i.e. la momentul în care Attorney General asked for the revision, Article 45 of the formation Civil Procedure Code allowed the Prosecutor as Office to participate and initiate any type of Judicial procedure and at at any stagement, cu excepția strictly personal ones. The said provision contributed to the violation found by the Court regarding Article 6§1 of the Convention, since it empowered the Prosecutor mais Office to act on behalf of the State whenever it deemed it necessary, even though the prosecutor had not been part in the procedure before the request for revision. Thus, the prosecutor could easy astertain that the said request was made within the time-limit. The government prin urmare finally submits that, under the currents of the national law, the reopening of final cases by the Prosecutors Office is imposibil, either before or after the one-year general time-limit [2] provided by law. Therefore, the requirements regarding the principle of legal certity are now duly compliment with. As to the disemination of the Court as judgment, it was translated and publicished in the Official Monitor (1st part) No. 875 of 29 September 2005 and was also transmitted to the Superior Council for the Magistracy and the National Institute for Magistrates for further disemination among magistrates. The said decision is also part of the mandatory curriculum for all examinations regarding the professional career of magistrates (admitere with the NIM, final capacity and promotion). The said judgment was also widely publicisshed, either in colections of ECHR case-law regarding România and on public sites, such as www.csm1909.ro (site-ul de la Superior Council for the Magistracy), www.scj.ro (site-ul de la High Court of Cassation and Justice) and both in foll and a summary thereof on www.hotararicedo.ro/index.php/article_access/view_article/1740_article Measures regarding the legal grounds for review Another problem raseed by the case was whether the grounds that the State had not been represented at the earlier procedeedings can be considered a The government made an assessment of the national Practice regarding the revision of final decisions for the reason invoked in the Androne case, namely the formation Article 322 § 1 subdiviziuni 6 of the formation Civil Procedure Code, and found that reopening of final cases on that ground remains exceptional. Out of a total of 15 Courts of Appeal in the country, only 4 submitted supporte on the subject, while the other 11 stated that no quactice exists on the matter for the past years. The High Court for Cassation and Justice also submitted its quactice on the matter. Of the 37 decisions provided by the parts, in 35 cases the request for review was rejected, in 9 cases the time-limit was exceded and in the other 26 cases the request was unfounded. In una recent case tried by the High Court, special reference was made to the Court Only 2 Decisions were infallour of the review, neither having been requested after the legal time-limit. [3] Special note must be made of thefact that in none of the 37 decisions was the review requested by the Prosecutors Office. The government found no other case law example granting the review of the case in disregard of the legal time-limit As to the maindamental de quaffices from previous decisions of the Court, such as Lenskaya v. Russia (judgment of 29 January 2009), the government submits that the Judicial Practice has a uniform interpretation of Article 322 § 1 subdiviziuni 6 of the formation Civil Procedure Code to this effect. The scurts interpreted the said provisions of the law as exceptional maie to the exceptional character of the remedy itself mail and prin urmare constantly deemed the conditions for review as restrictive. This means that the notions of din cadrul Secțiunii Commercial, the High Court was invitad to decision on a similar matter, upon a review request lodged by a State-owned Company; the Court stated that the company was notificăd privining the date of the hearing and of the amount of tax duty impuned by the court; prin urmare, after noting that the party never requested a postponement of the hearing or an exception of tax duty, the decision of anuling the request was deemed lawful. In decision No. 4200 of 2 November 2007, the High Court of Cassation and Justice, through its Section for administrative and fiscal contentious has established that main the request for review is admisibil if the party was entirely and completely denied their defence and is prin urmare inadmisibile if such defence was done in writing, even it was incomplete or errores The Court of Appeal Ployești also rejected a request for review, [5] holding that thefact that the party had not received a copy of the request for appeal should have been invoked at the earliest stagier of the procesdure; the said grounds did not suciente in order to obtain a review of the appeal decision. On the other hand, the High Court for Cassation and Justice allowed 2 requests for review on the ground that the State not duly defended. [6] În cele din urmă, în alte locuri, statul a fost deviat de la subiect, iar în cele din urmă nu s-a întâmplat nimic, ceea ce nu s-a întâmplat niciodată, când s-a întâmplat să se aștepte ca publicul să vadă; acestea au fost cele mai bune rezultate ale authorities enterely deprived of their defence. art. 12 allows the party who incurred damages, either pecuniary or non pecuniary, due to the abuzive procedural conduction of their opponent, to seek redress in a separate procesures. Moreover, acording to Article 187 alineatul (1) subs. 1 letter a) and Article 189, the person afecteaza by the reopening of the case in an abuziv may request, within the procesdure for revision already opened, either the fining of the person responsibil, or retration of all damages, or both. The representative of the authority who requested the revision of the case in bad faith or a abuzing procedural risks being ordered to pay a separate fil, while the authority itself stands the risk of both paying a fin and the damage awarded by the court. The government prin urmare conclusions that no further general meas in connection to the Court In light of the above, the government states that no further measures are necessary in this case and that the Court.s judgment has been duly executed. Consequently, they request that the supervision be closed. [1] Decision No. 936 of 29 November 2007 of the Court of Appeal Bacau, the Commercial section; Decisions No. 1545 of 13 February 2009 și 8268 of 14 October 2009 of the High Court for Cassation and Justice February 2011, No. 781 of 21 February 2011, No. 782 of 21 February 2011 and No. 1609 of 24 March 2011 of the First Instance Court Buftea; judgment no. 1410 of 18 April 2012 of First Instance Court Celărași; Decision No. 4965 of 28 June 2012 of the High Court for Cassation and Justice Un year form the remainder final of the chestion, i.e. the decision referred to in the request for review. [3] See infour, footnote 4. [4] The decisions can be found on the High Court at website, at http://www.scj.ro/cautare_decizii.asp [5] Decision No. 522 of 28 January 2013 of the Court of Appeal Ploiesti. [6] Decision No. 400 of 27 January 2009 and No. 2928 of 2nd May 2012, both available on the High Court
Résolution CM/ResDH(2013)232
Androne contre Roumanie
Exécution de l’arrêt de la Cour européenne des droits de l’homme
Requête n
o
Affaire
Arrêt du
Définitif le
54062/00
ANDRONE
22/12/2004
06/06/2005
(adoptée par le Comité des Ministres le 20 novembre 2013
lors de la 1185e.(Budget) réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu l’arrêt définitif transmis par la Cour au Comité dans cette affaire et les violations constatées
;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
;
et
-
de mesures générales permettant de prévenir des violations semblables
;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document
)
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et
DECIDE d’en clore l’examen.
Action report
(Anglais uniquement)
Androne v. Romania
(Application No. 54062/00, judgment of 22 December 2004, final on 06 June 2005)
Introductory summary of the case
This case concerns the violation of Article 6§1 of the Convention, insofar as the principle of legal certainty is concerned.
The applicants had obtained in 1997 a final judgment regarding their property rights over a building in Bucharest. Although the Local Council, the defendant in the case, had not appealed the court’s judgment, the Attorney General asked in 2000 for a revision of the said decision. The revision proceedings were justified by the fact that the State had not been represented at the earlier proceedings and they resulted, in 2002, in the annulment of the 1997 decision (violation of Article 6§1).
The case also concerns a violation of the applicants’ right to enjoyment of their possessions due to the late reopening of these proceedings (violation of Article 1 of Protocol No. 1).
Individual measures
The European Court has awarded the applicants with €6,000 for non-pecuniary damages and €6,054 for costs and expenses. The said sums have been paid in conditions which were not contested by the applicants.
The European Court has indicated that the return of the property at issue, as ordered by the court decision of 1997, would put the applicants as far as possible in the situation equivalent to that in which they would have been if there had been no breach of Article 1 of Protocol No. 1. Failing such restitution, the defendant State was to pay the applicants a sum of money corresponding to the value of the building, within three months from the date at which the judgment became final.
The applicants requested the reopening of the proceedings in conformity with Article 322§9 of the Code of Civil Proceedings, in order to obtain
restitutio in integrum
. Their request has been granted by the Brasov Tribunal in a final decision of 31 May 2007.
In addition, the Mayor of Bucharest ordered the restitution of the building to the applicants on 2 September 2005. On 25 April 2006, the applicants obtained the possession of the property whereas a restoration report was drafted.
On 7 June 2006, the Bucharest Court of Appeal ordered the eviction of the tenants from the building.
The government therefore submits that no further individual measures are required.
General measures
Measures regarding the general procedure for review
The Court found a violation of Article 6§1 of the Convention, after noting that the request for the review of the proceedings, submitted by the prosecutor, was out of time. Two problems arise from the said findings, namely the prosecutor’s power to act on behalf of the State and in cases where judicial decisions were already final and enforced (
A
) and the disregarding of the legal time-limit for the review request formed by the prosecutor (
B
).
In order to bring the domestic practice in line with the requirements set forth by the Convention and the Court’s decision, the authorities acted in two directions and undertook both
legislative measures
and
dissemination
. While the first issue addressed (the prosecutor’s power to act on behalf of the State) seemed more suitably resolved by means of amending the law, the second issue (respect of the legal time-limit) was sooner a problem of applying the law, and therefore dissemination of the Court’s assessments was welcome.
A)
Regarding the
relevant provisions of the law
and the limitation to the prosecutor’s power to act on behalf of the State, the government submits that, as of 15 February 2013, a new Civil Procedure Code is in force.
The Civil Procedure Code now in force contains relevant provisions regarding the prosecutor’s judicial powers in Article 92. According to these provisions, the prosecutor may no longer open or reopen a judicial procedure that it was not part of, except for the case of minors, of persons placed under interdiction (i.e. those lacking legal capacity) and of missing persons.
The prosecutor can therefore no longer act on behalf of the State or of public authorities, seeking to reopen final cases.
In the matter of revision proceedings, Article 509 allows for final cases to be reopened if the State or other public authorities have not been defended or their defence was defective due to malice on behalf of their representative (§ 1 subdivision 7). The time-limit for the revision request is one month, beginning from the moment the authorities gained knowledge of the said lack of defence or of their representative’s malice, and in any case the reopening of the procedure cannot be requested after one year from the remainder final of the relevant decision.
The government noted that the general one-year time-limit is a new provision, ensuring that the principle of legal certainty cannot be overlooked by means of interpretation of the special one-month time-limit.
The recent practice of the national courts also confirms that the condition regarding the time-limit is applied in a strict manner, in several cases such requests made by the authorities having been rejected as belated.
[1]
In addition to the data above, the government further notes that in March 2000, at the time of the facts in the case of Androne v. Romania, i.e. at the time the Attorney General asked for the revision, Article 45 of the former Civil Procedure Code allowed the Prosecutor’s Office to participate and initiate any type of judicial procedure and at any stage, except for strictly personal ones. The said provision contributed to the violation found by the Court regarding Article 6§1 of the Convention, since it empowered the Prosecutor’s Office to act on behalf of the State whenever it deemed it necessary, even though the prosecutor had not been part in the procedure before the request for revision. Thus, the prosecutor could easily ascertain that the said request was made within the time-limit.
The government therefore finally submits that, under the current provisions of the national law, the reopening of final cases by the Prosecutor’s Office is impossible, either before or after the one-year general time-limit
[2]
provided by law. Therefore, the requirements regarding the principle of legal certainty are now duly complied with.
B)
As to the
dissemination of the Court’s judgment
, it was translated and published in the Official Monitor (1st part) No. 875 of 29 September 2005 and was also transmitted to the Superior Council for the Magistracy and the National Institute for Magistrates for further dissemination among magistrates. The said decision is also part of the mandatory curriculum for all examinations regarding the professional career of magistrates (admission with the NIM, final capacity and promotion). The said judgment was also widely published, either in collections of ECHR case-law regarding Romania and on public internet sites, such as
www.csm1909.ro
(site of the Superior Council for the Magistracy),
www.scj.ro
(site of the High Court of Cassation and Justice) and both in full and a summary thereof on
www.hotararicedo.ro/index.php/article_access/view_article/174
.
C)
Measures regarding the legal grounds for review
Another problem raised by the case was whether the grounds that the State had not been represented at the earlier proceedings can be considered a “
fundamental defect
”, to such extent as to justify the infringement of the principle of legal certainty.
The government made an assessment of the national practice regarding the revision of final decisions for the reason invoked in the
Androne
case, namely the former Article 322 § 1 subdivision 6 of the former Civil Procedure Code, and found that the reopening of final cases on that ground remains exceptional. Out of a total of 15 Courts of Appeal in the country, only 4 submitted relevant practice on the subject, while the other 11 stated that no relevant practice exists on the matter for the past years. The High Court for Cassation and Justice also submitted its relevant practice on the matter.
Of the 37 decisions provided by the courts, in 35 cases the request for review was rejected – in 9 cases the time-limit was exceeded and in the other 26 cases the request was unfounded. In one recent case tried by the High Court, specific reference was made to the Court’s findings in the case of
Androne v. Romania.
Only 2 decisions were in favour of the review, neither having been requested after the legal time-limit.
[3]
Special note must be made of the fact that in none of the 37 decisions was the review requested by the Prosecutor’s Office.
The government found
no other case law example granting the review of the case in disregard of the legal time-limit
.
As to the “fundamental defect” condition drawn from previous decisions of the Court, such as Lenskaya v. Russia (judgment of 29 January 2009), the government submits that the judicial practice has a uniform interpretation of Article 322 § 1 subdivision 6 of the former Civil Procedure Code
to this effect.
The courts interpreted the said provisions of the law as exceptional – due to the exceptional character of the remedy itself – and therefore constantly deemed the conditions for review as restrictive. This means that the notions of “lack of defence”, “defective defence” and “malice” do not enjoy a wide range of interpretations.
For instance, within decision No. 195 of 25 January 2008
[4]
of the Commercial Section, the High Court was invited to decide on a similar matter, upon a review request lodged by a State-owned company; the Court stated that the company was notified regarding the date of the hearing and of the amount of tax duty imposed by the court; therefore, after noting that the party never requested a postponement of the hearing or an exemption of tax duty, the decision of annulling the request was deemed lawful. In decision No. 4200 of 2
November 2007, the High Court of Cassation and Justice, through its Section for administrative and fiscal contentious has established that “
the request for review is admissible if the party was entirely and completely denied their defence and is therefore inadmissible if such defence was done in writing, even if it was incomplete or erroneous
”.
The Court of Appeal Ploiești also rejected a request for review,
[5]
holding that the fact that the party had not received a copy of the request for appeal should have been invoked at the earliest stage of the procedure; the said grounds did not suffice in order to obtain a review of the appeal decision.
On the other hand, the High Court for Cassation and Justice allowed two requests for review on the ground that the State was not duly defended.
[6]
In both cases, although the State was defendant, the courts did not observe that the writ of summons was never served, while representatives thereof never attended the public hearings; therefore the High Court found that the authorities were entirely deprived of their defence.
As a side note, the government also refers to the current provisions of the Civil Procedure Code in Article 509, read together with Article 12. Article 12 allows the party who incurred damages, either pecuniary or non
‑
pecuniary, due to the abusive procedural conduct of their opponent, to seek redress in a separate procedure. Moreover, according to Article 187 § 1 subdivision 1 letter a) and Article 189, the person affected by the reopening of the case in an abusive manner may request, within the procedure for revision already opened, either the fining of the person responsible, or reparation of all damages, or both. The representative of the authority who requested the revision of the case in bad faith or abusing procedural rights risks being ordered to pay a separate fine, while the authority itself stands the risk of both paying a fine and the damages awarded by the court.
The government therefore concludes that no further general measures in connection to the Court’s findings are required.
Conclusions
In light of the above, the government states that no further measures are necessary in this case and that the Court’s judgment has been duly executed. Consequently, they request that the supervision be closed.
[1]
Decision No. 936 of 29 November 2007 of the Court of Appeal Bacau, the Commercial section; decisions No. 1545 of 13
February
2009 and 8268 of 14 October 2009 of the High Court for Cassation and Justice – the Civil Section; judgments No. 461 of 7
February 2011, No. 781 of 21 February 2011, No. 782 of 21 February 2011 and No. 1609 of 24 March 2011 of the First Instance Court Buftea; judgment no. 1410 of 18 April 2012 of First Instance Court Călărași; decision No. 4965 of 28 June 2012 of the High Court for Cassation and Justice – the Civil Section.
[2]
One year form the remainder final of the relevant decision, i.e. the decision referred to in the request for review.
[3]
See infra, footnote 4.
[4]
The decisions can be found on the High Court’s internet site, at
http://www.scj.ro/cautare_decizii.asp
.
[5]
Decision No. 522 of 28 January 2013 of the Court of Appeal Ploiesti.
[6]
Decision No. 400 of 27 January 2009 and No. 2928 of 2nd May 2012, both available on the High Court’s site.