FOURTH SECTION
CASE OF BRĂDEAN AND OTHERS v. ROMANIA
(Application no. 21680/18)
JUDGMENT
STRASBOURG
21 March 2023
This judgment is final but it may be subject to editorial revision.
In the case of Brădean and Others v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 21680/18) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 April 2018 by three Romanian nationals, relevant details listed in the appended table, (“the applicants”) who were represented by Ms M. Slav, a lawyer practising in Bucharest;
the decision to give notice of the complaint concerning Article 6 § 1 to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 28 February 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicants’ complaint about the alleged breach of their right of access to a court guaranteed by Article 6 § 1 of the Convention, after the domestic courts declared their tort action inadmissible as having been lodged out of time.
2. In 2003 the applicants, who were employees of the Ministry of Internal Affairs, participated in a competition to occupy high ranking positions in different regional structures of the Ministry. As a result of the examination, other persons were selected for the positions chosen by two of the applicants and nobody was selected for the position chosen by the third one. According to the applicants, they had not been selected despite having obtained the highest grades among the competitors for the respective positions.
3. In 2005 a criminal investigation was initiated in respect of several officers who had overseen the examination and selection process in the 2003 competition. It was alleged that the participants’ grades had been manipulated by the accused persons with a view to promoting other competitors than the ones who had obtained the highest grades.
4. Between 2005 and 2011 the criminal investigation was discontinued and resumed on several occasions. While the applicants became aware of the investigation in the meantime, they had not been given any status in the proceedings and had not had access to the materials of the investigation until February 2011. On 23, 25 and 28 February 2011 they intervened as civil parties in the criminal proceedings.
5. On 18 May 2011 the Prosecutor’s Office attached to the High Court of Cassation discontinued the criminal proceedings on grounds of statute of limitations. It was considered that while the defendants’ guilt had been established, the limitation period for the criminal liability in the criminal proceedings against them had elapsed on 1 March 2011. The applicants appealed; however, without success. On 6 December 2011 their appeal was finally dismissed by the High Court of Cassation.
6. On 5 March 2012 the applicants initiated a separate civil tort action against the three defendants in accordance with the provisions of the Civil Code on tort liability. Later, they also introduced an action against the Ministry of Internal Affairs, as the defendants’ employer. They sought pecuniary and non-pecuniary damage from the defendants.
7. On 19 December 2012 the civil section of the Bucharest Regional Court (Tribunalul București) declined competence in favour of the administrative section of the same court. However, the administrative section disagreed with that decision and declined competence in favour of a civil court of lower level, given the monetary value of the action. The latter court considered the dispute to be of an administrative nature and the matter of competence had to be decided by the Bucharest Court of Appeal which decided that the matter was of civil and not administrative nature. The High Court of Cassation, which finally ruled on the matter on 23 October 2015, decided that the case was to be examined by the administrative courts in accordance with the 2004 Law on Administrative Courts (Legea Contenciosului Administrativ).
8. On 3 October 2016 the administrative section of the Bucharest Regional Court started the examination of the applicants’ tort action by allowing a motion by the defendants to declare the action time-barred in accordance with a provision from the 2004 Law on Administrative Courts setting a one-year limitation period for initiating court actions. The court considered that the limitation period had started running as from September 2003, when the applicants had learned for the first time that they had not been successful in the competition. The applicants appealed.
9. On 27 October 2017 the Bucharest Court of Appeal finally dismissed the applicants’ appeal but held that the one-year limitation period had started running not from September 2003, as decided by the Regional Court, but from the dates when the applicants had intervened as civil parties in the criminal proceedings, i.e. from 23, 25 and 28 February 2011. Since their action was introduced on 5 March 2012, i.e. one year and several days later, it was lodged outside the limitation period.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
10. The Government raised an objection of non‑compliance with the six‑month time-limit and argued that the final judicial decision in the case had been pronounced on 28 October 2017 while the current application had been introduced on 7 May 2018, i.e. more than six months later.
11. The Court notes that, according to the postal stamp on the envelope containing the applicants’ application form, the present case was introduced not on 7 May 2018 as suggested by the Government, but on 25 April 2018. It therefore dismisses the Government’s objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds and declares it admissible.
12. The general principles concerning the right of access to court have been summarized in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-99, 5 April 2018), Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009 (extracts), and Arrozpide Sarasola and Others v. Spain, nos. 65101/16 and 2 others, § 98, 23 October 2018).
13. The Court notes that the applicants’ tort action, introduced in accordance with the general provisions of the Civil Code concerning liability for tort acts and within the general three-year limitation period for such actions was dismissed on grounds of statute of limitations. That became possible after the domestic courts had requalified their tort action into an action lodged under the provisions of the 2004 Law on Administrative Courts and had applied a shortened one-year limitation period provided for by that law.
14. Fixing of limitation periods for access to courts is generally permissible (see Miragall Escolano and Others v. Spain, nos. 38366/97 and 9 others, § 33, ECHR 2000‑I, and Lay Company Limited v. Malta, no. 30633/11, § 56, 23 July 2013). In the circumstances of the present case, the Court considers that applying the one-year limitation period to the applicants’ action pursued a legitimate aim of proper administration of justice. It remains to be examined whether there was a reasonable relationship of proportionality between that aim and the means employed to attain it.
15. The Court must examine whether the application of the limitation period in question could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case, and whether, therefore, the penalty for failing to respect that limitation period infringed the proportionality principle (see Zubac, cited above, § 87 with further references).
16. The Court recalls that generally the lack in clarity of legal provisions is not a problem if such a lack is supplemented by settled case-law that had been published and had been accessible and sufficiently precise as to enable the applicant (if necessary, with the benefit of skilled advice) to determine what steps he should be taking (see Cañete de Goñi v. Spain, no. 55782/00, § 41, ECHR 2002-VIII).
17. The Court cannot but observe that the legal provisions concerning the applicability of the Law on Administrative Courts to the applicants’ tort action were lacking in clarity to such an extent that the issue of competence in the proceedings was debated over a period of almost three years by five different instances, and that the views were split among the judges. The issue was finally decided when the High Court of Cassation issued a final ruling on 23 October 2015 reversing the ruling of the Bucharest Court of Appeal (see paragraph 7 above).
18. The above circumstances and the fact that the Government did not indicate to the existence of a settled case-law prior to the introduction of the tort action by the applicants lead the Court to the conclusion that it was not unreasonable for the applicants to have expected that the general three-year long limitation period would apply in their case, even with the benefit of skilled advice. Therefore, given the circumstances of the case, the Court considers that the legislation concerning the application of the limitation period in the applicants’ tort proceedings was not sufficiently clear and foreseeable from the applicants’ point of view and thus was not in compliance with the principle of legal certainty. The Court sees nothing in the applicants’ behaviour to justify that the burden of the consequences of that uncertainty should be placed on them.
19. In the light of the above, the Court considers that the fact that the applicants’ tort action was declared inadmissible as having been lodged outside the one-year limitation period, in the absence of clear legislation and developed practice, deprived them of their right of access to court.
20. There has accordingly been a violation of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. The applicants claimed 118,200 euros (EUR) each in respect of pecuniary damage and EUR 50,000 each in respect of non-pecuniary damage. They also claimed EUR 1,200 for the first and the third applicants and EUR 1,500 for the second applicant in respect of costs and expenses.
22. The Government contested these claims arguing that they were excessive and unsubstantiated.
23. The Court reiterates that it found a violation of Article 6 § 1 of the Convention in the present case because the applicants did not enjoy effective access to a court for the examination of their tort action. The Court does not therefore discern any causal link between the violation found and the pecuniary damage alleged and rejects this claim.
24. On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards each applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. Furthermore, having regard to the documents before it, the Court considers it reasonable to award each applicant EUR 1,200 for costs and expenses, plus any tax that may be chargeable to them.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds(a) that the respondent State is to pay each applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 21 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President
APPENDIX
List of applicants:
Application no. 21680/18
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Mircea‑Ioan BRĂDEAN
1958
Romanian
Deva
2.
Gabriel‑Gabinel GABORĂ
1960
Romanian
Buzau
3.
Karoly KISS
1967
Romanian
Cluj‑Napoca