CASE OF PAUL POPESCU v. ROMANIA

FOURTH SECTION

CASE OF PAUL POPESCU v. ROMANIA

(Application no. 64162/10)

JUDGMENT

STRASBOURG

6 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Paul Popescu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 16 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 64162/10) 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, Mr Paul Popescu (“the applicant”), on 7 October 2010.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar of the Romanian Ministry of Foreign Affairs.

3. The applicant alleged that the proceedings brought by him were unreasonably lengthy in breach of his rights under Article 6 of the Convention.

4. On 10 July 2015 the above-mentioned complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in San Jose, the United States of America.

6. On 6 September 2005 the applicant brought proceedings against the private company X and a third party, seeking the recovery of property rights pertaining to land, both on his own behalf and on behalf of six other plaintiffs who were allegedly co-owners of the property.

7. Between 11 October 2005 and 24 March 2008 the Ploieşti District Court (hereinafter referred to as “the District Court”) held more than fifteen hearings in the case in order to allow the parties to add evidence to the file.

8. On 21 December 2005 the District Court ordered the applicant to inform it by 31 January 2006 of the home addresses of the other six plaintiffs on whose behalf he had brought the proceedings. The applicant complied with the court’s order.

9. On 29 November 2006 the applicant informed the District Court on behalf of himself and the other six plaintiffs of the cancellation of the legal representation contract they had signed with their initial legal representative.

10. On 24 March and 21 April 2008 the District Court adjourned the proceedings on procedural grounds and in order to allow the applicant to add to the file the relevant documents proving that he and the other six plaintiffs were entitled to claim the land in question and that the applicant was authorised by the other plaintiffs to represent them. The court also noted that the proceedings would be suspended in accordance with the relevant civil procedure rules if the applicant failed to comply with the court’s request to add the requisite documents.

11. On 16 June 2008 the District Court suspended the proceedings in accordance with Article 242 § 1(2) of the former Code of Civil Procedure (hereinafter referred to as the “CCP” – see paragraph 25 below) on the grounds that none of the parties had attended the hearing scheduled for that date.

12. On 26 January 2009 the District Court amended of its own motion the decision of 16 June 2008. It held that some of the parties had in fact attended the hearing of 16 June 2008. However, the proceedings had had to be suspended on the grounds that, according to the available evidence, four of the other six plaintiffs had died prior to 2005 and the applicant had taken no steps to identify the heirs of the deceased parties in order to enable the court to summon them as parties to the proceedings.

13. The applicant appealed on points of fact and points of law against both the decision of 16 June 2008 and that of 26 January 2009 (see paragraphs 11 and 12 above).

14. On 8 October and 3 December 2009 the Prahova County Court (hereinafter referred to as the “the County Court”) adjourned the aforementioned appeal proceedings brought by the applicant in order to allow the private company X to prepare its defence and the applicant to submit proof of the steps he had taken to identify the home addresses of the other six plaintiffs, and to serve a summons on the six plaintiffs by publishing it in a national newspaper.

15. On 11 February 2010 the County Court allowed the applicant’s aforementioned appeal against the District Court’s decisions and ordered the reopening of the proceedings. It held that there was no evidence in the file that four of the other plaintiffs had died or that the first-instance court had adjourned the proceedings in order to allow the applicant to submit proof of those deaths. Also, the decision of 26 January 2009 to amend the decision of 16 June 2008 (see paragraph 12 above) had been unlawful.

16. On 2 July 2010 the applicant asked the President of the District Court to order that court to start the re-examination of the case. He complained that even though the County Court had ordered the reopening of the proceedings in the case in February 2010, the District Court had still not resumed the examination thereof.

17. On 14 October and 9 December 2010 and 3 March 2011 the District Court adjourned the proceedings on procedural grounds to allow the plaintiffs’ legal representative to add documents to the file and to prepare his defence, and for the court to deliberate. In addition, it ordered the applicant to clarify whether the other six plaintiffs were still alive and, if not, to establish who were their heirs. The court further noted that the proceedings would be suspended according to the civil procedure rules if the applicant failed to comply with the court’s request.

18. On 8 March 2011 the District Court suspended the proceedings on the grounds that the applicant had failed to clarify whether the other six plaintiffs were still alive and if not who were their heirs. It noted that the applicant had made some attempts to obtain the requested information from the relevant domestic authorities, but he had failed to provide relevant information about the plaintiffs which would have enabled the authorities to identify them. Moreover, the summonses sent by the court to the known foreign addresses of the other six plaintiffs provided by the applicant had either not been received by the recipients or had been returned because the intended recipients had been unknown at those addresses. The applicant appealed on points of fact and points of law against the decision.

19. On 18 January and on 14 and 21 March 2012 the County Court adjourned the appeal proceedings in order to allow the six other plaintiffs to be publicly summonsed, and for the parties to make written submissions.

20. On 28 March 2012 the County Court dismissed the applicant’s appeal on points of fact and points of law against the District Court’s decision of 8 March 2011 (see paragraph 18 above). It held, amongst other things, that the applicant had acted as the other six plaintiffs’ representative without being able to prove that they were still alive or to identify their heirs, if such heirs existed. Since he was the one who had brought the proceedings, he had a duty to produce evidence in respect of the persons he was representing and was solely responsible for the way he had chosen to formulate his action before the court. The court was bound by the procedural framework set by the applicant. Since he had chosen to sign the application to the court both on his own behalf and on that of other persons, he should have been aware that he would be responsible for proving his status and his right to act as a representative.

21. On 29 November 2012 the County Court dismissed the extraordinary appeal for a review of proceedings instituted by the applicant against the final judgment of 28 March 2012 as having been lodged out of time.

22. On 11 March 2013 the County Court dismissed the extraordinary appeal for the annulment of the proceedings instituted by the applicant against the final judgment of 28 March 2012 as ill-founded.

23. On 23 May 2013 the District Court of its own motion declared the proceedings brought by the applicant on 6 September 2005 (see paragraph 6 above) to be barred by limitation on account of his inaction. It held that for more than a year the applicant had failed to make any request for the proceedings to be reopened. The applicant appealed on points of fact and points of law against the decision.

24. By a final judgment of 27 March 2014 the County Court dismissed the applicant’s appeal on points of fact and points of law against the District Court’s decision of 23 May 2013 (see paragraph 23 above). It reiterated the reasons provided by the first-instance court. It also held that the extraordinary appeals lodged by the applicant against the judgment of 28 March 2012 (see paragraph 20 above) had not put a stop to the bar by limitation, because they could not be considered as procedural acts aimed at reopening the proceedings.

II. RELEVANT DOMESTIC LAW

25. The provisions of the CCP in force at the relevant time, read as follows:

Article 1551

“A court may suspend the examination of a case by stating in its decision which duties have not been fulfilled in cases where it establishes that the normal continuation of the proceedings has been affected through fault on the part of the plaintiff as a result of the latter’s non-fulfilment of a lawful duty or a duty set by the court...

The examination of the case may be resumed at the request of a party when the duties mentioned in paragraph 1 have been fulfilled and the examination of the case can be lawfully continued...”

Article 242

“A court shall suspend the examination of a case:

...

2. if none of the parties is present when the case is called out in court.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

A. Admissibility

27. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

28. The applicant contested the Government’s submissions that the suspensions of the domestic proceedings by the domestic courts had been necessary and lawful, that the domestic authorities had examined the case without undue delays, and that he had failed to ask for the proceedings to be reopened.

29. The applicant submitted that the arguments used by the first-instance court in order to suspend the proceedings in June 2008 had been deemed invalid by the Prahova County Court (see paragraph 15 above). Moreover, the District Court had failed for several months to resume its examination of the case after the County Court had reopened the proceedings in February 2010 (see paragraphs 16-17 above). Furthermore, the domestic courts had used the same reasons to suspend the proceedings for a second time.

(b) The Government

30. The Government submitted that the domestic proceedings brought by the applicant had lasted from 6 September 2005 to 27 March 2014 and that their overall length was therefore approximately eight years and six months. However, the proceedings had been suspended for more than two years, from 8 March 2011 to 23 May 2013 (see paragraphs 18-23 above), because the applicant had failed to comply with the orders of the domestic courts and had not asked for the proceedings to be reopened. Consequently, the Government considered that the delay of more than two years could not count toward the overall length of the proceedings and that the domestic proceedings had therefore actually lasted for approximately six years and five months for two levels of jurisdiction, which was a not unreasonable timespan.

31. The Government argued that the domestic courts’ decision to suspend the proceedings brought by the applicant had been both necessary and lawful given that the applicant had also acted as representative of six other plaintiffs and had failed to provide the requisite information concerning those plaintiffs. Also, according to the relevant civil procedure rules in force at the time, the domestic courts could not have reopened the proceedings of their own motion. In addition, the applicant had failed to take steps in order to comply with the orders of the domestic courts, even though he could have asked for the proceedings to be reopened as soon as he had obtained the requested information.

32. The Government considered that the domestic authorities had acted diligently in examining the applicant’s case and that they could not be held responsible for unjustified delays or accused of being inactive. The overall length of the proceedings, namely eight years and six months, had been caused by the applicant’s attitude because he had ignored the civil procedure rules when bringing the domestic proceedings, even though he had been represented by a lawyer of his own choosing. Moreover, the absence of procedural diligence by the parties was of particular importance given that the proceedings in question concerned a dispute between private parties and needed to be taken into account when calculating the length of proceedings.

2. The Court’s assessment

33. The Court reiterates that reasonableness of the length of proceedings must be assessed in the light of the circumstances of the particular case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

34. The Court notes that, in the current case, it is not disputed by the parties that the domestic proceedings brought by the applicant had begun on 6 September 2005 (see paragraph 6 above) and had ended with the final judgment of the Prahova County Court of 27 March 2014 (see paragraph 24 above). Hence, they had lasted eight years six months and twenty-one days over two levels of jurisdiction.

35. The Court notes that there were repeated procedural delays throughout the course of the proceedings. It appears that the applicant was responsible for some of these delays. In this connection the Court notes that between 28 March 2012 and 27 March 2014 the applicant seemed to have been inactive with regard to the ordinary proceedings (see paragraphs 20-24 above). Apart from the extraordinary appeals initiated by him − which had no effect on the ordinary proceedings becoming barred by limitation ‒ and the appeal against the decision of 23 May 2013 (see paragraphs 23-24 above), when the proceedings had already become barred by limitation, it does not appear that he complied with the Prahova County Court’s decision of 28 March 2012 (see paragraph 20 above) or that he asked for the ordinary proceedings to be resumed.

36. That having been said, the Court notes that the domestic proceedings brought by the applicant concerning a dispute between private parties about property rights cannot be said to be complex. It further notes that between September 2005 and 11 February 2010 the first-instance court adjourned the proceedings repeatedly on procedural grounds and eventually decided to suspend those proceedings by relying on grounds which were considered invalid by the appellate court (see paragraphs 6-15 above). Moreover, even though the Prahova County Court issued an order in February 2010 for the proceedings in the case to be re-opened, the first-instance court had still not resumed the examination of the case in July 2010 (see paragraphs 16-17 above).

37. In these circumstances, the Court considers that the length of the proceedings can only partially be explained by the applicant’s occasional inactivity, in particular as far as the period from 28 March 2012 to 27 March 2014 is concerned. However, the remaining length of the proceedings is attributable to the competent courts which failed to deal with the case diligently (see, mutatis mutandis, Gümüşten v. Turkey, no. 47116/99, § 24, 30 November 2004).

38. Taking into account all the evidence before it, the Court finds that the length of the proceedings at issue does not satisfy the “reasonable time” requirement.

39. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. The applicant claimed 43,600 Romanian Lei (RON) (approximately 9,636 euros (EUR)) in respect of pecuniary damage for the alleged value of the property claimed by him. In addition, he claimed a portion of 7,600 US dollars (USD) (approximately EUR 6,967) for loss of revenue during his involvement in the proceedings. He also claimed a portion of the amount of EUR 6,967 and an additional USD 10,000 (approximately EUR 9,167) in respect of non-pecuniary damage for the stressful experience and the time and effort expended during the domestic proceedings.

42. The Government submitted that there was no causal link between the alleged violation of the Convention and the pecuniary damage claimed by the applicant. Moreover, the claim was speculative, excessive and unsupported by sufficient evidence.

43. The Government further argued that the applicant’s non-pecuniary damage claims were excessive. Moreover, the applicant had not clearly specified the causal link between the alleged length of proceedings and the non-pecuniary damage claimed. Furthermore, the finding of a potential violation could amount to sufficient just satisfaction in his case.

44. The Court considers that the applicant has not shown the existence of a causal link between the violations found and the pecuniary damage claimed by him. Consequently, it rejects this claim.

45. However, the Court accepts that the applicant suffered some non‑pecuniary damage as a result of the infringement of his rights under Article 6 of the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the applicant EUR 1,800 under this head, plus any tax that may be chargeable. This amount shall be converted into US dollars at the rate applicable at the date of settlement (see, mutatis mutandis, Hunt v. Ukraine, no. 31111/04, point 4 (a) of the operative part, 7 December 2006).

B. Costs and expenses

46. The applicant also claimed costs and expenses incurred before the domestic courts and before the Court. He claimed RON 300 (approximately EUR 66) for court-imposed fees paid following judgments delivered by Romanian criminal courts during criminal proceedings instituted by him against third parties, USD 7,600 (approximately EUR 6,967) for lawyer’s fees paid for his representation during the domestic proceedings brought by him as well as during other sets of proceedings, and an unquantified amount for other fees paid to the domestic authorities, printing costs and for correspondence with the domestic authorities and the Court. He submitted copies of documents and contracts attesting to the payment of the above‑mentioned amounts. In addition, he submitted copies of documents and receipts attesting to the payment of RON 4,407 (approximately EUR 1,040) for judicial stamp duty, expert fees and the annotation in the land register of the information concerning the existence of court proceedings with regard to the claimed property. Furthermore, he submitted copies of several receipts attesting to the payment of USD 270 (approximately EUR 247) in postal fees for the correspondence with the Court.

47. The Government contested these claims. They argued that the applicant had not submitted a breakdown of the number of hours worked by his legal representatives in order to support his claim for the lawyer’s fees. Nor had he specified the amount claimed with regard to postal fees paid for the correspondence with the Court.

48. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having considered the above criteria, the supporting documents submitted, the nature of the issue dealt with and its connection with the applicant’s actual claims, as well as the fact that he must have incurred some printing costs, the Court considers it reasonable to award the sum of EUR 1,270 to cover the applicant’s costs and expenses. This amount shall be converted into US dollars at the rate applicable at the date of settlement (see Hunt, loc. cit.).

C. Default interest

49. The Court considers it appropriate that the default interest rate 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 application admissible;

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, the following amounts, to be converted into US dollars at the rate applicable at the date of settlement:

(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,270 (one thousand two hundred and seventy euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident

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