THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31530/05
by Radu MUREŞAN
against Romania
The European Court of Human Rights (Third Section), sitting on 22 June 2010 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 regard to the above application lodged on 8 August 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Radu Mureşan, is a Romanian national who was born in 1971 and lives in Sălaj. He was represented before the Court by Mr Tudor Crihan, a lawyer practising in Zalău. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was renting a small apartment from S., a former State‑owned company. On an unspecified date, he made an offer to buy the apartment under Law no. 85/1992, but he did not receive an answer to the request. He therefore lodged an action with the Zalău District Court seeking to have S. compelled to sell him the apartment. His action was allowed on 8 May 2003, a decision upheld on appeal by the Sălaj County Court.
4. However, in a final decision of 13 October 2004, the Cluj Court of Appeal allowed an appeal on points of law lodged by S. and dismissed the initial action. The applicant's lawyer was present at the delivery of the said decision.
5. The reasoning of the final decision was completed on 12 November 2004. The case file, including the complete text of the final decision, was returned to the District Court on 26 January 2005.
6. According to the case-file, the applicant obtained a certified copy of the final decision on 3 August 2005.
B. Relevant domestic law and practice
7. The Romanian Code of Civil Procedure provides that copies of decisions are served on the parties only when this is necessary to start the time-limit for bringing an appeal running. As a consequence, final decisions are not served on the parties, on whom it is incumbent to take the necessary steps to obtain a copy. In practice, copies are obtained from the first-instance court, where the case file, together with the final decision, is archived.
COMPLAINTS
8. The applicant complained in substance under Article 6 § 1, taken alone and in conjunction with Article 14 of the Convention, that the proceedings giving rise to the final decision of 13 October 2004 were unfair, in particular in so far as the same [Cluj] Court of Appeal had adopted conflicting decisions in identical cases brought against other tenants of apartments located in the same building.
THE LAW
9. The applicant complained of the alleged conflicting case-law of the same [Cluj] Court of Appeal.
10. The Government claimed that the applicant had failed to comply with the six-month time-limit fixed by Article 35 § 1 of the Convention. They argued that the final decision of the Cluj Court of Appeal, which had been delivered on 13 October 2004, had been drafted on 12 November 2004 and had been deposited with the registry of the first-instance court on 26 January 2005, whereas the applicant had lodged his application with the Court on 8 August 2005, more than six months after the date it was archived with the first-instance court.
11. The applicant stated that, prior to addressing the Court, he tried to obtain redress at national level by making a request with the Procurator General to lodge an extraordinary appeal (recurs in anulare). By letter of 26 July 2005, the latter informed the applicant that this extraordinary appeal (recurs în anulare) had been abolished from domestic law. Further, the applicant stated that even though the final decision was archived with the
first-instance court on 26 January 2005, he did not obtain a copy of it until later, submitting that it was not possible to find out the exact date the file became available. The applicant did not mention the specific date on which he asked for and obtained a copy of the reasoned final decision.
12. The Court reaffirms its practice that, where an applicant is automatically entitled to be served a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, judgment of 29 August 1997, Reports 1997-V, p. 1547, § 33). However, in cases where the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were able to find out its content (see, among many other authorities, the judgment in Seher Karataş v. Turkey, no. 33179/96, § 27, 9 July 2002, and Karatepe v. Turkey (dec.), no. 43924/98, 3 April 2003, Potop v. Romania, no. 35882/97, § 32, 25 November 2003).
13. The Court reiterates its established case-law, in particular in cases against Turkey, according to which, when the national law does not provide for service, the six-month time-limit starts to run from the date the drafted decision is registered with the court of first instance (see Tahsin Ipek v. Turkey (dec.), no. 39706/98, and Yavuz and others v. Turkey (dec.), no. 48064/99).
14. Applying these principles, the Court is satisfied that it can consider as the dies a quo of the limitation period in the instant case, the day on which the case file, together with the reasoned final decision, was registered with the court of first instance, namely, 26 January 2005.
15. The application, lodged on 8 August 2005, therefore appears to be out of time, provided that the Court is not convinced of the existence of special circumstances justifying the delay and interrupting or suspending of the six-month time-limit (see Mıtlık Ölmez and Yıldız Ölmez v. Turkey (dec.), no. 39464/98).
16. The arguments put forward by the applicant do not suffice to lead to such a conclusion.
17. Firstly, notwithstanding that the Court acknowledges that neither the applicants nor their representatives can be required to enquire day after day whether a judgment that has not been served on them has been delivered (see Papageorgiou v. Greece, 22 October 1997, § 32, Reports of Judgments and Decisions 1997‑VI), in the instant case it notes that the applicant failed to submit any evidence regarding the enquiries made with the domestic courts to obtain a copy of the final decision (see, by contrast, N.T. Giannousis and Kliafas Brothers S.A. v. Greece (dec.), no. 2898/03 and Potop, §§ 31-34, cited above).
18. Secondly, it is well established case-law that no extraordinary remedies have to be exhausted prior to lodging an application with the Court, particularly when the said remedy is not an effective means of redress (see Fernie v United Kingdom (dec.), no. 14881/04). In the instant case, not only was the extraordinary remedy not an effective means, but it had already been abolished from domestic law.
19. Furthermore, the materials in the file show that the applicant's request to the Prosecutor General to lodge an extraordinary appeal was made on a date before 26 July 2005, on which date he was informed that his request was refused. This indicates that the applicant, who was assisted by a lawyer, was fully aware of the unfavourable judgement on a date within the six months after the written judgement was deposited with the District Court. However, instead of directly applying to the Court, he chose to submit an inevitably futile petition to the Procurator General, thus losing the possibility of lodging the complaint to the Court within the six-month time-limit.
20. In view of the above, it follows that the application was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy