FOURTH SECTION
DECISION
Application no. 34206/13
Constantin-Leonard IVĂNOIU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 14 November 2017 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 13 May 2013,
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 Constantin-Leonard Ivănoiu, is a Romanian national, who was born in 1974 and lives in Ţicleni, Gorj County. He was represented before the Court by Ms G.N. Constantinescu, a lawyer practising in Târgu Jiu.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant has a child, A.M., born in 2007 during the applicant’s marriage with A.S.I.
5. In 2010 the parents divorced and the custody of the child was granted to the mother. A visiting schedule was set in favour of the applicant consisting of a few hours every other Saturday at his home (final decision of 20 May 2010 of the Gorj County Court).
6. A.S.I. informed the applicant that on Saturday 16 June 2012, when a visit should have taken place according to the schedule, the child would be away on a school trip. The applicant visited A.S.I.’s home on that day but did not find anyone at home. Consequently, on 18 June 2012 he filed a criminal complaint against A.S.I. for failure to comply with a court order concerning custody and visiting rights. He explained that he was not against his daughter’s going on the school trip, but he simply wanted to compel A.S.I. to reschedule the visit.
7. On 17 September 2012 the prosecutor’s office attached to the Târgu Jiu District Court decided not to start criminal prosecution against A.S.I., on the grounds that the latter had not disobeyed the court order in question. It further found that the applicant had abused the law and exercised his procedural rights in bad faith in so far as his complaint had been aimed at intimidating A.S.I. and at obtaining a new visiting schedule (abuz de drept, exercitarea cu rea-credinţă a drepturilor procesuale). Consequently, the prosecutor gave the applicant an administrative fine (amenda judiciară) of 1,500 Romanian lei (RON).
8. On 24 September 2012 the applicant asked to be exempted from paying the fine on the grounds that since February 2011 he had been unemployed. On 25 September 2012 the prosecutor-in-chief from the Târgu Jiu prosecutor’s office dismissed that request as unfounded.
9. The applicant appealed to the Târgu Jiu District Court arguing that his action could not be seen as intimidation and that the fine imposed on him had been exorbitant. On 21 November 2012 the action was rejected as inadmissible, on the grounds that the law did not provide the possibility to complain before a court about a prosecutor’s decision concerning the imposition of a fine. The court reiterated that in 2007 the High Court of Cassation and Justice had decided, by its decision no. LVII(57)/2007, that the applicable law should be interpreted as stating that only decisions in which the prosecutor’s office decided not to prosecute could be appealed against to a court (see paragraph 15 below).
10. On an unspecified date, the applicant lodged a new objection to the prosecutor’s decision of 17 September 2012 (see paragraph 7 above). He contested both the imposition of a fine and the decision not to prosecute A.S.I. He argued that A.S.I. had deliberately and repeatedly prevented him from seeing his child and therefore his complaint could not be seen as an abuse of his procedural rights; moreover he complained that the fine imposed on him was exorbitant in particular since he was unemployed and since it was the first fine he had ever received. On 12 October 2012 the prosecutor-in-chief rejected the objection as ill-founded. The
prosecutor-in-chief also noted that the complaint concerning the imposition of a fine had already been examined in the decision of 25 September 2012 (see paragraph 8 above).
11. The applicant lodged a complaint in respect of that decision and explained that he was only interested in having the fine set aside or at least in being allowed to pay it in several instalments. He reiterated the arguments before the Târgu Jiu District Court and expressed his wish to withdraw his objection. On 6 February 2013 the District Court acknowledged that the applicant wished to withdraw his complaint.
12. On 28 January and 13 February 2013 the applicant asked the prosecutors-in-chief from the Gorj County Court and the Târgu Jiu District Court respectively to cancel the fine imposed by the prosecutor’s decision of 17 September 2012 (see paragraph 7 above).
13. On 18 February 2012 the prosecutor’s office attached to the District Court rejected the request as inadmissible, in so far as the prosecutor had already decided on an identical request on 25 September 2012 (see paragraph 8 above).
14. The applicant informed the Court that after the episode complained of he had resumed the visiting schedule without any further hindrance from A.S.I.
B. Relevant domestic law and practice
15. In 2007 the High Court of Cassation and Justice examined an appeal brought in the interest of the law (recurs în interesul legii) whereby it was asked to interpret the provisions of the Code of Criminal Procedure regulating the possibility to appeal against the decisions of a prosecutor’s office (Article 2781 § 1 of the Code). In its decision no. LVII(57) of 24 September 2007, the High Court considered that only decisions in which a prosecutor’s office decided not to prosecute could be appealed against to a court. The High Court’s decision was published in the Official Monitor on 11 April 2008 and thus took effect.
COMPLAINTS
16. The applicant complained under Article 8 of the Convention that instead of protecting his personal relationship with his daughter, the authorities had intimidated him by giving him a hefty fine.
17. Under Articles 6 § 1 and 13 of the Convention he complained that his request to set aside the fine had not been examined on the merits by a court and that the proceedings had lasted too long.
THE LAW
A. Article 8 of the Convention
18. The applicant complained of an alleged infringement of his right to respect for his family life caused on the one hand by the fine imposed on him and on the other hand by the authorities’ failure to acknowledge a breach of the custody order by his former wife. He relied on Article 8 of the Convention which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ observations
19. The Government argued that the applicant, who had lodged his present application on 13 May 2013, had not respected the six-month
time-limit in so far as the final decision concerning the imposition of a fine had been that of 25 September 2012 and the final decision concerning A.S.I.’s prosecution had been that of 12 October 2012 (see, respectively, paragraphs 8 and 10 above). They relied on decision LVII(57) of the High Court of Cassation and Justice (see paragraph 15 above).
20. They further argued that the applicant had withdrawn his appeal against the prosecutor’s decision not to prosecute A.S.I. (see paragraph 11 above), thus failing to exhaust the domestic remedies on that point.
21. Lastly, the Government argued that the applicant had not suffered a significant disadvantage. The visiting schedule had only been breached by A.S.I. on one particular occasion and the applicant had continued to see his daughter unhindered after that episode. There had therefore been no repercussions for the applicant’s family rights.
22. The applicant argued that the six-month time-limit should be counted from the date of the court decision of 21 November 2012 (see paragraph 9 above). He also reiterated that he had not been interested in the criminal prosecution of his former wife. His only interest had been to have the fine annulled. Therefore, the second set of proceedings had been irrelevant for his complaint both in terms of the application of the six-month rule and concerning the exhaustion of domestic remedies.
23. Lastly, the applicant contended that A.S.I.’s preventing him from seeing his daughter on 16 June 2012 had significantly damaged his family ties with the child.
2. The Court’s assessment
24. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Zorica Jovanović v. Serbia, no. 21794/08, § 53, ECHR 2013).
25. Moreover, under Article 35 § 1 the Court may only deal with a matter after all domestic remedies have been exhausted (see Parrillo v. Italy [GC], no. 46470/11, § 87, ECHR 2015).
26. Turning to the facts of the present case, the Court notes that the applicant complained about not having been able to see his daughter on 16 June 2012 and consequently of the effects on his family life of the prosecutor’s decision of 17 September 2012 (see paragraphs 7 and 18 above). It follows that the case concerns a specific decision of the domestic authorities and not a continuous situation of alleged infringement of the right to visit. Therefore the six-month period is to be calculated from the date when the domestic remedies were exhausted or, should no such remedies exist, from the date of the act complained of.
27. The Court notes that according to the domestic law, the applicant had no means to complain before a court about the imposition of a fine (see paragraphs 9 and 15 above). Consequently, the final decision was that of 25 September 2012 by the prosecutor-in-chief (see paragraph 8 above).
28. The applicant did not explain convincingly to the Court why he had not observed the instructions issued by the High Court of Cassation and Justice concerning the absence of a possibility to appeal, which were binding at that time (see paragraphs 9 and 15 above).
29. It follows that, in so far as his complaint concerns the imposition of a fine, in lodging his application on 13 May 2013 he failed to observe the
six-month time-limit set by the Convention. Consequently, this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
30. In so far as the applicant complains about the failure to prosecute A.S.I. for her alleged disregard for his visiting rights, the Court notes that it is not clear to what extent the applicant did intend to pursue this complaint, as even is his observations to the Court he reiterated that he had not sought the criminal prosecution of A.S.I. (see paragraph 22 above). In this context, it becomes difficult to see that he maintained an interest in his application with the Court in so far as it concerned the criminal complaint lodged against A.S.I., or that he continued to perceive it as a hindrance to his Article 8 rights. In any event, on 6 February 2013 the applicant himself withdrew his action lodged with the domestic court on this account (see paragraph 11 above), thus failing to pursue the domestic avenues of redress.
31. It follows that in so far as it concerns the authorities’ reaction to A.S.I.’s attitude towards the applicant, the latter had failed to use the domestic remedies available. Accordingly this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Articles 6 and 13 of the Convention
32. The applicant further complained under Articles 6 § 1 and 13 of the Convention about the proceedings for setting aside the fine. However, the Court has already established that the applicant failed to observe the six‑month time-limit set forth in Article 35 § 1 of the Convention in so far as this set of proceedings is concerned (see paragraph 29 above).
Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 December 2017.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy