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THIRD
SECTION
CASE OF VISAN v. ROMANIA
(Application
no. 15741/03)
JUDGMENT
STRASBOURG
24 April
2008
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Visan v. Romania,
The
European Court of Human Rights (Third Section), sitting 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
deliberated in private on 27 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15741/03) 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, Mrs Constanta Visan (“the
applicant”), on 8 April 2003.
- The
applicant was represented by Mr M.L. Draghici, her son. The Romanian
Government (“the Government”) were represented by their
Agent, Mr. R.-H. Radu, of the Ministry of Foreign Affairs.
- On
18 May 2005 the Court decided to communicate the complaint concerning
the alleged lack of access to a court to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Bucharest.
A. Criminal proceedings against the applicant
- In
a final decision of 28 June 1993, the Bucharest County Court
convicted the applicant of fraud, sentenced her to six years'
imprisonment and awarded damages to the victim. The court did not
address the argument that the offence had been pardoned by Decree no.
11/1988.
- On
5 August 1993 the applicant was placed in detention, where she
remained until 22 July 1994.
- In
a final decision of 3 October 1995, the Supreme Court of Justice
acting on an application of the Procurator General (recurs în
anulare), quashed the final decision of 28 June 1993 and ended
the criminal trial against the applicant on the ground that the
offences committed had been pardoned. It upheld the remainder of the
decision.
B. Proceedings for compensation for wrongful conviction
- On
6 March 1998 the applicant lodged an action with the Bucharest County
Court, under Articles 998-999 of the Civil Code, seeking compensation
from the State for the damage caused by the “severe miscarriage
of justice which had led to her illegal detention for almost one
year”. She claimed 200,000,000 Romanian lei (ROL).
- The
case was tried by ten courts, corresponding to three levels of
jurisdiction. The courts examined the case either under Article 504
of the Code of Criminal Proceedings (“CCP”) or under the
Civil Code. In her pleas the applicant invoked the Civil Code
supplemented by the CCP provisions above.
- In
a final decision of 28 January 2003 the Supreme Court of Justice
rejected the applicant's action. It considered that the facts of the
case allowed for the application of Article 504 of the CCP as
interpreted by the Constitutional Court's decision no. 45 of 10 March
1998 (see paragraph 18 below). However, it considered, for the first
time, that the applicant should have brought her claims within one
year from the date on which her conviction had been quashed (Article
505 of the CCP). As she failed to do so, her action was time-barred.
- On
17 February 2003 the Supreme Court of Justice delivered an
attestation informing the applicant that her action had been rejected
as time barred.
- On
7 November 2003 the applicant obtained a copy of the final decision
of 28 January 2003, after several unsuccessful attempts and
complaints lodged with the Ministry of Justice and the Supreme Court
of Justice concerning the unreasonable delay in the drafting of the
court decision.
II. RELEVANT DOMESTIC LAW
A. Provisions on the pardon
- Decree
no. 11/1988 on the pardon of certain criminal offences and the
reduction of various sentences reads as follows, in so far as
relevant:
Article 1
“Criminal offences for which a sentence of up to
ten years' imprisonment has been imposed shall be pardoned.”
- The
relevant provision on the pardon in the Criminal Code reads as
follows:
Article 119
“(1) The pardon extinguishes the
criminal responsibility for the act committed...
(2) The pardon does not affect ... the rights
of the victim.”
B. Provisions concerning the action for damages
- The
relevant Articles of the Civil Code state as follows:
Article 998
“Any act committed by a person which causes damage
to another shall render the person through whose fault the damage was
caused liable to make reparation for it.”
Article 999
“Everyone shall be liable for damage he has caused
not only through his own act but also through his failure to act or
his negligence.”
- According
to the provisions of Article 3 of Decree no. 167/1958 the general
time-limit for lodging an action for compensation is three years from
the date when the damage occurred.
- The
relevant Articles of the CCP prescribe:
Article 504
“Anyone who has been convicted by means of a final
decision is entitled to compensation from the State for any loss or
damage sustained where after a retrial it is held in a judgment
against which no appeal lies that he did not commit the offence in
question or that no offence was committed.
Anyone against whom a preventative measure has been
taken, and in whose favour a decision to discontinue proceedings or
of acquittal has been given for the reasons listed in the preceding
paragraph, also enjoys a right to compensation for damage
sustained...”
Article 505
“... The claim [for compensation] must be lodged
within one year from the date of the final acquittal or from the
order discontinuing the proceedings.”
- In a decision of 10 March 1998, published on 18 May
1998 in the Official Journal, the Constitutional Court, to which an
objection had been submitted alleging that the first paragraph of
Article 504 of the CCP was unconstitutional, ruled as follows:
“Under Article 48 of the Constitution, the State
is liable for damage caused by miscarriages of justice committed in
criminal proceedings. It follows that the principle of the State's
liability towards victims of a miscarriage of justice in a criminal
trial must be applied to all victims of such a miscarriage. ... The
Court notes that the legislature has not brought the provisions of
Article 504 of the Code of Criminal Procedure into conformity with
those of Article 48 § 3 of the Constitution. ... Consequently,
bearing in mind that Article 504 of the Code of Criminal Procedure
provides for only two cases in which the State's responsibility for
miscarriages of justice committed in criminal proceedings may be
engaged, it follows that this restriction is unconstitutional, since
Article 48 § 3 of the Constitution does not allow for any such
limitation.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
she had not had access to a court in so far as her claims for
compensation had been rejected as time barred by virtue of a law
which had not been applicable at the date on which she had lodged her
action.
Article
6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 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
- The
Government contended that determination of the legal basis of an
action by the court and the time-limits for lodging an action are
among the permitted limitations of the right to a court (see Pérez
de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports
of Judgments and Decisions 1998 VIII, p. 3255,
§§ 43-45).
- The
Government also contended that, due to the active role of the local
judges and the margin of appreciation of the State in the matter, the
domestic courts had the power to determine the applicable law based
on the facts of the case and irrespective of the determination made
by the plaintiff. They pointed out that the applicant herself had
referred to both the Civil Code and the CCP articles in her pleas
before the courts.
- Furthermore,
the Government considered that the time-limit imposed by Article 504
had not been too short (see, a contrario, Pérez de
Rada Cavanilles, cited above, § 47) and had already been met
when the applicant lodged her action, its application not being thus
imputable to the length of the proceedings themselves (see, a
contrario, Yagtzilar and Others v. Greece,
no. 41727/98, § 27, ECHR 2001 XII).
- Lastly,
the Government contended that the procedure instituted by Articles
504 and 505 of the CCP had constituted an effective remedy for the
applicant's grievances.
- The
applicant contested the arguments put forward by the Government and
reiterated that Article 504 had not been applicable to her situation
at the date when she had lodged her action.
2. The Court's assessment
- The
Court refers to the principles established in its case-law regarding
the “right to a court”, of which the right of access is
one aspect, in particular that this right is subject to limitations
which should not restrict or reduce a person's access in such a way
or to such an extent that the very essence of the right is impaired
(see, for instance, Prince Hans-Adam II of Liechtenstein v.
Germany [GC], no. 42527/98, §§ 43-50, ECHR
2001 VIII; Yagtzilar, cited above, § 22;
Brualla Gómez de la Torre v. Spain, judgment of 19
December 1997, Reports 1997-VIII, p. 2955, § 31-33;
Edificaciones March Gallego S.A. v. Spain, judgment of
19 February 1998, Reports 1998 I, p. 290, §
33-34; Pérez de Rada Cavanilles, cited above, §§ 43-45;
and Lungoci v. Romania, no. 62710/00, §§ 34-36,
26 January 2006).
- The
Court notes that the applicant lodged her action for compensation on
6 March 1998. At that date, Article 504 of the CCP, lex specialis
in the matter of compensation for wrongful conviction, did not cover
the applicant's situation. It follows that at that date the Civil
Code was the only effective remedy at the applicant's disposal. It
was only on 18 May 1998 that the Constitutional Court's decision
widening the applicability of Article 504 became public.
- It
is true that the applicant could have challenged the
constitutionality of the CCP provisions herself. She could have thus
lodged her action for compensation under Article 504 within one year
of the date of the final decision in her case, that is, before
October 1996, and filed an objection of non-constitutionality of
those provisions with the courts. However, the Court considers that
so long as the applicant had at her disposal a remedy with more
prospects of success, namely the action under the general tort law,
it would be excessive to expect her to make use of a remedy with a
less predictable outcome.
- The
Court, like the Government, does not deny the domestic courts' power
to determine the legal basis of an action. However, it notes that in
doing so in the present case, the courts examined the action under
provisions which were not applicable at the date the action was
lodged, and which followed different procedural rules than the
general tort law, in particular different time-limits for lodging the
action. The applicant was therefore expected to foresee the eventual
change in the legislation and to comply with it before this change
actually took place.
- For
this reason, the Court considers that the degree of access afforded
by the national legislation was not sufficient to secure the
applicant's right to a court (see Yagtzilar, cited above,
§ 26).
- Furthermore,
the Court cannot but notice that none of the courts that dealt with
the applicant's case under Article 504, except for the Supreme Court
of Justice in the last resort, considered the action to be
time barred. It reiterates that the fact that the applicant was
told that her action was statute barred at such a late stage of
the proceedings deprived her once and for all of any possibility of
asserting her right to compensation (see Yagtzilar, cited
above, § 27).
- The
above conclusion makes it unnecessary for the Court to examine the
Government's assertions on the quality of the new remedy (see
paragraph 24 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that in examining the applicant's action under a legal
provision that was not known to be applicable at the date of the
lodging of that action, the domestic courts infringed the applicant's
right to a court.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the courts that had dealt with her case had not been impartial and
that she had not had a fair trial. She also considered that her
claims for compensation had not been decided within a reasonable time
by the courts and that the final decision had not been pronounced
publicly, as it had taken more than eight months for her to get a
copy of that decision.
- Under
Article 34 the applicant complained that the refusal of the
authorities to deliver her a copy of the final decision of 28 January
2003 prevented her from completing her application to the Court for
several months.
- Lastly,
the applicant considered that the courts had violated her right to
receive compensation for miscarriage of justice, guaranteed by
Article 3 of Protocol No. 7 to the Convention.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 1,000,000 euros (EUR) in respect of non pecuniary
damage caused by the alleged violation of Article 3 of Protocol No. 7
and EUR 1,050,000 in respect of non-pecuniary damage caused by the
alleged violations of Article 6.
- The
Government considered that there was no causal link between the
alleged violations and the amounts sought and that the applicant's
claims were excessive. In their view, a finding of a violation of the
Convention, in itself, constitutes sufficient just satisfaction for
the purposes of Article 41.
- The
Court reiterates that it has found a violation of the applicant's
right of access to a court due to the application of the time-limits,
and it can only award reparation in connection with these facts. It
therefore awards the applicant EUR 5,000 in respect of non-pecuniary
damage.
- The
Court also reiterates that when a violation of Article 6 § 1 of
the Convention is found, the applicant should as far as possible be
put in the position he or she would have been in had the requirements
of Article 6 not been disregarded, in particular, the reopening of
the proceedings should be made possible (see Piersack v. Belgium
(Article 50), judgment of 26 October 1984, Series A no. 85,
p. 16, § 12; Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003;
Tahir Duran v. Turkey, no. 40997/98, § 23,
29 January 2004; Somogy v. Italy, no. 67972/01,
§ 86, 18 May 2004; Metaxas v. Greece,
no. 8415/02, § 35, 27 May 2004; Caloglu v.
Turquie, no. 55812/00, § 30, 29 July 2004; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, § 487,
ECHR 2004 VII; and Lungoci, cited above, §§ 55-56).
B. Costs and expenses
- The
applicant did not make any claims for costs and expenses. Therefore,
no award is made under this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the right of
access to a court under Article 6 § 1 of the Convention
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the respondent State's
national currency at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
