[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF ŢULUŞ AND OTHERS v. ROMANIA
(Application
no. 40892/04)
JUDGMENT
STRASBOURG
26 January 2010
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 Ţuluş and
Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 5 January 2010
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40892/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by fortyseven Romanian nationals, Ms Andrea
AnnaMaria Ţuluş and forty-six other applicants, on 9
November 2004.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- The
applicants alleged that their right to a fair hearing had been
breached in so far as the final decision of 2 July 2002 of the Cluj
Court of Appeal was quashed and reversed by means of an extraordinary
appeal (recurs în anulare).
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, Ms Andrea AnnaMaria Ţuluş and forty-six other
applicants are Romanian nationals. They are judges and auxiliary
personnel of the Cluj County Court.
- Twenty
of the forty-seven applicants have two given names. However, only one
of these names appeared in the decisions of the domestic courts. For
example, the main applicant's full name is Andrea AnnaMaria Ţuluş,
while in the domestic decisions she is referred to as Andrea Ţuluş.
- In
a judgment of 17 May 2002, the Cluj County Court allowed an action
concerning the restitution of the amounts retained as health
insurance contributions from the salaries of the applicants for the
period between 1 January 2000 and 30 March 2001. The action
was lodged by the applicants against the County Court of Cluj and the
Ministry of Justice.
- In
a final decision of 2 July 2002, the Cluj Court of Appeal dismissed
the appeal filed by the Ministry of Justice against that judgment.
- At
the end of 2003, the applicants obtained the restitution of
the amounts retained from their salaries through forced
execution.
- On
2 July 2003, the Procurator-General lodged an application with the
High Court of Cassation and Justice to have the final decision
quashed (recurs în anulare) on the ground that the
decision had seriously infringed the law and that it was, in any
case, manifestly ill-founded.
- In
its decision of 11 May 2004, the High Court allowed the extraordinary
appeal, quashed the final decision of 2 July 2002 and the judgment
of 17 May 2002 and, as a result, rejected the applicants' action, on
the ground that the ordinary court had incorrectly interpreted
the applicable law.
- In
their last letter addressed to the Court, on 7 August 2008,
the applicants stated that the High Court's decision of 11 May
2004 had never been executed and consequently they had not returned
the amounts obtained through forced execution.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions are described in the judgment Brumărescu
v. Romania [GC], no. 28342/95, §§ 32 and 33,
ECHR 1999 VII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the quashing by means of an extraordinary
appeal (recurs în anulare) of the Cluj Court of Appeal's
final decision of 2 July 2002 had infringed their right to a fair
hearing, as provided for in Article 6 § 1 of the Convention,
which 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
Government contended that twenty of the forty-seven applicants were
not victims of a violation of the above provisions, because the
persons who submitted the application before the Court were not the
same persons as the plaintiffs in the domestic proceedings. They
stated that the special procedure for the amendment of obvious
material errors in a court decision, as provided for by Article 281
of the Code of Civil Procedure, had not been followed by the
applicants.
- The
applicants contested this and reiterated that the existence of
certain omissions regarding their names in the decisions of the
domestic courts had not prevented them from obtaining the forced
execution of those decisions. With respect to the argument raised by
the Government that they should have followed the procedure for
amending obvious material errors, the applicants contended that they
had had no interest in doing so since they had obtained the execution
of the domestic decisions without any difficulty.
- The
Court notes that the alleged discrepancy in the identities of those
applicants in the domestic proceedings and those before the Court
lies in the fact that the domestic courts had omitted the middle
names of those applicants who have two given names (see above §
6). Furthermore, the Court notes that the applicants, who are judges
and auxiliary staff at the Cluj County Court – the same court
that gave the first domestic decision, upheld by the final decision
of the Cluj Court of Appeal – obtained the execution of the
final decision without anybody contesting their identity. Therefore,
the Court considers that the case file does not disclose anything
which would raise any doubt as to whether the applicants were the
same persons as the ones standing in the domestic proceedings.
- 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
- The
applicants contended that by allowing the extraordinary appeal, the
Supreme Court had set at naught the final decision that had been in
their favour, thereby infringing their right to a fair hearing.
- The Government did not contest that the principle of
legal certainty, and therefore Article 6 § 1, had been infringed
in the present case. It noted, however, that this extraordinary
procedure had been repealed from the Code of Civil Procedure. The
Government contended furthermore that the High Court's
decision of 11 May 2004 that had quashed the final decision which had
been in the applicants' favour had never been executed and
consequently they had not returned the amounts obtained through
forced execution. Therefore, it concluded that the interests of the
applicants had not been significantly affected.
- The
applicants admitted that the High Court's decision had not been
enforced and accordingly the sums of money obtained through forced
execution of the final decision of the Cluj Court of Appeal were
never returned. However, relying on the constant case law of the
Court, they contended that they had not lost the status of “victim”
since the national authorities had never acknowledged or afforded
redress for their breach of the Convention.
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising similar issues to
the one in the present case, as it has considered that the
extraordinary appeal under review infringed the principle of legal
certainty in so far as it was not open to both the parties to the
proceedings but to the Procurator General alone. It has also
considered that, by allowing the application, the Supreme Court of
Justice had set at naught an entire judicial process which had ended
in a judicial decision that was res judicata and which had,
moreover, been executed (see, among many others, Brumărescu,
cited above, § 62; SC Maşinexportimport Industrial Group
SA v. Romania, no. 22687/03, § 36, 1 December
2005; and Cornif v. Romania, no. 42872/02, §§ 29-30,
11 January 2007).
- In
the case at hand, the courts found in favour of the applicants in an
action for the recovery of the sums retained from their salaries as
health insurance contributions. They decided that, according to the
special law applicable to magistrates and judicial auxiliary staff,
this category of civil servant benefits from free medical assistance
and accordingly such contributions were not due. Upon the filing of
the extraordinary appeal, the High Court gave in its decision of 11
May 2004 another interpretation to the existing legal provisions
regarding the obligation to pay health insurance contributions.
- The
Court considers that this situation is nothing but a mere
reinterpretation of the facts and applicable law, which, bearing in
mind the circumstances of the case, does not justify the quashing of
a final and binding decision.
- The
foregoing considerations are sufficient for enabling the Court to
conclude that the quashing of the final decision of 2 July 2002 of
the Cluj Court of Appeal has infringed the principle of legal
certainty and the right to a fair trial. The fact that the High
Court's decision of 11 May 2004 had never been executed does not
change this conclusion.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE
CONVENTION
- In
their initial application, the applicants contended that the quashing
by means of an extraordinary appeal of the final decision violated
their right to peaceful enjoyment of their possessions, as guaranteed
by Article 1 of Protocol No.1.
- By
a letter of 7 August 2008, the applicants informed the Court that the
High Court's decision of 11 May 2004 had never been executed and
could no longer be executed since according to domestic law it had
become time-barred. Consequently, the applicants did not return the
amounts obtained through forced execution.
- Therefore,
in the light of the applicants' submissions (see § 27 above),
the Court considers that they may not be considered as victims of a
violation of Article 1 of Protocol No. 1 to the Convention. It
follows that this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
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.”
- The
applicants did not submit a claim for just satisfaction. They
submitted that a judgment of the Court in their favour would in
itself constitute sufficient just satisfaction for the violation of
Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint regarding the quashing by
an extraordinary appeal of a final decision admissible and the
reminder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
