THIRD SECTION

CASE OF ENCULESCU v. ROMANIA

(Application no. 20789/07)

JUDGMENT

STRASBOURG

19 November 2013

 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 Enculescu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Corneliu Bîrsan,
	Ján Šikuta,
	Luis López Guerra,
	Nona Tsotsoria,
	Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20789/07) 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 Marian Enculescu (“the applicant”), on 19 April 2007.
2.  The Romanian Government (“the Government”) were initially represented by their co-Agent, Ms I. Cambrea and subsequently by their Agent Ms C. Brumar, from the Ministry of Foreign Affairs.
3.  The applicant alleged, in particular, that the proceedings brought by him against a third party for forgery and use of forged documents had breached his rights guaranteed by Article 6 § 1 of the Convention because they had been unreasonably lengthy and because the domestic courts had lacked impartiality, insofar as two of the judges sitting on the three-judge panel examining his appeal on points of law before the Court of Cassation during the third round of proceedings had already adjudicated on his first appeal on points of law before the Court of Cassation during the second round of proceedings.
4.  On 26 January 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1961 and lives in Drobeta-Turnu Severin.
A.  First round of proceedings
6.  On 23 August 1996 the applicant brought criminal proceedings and joined civil claims against a third party for forgery and use of forged documents.
7.  In a letter of 2 April 1997 addressed to the domestic authorities investigating the case, the applicant complained that the investigation had been excessively lengthy and that the authorities had failed to react with sufficient urgency.
8.  By a final order of 12 July 2002, the Drobeta-Turnu Severin Prosecutor’s Office discontinued the criminal investigation against the third party on the grounds that it was time-barred. At the same time, it referred the case to the civil courts, in particular the Drobeta-Turnu Severin District Court, to determine whether the documents contested by the applicant had been forged by the third party and whether the said documents were invalid.
9.  By a judgment of 26 November 2002 the Drobeta-Turnu Severin District Court referred the case to the Mehedinţi County Court, on the grounds that it had jurisdiction to examine the case. The applicant appealed on points of law (recurs) against the judgment.
10.  By a final judgment of 31 January 2003 the Mehedinţi County Court dismissed the applicant’s appeal on points of law against the judgment of 26 November 2002 as without merit.
11.  By a judgment of 10 June 2003, after examining the merits of the applicant’s case, the Mehedinţi County Court dismissed the applicant’s action on the basis of documentary, testimonial and expert evidence. The applicant appealed on points of law against the judgment on the grounds that the first-instance court had failed to examine the validity of some of the documents contested by him.
12.  By a final judgment of 24 February 2004 the Craiova Court of Appeal allowed the applicant’s appeal on points of law, quashed the judgment of 10 June 2003 and ordered a retrial by the first-instance court. It held that the first-instance court had not examined the validity of some of the documents contested by the applicant, which amounted to a failure to examine the merits of the case.
B.  Second round of proceedings
13.  By a judgment of 16 June 2004 the Mehedinţi County Court dismissed the applicant’s action on the merits. The applicant appealed against the judgment.
14.  By a judgment of 3 November 2004 the Craiova Court of Appeal dismissed the applicant’s appeal against the judgment of 16 June 2004 on the merits. The applicant appealed on points of law against the judgment.
15.  By a final judgment of 2 November 2006 the Court of Cassation, sitting as a bench of three judges which included judges E.E. and B.S., dismissed the applicant’s appeal on points of law against the judgment of 3 November 2004 on procedural grounds without touching on the merits. The applicant lodged an extraordinary appeal (contestaţie în anulare) against the judgment on the grounds that the domestic courts had failed to examine one of the grounds of appeal on points of law he had raised.
16.  By a final judgment of 4 March 2008 the Court of Cassation allowed the applicant’s extraordinary appeal, quashed the final judgment of 2 November 2006 and ordered a retrial. It held that the Court of Cassation sitting as a court of final appeal had failed to examine all the grounds of appeal on points of law raised by the applicant.
17.  By a final judgment of 25 November 2008 the Court of Cassation allowed the applicant’s appeal on points of law against the judgment of 3 November 2004, quashed the said judgment and ordered a retrial. It held that the court of appeal had failed to clarify the factual circumstances of the case.
C.  Third round of proceedings
18.  By a judgment of 3 June 2009 the Craiova Court of Appeal dismissed the applicant’s appeal against the judgment of 16 June 2004 on the merits. The applicant appealed on points of law against the judgment.
19.  On 28 April 2010 judges E.E. and B.S. lodged a request before the Court of Cassation to be allowed to withdraw from examining the applicant’s case, on the grounds that they had already examined the same case between the same parties on 2 November 2006. By a final interlocutory judgment delivered on the same date the Court of Cassation dismissed the two judges’ request without providing any reasons.
20.  By a final judgment of 29 April 2010, served on the applicant on 1 September 2010, the Court of Cassation, sitting as a bench of three judges including judges E.E. and B.S., dismissed the applicant’s appeal on points of law on the merits.
D.  Other relevant information
21.  On 19 April 2007, in his initial letter to the Court, the applicant alleged that the proceedings he had brought against the third party for forgery and use of forged documents had been excessively lengthy. He also informed the Court that he had brought extraordinary appeal proceedings against the judgment of 2 November 2006.
22.   In a letter of 1 July 2011 the applicant alleged for the first time before the Court that the proceedings brought by him against the third party had been unfair because judges E.E. and B.S. had examined his case during both the second and third rounds of proceedings. He did not make any further submissions concerning the length of the proceedings.
II.  RELEVANT DOMESTIC LAW
23.  Article 24 of the former Romanian Code of Civil Procedure (“the CCP”) provides that a judge who has already ruled on a case cannot sit on a panel deciding on the case in a new set of proceedings following a quashing order. Article 25 of the CCP provides that a judge who is aware that there is a reason precluding him or her from being eligible to rule on a case has to inform his or her supervisor and withdraw from sitting on the panel reviewing the case.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
24.  The applicant complained that the proceedings brought by him against the third party for forgery and use of forged documents had been unfair because they had been unreasonably lengthy. He relied on Article 6 § 1 of the Convention which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
A.   Admissibility
1.  Submissions of the parties
25.  The Government contended that the Court was not competent to examine the part of the applicant’s complaint concerning the length of the proceedings which concerned the period subsequent to the applicant’s extraordinary appeal against the judgment of 2 November 2006. They submitted that the applicant had only complained about the length of proceedings on 19 April 2007 in his initial application to the Court. At that stage, the proceedings had ended with the judgment of 2 November 2006 and they had yet to be reopened as a result of the applicant’s extraordinary appeal. However, he had failed to mention the extraordinary appeal in his initial application.
26.  They also argued that the present case was distinguishable from those cases where an applicant complained of the length of proceedings which were still pending before the domestic courts at the time of the application. In the applicant’s case, he could not have had any knowledge in April 2007 that the proceedings in his case would be reopened and therefore he could not have raised a complaint in this respect. The applicant only informed the Court on 1 July 2011 that the extraordinary appeal proceedings had been allowed and that the proceedings had ended on 29 April 2010. However, the latter letter had not made any reference to the length of proceedings, and in any case such a complaint would have been lodged outside the six-month time-limit.
27.  The applicant disagreed.
2.  The Court’s assessment
28.  The Court notes that in his initial letter to the Court on 19 April 2007 the applicant expressly complained about the length of the proceedings brought by him against the third party for forgery and use of forged documents. In addition, in the same letter, contrary to the Government’s submissions, he informed the Court that he had lodged extraordinary appeal proceedings against the final judgment of 2 November 2006.
29.  While it is true that by the time the applicant wrote to the Court for the first time the proceedings in question appeared to be closed and that in his letter of 1 July 2011 the applicant did not make any reference to the length of proceedings after his extraordinary appeal was allowed, the Court notes that his initial complaint concerning the length of proceedings concerned the same set of proceedings which were reopened after he lodged the extraordinary appeal. In addition, the applicant never expressly indicated to the Court that the object of his complaint concerning the length of the proceedings was exclusively the period prior to the extraordinary appeal lodged by him. Consequently, the Court considers that the applicant had already expressly stated his complaint and sees no valid reason why it would require the applicant to reiterate it in order to be able to examine part or all of it. It follows that the Government’s objection concerning the Court’s lack of competence to examine the part of the applicant’s complaint concerning the period after his extraordinary appeal was allowed must be dismissed.
30.  Lastly, the Court notes that this complaint 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.  Submissions of the parties
31.  The applicant contended that the domestic authorities had been solely responsible for the length of the proceedings and that even though the case had lacked any complexity it had lasted around fourteen years.
32.  The Government submitted that even if the Court considered that it was competent to examine the entire length of the proceedings in question, only the period during which the case was actually pending before the domestic courts should be taken into consideration. In addition, they argued that the applicant had been responsible for some of the delays in respect of the proceedings in question.
2.  The Court’s assessment
33.  The Court agrees with the Government that only the period of time the proceedings were actually pending before the domestic authorities, in particular from 23 August 1996 to 2 November 2006 and from 4 March 2008 to 29 April 2010, should be taken into account in order to examine the applicant’s complaint concerning the length of the proceedings (see Seregina v. Russia, no. 12793/02, § 92, 30 November 2006, and Cerăceanu v. Romania, no. 31250/02, § 47, 4 March 2008).
34.  The Court reiterates that the reasonableness of the length of any proceedings must be assessed in the light of the circumstances of the 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).
35.  The Court notes that there were repeated procedural delays over the entire course of the proceedings brought by the applicant and that the judgments of the domestic trial courts were repeatedly quashed by the appellate courts. It can accept that the case brought by the applicant might be seen – at least to some degree – as being complex, and that the applicant was also responsible for some of the delays. That being said, it cannot but note that the proceedings lasted over twelve years before three levels of jurisdiction. The length of this period cannot be justified by the complexity of the case and by the applicant’s conduct alone. In the Court’s opinion, the length of the proceedings can only be explained by the failure of the domestic courts to deal with the case diligently (see Gümüşten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).
36.  Having regard to all the evidence before it, the Court finds that the length of the proceedings in issue does not satisfy the “reasonable time” requirement.
37.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LACK OF IMPARTIALITY OF THE DOMESTIC COURTS
38.  The applicant complained that the proceedings brought by him against the third party for forgery and use of forged documents had been unfair because the domestic courts had lacked impartiality, insofar as two of the judges sitting on the three-judge panel examining his appeal on points of law before the Court of Cassation during the third round of proceedings had already adjudicated on his first appeal on points of law before the Court of Cassation during the second round of proceedings.
Admissibility
1.  Submissions of the parties
39.  The Government contended that the applicant had complained for the first time before the Court about the issue of the composition of the bench of judges of the Court of Cassation during the third round of proceedings on 1 July 2011. The impugned proceedings had ended on 29 April 2010 with the final judgment of the Court of Cassation. The said final judgment was served on the applicant on 1 September 2010. Consequently, the applicant’s complaint should be dismissed for failure to comply with the six month time-limit.
40.  The applicant contended that he had lodged his initial application before the Court within the required time-limit. Afterwards he had kept the Court informed of the developments in the case and he had not been obliged to observe the six-month time-limit, as the additional information had concerned the same set of proceedings.
2.  The Court’s assessment
41.  The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).  As a rule, an application must be introduced within six months of the date of the “final decision” in the chain of domestic remedies which have to be exhausted, or where there are no such remedies, from the date of the act complained of, or knowledge thereof. The Court further recalls that in cases where a decision is not pronounced publicly, the time starts to run on the day following the date on which the applicant or his representative was informed of this final decision (see K. C. M. v. the Netherlands, Commission decision of 9 January 1995, no. 21034/92, Decisions and Reports (DR) 80-A, p. 88).
42.  In the present case, the Court notes that the proceedings brought by the applicant against the third party for forgery and use of forged documents ended with the Court of Cassation’s final judgment of 29 April 2010. The said judgment was available to the parties and was served on the applicant on 1 September 2010. The applicant did not argue before the Court that he had failed to receive the said judgment on that date or that he had received it at a later date. Consequently, the Court considers that this is the date that constitutes the moment of the final decision for the purposes of the six‑month rule.
43.  The Court also notes that the applicant complained for the first time before the Court of a lack of impartiality on the part of the domestic courts, insofar as two of the judges sitting on the three-judge panel examining his appeal on points of law before the Court of Cassation during the third round of proceedings had already adjudicated on his first appeal on points of law before the Court of Cassation during the second round of proceedings, in his letter of 1 July 2011. Consequently, the applicant lodged his complaint before the Court more than six months after 1 September 2010, which was the date on which he first had knowledge of the act of which he complained.
44.  It follows that this complaint has been introduced out of time and must, as such, be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
III.  OTHER ALLEGED VIOLATION OF THE CONVENTION
45.  Relying on Article 6 § 1 of the Convention the applicant complained that the proceedings had been unfair because the domestic courts had wrongfully assessed the evidence and had misinterpreted the applicable legal provisions.
46.  The Court has examined this complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as it falls within its jurisdiction, the Court finds that it does 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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
48.  The applicant claimed 49,633 euros (EUR) in respect of pecuniary damage incurred as a result of the dismissal of the proceedings brought by him against the third party. He supported his claim by submitting an expert report. In addition, he claimed EUR 10,000 for non-pecuniary damage.
49.  The Government considered that there was no link between the complaints raised by the applicant before the Court and the pecuniary damage claimed. In addition, they argued that the sums claimed were excessive and unjustified.
50.  The Court highlights that it has found a breach of the rights guaranteed by the Convention as a result of the length of the proceedings the applicant was involved in.
51.  The Court considers that there is no direct link between the violation found and the applicant’s claim for pecuniary damage. However, the Court takes the view that, as a result of the violation found, the applicant must have suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.
52.  Consequently, ruling on an equitable basis, the Court awards the applicant EUR 3,600 in respect of non-pecuniary damage.
B.  Costs and expenses
53.  The applicant also claimed 6,951 lei (RON) (approximately EUR 1,555) for costs and expenses incurred before the domestic courts and before the Court, of which RON 4,200 (approximately EUR 940) represented the fee paid for the expert report attesting the pecuniary damage claimed.
54.  The Government argued that the costs and expenses claimed by the applicant were excessive.
55.  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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 615 in respect of costs and expenses.
C.  Default interest
56.  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 complaint concerning the length of proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

3.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 615 (six hundred and fifteen 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 19 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President