THIRD SECTION
CASE OF
ŞERCARU v. ROMANIA
(Application no.
13088/09)
JUDGMENT
STRASBOURG
2 April 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Şercaru v. Romania,
The European Court of Human
Rights (Third Section), sitting as a Committee composed of:
Alvina Gyulumyan,
President,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 13088/09) 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, Ms Mihaela Şercaru (“the applicant”),
on 2 March 2009.
The Romanian Government (“the Government”) were
represented by their Agent, Mrs Irina Cambrea, from the Ministry of Foreign
Affairs.
On 6 December 2011 the application was
communicated to the Government. In accordance with Protocol No. 14, the
application was assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and lives in Bucharest.
On 31 July 2002 she lodged a criminal complaint
against her husband accusing him of stealing from their common household. A
civil claim was joined to the complaint.
On 17 June 2003 the prosecution brought the case
to court on charges of theft between spouses.
On 16 February 2004 the Galaţi District
Court convicted the defendant to two years and two months’ imprisonment and
awarded the applicant 20,000 Romanian lei (RON) - around 4,500 euros (EUR) - as
pecuniary damage.
The judgment became final at first instance as no
appeal had been filed against it.
Subsequently, the defendant appealed on points of
law outside the statutory time-limit alleging that the first-instance court had
not observed the guarantees of a fair trial in his respect. He claimed that he had
been convicted in absentia and that he had not benefited from legal
representation.
On 4 May 2005 the County Court of Galaţi
allowed the appeal. It thus quashed the first-instance judgment and remitted
the case to the lower court for re-trial.
On 26 October 2007 the defendant was convicted
to one year’s imprisonment for breach of trust between spouses. The applicant
was awarded RON 400 (around EUR 91) as pecuniary damage. Both the defendant and
the applicant appealed on points of law.
On 5 June 2008 the applicant withdrew her complaint
as well as her appeal on points of law.
On 12 September 2008 the Galaţi District
Court granted the motion of withdrawal of charges and thus terminated the
criminal proceedings. The judgment became final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time” requirement, laid
down 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 ... hearing within a reasonable time by [a] ...
tribunal...”
The period to be taken into consideration began
on 31 July 2002 when the applicant filed the criminal complaint with her civil
claims. The proceedings were terminated on 12 September 2008. It thus lasted six
years and more than one month for two levels of jurisdiction.
A. Admissibility
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
The Court reiterates
that the reasonableness of the length of 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, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Pélissier and Sassi and Frydlender, cited
above, Abramiuc v. Romania, no. 37411/02, § 103-109, 24 February 2009).
Turning to the facts of the present case and in
the absence of any additional submissions from the parties, the Court notes that
the criminal complaint filed by the applicant did not raise particularly
complex aspects. Further, it observes that while the applicant did not show a
dilatory conduct, the judicial authorities were responsible for the delays as
the case was remitted to the lower court owing to procedural errors.
Having examined all the material submitted to it
and in the light of its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement.
There has accordingly been a breach of Article 6
§ 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying on Article 6 § 1, the applicant further
complained about the outcome and the lack of fairness of the proceedings,
alleging that the domestic courts had failed to conduct a proper examination of
the evidence submitted before them. She also relied on Article 1 of Protocol
No. 1 to the Convention to claim an infringement on her property rights, since
the courts had not awarded any of her civil claims.
Having regard to all the materials in its
possession, and in so far as these complaints fall within its competence, the
Court finds that there is no appearance of a violation of the rights and
freedoms set out in these provisions in that respect. It follows that this part
of the applications must be rejected pursuant to Article 35 §§ 1, 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 4,500 euros (EUR) in
respect of pecuniary damage. She also sought to be awarded a sum in respect of non-pecuniary
damage, the amount of which she left for the Court to consider.
The Government did not express an opinion on the
matter.
The Court does not discern any causal link
between the violation found in respect of the length of civil proceedings and
the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have
certainly sustained non-pecuniary damage which is not sufficiently compensated
by the finding of a violation of the Convention. Ruling on an equitable basis,
it awards her EUR 1,500 under that head.
B. Costs and expenses
The applicant also claimed reimbursement of the
costs and expenses incurred before the domestic courts as well as before the
Court. She did not submit any supporting documents and left the matter at the
Court’s discretion.
The Government did not express an opinion on the matter.
According to the Court’s established case-law,
costs and expenses will not be awarded under Article 41 unless it is
established that they were actually incurred, were necessarily incurred and
were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, § 54, ECHR 2000-XI).
Regard being had to the documents in its
possession and to its
case-law, the Court considers that there is no call to award any sum under this
head.
C. Default interest
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 excessive length of the proceedings admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Alvina
Gyulumyan
Deputy Registrar President
