PLES v. ROMANIA - 37213/06 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 357 (12 April 2016)

In the case of Pleş v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Boštjan M. Zupančič,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Antoanella Motoc, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 8 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 37213/06) 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 Costel Adrian Pleş (“the applicant”), on 30 August 2006.

2. The applicant was represented by Mr L. Coldea, a lawyer practising in Cluj-Napoca. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.

3. The applicant alleged that his right to a fair trial had been infringed as the domestic courts had ignored one of his claims, without providing any legitimate reason for doing so.

4. On 27 January 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1976 and lives in Cluj-Napoca.

6. The applicant is the son and heir of Mr C. Pleş. He replaced his father in the domestic proceedings after his death.

7. The applicant’s father was shot on 21 December 1989 while participating in a demonstration organised in Cluj against N. Ceauşescu. He was immediately hospitalised and diagnosed with “a gunshot wound in the right side of the chest, rupture of the right lung and fracture of ribs seven and eight, plus a gunshot wound in the right arm”. Following surgery, two lobes of his right lung were removed. He was left with a breathing deficit of over 30%, paresis of his right arm, and a permanent disability that prevented him from continuing to work to support his family. Furthermore, in subsequent years he was hospitalised many times because of serious breathing problems.

8. Criminal proceedings were instituted against the army commanders who had ordered the shooting of demonstrators during the events of December 1989 in Cluj. Many victims of the repression joined civil complaints to the proceedings, requesting compensation for pecuniary and non-pecuniary damage. The applicant’s father lodged one such civil complaint, requesting 150,000,000 Romanian lei (ROL) (approximately 4,100 euros (EUR)) in respect of pecuniary damage, ROL 500,000,000 (approximately EUR 14,000) in respect of non-pecuniary damage, and ROL 50,000,000 (about 1,400 euros) for costs and expenses incurred during the trial.

9. On 17 May 2004 the applicant’s father died. He was replaced as a civil party in the proceedings by the applicant.

10. By a judgment of 23 May 2005 the High Court of Cassation and Justice, acting as a first-instance court, convicted five of the officers involved in the events of December 1989 in Cluj. They were ordered to pay compensation jointly with the Ministry of National Defence to all eighty-four civil parties in the case. The court granted the applicant ROL 150,000,000 in respect of pecuniary damage and ROL 50,000,000 for costs and expenses. It omitted to grant the claim for ROL 500,000,000 in respect of non-pecuniary damage, without providing any reason.

11. Eighteen civil parties to the criminal proceedings, including the applicant, lodged an appeal on points of law, complaining about the way in which the first-instance court had examined their claims for damages. The grounds of appeal of the civil parties were not identical. In most of the cases they concerned the amount of damages awarded. The applicant complained that the first-instance court had not granted him the requested compensation for non-pecuniary damage.

12. By a decision of 20 March 2006, a panel of nine judges of the High Court of Cassation and Justice dismissed all the appeals lodged by the civil parties. The court of last resort referred to the general provisions of the Code of Criminal Procedure and Civil Code concerning compensation for damages in the context of civil actions joined to criminal proceedings (see paragraph 13 below) and without examining in particular any of the civil parties’ appeals, it dismissed all the appeals as ill-founded.

II. RELEVANT DOMESTIC LAW

13. The relevant provisions of the Romanian Code of Criminal Procedure in force at the time read as follows:

Article 14

“(1) The aim of a civil action is to establish the civil liability of the accused and the liability for damages of any other person who may be held legally responsible.

(2) A civil action can be brought together with a criminal action in a criminal trial, by way of joining the proceedings.”

...

“(5) The aim of a civil action may be to establish the civil liability of the accused for non-pecuniary damage, in accordance with the civil law.”

Article 15

“(1) A person who has suffered civil damage may join the criminal proceedings ...

(2) He or she may do so either during the criminal investigation ... or before the court ...”

Article 346

“(1) In the event of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action.”

THE LAW

I. PRELIMINARY OBJECTION

14. The Government submitted that the applicant’s complaints should not be examined by the Court, as he had not observed the provisions of Article 34 of the Convention and Rule 47 of the Rules of Court. They contended that although the applicant had sent a letter to the Registry on 30 August 2006, he had never submitted a duly completed application form.

15. The applicant did not agree with the Government’s submissions.

16. On 30 August 2006 the applicant sent a letter containing a summary of facts and complaints, together with a power of attorney and supporting documents. On 18 December 2006 the President of the section decided under Rule 47 that the Court would examine the application on the basis of the documents and information submitted by the applicant.

17. Accordingly, the Court concludes that the application cannot be rejected for failure to comply with the procedural rules of the Court.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18. The applicant complained that his compensation claim for non-pecuniary damage had been completely ignored by the domestic courts without any reasons being given.

He relied on 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 and public hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

19. The Court notes that the application 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

20. The applicant submitted that the domestic courts had totally ignored his claim for non-pecuniary damage, despite the fact that he had expressly made the claim not only before the first-instance court but also before the appellate court. He contended that the lack of a reply to his claim for non-pecuniary damage had been his grounds of appeal. He also pointed out that the domestic courts had not provided any reasons for their failure to examine his claim.

21. The Government submitted that the applicant had been a civil party, after his father’s death, to criminal proceedings instituted by eighty-four individuals who had been injured during the violent suppression of the anti-totalitarian demonstrations which had taken place in Cluj in December 1989. They also contended that the applicant’s claims for damages had been duly examined by the domestic courts.

22. The Court reiterates at the outset that it is not its function to deal with errors of fact or law allegedly made by a national court: it is in the first place for the national authorities, and notably the courts, to interpret domestic law (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

23. In view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37), the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by a court (see Dulaurans v. France, no. 34553/97, § 33, 21 March 2000; Donadzé v. Georgia, no. 74644/01, §§ 32 and 35, 7 March 2006; and Dima v. Romania, no. 58472/00, § 34, 16 November 2006).

24. The extent to which a court’s duty to give reasons applies may vary according to the nature of the decision. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Gheorghe v. Romania, no. 19215/04, § 43, 15 March 2007).

25. Without requiring a detailed answer to every argument put forward by a complainant, this obligation nevertheless presupposes that the injured party can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A; and Higgins and Others v. France, 19 February 1998, § 42, Reports of Judgments and Decisions 1998-I).

26. In the instant case, the Court notes that, in his initial complaint, the applicant expressly claimed compensation for non-pecuniary damage in the amount of ROL 500,000,000, as well as for pecuniary damage and costs and expenses. However, the court of first instance did not make any reference to his claim concerning non-pecuniary damage.

27. The claim in respect of non-pecuniary damage called for a clear and explicit reply. In the absence of such a reply, it is impossible to say whether the court simply neglected to dismiss the claim or did so intentionally, and in the latter case for what reasons (see Dima v. Romania, cited above, § 39).

28. The applicant reiterated his claim in an appeal on points of law before a nine-judge panel of the High Court of Cassation and Justice. However, the court of last resort dismissed his appeal without providing a clear reason for dismissing his claim for non-pecuniary damage. The Court notes that the appellate court did not remedy the defect in question even though the possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for defects in the first-instance proceedings (see Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005-XIII; and Luka v. Romania, no. 34197/02, § 58, 21 July 2009).

29. In the light of the foregoing, the Court concludes that there has therefore been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30. 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

31. The applicant claimed of 300,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

32. The Government contested the claim, which they considered excessive. Furthermore, they were of the opinion that there was no direct link between the violations alleged and the pecuniary and non-pecuniary damage the applicant claimed to have sustained. They concluded that the finding of a violation would constitute in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

33. The Court notes that an award of just satisfaction can only be based in the instant case on the fact that the applicant did not have the benefit of the guarantees of Article 6 before the domestic courts. Whilst it cannot speculate as to the amount that would have been awarded had the domestic courts allowed the applicant’s claim for compensation, it does not find it unreasonable to regard the applicant as having suffered a loss of real opportunities (see, mutatis mutandis, Yiarenios v. Greece, no. 64413/01, § 27, 19 February 2004). The Court considers that that loss would not be sufficiently compensated for by the mere finding of a violation of the Convention.

34. Ruling on an equitable basis, the Court considers that the applicant should be awarded EUR 3,600 in compensation for non-pecuniary damage.

B. Costs and expenses

35. The applicant did not submit a claim for the costs and expenses incurred.

C. Default interest

36. 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 application admissible;

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 of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State 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;

4. Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos András Sajó
Registrar President

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