1468/08

FOURTH SECTION             CASE OF LOGHIN v. ROMANIA   (Application no. 1468/08)             JUDGMENT   This version was rectified on 24 January 2017 under Rule 81 of the Rules of the Court     STRASBOURG   21 June 2016     This judgment is final but it may be subject to editorial revision. In the case of Loghin v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee ad hoc composed of:  Krzysztof Wojtyczek, President,  Iulia Motoc,  Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 31 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 1468/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mr Aurel Loghin, Ms Virginia[1] Loghin and Mr Neculai Loghin (a son and his parents – “the applicants”), on 17 December 2007.[2] The third applicant, Mr Neculai Loghin, died on 17 January 2011. No request to pursue the application on his behalf was made. 2.  The applicants represented themselves before the Court. The Romanian Government (“the Government”) were represented by their co‑Agent, Mrs C. Ciută, from the Ministry of Foreign Affairs. 3.  The applicants alleged, in particular, that the composition of the bench which had delivered the judgment of the Iaşi County Court had not been in accordance with the law, and had therefore breached their rights as guaranteed by Article 6 § 1 of the Convention. 4.  On 24 November 2010 the application was communicated to the Government. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 5.  The applicants were born in 1958, 1940 and 1933 respectively and live in Paşcani.[3] The third applicant was born in 1933 and died in 2011. 6.  On 2 March 2004 a claimant initiated civil proceedings against the applicants, seeking the annulment of a sale/purchase agreement. By a judgment of 3 March 2006 the Paşcani District Court, acting as a court of first instance, dismissed the claimant’s action. 7.  The claimant appealed against the judgment of 3 March 2006. In their submissions in reply to the appeal lodged by the claimant, the applicants argued, inter alia, that the judgment was subject only to an appeal on points of law (recurs). By a judgment delivered on 26 January 2007 the Iaşi County Court, sitting as a bench of two judges, allowed the claimant’s appeal (apel). In the same judgment, the court dismissed the applicants’ arguments as to its jurisdiction, ruling that the judgment could be appealed at two levels by means of an ordinary appeal and an appeal on points of law. Thus, according to the Iaşi County Court, its judgment could be appealed via an appeal on points of law. 8.  The applicants lodged an appeal on points of law against the judgment of the Iaşi County Court. By a final judgment of 21 June 2007 the Iaşi Court of Appeal dismissed their appeal as inadmissible, without giving an analysis on the merits, ruling that the case could only be considered by two levels of jurisdiction, and that the judgment of the Iaşi County Court was therefore final, even if it had been given by a bench of two judges rather than the three prescribed by law. The Iaşi Court of Appeal also dismissed an extraordinary appeal (contestaţie în anulare) by the applicants, without giving an analysis on the merits, by a judgment delivered on 6 December 2007. II.  RELEVANT DOMESTIC LAW 9.  The relevant provisions of the Romanian Code of Civil Procedure and of the Administration of Justice Act (Law no. 304/2004), as in force at the material time, are set out in Jenița Mocanu v. Romania (no. 11770/08, 17 December 2013). THE LAW[4] I.  PRELIMINARY ISSUE 10.  The Court observes that the third applicant, Mr Neculai Loghin, had died on 17 January 2011, after the application was lodged, and no heir had expressed an interest in pursuing the application on his behalf (see paragraphs 1 and 5 above). 11.  The Court points out that its practice is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009). 12.  In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the third applicant (Article 37 § 1 (c) of the Convention). Furthermore, it points out that the complaints initially lodged by the third applicant are identical to those submitted by the other two applicants, on which it will express its opinion below. In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require the continuation of the examination of the third applicant’s application. 13.  In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Neculai Loghin, and to pursue the examination of the remainder of the application. II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.  The[5] first two applicants complained that the composition of the bench delivering Iaşi County Court’s judgment had not been in accordance with the law. They relied on Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.  Admissibility 1.  The parties’ submissions 15.  The Government submitted that, given the particular circumstances of the case and the procedural guarantees provided by the domestic legislation with regard to various types of appeal, the[6] first two applicants had not suffered a significant disadvantage. 16.  The[7] first two applicants did not agree with the Government’s submissions. 2.  The Court’s assessment 17.  The Court notes that the main criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). 18.  In the present case, the Court notes that the[8] first two applicants were involved in civil proceedings brought against a third party who was seeking the annulment of a sale/purchase contract. In the proceedings before the Court, they valued the property in question at EUR 165,120 (see paragraph 34[9] below). 19.  In this context, the Court does not consider that the financial impact of the matter on the[10] first two applicants could be considered small or insignificant. 20.  Under these circumstances, and in spite of any other arguments raised by the Government, the Court considers that the[11] first two applicants cannot be deemed not to have suffered a significant disadvantage. Accordingly, it dismisses the Government’s preliminary objection. 21.  The Court further 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.  The parties’ submissions 22.  The[12] first two applicants alleged that the fact that the appeal on points of law which they had lodged with the domestic courts had not been examined by a bench of three judges had been unlawful under the relevant domestic legislation. 23.  The Government contended that the[13] first two applicants had failed to show how the overall fairness of the proceedings had been affected by the inadmissibility of their appeal on points of law, given that they had had access to two levels of jurisdiction as required by law. The merits of their case had undoubtedly been examined twice, and the presence of a third judge would not have guaranteed them a favourable outcome. Moreover, the evidence regime was stricter in proceedings concerning an appeal on points of law than in appeal proceedings. 24.  The Government also argued that, according to the Court’s case‑law, the Court only considered it necessary for Contracting Parties to provide two levels of domestic jurisdiction in criminal cases. 2.  The Court’s assessment 25.   The Court reiterates that the phrase “established by law” in Article 6 § 1 also means “established in accordance with the law” (see Jenița Mocanu, cited above, § 37). In addition, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it and the composition of the bench in each case. 26.  The Court further reiterates that, in principle, a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore consider whether the domestic law has been complied with in this regard (see Jenița Mocanu, cited, above, § 38). 27.  Turning to the present case, the Court notes that the appeal brought by the[14] first two applicants against a third party was initially considered by the domestic courts to be eligible for consideration at three levels of jurisdiction. Therefore, the Iaşi County Court delivered its judgment on appeal as a bench of two judges. Thereafter, the[15] first two applicants lodged an appeal on points of law against that decision. The Iaşi Court of Appeal then reclassified the civil claim as eligible for consideration at only two levels of jurisdiction, dismissing the[16] first two applicants’ appeal on points of law as inadmissible. Consequently, the decision given by the Iaşi County Court on 26 January 2007 was considered final by the Iaşi Court of Appeal (see paragraphs 7 and 8 above). 28.  In this context, the Court notes that Article 54 § 2 of Law no. 304/2004 provided that domestic courts had to sit as benches composed of three judges to decide appeals on points of law lodged against the judgments of lower courts. In the present case, the Iaşi County Court sat as a bench composed of two judges in order to deal with the appeal on points of law which had been lodged before it. The Court therefore considers that that bench, which delivered its decision on the merits of the case as both a second and last-instance court, was not composed in accordance with the domestic law in force at the material time. 29.  The foregoing considerations, notwithstanding the arguments put forward by the Government in respect of the general fairness of the proceedings to which the[17] first two applicants were party, are sufficient to enable the Court to conclude that the domestic courts’ significant deviation from the domestic rules of civil procedure amounted to a breach of the Convention requirement for the[18] first two applicants’ claim to be determined by a “tribunal established by law” (see Jenița Mocanu, cited above, § 42). 30.  Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect. III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31.  Lastly, the[19] first two applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions had been breached by the domestic courts. They also raised another complaint under Article 5 of Protocol No. 7 to the Convention, without putting forward any reasons in support of their allegation. 32.  The Court has examined these complaints submitted by the[20] first two applicants. 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 these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.  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 34.  The first applicant claimed 165,120 euros (EUR) in respect of pecuniary damage, this amount representing the value of the property which he had lost in the domestic civil proceedings. The second applicant claimed EUR 9,700, this amount representing what he had paid in compensation to his former wife. In respect of non-pecuniary damage, the first applicant claimed EUR 200,000 and the second applicant claimed EUR 100,000. 35.  The Government asked the Court to dismiss the[21] first two applicants’ claims in respect of pecuniary damage as there was no causal link between the alleged violation of Article 6 § 1 of the Convention and the value of the lost property. As regards the[22] first two applicants’ claims in respect of non‑pecuniary damage, the Government submitted that the mere acknowledgement of a violation of the[23] first two applicants’ right should represent in itself just satisfaction. 36.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards each[24] of the first two applicants[25] EUR 3,600 in respect of non‑pecuniary damage. B.  Costs and expenses 37.  The[26] first two applicants also claimed EUR 1,426 for costs and expenses incurred before the domestic courts and before the Court. 38.  The Government contested the claim and pointed out that the[27] first two applicants had failed to adduce relevant documents to justify all the alleged costs and expenses. 39.  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[28] to the first two applicants jointly the sum of EUR 300 to cover costs under all heads. C.  Default interest 40.  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[29], 1.  Decides to strike the application out of its list in so far as it concerns the third applicant, Mr Neculai Loghin;   2.  Declares the complaint raised[30] by the first two applicants, Mr Aurel Loghin and Ms Virginia Loghin, under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;   3.  Holds that there has been a violation of Article 6 § 1 of the Convention[31] in respect of the first two applicants;   4.  Holds (a)  that the respondent State is to pay[32], within three months, 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)[33] to each[34] of the first two applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)  EUR 300 (three hundred euros) to[35] the first two applicants[36] jointly, plus any tax that may be chargeable, 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;   5.  Dismisses the remainder of the[37] first two applicants’ claim for just satisfaction. Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Fatoş Aracı Krzysztof Wojtyczek Deputy Registrar President [1] Rectified on 24 January 2017: the text was: “Virgina”. [2] Rectified on 24 January 2017: the following phrases have been added: “The third applicant, Mr Neculai Loghin, died on 17 January 2011. No request to pursue the application on his behalf was made.” [3] Rectified on 24 January 2017: the following phrase has been added: “The third applicant was born in 1933 and died in 2011.” [4] Rectified on 24 January 2017: the following text has been added: “I.  PRELIMINARY ISSUE 10.  The Court observes that the third applicant, Mr Neculai Loghin, had died on 17 January 2011, after the application was lodged, and no heir had expressed an interest in pursuing the application on his behalf (see paragraphs 1 and 5 above). 11.  The Court points out that its practice is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009). 12.  In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the third applicant (Article 37 § 1 (c) of the Convention). Furthermore, it points out that the complaints initially lodged by the third applicant are identical to those submitted by the other two applicants, on which it will express its opinion below. In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require the continuation of the examination of the third applicant’s application. 13.  In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Neculai Loghin, and to pursue the examination of the remainder of the application.” [5] Rectified on 24 January 2017: “first two” has been added. [6] Rectified on 24 January 2017: “first two” has been added. [7] Rectified on 24 January 2017: “first two” has been added. [8] Rectified on 24 January 2017: “first two” has been added. [9] Rectified on 24 January 2017: the text was: “paragraph 30”. [10] Rectified on 24 January 2017: “first two” has been added. [11] Rectified on 24 January 2017: “first two” has been added. [12] Rectified on 24 January 2017: “first two” has been added. [13] Rectified on 24 January 2017: “first two” has been added. [14] Rectified on 24 January 2017: “first two” has been added. [15] Rectified on 24 January 2017: “first two” has been added. [16] Rectified on 24 January 2017: “first two” has been added. [17] Rectified on 24 January 2017: “first two” has been added. [18] Rectified on 24 January 2017: “first two” has been added. [19] Rectified on 24 January 2017: “first two” has been added. [20] Rectified on 24 January 2017: “first two” has been added. [21] Rectified on 24 January 2017: “first two” has been added. [22] Rectified on 24 January 2017: “first two” has been added. [23] Rectified on 24 January 2017: “first two” has been added. [24] Rectified on 24 January 2017: “of the first two” has been added. [25] Rectified on 24 January 2017: the text was: “applicant”. [26] Rectified on 24 January 2017: “first two” has been added. [27] Rectified on 24 January 2017: “first two” has been added. [28] Rectified on 24 January 2017: “to the first two applicants jointly” has been added. [29] Rectified on 24 January 2017: the following paragraph has been added: “1.  Decides to strike the application out of its list in so far as it concerns the third applicant, Mr Neculai Loghin;” [30] Rectified on 24 January 2017: “by the first two applicants, Mr Aurel Loghin and Ms Virginia Loghin,” has been added. [31] Rectified on 24 January 2017: “in respect of the first two applicants” has been added. [32] Rectified on 24 January 2017: “the applicants” has been deleted. [33] Rectified on 24 January 2017: “to” has been added. [34] Rectified on 24 January 2017: “of the first two applicants” has been added. [35] Rectified on 24 January 2017: “the first two” has been added. [36] Rectified on 24 January 2017: “jointly” has been added. [37] Rectified on 24 January 2017: “first two” has been added.