TRIF v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicants, Mr Aurel Trif and Mrs Viorica Trif, are Romanian nationals who were born in 1950 and 1924 respectively and live in Chețani. They were represented before the Court by Mr V. F. Chirilă, a lawyer practicing in Târgu-Mureş. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 October 2003, following their divorce, the ex-wife (“the third party”) brought proceedings against Mr Aurel Trif (“the first applicant”) seeking the division of joint movable and immovable property. 5. On 18 November 2003 the first applicant, assisted by a legal representative of his choosing, lodged a counterclaim against the third party, and argued, inter alia, that the collective value of the movable and immovable property in dispute was 689,800,000 Romanian lei (ROL) (approximately 19,000 euros (EUR)) out of which the value of the main immovable property in dispute, in particular an apartment, was ROL 480,000,000 (approximately EUR 13,500). 6. On 16 December 2003 the third party asked the first-instance court for the first applicant’s mother Mrs Viorica Trif (“the second applicant”) to join the proceedings. The third party argued, inter alia, that the ROL 60,000,000 spent by her and the first applicant at the start of their marriage to extend the second applicant’s home, where they lived for a while, should also be considered joint property. The Luduş District Court allowed the third party’s request by an interlocutory judgment on the same day. 7. The Luduş District Court, in an interlocutory judgment of 4 May 2004, granted a request by the parties and their chosen legal representatives for a building expert report concerning the market value of the apartment and the extension work carried out on the second applicant’s home to be produced in the case. 8. On an unspecified date the expert report was submitted to the first-instance court. The applicants objected to the report. They argued that the said report on the one hand undervalued the apartment because it did not take into account the improvement work carried out after the apartment had been purchased by the first applicant and his former wife, and on the other hand overvalued the extension work carried out on the second applicant’s home. 9. By an interlocutory judgment of 7 December 2004 the Luduş District Court allowed in part the applicants’ objection concerning the apartment, and ordered the building expert to supplement the report. 10. On 1 February 2005 the building expert produced a second expert report and concluded that the market value of the disputed apartment, taking into account the improvement work carried out after it had been bought, was ROL 502,050,000. The applicants objected to the new expert report and argued that the improvement work had been undervalued by the building expert. Consequently, they requested the court to order a third expert report. 11. By an interlocutory judgment of 23 February 2005 the Luduş District Court dismissed the applicants’ request for a new expert report and held that it was unnecessary. 12. On 24 February 2005 the first applicant submitted written observations to the first-instance court and argued, without providing a total estimated value of the disputed properties, that the market value of the apartment in dispute was in his opinion between ROL 700,000,000 and 750,000,000. In addition, he argued that the extension work carried out on the second applicant’s house had been paid for by her, and that with some exceptions the value of the remaining properties to be divided had been overestimated. 13. By a judgment of 2 March 2005 the Luduş District Court, on the basis of witness statements, documents, the statements of the parties and the building expert report available to the file, allowed the third party’s action. It decided that the total value of the movable and immovable property disputed by the parties was ROL 791,288,000 (approximately EUR 22,000). It awarded the apartment to the third party, together with part of the movable assets, and ordered her to pay the first applicant a sum of ROL 192,006,000 (approximately EUR 5,000) in compensation. The operative part of the judgment expressly stated that it was subject to appeal within fifteen days following notification. 14. On an unspecified date in May 2005 the applicants, assisted by a legal representative of their choosing, appealed against the judgment of 2 March 2005 before the Târgu-Mureş County Court. They argued that the first-instance court should have divided the apartment in dispute and awarded one half to each of the parties. In addition, without providing a total estimated valuation of the disputed properties, they contended that the extension work carried out on the second applicant’s home and valued by the first-instance court at ROL 58,638,000 had been paid for exclusively by the second applicant, and should not have been included in the common property to be divided between the first applicant and his former wife. Moreover, other properties had been overvalued or undervalued or should also not have been considered joint property. Lastly, they asked the secondinstance court to order a new expert report to determine the value of the apartment in dispute. 15. At a hearing on 9 June 2005 the third party’s lawyer argued before the second-instance court sitting in a bench of two judges that the disputed property was worth no more than ROL 1,000,000,000 (approximately EUR 27,000). Consequently, according to Article 2821 (1) of the Romanian Code of Civil Procedure the applicants’ appeal needed to be re-qualified by the court from appeal to appeal on points of law (recurs). 16. The applicants’ legal representatives argued that the provisions of the Romanian Code of Civil Procedure cited by the third party did not apply in respect of proceedings concerning division of the property. 17. By an interlocutory judgment of 9 June 2005, after hearing submissions from both parties, the Târgu-Mureş County Court re-qualified the applicants’ appeal as an appeal on points of law and referred the case to a bench of three judges competent to examine an appeal on points of law. 18. On 21 June 2005 the applicants raised a constitutional objection against the provisions of Article 2821 (1) of the Romanian Code of Civil Procedure. They argued that the limitation of their right to lodge an appeal against the judgment of the first-instance court on account of the value of the disputed property amounted to a discriminatory limitation of their right of access to court. 19. By an interlocutory judgment of 27 September 2005 the TârguMureş County Court suspended the proceedings and referred the applicants’ constitutional objection to the Constitutional Court. 20. By a final judgment of 26 January 2006 the Constitutional Court dismissed the applicants’ constitutional objection. It held that the distinction between the types of proceedings that could or could not be subjected to appeal was made on the basis of the value of the object in dispute and not on the basis of the applicants’ social status or wealth. The legal regime in question was required by the particular circumstances, which needed different legal solutions in order to ensure the speediness of the proceedings. In addition, neither the Romanian Constitution nor the international legal instruments required access to three levels of jurisdiction. 21. On 14 March 2006 the applicants argued, inter alia, before the Târgu-Mureş County Court that reasons of public order, in particular contradictions between the operative and the reasoning part of the lower court’s judgment in respect of the total value of the disputed properties and the wrongful indication of the type of appeal that could be exercised by the applicants, justified the quashing of the said judgment. Alternatively, the applicants asked the second-instance court for the time-limit for an appeal on points of law to be reinstated. 22. By a final judgment of 28 March 2006 the Târgu-Mureş County Court, sitting in a bench of three judges, declared null the applicants’ appeal on points of law. It held that the applicants had not submitted their reasons for appeal on points of law within the allowed time-limit. Moreover, none of the arguments raised by them amounted to reasons of public order, and the contradiction referred to by them could be corrected by proceedings seeking the elimination of material errors. Furthermore, it dismissed the applicants’ request for the time-limit for an appeal on points of law to be reinstated, on the ground that the first-instance court had re-qualified their appeal in accordance with the requirements set out by the legislation in force, and by observing the principle of lawfulness. Consequently, it considered that there was no circumstance of public order or unlawfulness justifying the said request. 23. On 22 June 2006 the applicants informed the Court that although they had repeatedly requested the first-instance court to allow them to prove that the value of the disputed property was greater than EUR 27,000, their requests had been refused. 24. Article 103(1) and (2) of the former Romanian Code of Civil Procedure provides that failure to lodge any form of appeal within the lawfully allowed time-limit results in deprivation of the said right, except when the law provides otherwise or the party proves that it has been impeded from doing so by an unforeseen circumstance. In the latter case the right can be exercised within fifteen days of the date the impediment ceased to exist. 25. Articles 282, 287 and 292 of the former Romanian Code of Civil Procedure provide that judgments of a first-instance court are subject to appeal within fifteen days of the date of notification. The reasons for appeal must be submitted by the parties at the latest at the time of the first hearing before the court. The failure to submit the reasons for appeal within the allowed time-limit does not lead to annulment of the appeal, but removes the opportunity to raise additional issues of fact and law that had not been raised before the first-instance court. 26. Articles 2821 (1) (amended by Law no. 195/2004 which entered into force on 29 May 2004), 299, 301 and 3021 of the former Romanian Code of Civil Procedure provide that judgments delivered in respect of disputes where the object of the dispute is valued at less than one billion Romanian lei (approximately EUR 27,000) are not subject to appeal. Judgments not subject to appeal are subject to appeal on points of law (recurs). An appeal on points of law may be lodged within fifteen days of the date the judgment was notified to the parties. The reasons for the appeal on points of law must be submitted within the same fifteen-day period, or the appeal on points of law will be declared null. 27. Article 303(5) of the former Romanian Code of Civil Procedure provides that the president of the court which receives the request for an appeal on points of law can return it for changes to the party presenting it if it does not meet the lawful requirements extending the time-limit for the appeal on points of law by five days.