CASE OF S.C. TEXTINC S.A. v. ROMANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque
4. The applicant company, S.C. Textinc S.A., is a Romanian company whose registered office is in Timişoara. 5. On 12 December 2008 the Timişoara Finance Inspectorate (hereinafter, “the T.F.I.”) instituted enforcement proceedings against the applicant company on the grounds that it had an outstanding tax liability for the year 2008 amounting to 237,128 Romanian lei (RON). 6. The applicant company, represented by its appointed lawyer, Mr. P. Sălăjan, challenged before the Timişoara District Court the T.F.I.’s decision to open enforcement proceedings. It claimed that it had no outstanding fiscal debts and submitted documentary evidence in this respect. 7. At the first hearing in the proceedings the T.F.I. acknowledged that the applicant company had no outstanding tax liability and that the enforcement proceedings had been instituted in error. Invoking Article 275 of the Romanian Code of the Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), it also contended that as it had acknowledged its error at the first hearing in the proceedings it should not be ordered to pay the costs and expenses incurred by the applicant company. 8. By a judgment of 16 February 2009 the Timişoara District Court allowed the applicant company’s challenge concerning the T.F.I.’s decision to open enforcement proceedings and ordered the T.F.I. to pay the applicant RON 9,893; this sum represented respectively the fees of the applicant company’s lawyer (9,700 RON), stamp duty and trial tax (193 RON). The court held that although the T.F.I. had acknowledged its error at the first hearing it could not be exonerated from the payment of the costs and expenses incurred by the applicant company, as the challenge proceedings were the result of a mistake on its part. The court further noted that the T.F.I. had started enforcement proceedings against the applicant company for a non-existent debt and that the latter had accordingly had to hire a lawyer and pay the trial fees in order to defend itself. The court also noted that the applicant company had submitted evidence to support its request for the reimbursement of the expenses it had incurred. 9. The T.F.I. lodged an appeal on points of law against the judgment of 16 February 2009. It claimed that the first-instance court had not observed the principle of adversarial proceedings and of equality of arms, as it had not had the opportunity to challenge the amount paid by the applicant company in lawyer’s fees, which in its opinion were too high. 10. By a final judgment of 12 August 2009 the Timiş County Court dismissed the appeal as unfounded. While holding that the lawyer’s fees corresponded to his input in the case, the court reiterated that the judge was entitled to increase or to reduce a lawyer’s fees, according the specific criteria set out by Article 274 of the CCP (see paragraph 15 below). The court thus concluded that the judgment given by the Timişoara District Court was lawful and well-founded; it further awarded the applicant company the amount of 7,596 RON in legal costs in respect of the appeal proceedings. 11. The T.F.I. lodged with the Timiş County Court an application for the judgment of 12 August 2009 to be set aside (contestaţie în anulare – see paragraph 14 below) on the grounds that the County Court had not examined all the arguments that it had raised in its appeal on points of law; the T.F.I. referred in particular to the fact that before the Timişoara District Court they were not given the possibility to bring their arguments concerning the amount requested by the applicant company and then awarded in legal costs and expenses by the first-instance court. 12. In a final judgment of 19 February 2010 the Timiş County Court, sitting in a different formation from that of 12 August 2009, allowed the request: it set aside the judgment of 12 August 2009 (see paragraph 10 above) and allowed the appeal lodged by the T.F.I. against the judgment of 16 February 2009 (see paragraph 8 above), which it partly amended. The County Court held that the appellate court had not examined the arguments raised by the defendant in their appeal on points of law in relation to the manner in which the first instance court applied Article 274 § 3 of the CCP (see paragraph 15 below); in particular, the first instance court had not allowed the parties to bring their arguments concerning the amount of the legal costs requested by the applicant company. Such an omission was sufficient, in the County Court’s view, to justify the quashing of the previous judgments. 13. The County Court then re-examined the amount paid by the applicant company in lawyer’s fees and considered that in relation to the lawyer’s input in the case, it was justified to reduce that amount from RON 9700 to RON 700. It also considered that the stamp duty and trial tax in the amount of 193 RON were not to be granted to the applicant company, in so far as this amount could be requested separately from the fiscal authorities, based on the Law no. 146/1997 on stamp duty, as a consequence of the fact that the challenge to the enforcement had been allowed.