IONESCU v. ROMANIA
Inadmissible
Josep Casadevall
1. The applicant, Mr Adrian Mihai Ionescu, is a Romanian national, who was born in 1974 and lives in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In an action before the Bucharest District Court, the applicant claimed 90 euros (EUR) in damages from an international road transport company (“the company”), alleging that it had failed to perform its contractual obligations. 4. He claimed that in respect of a return journey between Bucharest and Madrid, which had cost him EUR 190, the company had failed to observe the safety and comfort requirements set out in its advertising material, namely the provision of fully reclining seats, a change of coach in Luxembourg and the availability of six drivers. 5. On 6 January 2004 he requested the production of the relevant transport documents held by the defendant company. 6. In a judgment of 7 January 2004 the court dismissed his action. After examining the clauses of the contract of carriage, it found that none of the conditions referred to by the applicant were mentioned. The court did not rule on the request for the production of certain items of evidence. 7. In an appeal on points of law received in the court's registry on 22 January 2004, the applicant challenged that judgment. In his grounds of appeal, filed in the registry on the same day, he alleged that the impugned judgment was based on contradictory grounds, that it was the result of an erroneous application of the law and that it infringed the law. The applicant added that the court had failed to rule on certain defences that were crucial for the outcome of the dispute and that it had misinterpreted the subject-matter of the proceedings. 8. He developed his arguments relying on provisions of the Civil Code and on the interpretation of the contractual clauses. 9. The case was referred to the High Court of Cassation and Justice (“the High Court”). Under the Code of Civil Procedure as then in force, the appeal was subject to a two-stage examination: first, the High Court would adjudicate in private on its admissibility and, if it was declared admissible, the merits of the impugned judgment would then be examined in a public hearing. 10. On 26 February 2004 the applicant submitted “pleadings concerning the admissibility of the appeal” in which he argued that it should be declared admissible because the substantive and procedural conditions were satisfied. 11. In a final judgment delivered in private on 2 April 2004 in the absence of the parties, who had not been summoned to appear, the High Court declared the appeal null and void, under Article 302-1 § 3 of the Code of Civil Procedure as then in force, on the ground that it had not stated the reasons why the District Court's decision was alleged to be unlawful. 12. On 3 August 2004 the applicant applied to have that judgment set aside, alleging that it was the result of a manifest error on the part of the High Court, because he had set out his grounds of appeal in the document filed on 22 January 2004. In addition, he complained about the lack of publicity of the proceedings before the High Court. 13. In a judgment of 26 January 2005 the High Court rejected his application on the ground that no appeal lay against the judgment of 2 April 2004. 14. The Code of Civil Procedure (as amended by the Government's Emergency Order no. 58 of 25 June 2003), as worded at the material time, contained the following provisions: “Appeals on points of law shall be heard by the High Court of Cassation and Justice, unless otherwise provided by law.” “Statements of appeal on points of law shall, if they are not to be declared null and void, ... indicate the grounds of illegality raised and contain the corresponding reasoning ...” “The setting-aside or quashing of a judgment may be sought only in the following cases and for the following reasons: 1. if the bench was composed in breach of the statutory provisions; 2. if the judgment was delivered by judges other than those who heard the case on the merits; 3. if the judgment was rendered in disregard of the jurisdiction of another court; 4. if the court exceeded its jurisdiction; 5. if the judgment was rendered contrary to rules of procedure of which a breach carries the sanction of nullity ...; 6. if the judgment was rendered ultra petita; 7. if the judgment did not give reasons or if it was based on reasoning that was contradictory or unrelated to the subject-matter of the proceedings; 8. if, on account of misinterpretation, the court modified the subject-matter of the proceedings whereas that subject-matter had been clear and undisputed; 9. if the judgment was not based on the law, if it infringed the law, or if it was the result of an erroneous application of the law; 10. if the court failed to rule on certain defences or certain documents in the file that were crucial for the outcome of the dispute.” “An appeal on points of law against a judgment which is not subject to an ordinary appeal shall not be limited to the situations provided for in Article 304, as the appellate court shall be entitled to examine all the aspects of the case.” “The president of the court which receives the appeal on points of law shall appoint a bench of three judges to rule on its admissibility ... If the judges are unanimous in finding that the admissibility conditions are not satisfied, or if they find that the grounds of appeal and the accompanying arguments do not correspond to those set out in Article 304, they shall declare the appeal null and void or, if appropriate, reject it in a reasoned decision without summoning the parties, that decision not being subject to appeal.” 15. Law no. 195 of 25 May 2004, further amending the Code of Civil Procedure, repealed the provisions of Emergency Order no. 58/2003 concerning the exclusive jurisdiction of the High Court of Cassation and Justice to hear appeals on points of law, together with the provisions concerning the preliminary examination of their admissibility. Appeals on points of law are now examined by the courts that are immediately above those that gave the judgments at first instance or on appeal, without any preliminary examination of admissibility, and in accordance with the ordinary procedure provided for by the Code of Civil Procedure.