POPA v. ROMANIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Nicolae Popa, is a Romanian national who was born in 1955 and lives in Orşova. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. By an order issued on 19 June 2001 the applicant was discharged from the position of deputy chief of the Caraş Severin Border Police Department. The discharge order was not communicated to him. 4. From July 2001, the applicant began to submit letters to different authorities asking to be sent a copy of the order and contesting the discharge measure. 5. On 11 February 2002, the applicant lodged an action with the domestic courts seeking the withdrawal of the discharge order of 19 June 2001 and the recalculation of his salary rights. 6. After a first set of proceedings, by a judgment of 30 July 2005 the Mehedinţi County Court dismissed the applicant’s action on the ground that it had not been lodged within thirty days of the communication of the order, as required by law. It held that the applicant’s enquiries to the authorities proved that he had become aware of the discharge order more than thirty days before lodging his action. 7. The applicant lodged an appeal on points of law on the ground that the order of 19 June 2001 had never been communicated to him, and stated that in his letters to the authorities he had in fact been requesting them to communicate to him the reasons for his discharge. Moreover, the authority that had issued the order had an obligation to prove that it had communicated such reasons to him, which it had not done. 8. On 22 March 2006, the Craiova Court of Appeal dismissed the appeal. It found that the applicable legislation was section 5 of the Administrative Litigation Act (Law no. 29/1990). The relevant excerpts of its decision read as follow: « The applicant was discharged by Order no. 231645 of 19 June 2001... On 9 September 2001 the applicant complained of [his discharge] to the Ministry of the Interior. On page 3 of his written complaint (memoriu) he claimed to have been unjustly discharged, which proves that the applicant was already aware of the order on 9 September 2001. The time-limit for administrative complaint (contestare pe cale administrativă) runs from this date. Having in mind the date on which the applicant was aware of the content of Order no. 231645/19 June 2001, more precisely on 9 September 2001 at the latest, the firstinstance court correctly allowed the exception and found that the action was lodged out of time ... The applicable legal norm ... is section 5 of Law no. 29/1990. According to section 5 paragraphs 1 and 2 of Law no. 29/1990, an individual who is deemed to have suffered as a result of an administrative act ... is to address himself to the administrative litigation tribunal within thirty days of the communication of the decision or within thirty days of the expiry of the time-limit for the administrative complaint (contestaţia administrativă). Therefore, [the applicant] should have lodged the action on 10 November 2001 at the latest.” 9. The relevant provisions of the Administrative Litigation Act, in force at the material time, read as follows: “(1) Every individual or legal person who considers that his or her rights recognised by law have been prejudiced by an administrative act or by the unjustified refusal of a public authority to resolve an issue related to a right recognised by law may address himself to the competent court to seek the quashing or withdrawal of the act, the recognition of the right that is claimed, or the reparation of the damage thus caused. (2) If the public authority does not respond to the petitioner within thirty days of the registration of the claim, unless the law sets a different time-limit, this is also considered to be an unjustified refusal to solve a request related to a right recognised by law.” “(1) Before requesting the courts to quash or withdraw an act or to render its delivery mandatory, the person who is deemed to have suffered damage shall address himself to the authority that issued it [the act], within thirty days of the communication of the administrative act or within thirty days of the expiry of the time-limit set out in section 1 paragraph 2; the authority that issued the act must resolve the claim within thirty days. (2) If the person who is deemed to have suffered damage is not satisfied with the resolution of his or her claim, he or she can address the courts within thirty days of communication of the outcome ... (4) The courts may be addressed even when the administrative authority that issued the act or its hierarchical superior have not resolved the claim within the timelimit set out in paragraph 1. (5) In all instances, the courts may be addressed no later than one year from the day of the communication of the act in question.” “The petitioner shall simultaneously attach the contested administrative act or, as the case may be, the response of the administrative authority which communicated the refusal to resolve the claim (which is related to a right recognised by law). If the claimant does not receive a response, he or she shall attach a copy of the request, certified for conformity ...”