RĂU AND GÂLEA v. ROMANIA
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
1. The applicants, Ms Elena Laura Rău (“the first applicant”) and Ms Eliza Gâlea (“the second applicant”), are Romanian nationals who were born in 1943 and 1928 respectively and live in Iaşi. The first applicant was represented before the Court by Ms C. Drăgan, a lawyer practising in Iaşi. The second applicant was represented by Ms D. Beşliu, a non-lawyer. On 19 January 2016 the President of the Section had decided to give Ms Beşliu leave to act as representative of the second applicant pursuant to Rule 36 § 4 (a) of the Rules of Court. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar of the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 31 March 2008 the applicants, who were both retired, instituted proceedings against the Iaşi Mayor’s Office seeking the annulment of a document signed by the second applicant during the communist regime, donating a house and its appurtenant plot of land located in the centre of Iaşi to the Romanian State. 5. By a judgment of 5 February 2009 the Iaşi District Court allowed the applicants’ action. It held that the city of Iaşi, represented by its mayor, had locus standi because it was the current owner of the property. Also, given that the applicants had been forced to donate the property, the donation agreement was null and void and therefore the proceedings initiated by them were not time-barred. The Iaşi Mayor’s Office appealed against the judgment. 6. By a judgment of 4 November 2009 the Iaşi County Court allowed the Iaşi Mayor’s Office’s appeal and quashed in part the first-instance court’s judgment. It held that the city of Iaşi, represented by its mayor, did not have locus standi because it had not been a party to the donation agreement signed by the second applicant. The donation had been made to the Romanian State. In accordance with the relevant domestic legislation, the State was legally represented by the Ministry of Economy and Finance. Moreover, the applicants had not proved their allegation that the city of Iaşi was the current owner of the donated property. The court upheld the remainder of the first-instance court’s judgment. The applicants lodged an appeal on points of law against the judgment. 7. On 5 February 2010 the Iaşi Court of Appeal noted that following its express request, the applicants had stated that the value of the donated immovable property was 1,500,000 Romanian lei (RON) (approximately 361,400 euros (EUR)). Relying on the relevant domestic legislation on stamp duty, the court established that the applicants had to pay RON 9,552 (approximately EUR 2,300) in stamp duty in order to have their appeal on points of law examined. 8. On 11 February 2010 the applicants, referring to Article 18 § 2 of Law no. 146/1997, challenged the way in which the appellate court had calculated the stamp duty. They asked the court to re-examine the amount of stamp duty due and to order the payment of a sum which represented half of the stamp duty they had paid in order to have the case examined by the firstinstance court. They argued that the second-instance court had not calculated the amount of stamp duty due on the basis of the property’s value, even though they had declared the same value for the property before that court as well. Moreover, the first-instance court had established that the stamp duty due in order to have their case examined had been that required for cases with a non-pecuniary object, and that therefore they were required to pay only half of the amount paid to the first-instance court in order to have their case examined by the last-instance court. Furthermore, they had initiated proceedings merely seeking the annulment of a donation agreement in respect of an immovable property; the proceedings would not have resulted in an immediate return of the property to its rightful owners or in an immediate increase in the value of their estate. They also argued that the declared value of the immovable property which had formed the basis for the calculation of the stamp duty was small compared with the actual market value of the property. Given that they were both retired persons, it was impossible for them to pay such a high amount in stamp duty. Consequently, by calculating the stamp duty based on the value of the property, the court had denied them access to justice and prevented them from recovering their home. 9. On 17 February 2010 the Iaşi Court of Appeal, sitting in chambers and composed of a different bench of judges from that which had examined the merits of the applicants’ case, dismissed the applicants’ challenge by a final interlocutory judgment. It held that given the object of the proceedings initiated by the applicants, Government Ordinance no. 212/2008 was applicable in their case. Consequently, the amount of stamp duty due had to be calculated based on the value of the immovable property, since the object of the applicants’ action was the annulment of a donation agreement in respect of an immovable property. Given the value of the property stated by the applicants, the amount of stamp duty payable by them had been calculated correctly. 10. By a final judgment of 19 February 2010 the Iaşi Court of Appeal dismissed the applicant’s appeal on points of law and upheld the judgment of 4 November 2009. Having noted the applicants’ statement that they were unable to pay the required stamp duty, it held that they had failed to fulfil their lawful duty to pay the aforementioned fee and that their appeal on points of law could therefore not be examined. 11. According to the evidence submitted by the applicants to the Court in September 2015, the first applicant had a taxable annual income of RON 25,804 (approximately EUR 5,760) and the second applicant had a taxable annual income of RON 13,932 (approximately EUR 3,110). The first and the second applicants’ net annual income for the same period was RON 22,992 (approximately EUR 5,143) and RON 12,072 (approximately EUR 2,700), respectively. 12. The relevant provisions of the former Romanian Code of Civil Procedure, in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first-instance court, read as follows: “1. Legal aid includes: - the granting of an exemption, a reduction, an instalment plan or a postponement for the payment of stamp duty ...; ... 2. Legal aid may be granted at any time during the trial, in full or in part.” “1. In the circumstances provided for under Article 75 § 1(1), an application for legal aid shall be made to the court in writing ... in accordance with the law”. “1. The application [for legal aid] shall include ... written proof of the applicant’s income ... 2. The court shall examine the application and may request clarifications and evidence from the parties or written information from the competent authorities ... 3. The court shall examine the application in chambers without summoning the parties, and deliver an interlocutory judgment.” “1. The interlocutory judgment mentioned in Article 77 § 3 ... is not amenable to any form of appeal.” 13. The relevant provisions of Law no. 146/1997 on stamp duty, in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first-instance court, read as follows: “Actions and claims ... lodged before the courts ... shall be subject to stamp duty ... the calculation of which, except for in circumstances provided for by law, may differ, depending on whether the object of the application can be valued financially.” “1. Actions and claims ... lodged before the courts [in respect of matters] which can be valued financially are subject to the following stamp duty: ... (g) if the object of the action or claim is valued at more than RON 193,948, the stamp duty is RON 5,126 plus 1% of the amount which is over 193,948; ... 3. Stamp duty is calculated on the basis of the value of the object of the action or claim, as stated in the application ...” “1. Actions or claims ... lodged before the courts [in respect of matters] which cannot be valued financially are subject to the following stamp duty: ... (a)1 RON 12 for an application seeking the annulment ... of an official document; ...” “1. Appeals or appeals on points of law lodged against court judgments are subject to stamp duty of 50% of: - the stamp duty payable for ... an application [in respect of matters] which cannot be valued financially and which was examined by a first-instance court; - the stamp duty payable for the contested sum in the case of an application [in respect of matters] which can be valued financially; ...” “All other actions and claims ... [in respect of matters] which cannot be valued financially are subject to stamp duty of RON 8, except for those lawfully exempted from stamp duty.” “1. The amount of the stamp duty payable is set by the court ... 2. An applicant has three days from the date on which the court calculated the sum due or notified the applicant of the sum due to ask the same court to re-examine the way in which the stamp duty was calculated. 3. The request for re-examination is heard ... in chambers by a different bench of judges and without summoning the parties. 4. If the request for re-examination is allowed, the stamp duty is returned in full or in part, as the case may be.” “... 2. If ... during the trial there are elements which determine a higher stamp duty, the court shall ask the applicant to pay the relevant amount ... ... 5. A court called upon to examine an appeal or an appeal on points of law ... shall order the applicant to pay the relevant stamp duty if it notes that the lawful amount of the fee was not paid during the previous stages of the proceedings.” “1. A court may grant an exemption, a reduction, an instalment plan or a postponement for the payment of stamp duty in accordance with the conditions set out in Articles 74-81 of the Romanian Code of Civil Procedure ...” 14. Government Ordinance no. 51/2008 on legal aid in civil matters, which entered into force on 25 April 2008, repealed Article 21 § 1 of Law no. 146/1997 and Articles 74-81 of the former Romanian Code of Civil Procedure. Subsequently, Government Ordinance no. 212/2008, which entered into force on 12 December 2008, reinstated and amended Article 21 § 1 of Law no. 146/1997 in so far as natural persons could be granted exemptions, reductions and postponements of the payment of stamp duty in accordance with the conditions set out in Government Ordinance no. 51/2008. The relevant provisions of the latter ordinance, at the time when the applicants challenged the way the stamp duty had been calculated, read as follows: “1. Public legal aid may be granted in the following ways: ... d) exemptions, reductions, instalment plans or postponements in respect of court taxes prescribed by law, including those payable during the enforcement phase of the proceedings.” “Public legal aid may be granted, separately or cumulatively, in any of the forms provided for in Article 6, but their annual amount shall not exceed the equivalent before tax of 12 minimum-wage monthly salaries ...” “1. Any person whose average net monthly income for each family member in the last two months prior to his/her application was less than RON 500 may be granted public legal aid in any of the forms provided for in Article 6. In such circumstances, the sums that represent public legal aid shall be paid in full by the State. 2. If the average net monthly income for each family member in the last two months prior to an application was less than RON 800, the State shall pay 50% of the sums that represent public legal aid. 3. If the estimated or known costs of the proceedings are of a nature that could limit an applicant’s access to justice, public legal aid may be granted also in other circumstances, proportionate to the needs of the applicant.” “Any occasional income, such as wages, rents, retainers ... and other similar income, shall be taken into account in establishing a person’s income ...” “1. An application for legal aid shall be lodged with the court which is competent to examine the merits of the main proceedings ...” “1. Legal aid may be granted anytime during the trial ... and shall be maintained for the duration of the procedural stage for which it was requested. 2. The application for legal aid is exempted from court fees.” “1. The application for legal aid shall be made in writing and shall include information ... on the financial situation of the applicant and his family. Proof of the applicant’s and his family’s income, as well as of their financial obligations, shall be attached to the application ... ... 3. The court may ask for any clarifications or proof from the parties and for written information from the competent authorities.” “1. The court shall examine the application for legal aid in chambers, without summoning the parties, and deliver a reasoned interlocutory judgment. 2. The interested party has five days from the notification of the interlocutory judgment to apply for a review of the court’s decision if the application for legal aid was dismissed. 3. A different bench of judges shall review the decision in chambers and shall deliver a final interlocutory judgment.” “1. If the court fees payable are double the net monthly income of the applicant’s family for the month prior to his or her application for legal aid and if the court does not consider appropriate a more favorable form of legal aid, an instalment plan shall be set up in such a way that the monthly rate due shall not be higher than half of the net monthly income of the applicant’s family. 2. The instalment plan may be extended for a maximum of 48 months.” 15. On 9 June 2008 the High Court of Cassation and Justice (“the Court of Cassation”) delivered a judgment on an appeal in the interests of the law in order to clarify divergent domestic practice concerning, inter alia, the pecuniary or non-pecuniary nature of actions seeking, for example, the annulment of official documents such as donation agreements. It held that this type of action was pecuniary in nature. The judgment of the Court of Cassation was published in Official Gazette no. 830 of 10 December 2008. 16. Government Ordinance no. 212/2008 entered into force on 12 December 2008 and amended Law no. 146/1997, including paragraph 1 of Article 2. The new paragraph 1 applies to actions and claims seeking the annulment of official documents concerning pecuniary matters. 17. Law no. 276/2009, which entered into force on 16 July 2009, confirmed the provisions of Government Ordinance no. 212/2008 with certain amendments. However, the amendment made by Government Ordinance no. 212/2008 to Article 2 of Law no. 146/1997 was maintained. 18. Article 329 § 3 of the former Romanian Civil Procedure Code in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement provided that judgments delivered in the interests of the law had no impact on judgments which had already been delivered or on the situation of the parties involved in those proceedings. However, any solution adopted by the Court of Cassation was binding on the domestic courts.