The ECHR found a violation of the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and clause 1 of Article 6 of the Convention regarding the length of the proceedings.

Заголовок: The ECHR found a violation of the requirements of Article 13 of the Convention for the Protection of Human R Сведения: 2018-12-10 08:23:54

ECHR ruling of April 10, 2018 in the case of Brudan v. Romania (application No. 75717/14).

In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Romania.

The case was successfully considered a complaint about a situation where, in accordance with the new case law, an effective remedy was introduced in cases involving excessive length of court proceedings, but the public learned about this tool much later. The case was violated in accordance with the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and paragraph 1 of Article 6 of the Convention regarding the length of the proceedings.


THE CIRCUMSTANCES OF THE CASE


In the ruling on the case of Vlad and Others v. Romania (Vlad and Others v. Romania) (dated November 26, 2013, complaint no. 40756/06 and others), the European Court of Justice called on the Romanian authorities to provide effective remedies for excessive judicial civil or criminal proceedings.

Prior to the creation of these legal means, the courts have committed themselves to accepting claims for compensation on the basis of the general provisions on liability for civil law violations (article 1349 of the new Civil Code). By a decision of January 30, 2014, published on the Internet on September 22, 2014, the Supreme Court of Cassation and Justice of Romania secured and explained this direction in legal proceedings.

In November 2014, the applicant filed a complaint about the length of the proceedings directly with the European Court, believing that at that time she did not have effective domestic remedies.


QUESTIONS OF LAW


It was decided to merge the issue of exhaustion of domestic remedies with the consideration of the complaint on the merits.

Regarding compliance with Article 13 of the Convention. Evaluating the “effectiveness” of the compensatory remedy, the European Court established the following criteria (see the European Court of Justice in the case of Burdov v. Russia (N 2) ”(Burdov v. Russia) (N 2) of January 15, 2009, complaint N 33509/04, Valad Matos de Neves v. Purtugal, October 29, 2015, complaint N 73798/13): (i) a claim for compensation must be considered in reasonable time; (ii) compensation must be paid promptly and in full, no later than six months after the date when the decision to award compensation came into force; (iii) the relevant procedural rules must be fair; (iv) legal costs should not become an undue burden for the participants of the process if their actions are considered reasonable; (v) the amount of compensation cannot be unreasonable compared with the amounts awarded by the European Court in similar cases.

(a) Effectiveness of a claim based on the general rules on civil liability. More than four years after the adoption of the Valad Matos de Neves v. Portugal case referred to above, the examples provided by the authorities of the respondent state indicated that the domestic judicial practice had changed significantly:

- although the legislation did not set specific deadlines for making decisions on these types of disputes, the time spent by the courts to resolve these disputes did not seem unreasonable;

- as regards the payment of compensation amounts, there was no reason to doubt the diligence of the authorities of the respondent state;

- during the production of such procedures, there seemed to be no violation of the principle of justice;

- for persons who did not have sufficient financial resources to pay court costs, domestic legislation provided assistance in the form of exemptions, discounts and payment in installments; in addition, the losing party usually incurred the costs of legal fees, and the plaintiffs who applied for compensation for these expenses did not appear to be denied their claims;

- the compensation awarded was often more than the amounts awarded by the European Court in similar cases, and never less than 80-90% of the indicated amounts.

The criteria applied by the domestic courts to assess whether the reasonable length of the proceedings that ended in the judgment was reasonable seemed to meet the criteria elaborated by the European Court of Justice.

This case law was summarized in the Decision of the Supreme Court of Cassation and Justice of Romania dated January 30, 2014, which defined the main criterion to be used in this remedy. Subsequently, these principles were applied in practice and lower courts.

In this context, the strictly compensatory nature of the remedies introduced could not be considered as insufficient to the extent that the remedy would be considered to be deficient.

Thus, it seems that the recommendation made by the European Court of Justice in the above-mentioned “Valada Matos de Neves v. Portugal” case was fulfilled.

In conclusion, it should be noted that, in view of the established practice of domestic courts, the civil liability lawsuit was an effective remedy in cases of complaint about the excessive length of civil or criminal proceedings.

(b) The effectiveness of the remedy in question in the present case. If the domestic remedy resulted from the development of case law, justice required that a reasonable time elapsed so that interested persons could learn about the domestic decision containing the remedy in question. The duration of this period depended on the attendant circumstances, especially on the public nature of the relevant decision.

In the present case, the decision of January 30, 2014 became available to the public from the moment of “publishing on the Internet” (September 22, 2014), when it became possible to familiarize with it using the database of the Supreme Court of Cassation and Justice of Romania. In such circumstances, it would be appropriate to set a six-month period from the date of publication to determine the date from which the domestic courts should have been aware of the decision.

Therefore, since March 22, 2015, the remedy in question has acquired the necessary degree of accuracy required by the European Court of Justice in order to use this remedy and oblige the relevant authorities to use it for the purposes of Article 35 § 1 of the Convention. This conclusion was valid both for the already completed proceedings, and for the procedures that were not yet completed at the domestic level, since Romanian legislation did not establish a distinction between the completed and ongoing trials.

Since this date was the next after the day when this complaint was filed with the European Court, the objection regarding its inadmissibility due to non-exhaustion of domestic remedies must be dismissed.


RESOLUTION


The case was a violation of Article 13 of the Convention (adopted unanimously).

The European Court also unanimously found a violation of Article 6 § 1 of the Convention regarding the length of the proceedings.


COMPENSATION


In application of Article 41 of the Convention. The claimant did not submit any claims for damages.

 

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