EHRM, 01-06-2010, nr. 36659/04

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 Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.

Relying on Article 6 § 1 of the Convention, the applicant complained that the District Court had failed to rule on his request for the production of evidence, that the proceedings in the High Court had not been public, and lastly that he had not had access to the High Court for the purpose of appealing against the judgment of 7 January 2004.

Referring to Article 13 of the Convention, he complained that the appeal against the above-mentioned judgment had not constituted an effective remedy and that there had been no remedy by which to challenge the judgment of 2 April 2004.

The applicant submitted a number of complaints under Article 6 § 1 and Article 13 of the Convention, which read as follows:

First, as regards the proceedings before the District Court, the applicant alleged that the court had omitted to rule on his request for the production of evidence.

The Court reiterates at the outset that the admissibility of evidence is primarily a matter for regulation by national law and that it is for the national courts to assess whether it is appropriate to take evidence. Nor is it for the Court to examine an application concerning errors of fact or law allegedly committed by domestic courts.

In view of all the material in its possession, and to the extent that it is competent to examine the allegations made, the Court finds that the District Court carried out a wholly independent assessment of all the circumstances of the case and the various evidence adduced by the parties and gave adequate reasons for its judgment. The judgment was given after adversarial proceedings during which the applicant had been able to present the observations and legal grounds that he deemed necessary, together with arguments in support of his position. It cannot therefore be considered that the proceedings failed to meet the requirements of fairness under Article 6 § 1 of the Convention.

It follows that this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Secondly, as regards the examination by the High Court of Cassation and Justice of his appeal on points of law, the applicant complained that the procedure had not been public and that the appeal had been declared null and void. He also complained that there was no remedy by which to challenge the High Court's judgment.

The Government admitted that the applicant's right of access to a court had been subjected to limitations, but argued that the conditions of admissibility of the appeal on points of law had been compatible with Convention requirements. They alleged that the applicant had not satisfied the procedural conditions laid down in the Code of Civil Procedure, as he had failed to refer expressly to the cases he sought to submit in which such an appeal was available.

They further pointed out that the High Court had examined the applicant's pleadings and had concluded that his arguments did not enable it to relate his complaints to the cases in which such an appeal was available. The Government concluded that the annulment of the appeal had been the result of negligence on his part.

The applicant maintained that the decision declaring null and void his appeal on points of law had breached his right of access to a court. He stated that in his pleadings of 22 January 2004 he had cited and developed the provisions of Article 304 of the Code of Civil Procedure. He thus took the view that the High Court had confined itself to a purely formal examination of his appeal and had dismissed it arbitrarily.

The Court finds at the outset that the applicant's complaints about the proceedings before the High Court underlie those concerning the annulment of his appeal and may be seen in the context of his right of access to a court.

The Court further notes that Article 35 of the Convention, as amended by Protocol No. 14, which entered into force on 1 June 2010, provides as follows:

In the present case, the Court finds that the complaint under Article 6 of the Convention is not incompatible with the provisions of the Convention or its Protocols, nor is it manifestly ill-founded or an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention as amended by Protocol No. 14.

However, having regard to the entry into force of Protocol No. 14, the Court finds it necessary to examine of its own motion whether in the present case it should apply the new inadmissibility criterion provided for in Article 35 § 3 (b) of the Convention as amended (see, mutatis mutandis, among the many cases where the Court has examined compliance with admissibility conditions of its own motion, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I; Blečić v. Croatia [GC], no. 59532/00, § 63, ECHR 2006-III; and Şandru and Others v. Romania, no. 22465/03, §§ 50 et seq., 8 December 2009).

As indicated in paragraph 79 of the Explanatory Report to Protocol No. 14: ‘The new criterion may lead to certain cases being declared inadmissible which might have resulted in a judgment without it. Its main effect, however, is likely to be that it will in the longer term enable more rapid disposal of unmeritorious cases’.

The Court notes that the main aspect of this new criterion is whether the applicant has suffered any significant disadvantage.

Even though the concept of ‘significant disadvantage’ has not been interpreted to date, it has been referred to in dissenting opinions appended to the judgments in Debono v. Malta (no. 34539/02, 7 February 2006), Miholapa v. Latvia (no. 61655/00, 31 May 2007), O'Halloran and Francis v. the United Kingdom ([GC], nos. 15809/02 and 25624/02, ECHR 2007-VIII) and Micallef v. Malta ([GC], no. 17056/06, ECHR 2009-…).

Those opinions show that the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. In this connection it is noteworthy that the insignificance of a claim was the decisive factor in a recent decision by the Court declaring an application inadmissible (see Bock v. Germany (dec.), no. 22051/07, 19 January 2010).

In the present case the Court notes that the applicant's alleged financial loss on account of a failure to perform a contract of carriage was limited. The amount in issue, according to the applicant's own estimation, was 90 euros for all heads of damage, and there is no evidence that his financial circumstances were such that the outcome of the case would have had a significant effect on his personal life.

In those circumstances the Court finds that the applicant has not suffered any ‘significant disadvantage’ in the exercise of his right of access to a court.

As to the question whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits, the Court points out that it has already held that respect for human rights does not require it to continue the examination of an application when, for example, the relevant law has changed and similar issues have been resolved in other cases before it (see Léger v. France (striking out) [GC], no. 19324/02, § 51, ECHR 2009-…).

In the present case the Court observes that the provisions concerning the preliminary examination of the admissibility of appeals on points of law have been repealed and that such appeals are now examined according to the ordinary procedure provided for by the Code of Civil Procedure.

In those circumstances, since the issue before the Court is of historical interest only and as the Court has already had a number of opportunities to rule on the application of procedural rules by domestic courts (see, for example, Běleš and Others v. the Czech Republic, no. 47273/99, § 69, ECHR 2002-IX; Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002-IX; L'Erablière A.S.B.L. v. Belgium, no. 49230/07, § 38, ECHR 2009-…; and Sâmbata Bihor Greco-Catholic Parish v. Romania, no. 48107/99, § 63, 12 January 2010), the Court finds that respect for human rights does not require it to continue the examination of this complaint.

Lastly, as regards the third condition of the new inadmissibility criterion, namely that the case must have been ‘duly considered’ by a domestic tribunal, the Court notes that the applicant's action was examined on the merits by the Bucharest District Court. The applicant was therefore able to submit his arguments in adversarial proceedings before at least one domestic court.

The three conditions of the new inadmissibility criterion having therefore been satisfied, the Court finds that this complaint must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

For these reasons, the Court by a majority,

Declares the application inadmissible.

Stanley Naismith

Deputy Registrar

Josep Casadevall

President