CEDH, Cour (Troisième Section), FEISAN v. ROMANIA, 11 mars 2014, 32339/05

THIRD SECTION DECISION Application no. 32339/05 Gheorghe Mihai FEISAN and Ioana FEISAN against Romania The European Court of Human Rights (Third Section), sitting on 11 March 2014 as a Chamber composed of: Josep Casadevall, President, Alvina Gyulumyan, Dragoljub Popović, Luis López Guerra, Kristina Pardalos, Johannes Silvis, Iulia Antoanella Motoc, judges, and Santiago Quesada, Section Registrar, Having regard to the above application lodged on 31 August 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Gheorghe Mihai Feisan and Ms Ioana Feisan, are Romanian nationals, who were born in 1958 and 1962 respectively and live in Cluj-Napoca and Covasna. The applicants' request to represent themselves was granted. The Romanian Government ("the Government") were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. A. The circumstances of the case 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants secured a bank loan taken out by a private company ("company F") with a mortgage on their apartment. The loan was also secured by a mortgage on real estate belonging to the S family. 4. By a judgment of 13 October 1998 (which became final in 2000) the Covasna County Court allowed an action lodged by the bank against its debtors for the payment of the outstanding interest on the loan granted to company F. The applicants were parties to the proceedings, together with the other debtors. The court ordered the applicants to pay jointly and severally the sum of 132,357,128 Romanian lei (ROL). 5. In 1999 insolvency proceedings were initiated against company F and the bank was registered on the creditors' list. However, the bank preferred to initiate enforcement proceedings against the applicants. Thus, on 13 April 2001 the Sfântu Gheorghe District Court allowed the bank's request and ordered the applicants to pay the outstanding debt, with related interest and the creditor bank's enforcement costs. 6. On 21 March 2002 the applicants deposited ROL 10,200,000 with the Savings Bank to be made available to the creditor bank. On the same day they challenged the decision of the bank's enforcement officer to sell their apartment at auction regardless of their intention to pay the amount for which they were liable. They also asked for the auction to be suspended. 7. By a judgment of 9 April 2002 the Sfântu Gheorghe District Court dismissed the applicants' challenge, on the grounds that they had not paid the interest on the ROL 10,200,000 and the enforcement costs. 8. The applicants appealed, maintaining that they could not pay the interest and the enforcement costs, as that amount had never been calculated or notified to them. On 4 February 2003 their appeal was dismissed by the Covasna County Court without an examination of its merits on the ground that the applicants had not lodged their appeal within the statutory time-limit. 9. On 30 April 2002 the bank's enforcement officer set the auction date for 21 May 2002. 10. On account of an insufficient number of bidders for the apartment, the enforcement officer reduced the minimum price to ROL 116,250,000 (approximately EUR 4,650) and set another auction date for 25 June 2002. 11. The apartment was bought at the minimum price established by the enforcement officer, and the deed of adjudication was issued on 29 July 2002. 12. On 15 October 2002 the bank's enforcement officer issued the final order releasing the proceeds from the sale (procesul verbal de eliberare al prețului). 13. The applicants challenged the enforcement measure in court. The Sfântu Gheorghe District Court refused to register their complaint, which was sent back on 21 October 2002 with the indication that it should be lodged with the issuing body. The applicants' complaint was lodged with the creditor bank on 23 October 2002. According to the applicants their complaint against the final order releasing the proceeds from the sale was never examined. 14. The buyer of the applicants' apartment asked for the applicants to be evicted. By an interlocutory judgment of 27 August 2003, her request was allowed by the Sfântu Gheorghe District Court. On 1 September 2003 the applicants were ordered to vacate the apartment. 15. The applicants contested in court all the enforcement measures taken against them, including their eviction from the apartment. They also asked for the deed of adjudication of 29 July 2002 to be revoked and for their complaint against the order releasing the proceeds from the sale under the deed of adjudication to be examined. They claimed that the deed of adjudication was null and void, as they had paid their debt to the bank before their apartment was sold. 16. On 14 October 2003 the Sfântu Gheorghe District Court dismissed their complaint as unfounded. It dismissed the applicants' complaint against the deed of adjudication on the ground of res judicata. It held that the submissions made by the applicants against the deed of adjudication had already been examined by the court in its final judgment of 9 April 2002 and therefore they could not be examined again. It also held that the eviction order had been issued on the basis of the final deed of adjudication in accordance with legal requirements. 17. The applicants appealed, claiming, inter alia, that their submissions against the deed of adjudication could not be dismissed on the ground of res judicata. On 1 March 2005 the Covasna County Court dismissed their appeal on points of law. It held that all the enforcement measures against the applicants were lawful and that as long as the applicants had not paid the whole debt to the creditor bank the debt secured against their flat could accordingly be enforced and they could not ask for cessation of enforcement. Further to the first-instance court's finding that the judgment of 9 April 2002 had the status of res judicata, the appeal court held that although the two sets of proceedings had not had the same object they had the same purpose: annulment of the writ of execution and cessation of the enforcement measures against the applicants. Moreover, the arguments raised by the applicants in both proceedings were the same. Thus, the applicants' main argument that they had paid their debt to the bank could not be raised at that stage of enforcement, when the deed of adjudication had become a writ of execution in the eviction proceedings. B. Relevant domestic law 18. The provisions regarding enforcement in civil and commercial matters were contained in Articles 372-580 of the Romanian Code of Civil Procedure ("the CCP"), as in force at the material time. 19. Under Article 379 of the CCP, enforcement could only be effected where there was a valid authority to execute an obligation which was certain, whose quantum had been fixed and which had fallen due. The debt was liquid if its quantum was determined by the debt instrument itself or by other uncertified deeds, issued by the debtor or acknowledged by it. 20. Article 399 of the CCP provided that a debtor under an authority to execute could institute proceedings in order to raise objections either against the creditor's right to enforcement or against particular measures of enforcement. 21. The writ of execution could be challenged, but only in respect of its meaning, scope and enforcement and not its validity regarding the merits. A complaint could be lodged against the refusal of the enforcement authority to carry out an enforcement measure in the conditions stipulated by law. 22. Article 404 of the CCP provided that if the court allowed the objection against enforcement, depending on the case, it would either set aside the writ of execution or order its amendment, annulment or the cessation of enforcement, or the annulment or explanation of the writ of execution or the implementation of the enforcement order which the relevant authority was refusing to carry out. COMPLAINTS 23. Under Article 6 § 1 of the Convention, the applicants complained that they had been denied access to court because their complaint against the order releasing the proceeds from the sale at auction had not been examined by a court and that their last complaint against the enforcement measures taken against them after the sale of their apartment at auction had been dismissed on the ground of res judicata. They also alleged that the reasons provided by the Sfântu Gheorghe District Court for its decisions of 9 April 2002 and 14 October 2003 had been unclear and insufficient. 24. Relying on Article 1 of Protocol No. 1 to the Convention, they complained that the sale of their apartment at auction had been unlawful, arbitrary and disproportionate. In particular, they complained that their apartment had been sold at auction despite the fact that they had intended to pay the debt and had made a deposit with the Savings Bank to that end. They also alleged that the amount they owed to the creditor bank had never been indicated, either by the courts or the bank's enforcement officer.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention 25. The applicants alleged that they had not had a fair hearing before the domestic courts because, firstly, the domestic courts had never heard their complaint against the final order releasing the proceeds from the sale and, secondly, the Sfântu Gheorghe District Court had not given sufficient and clear reasons for its decisions of 9 April 2002 and 14 October 2003. They relied on Article 6 § 1 of the Convention, which reads as follows: "In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..." 26. The Court notes that the applicants' complaint has two limbs and will examine them together. 1. The parties' submissions 27. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicants' appeal on points of law against the judgment of 9 April 2002 had been dismissed as time-barred. 28. The Government contended that the applicants' submissions concerning the forced sale of their flat had already been examined by the Sfântu Gheorghe District Court in its judgment of 9 April 2002. They also maintained that the subsequent complaints in which the applicants had challenged different enforcement measures in connection with the forced sale of their apartment could not have changed the fact that they had not paid the whole debt to the creditor bank. 29. The Government also submitted that both decisions of the Sfântu Gheorghe District Court, of 9 April 2002 and 14 October 2003 respectively, had been based on sufficient reasons. 30. The applicants maintained their initial submissions. 2. The Court's assessment (a) The objection of non-exhaustion of domestic remedies 31. The Court notes that the objection is relevant in connection with only one of the complaints raised under Article 6 § 1 of the Convention, namely the complaint concerning the insufficient reasons given by the domestic court in its judgment of 9 April 2002. In that connection, the Court notes that the alleged deficiencies of the above-mentioned judgment could not be examined and possibly remedied by the appeal court because the applicants failed to lodge their appeal on points of law within the time-limit provided by law. 32. Therefore, the Court considers that the applicants failed to exhaust all the domestic remedies available to them in order to challenge the judgment of 9 April 2002, and therefore allows the Government's objection in this respect. (b) General principles 33. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the "right to court", of which the right of access constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, §§ 28-36, Series A no. 18, and Osman v. the United Kingdom, 28 October 1998, § 147, Reports of Judgments and Decisions 1998-VIII). 34. It also reiterates that the effect of Article 6 § 1 is, inter alia, to place a "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, §§ 59 and 61, Series A no. 288, and Burg v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303-B; and Helle v. Finland, 19 December 1997, § 55, Reports 1997-VIII). (c) Application of these principles in the present case 35. In the present case the Court notes that, according to the documents submitted by the applicants, the Sfântu Gheorghe District Court had refused to register their complaint against the order releasing the proceeds from the sale and had sent it back to the applicant on 21 October 2002. It also notes that the Government were not able to provide additional information in that respect. 36. The Court observes that the applicants' complaint against the order releasing the proceeds from the sale was reiterated by the applicants in their complaint against all the enforcement measures taken against them. The arguments raised by the applicants for the annulment of the order releasing the proceeds were examined by the Sfântu Gheorghe District Court in its judgment of 14 October 2003. 37. The Court also considers that an examination of the applicants' complaint against the order releasing the proceeds from the sale could not have changed the applicants' situation as long as their main arguments against the enforcement measure were the same as those raised in the complaints against the writ of execution and subsequently against all the enforcement measures, both examined by the domestic courts. Therefore, the Court considers that the applicants' right of access to court was not restricted in a disproportionate manner. 38. The Court will next examine the applicants' allegation that the Sfântu Gheorghe District Court had dismissed their complaint against all the execution measures on grounds of res judicata instead of providing adequate reasons. 39. In that connection the Court points out that in order to establish the content of the issue determined in a court's judgment, regard must be had to the scope of the dispute and, therefore to the court's reasoning. In addition, certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata. 40. In the present case, in both sets of proceedings, finalised by the delivery of the judgments of 9 April 2002 and of 14 October 2003 respectively, the domestic court had determined the applicants' complaints against the enforcement proceedings, and the core of the dispute was the same. The Court further notes that, in its decision of 1 March 2005, the appeal court held that although the subject matter of the judgments of 9 April 2002 and 14 October 2003 was different, both dismissed the applicants' complaints on the same ground, namely that the applicants had paid the creditor bank only a part of the debt, less the default interest and the expenses related to the enforcement. 41. Moreover, the res judicata argument was not the only ground on which the domestic courts based their decision to dismiss the applicants' second complaint (see paragraphs 16 and 17 above). The Court considers that the domestic courts had responded to the applicants' arguments and dismissed their complaint by providing sufficient reasons which do not appear arbitrary or in breach of the applicable civil procedure rules. Thus, it cannot be maintained in the circumstances of the present case that the domestic courts failed to properly examine the essence of the applicants' submissions. 42. Having regard to the foregoing, the Court does not find that the authorities deprived the applicants of access to court for the determination of their claims or that the proceedings were otherwise tainted by arbitrariness or unfairness. 43. It follows that these complaints raised by the applicants under Article 6 § 1 are manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. B. Alleged violation of Article 1 of Protocol No. 1 to the Convention 44. The applicants complained that their apartment had been sold at auction despite the fact that they had paid the debt to the bank. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 45. The Government argued that the applicants had failed to exhaust the available domestic remedies in so far as the applicants' appeal on points of law against the judgment of 9 April 2002 had been dismissed as time-barred. 46. As regards the merits of the complaint, they admitted that there had been an interference with the applicants' peaceful enjoyment of their possession of the immovable property as their apartment had been sold at auction on 29 July 2002. They contended that the interference had been provided for by domestic law and had a legitimate aim. 47. The applicants submitted that they had deposited the sum indicated in the interlocutory judgment of 13 April 2001 with the Savings Bank to be made available to the creditor bank. They also complained that the domestic courts had dismissed their complaints against the enforcement measures on the grounds that they had not paid the related interest and the enforcement costs, without taking note of the fact that the exact amount they owed had not been indicated. 48. The Court notes from the outset that the Government raised a preliminary objection of non-exhaustion of domestic remedies in respect of the applicants' complaint. However, it finds that it is not necessary to examine the said objection as the complaint is in any event inadmissible for the following reasons. 49. The Court notes that the main argument raised by the applicants to justify the fact that they had not paid the whole amount to the creditor bank was that such an amount had not been indicated to them by the bank. 50. In that connection the Court notes that the applicants had deposited ROL 10,200,000 with the Savings Bank to be made available to the creditor bank. The Court considers that the applicants should have been aware that the amount they had to pay was much higher than the amount they had made available to the creditor bank because the writ of execution was based on the judgment delivered by the Covasna County Court on 13 October 1998. That judgment was delivered in proceedings in which the applicants were parties and it established their joint and several liability to pay ROL 132,357,128, representing default interest on the outstanding debt to the bank (see paragraph 4 above). Moreover, the Sfântu Gheorghe District Court had examined the applicants'arguments in this respect and dismissed their challenge against the decision to sell their apartment by providing clear reasons which does not appear arbitrary. 51. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons

, the Court unanimously Declares the application inadmissible. Santiago Quesada Josep Casadevall Registrar President