Information Note on the Court’s case-law 217
Brudan v. Romania – 75717/14
Judgment 10.4.2018 [Section IV]
New case-law making remedy effective in length-of-proceedings cases, but only recently made public: violation
Facts – In its judgment in Vlad and Others v. Romania (40756/06 et al., 26 November 2013, Information Note 168), the Court had invited Romania to introduce effective remedies in respect of the excessive duration of civil or criminal proceedings.
Pending the creation of specific remedies, the courts had then undertaken to accept compensation claims lodged on the general basis of tortious liability (Article 1349 of the New Civil Code). By a judgment of 30 January 2014, published on the internet on 22 September 2014, the High Court of Cassation and Justice enshrined and clarified this trend.
In November 2014 the applicant submitted a complaint concerning length of proceedings directly to the European Court, considering that no effective domestic remedy was available to her at that date.
Law – The question of exhaustion of domestic remedies was joined to the merits.
Article 13: In assessing the “effectiveness” of a compensatory remedy, the Court had identified the following criteria (see Burdov v. Russia (no. 2), 33509/04, 15 January 2009, Information Note 115, and Valada Matos das Neves v. Portugal, 73798/13, 29 October 2015, Information Note 189): (i) an action for compensation had to be examined within a reasonable time; (ii) the compensation had to be paid promptly and generally no later than six months from the date on which the decision awarding compensation became enforceable; (iii) the relevant procedural rules had to be fair; (iv) the legal costs could not place an excessive burden on litigants where their action was justified; (v) the level of compensation could not be unreasonable in comparison with the awards made by the Court in similar cases.
(a) The effectiveness of an action for tortious liability – More than four years after the judgment in Vlad and Others, the examples submitted by the Government showed that domestic judicial practice had developed substantially:
– although the legislation did not impose a specific timeframe for ruling in this type of litigation, the time taken by the courts to settle such disputes did not seem unreasonable;
– with regard to the payment of compensation awards, there was no reason to doubt the authorities’ diligence;
– there appeared to be no infringement of the principle of fairness in the conduct of such proceedings;
– for individuals who did not have sufficient resources, the national legislation provided for aid in the form of exemptions, discounts and staggered or suspended payment of the costs of proceedings; in addition, it was in principle for the unsuccessful party to pay those costs, and litigants who had applied for their reimbursement did not seem to have been turned down;
– the amount of compensation awarded was frequently higher than the amounts awarded by the Court in similar cases, and never lower than 80-90% of those sums.
The criteria implemented by the domestic courts in assessing whether or not the length of time taken to deliver judgment was reasonable seemed compatible with those identified by the Court.
This case-law had been consolidated by the High Court’s judgment of 30 January 2014, in which the basic criteria to be used in this type of remedy had been set out. These principles had subsequently been followed by the lower courts.
In this context, the strictly compensatory nature of the remedy thus introduced could not be regarded as insufficient to the extent of rendering it flawed.
It thus appeared that the recommendation made by the Court under Article 46 of the Convention in Vlad and Others had been followed.
In conclusion, in the light of the domestic courts’ consistent practice, an action for tortious liability represented an effective remedy for complaining about the excessive length of proceedings before the criminal or civil courts.
(b) The effectiveness of this remedy in the present case – Where the domestic remedy had resulted from developments in the case-law, fairness required a reasonable lapse of time so that individuals concerned could learn of the domestic decision enshrining it. The length of this period varied according to the circumstances, and particularly the publicity surrounding the relevant decision.
In the present case, it was from the point that it was “published on the Internet” (on 22 September 2014) that the judgment of 30 January 2014 had become available for consultation on the database of the High Court’s case-law. In those circumstances, it was appropriate to identify a date six months after this Internet publication as the point from which the public could no longer have been unaware of the relevant judgment.
It was therefore from 22 March 2015 that this remedy had acquired the degree of certainty required by the Court to enable and oblige its use for the purposes of Article 35 § 1 of the Convention. This conclusion was valid both for proceedings that had already ended and for those that were still pending at national level, as no distinction was made in domestic case-law between pending and concluded proceedings.
As this date was subsequent to the date on which the present application had been lodged, the plea of inadmissibility for non-exhaustion of domestic remedies had to be dismissed.
Conclusion: violation (unanimously).
The Court also found unanimously a violation of Article 6 § 1 on account of the length of the proceedings.
Article 41: no claim made in respect of damage.