447 citiri

Căile extraordinare de atac pot fi și ele considerate ca fiind un remediu efectiv ce trebuie epuizat înainte de a sesiza CEDO

23. Moreover, the Court has held that extraordinary remedies may be regarded as effective, for example, where the quashing of a judgment that has acquired legal force is the only means by which the respondent State can put matters right through its own legal system (see Kiiskinen v. Finland (dec.), no. 26323/95, 1 June 1999, where the complaint before the Court concerned the impartiality of a judge and it could not have been made before the end of the domestic proceedings). Similarly, under specific circumstances, the Court has held that a request for the reopening of proceedings could be the only means whereby the specific complaint could be raised before the domestic courts and under such circumstances it would constitute an effective remedy (see Sobczyk v. Poland (dec.), no. 73446/10, §§ 40 and 48, 25 August 2015).
31. As regards the effectiveness of this remedy, the Court notes that this extraordinary appeal was specially devised in order to satisfy the Romanian State’s obligations under Article 6 of the Convention following the Court’s judgments in cases such as Constantinescu v. Romania (no. 28871/95, ECHR 2000‑VIII) and Spînu v. Romania (no. 32030/02, 29 April 2008). In those cases the Court found a violation of Article 6 of the Convention on the ground that the domestic courts of last resort had not heard the defendants notwithstanding that the applicable law provided that they should have been heard.

32. As regards the Government’s argument that the Court had already found that an appeal for annulment under Article 386 (e) of the former CCP was an effective remedy (see paragraph 18 above), the Court notes that in the cases of Flueraş (cited above, §§ 20-21) and Hogea (cited above, §§ 26‑30) the applicants successfully obtained the reopening of the criminal proceedings and a hearing by the court of last resort after lodging an appeal for annulment.

33. Moreover, in the case of Catană (cited above, § 33), after the reopening of the criminal proceedings, the applicant had not only obtained a hearing before the court but had also been able to adduce evidence not previously directly heard by the court of last resort.

34. In conclusion, the Court notes that: (i) the appeal for annulment was directly accessible to the applicant as a party to the completed proceedings and she did not depend on the discretion of any public authority to make the request (contrast Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010); (ii) that remedy was specifically provided for in law and the ability to use it was circumscribed to a relatively short period in time (contrast Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII, where applications for review of final judgments were not subject to any time-limit, so that judgments were liable to challenge indefinitely); (iii) the grounds for reopening the proceedings were exhaustively enumerated and included the situation in which the present applicant found herself; (iv) it was the only legal avenue through which the State could have put matters right in its own legal system and thus reinforced in practice the subsidiary role of the Court (see Guzzardi v. Italy, 6 November 1980, § 72, Series A no. 39, and Cardot v. France, 19 March 1991, § 36, Series A no. 200); and (v) there is no reason to believe that it would not have afforded the applicant the opportunity to obtain redress for her grievance or that it would have no reasonable prospect of success.

35. In view of the above, the Court considers that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

Curtea Europeană a Drepturilor Omului
(Decizia din data de 13 noiembrie 2018, cererea nr. 36066/12, Casandra împotriva României, CE:ECHR:2018:1113DEC003606612, a se vedea aici)

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