ÎCCJ, decizie (scj.ro #86517)
ÎCCJ, decizie (scj.ro #86517) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE DES
DROITS DE L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
GRAND CHAMBER
CASE OF POPOVICI AND
DUMITRESCU v.
ROMANIA
(Application no.
31549/96)
JUDGMENT
(Friendly settlement)
STRASBOURG
6 April
2006
This judgment is final
but may be subject to editorial revision.
In the case of Popovici
and Dumitrescu v. Romania
,
The European Court of Human Rights, sitting as a Grand Chamber composed
of:
Mr
L.
Wildhaber
,
President
,
Mr
C.L.
Rozakis
,
Mr
J.-P.
Costa
,
Sir Nicolas
Bratza
,
Mr
G.
Bonello
,
Mr
C.
Bîrsan
,
Mrs
N.
Vajić,
Mr
J.
Hedigan,
Mr
M.
Pellonpää,
Mrs
M.
Tsatsa-Nikolovska,
Mr
A.
Kovler,
Mrs
E.
Steiner,
Mr
L.
Garlicki,
Mr
J.
Borrego
Borrego,
Mrs
E.
Fura-Sandström,
Mr
K.
Hajiyev
,
Mrs
R.
Jaeger
,
judges
,
and Mr
T.L.
Early
,
Deputy Grand Chamber Registrar
,
Having deliberated in private on
29 March
2006
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
31549/96) against
Romania
lodged with the European Commission of Human
Rights under former Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals,
Mrs Irina Margareta Popovici, Mrs Sanda Popovici and Mrs Maria Margareta
Dumitrescu (“the applicants”), on
5 April 1996
. Following the death
of Mrs Maria Margareta Dumitrescu on
10
November 1997
, her heir Mrs Maria Cristina Mauc Dumitrescu, a French and
Romanian national, expressed her wish, on
9 May 2000
, to
continue the proceedings. For practical reasons, the present judgment will
continue to name Mrs Maria Margareta Dumitrescu as one of the applicants, even
though that capacity should now be attributed to Mrs Maria Cristina Mauc
Dumitrescu.
The applicants were represented by Mr A. Vasiliu,
a lawyer practising in
Bucharest
. The Romanian
Government (“the Government”) were represented by their Agent, Mrs B.
Ramașcanu, of the Ministry of Foreign Affairs.
The applicants alleged, in particular, that the Brașov
Court of Appeal’s finding on 20 September 1995 that the courts had no
jurisdiction to determine an action for recovery of possession and the change
in the case-law following a leading judgment of the Supreme Court of Justice on
2 February 1995 were contrary to Article 6 § 1 of the Convention. The
applicants also complained that the Court of Appeal’s judgment had had the
effect of infringing their right to peaceful enjoyment of their possessions as
secured by Article 1 of Protocol No. 1.
The application was transmitted to the Court on
1 November 1998
, when
Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol
No. 11).
By a decision of
27 June
2000
a Chamber of the Court’s First Section composed of
Mrs
E.
Palm, President, Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C.
Bîrsan, Mr J. Casadevall and Mr R. Maruste, judges, and Mr M. O’Boyle,
Section Registrar, declared the application partly admissible.
On
1
November 2001
the Court changed
the composition of its Sections (Rule 25 § 1). This case was assigned to the
newly composed Second Section (Rule 52 § 1). The Chamber was composed of the
following judges: Mr J.-P. Costa, President, Mr L. Loucaides, Mr C. Bîrsan, Mr K. Jungwiert,
Mr V. Butkevych, Mrs W. Thomassen and Mrs A. Mularoni, and also of Mrs
S. Dollé, Section Registrar.
On 4 March 2003 the Chamber gave judgment, holding
unanimously that there had been a violation of Article 6 § 1 of the Convention,
because the applicants had been denied the right of access to a tribunal, and
no violation of Article 1 of Protocol No. 1 to the Convention, because the
applicants did not have a possession within the meaning of that Article. It
further held that the respondent State should pay the applicants 6,000 euros
(EUR) for non-pecuniary damage and EUR 192 for costs and expenses.
On
30 May 2003
the applicants
requested that the case be referred to the Grand Chamber, in accordance with
Article 43 of the Convention and Rule 73.
On
24 September 2003
the panel of the
Grand Chamber accepted this request.
The composition of the Grand Chamber was
determined according to the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24.
The applicants and the Government each filed a
memorial. The applicants also filed a memorial in reply to the Government’s
memorial.
A hearing scheduled for
24 June 2004
was
adjourned in view of the fact that domestic proceedings germane to the case
were pending. It was rescheduled for
7 December
2005
. The hearing was again adjourned, given that the parties were
actively pursuing a friendly settlement of the case with the assistance of the
Registrar (Article 38 § 1 (b) of the Convention). The parties were given until
7 March 2006
to agree
on the terms of a settlement, failing which a hearing would be held on
29 March 2006
.
Following various exchanges of correspondence
between the Registrar and the parties, on
7 March
2006
the Government and the applicants submitted formal signed declarations
accepting a friendly settlement of the case.
Consequently, on
7 March
2006
the hearing scheduled for
29 March 2006
was
cancelled.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first
two applicants were born in 1930 and 1932 respectively and live in
Bucharest
. The third
applicant lives in
Villebon-sur-Yvette
,
France
.
In 1934 S.D., the applicants’ father, a
university lecturer, purchased a plot of land of 1,690 sq.m in Predeal,
Romania
. In 1937
S.D. had a house built on the land.
On
30 August 1946
a room in the house
was requisitioned pursuant to an order of Predeal Town Council.
On
22 May 1948
the
Brașov
prefect ordered
the restitution of the house and land (“the property”) to the owner, S.D., but
the property was never returned.
On
13 September 1965
the
Brașov
notarial
bureau recorded that the property had been nationalised under Decree no.
92/1950 on nationalisation.
On
17 August 1971
the
Brașov
prefect
decided to place the property under the administration of a branch of the Department
of State Security (
Securitate
).
In 1992 the management of the property was
transferred to the Romanian Intelligence Service (
Serviciul Român de
Informatii
– “the SRI”), successor to the
Securitate
.
A. The first action for recovery of possession
On
8 January 1993
the first two
applicants and Maria Margareta Dumitrescu brought an action for recovery
of possession in the Brașov Court of First Instance against SRI Military
Command Centre no. 05024. They argued that they were the heirs of S.D.,
that he had owned 2,686 sq.m of land in Predeal on which he had had a house built,
and that in 1946 a room in that house had been requisitioned but that subsequently
the State had unlawfully seized the entire property. They sought to establish
their title to the house and land as heirs.
In a judgment of 25 May 1993 the court found that
the requisition order could not have had the effect of lawfully vesting
ownership of the property in the State and that the nationalisation of the property
under Decree no. 92/1950 had been unlawful. The court accordingly held
that the applicants were the rightful owners of the house and land and ordered
the State’s property title to be struck out of the land register and the late
S.D. to be registered as owner.
In a final judgment of
20 September
1995
the Brașov Court of Appeal allowed an appeal by the SRI on
points of law and dismissed the applicants’ action for recovery of possession,
holding that the courts below had exceeded their jurisdiction when they had
examined the lawfulness of the nationalisation, since such matters could only
be settled by statute.
B. The application for restitution under Law
no. 112/95
On an unspecified date the applicants lodged an
application for restitution of the property with the Brașov City Council’s
administrative board established to deal with the implementation of Law no.
122/1995 (“the Administrative Board”).
In an administrative decision of
29 June 1999
the Administrative
Board allowed the application and ordered the property to be returned to the
applicants.
On
10 September 1999
the SRI lodged an application
to have the administrative decision of
29 June
1999
set aside.
In a final and enforceable judgment, on appeal,
the Brașov County Court upheld the administrative decision, finding in
particular that the lawfulness of the nationalisation could not be dealt with
under the objection procedure provided for by Law no. 112/1995.
In a judgment of
24 October
2000
the Brașov Court of Appeal allowed an appeal by the SRI on
points of law, setting aside the decision of the Administrative Board in which
it had ordered the return of the property. It found that the Administrative
Board had not been entitled to give a decision but had been under an obligation
to defer its findings until a fresh action for recovery of possession, brought
on
22 February 1999
, had been dealt with by the courts.
C. The second action for recovery of possession
On
22 February 1999
the applicants
brought a fresh action for recovery of possession against the State
(represented by the Ministry of Finance) and Predeal Town Council.
On
21 February 2003
the
Brașov
County Court
allowed the applicants’ action for recovery of possession.
In a final and irreversible judgment of
15 November 2005
, the Court
of Cassation upheld the judgment of
21
February 2003
.
Since
20 February 2006
the applicants have
enjoyed effective possession as a consequence of concluding an act of delivery
and receipt of the house with the former occupants, the SRI.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice, referred
to in the cases of
Brumărescu v. Romania
[GC] (no. 28342/95, §§
31-44, ECHR 1999-VII) and
Străin and Others v. Romania
(no.
57001/00, §§ 19-26, ECHR 2005‑...), is also relevant to the present case.
Law no. 10/2001 of
14
February 2001
, whose relevant parts are quoted in the above-mentioned
Străin
and Others
case, was amended by Law no. 247, published in the Official Gazette
of
22 July 2005
. The new law extends the types of
compensation available by allowing those entitled to compensation to choose between
compensation in the form of goods or services and pecuniary compensation
equivalent to the market value, at the time of the award, of property that
cannot be returned.
Law no. 247/2005 further provides, in Part VII, for the manner
in which compensation for property that has wrongfully passed into State ownership
is to be calculated and paid.
THE LAW
On
7 March 2006
the Court received
the following declaration from the Government:
“1. I declare that the Government of Romania
offer to pay to the applicants an all-inclusive amount of EUR 13,000 (thirteen thousand
euros) with a view to securing a friendly settlement of their application
registered under no. 31549/96 and pending before the Grand Chamber.
This sum, which also covers legal expenses connected
with the case, shall
be free of any tax that may be applicable
and shall
be paid in euros, to be converted
into Romanian lei at the
rate applicable at the date of payment,
to
a bank account named by the applicants and/or their duly authorised
representative. This sum shall be payable within three months from the date of
the notification of the judgment delivered by the Grand Chamber pursuant to
Article 39 of the European Convention on Human Rights. F
rom the expiry
of the above-mentioned three months until settlement, simple interest shall be
payable on the above amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points.
This payment, taken together with the final
decision of the Court of Cassation of 15 November 2005, recognising the
applicants’ right to the property which was the subject of the present
application, constitute the final settlement of the case.
3.
The Government further undertake to
implement
fully the above-mentioned judicial decision, so as to ensure the applicants’
unimpeded enjoyment of their right to the property in question. To this end, I
point out that:
(a) as from
20
February 2006
, the applicants effectively enjoy their possession as a
consequence of concluding an act of delivery and receipt of the house with the
Romanian Intelligence Service, the former possessor of the building;
(b) the Ministry of Finance, which
represented the Government in the domestic proceedings, shall, in the immediate
future, sign, according to the domestic law, the act of delivery and receipt of
the property thus confirming the applicants’ exclusive title to the property.
This declaration does not entail any
acknowledgement by the Government of any violation of the Convention other than
the one found by the Court’s judgment of
4 March
2003
.
The Government consider that the
supervision by the Committee of Ministers of the Council of Europe of the
execution of the Court’s judgment in the present case is an appropriate
mechanism for ensuring that improvements will continue to be made in the
context of the issues raised by it.”
On
7 March 2006
the Court received
the following declaration signed by the applicants:
“1. We,
Irina Margareta Popovici, Sanda Popovici and Maria Cristina Dumitrescu, note
that the Government of Romania are prepared to pay us the global sum
of EUR 13,000 (thirteen thousand euros) with
a view to securing a friendly settlement of our application registered under no. 31549/96
and pending before the Grand Chamber.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as legal costs and expenses connected with the
case, shall be paid in euros, to be converted into Romanian
lei at the rate applicable
at the date of payment,
to a bank account
to be named by us and/or our representative. The sum shall be payable free of
any taxes which may be applicable, within three months from the date of the
judgment delivered by the Grand Chamber pursuant to Article 39 of the European
Convention on Human Rights. F
rom the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amount at
a rate equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points.
We
accept the proposal and waive any
further claims against
Romania
in respect of the facts of this application. We declare that t
his payment, taken together with the final
decision of the Court of Cassation of 15 November 2005, recognising our right
to the property, which was the subject of the present application, constitute
the final settlement of the case.
We also take note of the Government’s undertaking to
implement fully the final decision of the Court of Cassation of
15 November
2005
recognising our ownership title to the property which was the subject of
the present application. To this end, we note that:
(a) as from
20
February 2006
, we effectively enjoy our possession as a consequence
of concluding an act of delivery and receipt of the house with the Romanian
Intelligence Service, the former possessor of the building;
(b) the Ministry of Finance, which
represented the Government in the domestic proceedings, shall, in the immediate
future, sign, according to the domestic law, the act of delivery and receipt of
the property, thus confirming our exclusive title to the property.
This
declaration is made in the context of a friendly settlement which the
Government and we have reached.”
The Court takes note of the friendly settlement
reached between the parties (Article 39 of the Convention).
It notes that since the adoption of the Chamber judgment of
4 March 2003
the
applicants have obtained restitution of the property which was the subject of
this application (see paragraphs 30-32 above).
It also notes that a new law on restitution has been enacted,
namely Law No. 247 of
22 July 2005
. This law extends the
types of compensation available and provides that compensation should be equivalent
to the market value, at the time of the award, of property that cannot be
returned (see paragraph 34 above).
Moreover, the Court observes that it has already specified the
nature and extent of the obligations which arise for the respondent Government
in cases which relate either to delays in, or the impossibility of, obtaining a
final domestic decision on claims of unlawful confiscation of property by the
former communist regime (see
Brumărescu
, cited above, § 65) or to
the sale by the State of such property to third parties (see
Străin and
Others,
cited above, §§ 39-59). The question of the performance of those
obligations is currently pending before the Committee of Ministers.
The Court further observes that under Article 37
(b) of the Convention an application may be struck out of its list of cases
at any stage of the proceedings if it is satisfied that the matter has been
resolved.
Moreover, the Court is satisfied that the
settlement has been reached on the basis of respect for human rights as defined
in the Convention and its Protocols (Article 37 § 1
in fine
of the
Convention and Rule 62 § 3 of the Rules of Court).
Accordingly, the case should be struck out of the
Court’s list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Takes
note
of the terms of the friendly settlement reached and of the modalities
for ensuring compliance with the undertakings referred to therein (Rule 43 § 3
of the Rules of Court);
2.
Decides
to strike the case out of its list.
Done in English and in French, and notified in writing on
6 April 2006
, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Luzius
Wildhaber
President
T.L.
Early
Deputy to the Registrar