ÎCCJ, decizie (scj.ro #86550)
ÎCCJ, decizie (scj.ro #86550) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE DES
DROITS DE L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
GRAND CHAMBER
CASE OF
SMOLEANU v.
ROMANIA
(Application no.
30324/96)
JUDGMENT
(Friendly settlement)
STRASBOURG
6 April
2006
This judgment is final
but may be subject to editorial revision.
In the case of Smoleanu 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.
30324/96) against
Romania
lodged with the European Commission of Human
Rights (“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a
Romanian national, Mrs Elena Smoleanu (“the applicant”), on
22 November 1995
.
The applicant, who had been granted legal aid, was
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 applicant alleged, in particular, that the
Ploiești Court of Appeal’s finding of 13 June 1995 that the courts had no
jurisdiction to determine an action for recovery of possession and its refusal
to determine a second action for recovery of possession had breached Article 6
of the Convention. The applicant also complained that the Ploiești Court
of Appeal’s judgment of
13 June 1995
, delivered in the
first set of proceedings for recovery of possession, had had the effect of infringing
her right to peaceful enjoyment of her 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).
The application was allocated to the Court’s First
Section (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
By a decision of
10 October
2000
a Chamber composed of
Mrs
E. Palm,
President, Mrs W. Thomassen, Mr L. Ferrari Bravo, Mr C. Bîrsan, Mr J.
Casadevall, Mr B. Zupančič and Mr T. Panțîru, judges, and Mr M.
O’Boyle, Section Registrar, declared the application 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 A.B. Baka, Mr Gaukur
Jörundsson, Mr L. Loucaides, Mr C. Bîrsan, Mr M. Ugrekhelidze and Mrs
A. Mularoni,
and also of Mrs S. Dollé, Section Registrar.
On 3 December 2002 the Chamber gave judgment,
holding unanimously that there had been a violation of Article 6 § 1 of the
Convention because the applicant had been denied the right of access to a
tribunal in respect of the two actions for recovery of possession, and no
violation of Article 1 of Protocol No. 1 to the Convention because the
applicant did not have a possession within the meaning of that Article. The
Chamber also awarded the applicant 5,000 euros (EUR) for non-pecuniary
damage.
On
27 December 2002
the applicant
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 applicant and the Government each filed a
memorial. The applicant also filed a memorial in reply to the Government’s
memorial.
A hearing scheduled for
23 June 2004
was
adjourned in view of the fact that domestic proceedings of relevance to the
Convention proceedings 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
27 February 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, the Government and the applicant submitted
formal signed declarations accepting a friendly settlement of the case, on 21 and
22
February 2006
respectively.
Consequently, on
7 March
2006
the hearing scheduled for
29 March 2006
was cancelled.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1922 and lives in
Ploiești
.
On 20 January 1944 she received, as a dowry from
her father, a house in
Ploiești
(“the house”),
consisting of two flats and a garage as well as the appurtenant land.
In 1950, when the applicant was an unemployed
nurse and widow, the State took possession of the property, allegedly under
Decree no. 92/1950 on nationalisation. The applicant was never informed of
the grounds or legal basis for the expropriation, but was allowed to use one of
the flats as a tenant of the State.
Between 1950 and 1955 the applicant applied to
the authorities on many occasions, arguing that the provisions of Decree
no. 92/1950 did not apply to her and requesting the return of the house.
She did not receive any reply.
In 1954 the State demolished the garage.
A. First action for recovery of possession
By a “final and enforceable” decision of
13 January 1995
against R.P.,
a State-owned company responsible for the management of public housing, delivered
on appeal, the Prahova County Court allowed an application for recovery of
possession brought by the applicant in 1994 and ordered the house to be
returned to her. It found that, as a nurse and war widow since 1941, the
applicant belonged to a category of persons to whom the decree on
nationalisation did not apply.
R.P. lodged an appeal on points of law (
recurs
)
against that decision on the ground that the courts did not have jurisdiction
to examine the application of Decree no. 92/1950 in the present case. In a
judgment of 13 June 1995 the Ploiești Court of Appeal allowed the
appeal, quashed the judgment of 13 January 1995 and dismissed the
applicant’s action on the ground that the house had become State property
pursuant to Decree no. 92/1950 and that the courts did not have
jurisdiction to determine whether the decree had been properly applied to her.
The court added that provision as to redress for the wrongful seizure of
property by the State would be made in new legislation. The relevant passages
of the judgment read as follows:
“The
applicant’s allegation that Decree no. 92/1950 was wrongly applied to her is a
question that cannot be determined by the courts. ... The County Court applied
the law incorrectly in holding that it had jurisdiction to impugn the
application of the statutory provisions relating to nationalisation in the
applicant’s case. ... Furthermore, the applicant’s action is premature ...
Provision for compensation for damage incurred as a result of nationalisation
will be made in a special law, as envisaged in section 26(3) of Law no.
47/1992 and section 77 of Law no. 58/1991.”
B. Proceedings for restitution of property under Law
no. 112/1995
On 6 March 1996 the applicant lodged an
application for restitution of the house with the
administrative board
in
Ploiești
responsible for the implementation of Law
no. 112/1995 (“the Administrative Board”), submitting that she had been
dispossessed of her property in breach of the above-mentioned Decree
no. 92/1950 and that the
Ploiești
County Court, in its judgment of 13 January 1995, had held that the deprivation
of property had been unlawful.
In a decision of
17 July
1996
the Administrative Board vested ownership of the flat rented by
the applicant in her and awarded her compensation for the other flat (“flat no.
2”
) and the
land, but did not award her compensation for the garage that had been
demolished by the State. Having regard to section 12 of Law no. 112/1995,
which placed a ceiling on the amount of compensation, the Administrative Board
decided that the applicant was entitled to 11,581,867 Romanian lei (ROL)
(EUR 3,016) for the flat that was not returned and ROL 19,156,500
(EUR 4,988) for the land that was not returned. The applicant never
received those amounts.
According to the applicant, the amount of the proposed
compensation was substantially less than the market value of the unreturned property.
On
17 August 1996
the applicant
challenged the above decision in the Ploiești Court of First Instance. She
specified that she was applying for restitution of the whole house on the
ground that it had been unlawfully nationalised.
On
10 September 1996
, while the
proceedings for restitution were pending, the State sold flat no. 2, which had
not been returned, to the former tenants.
The restitution proceedings were stayed pending
the outcome of the second action for recovery of possession, which the applicant
had lodged in 1997 (see paragraphs 29-31 below).
The proceedings were resumed on an unknown date,
after judgment had been given by the Ploiești Court of Appeal on
30 March 1998
in the
second action for recovery of possession (see paragraph 31 below). The action
brought by the applicant to have the Administrative Board’s decision of
17 July 1996
set aside
was dismissed successively by the Ploiești Court of First Instance on
3 September 1998
, the
Prahova County Court on
21 January 1999
and, at final
instance, by the Ploiești Court of Appeal on
23 April
1999
. All those courts upheld the Administrative Board’s decision of
17
July 1996
.
C. Second
action for recovery of possession
On
3 April 1997
the applicant brought
a further action for recovery of possession in the Ploiești Court of First
Instance.
In a judgment of
10 June
1997
the court dismissed the action on the ground that, by choosing
to bring administrative proceedings, the applicant had acknowledged that the
property had been lawfully nationalised and was consequently debarred from
bringing an action for recovery of possession.
This judgment was upheld successively by the County
Court on
27 November 1997
, the Ploiești Court of Appeal on
30 March 1998
and the
Brașov Court of Appeal on
16 December 1998
.
D. Proceedings
for restitution of property under Law no. 10/2001
On
5 July 2001
the applicant lodged an
application with Ploiești City Council under Law no. 10/2001 seeking the
return of flat no. 2.
On
7 August 2001
Ploiești City
Council informed the applicant that the flat had been sold by the State to the
former tenants on
10 September 1996
, but that restitution
was still possible if she succeeded in having the sale rescinded by court order
(see paragraph 34 below).
E. Proceedings for rescission of the sale of the
unreturned flat
On 6 February 2002 the applicant brought proceedings
in the Ploiești Court of First Instance under Law no. 10/2001 to have the
contract of sale of 10 September 1996 between the State and the former tenants
rescinded on the ground that the sale had been made while legal proceedings
were pending regarding the lawfulness of the nationalisation of the property.
She accordingly sought restitution of flat no. 2, which was the subject of that
contract of sale.
In a judgment of
22
September 2003
the Ploiești Court of First Instance allowed the
application for rescission of the sale, but dismissed the application for
restitution. Observing that the house had been unlawfully nationalised, it
declared the contract of sale null and void for lack of good faith on the part
of the State and the former tenants in signing the contract. It dismissed the
claim for restitution of flat no. 2, however, pointing out to the applicant
that the administrative board established to deal with applications lodged
pursuant to Law no. 10/2001 had the authority to deal with that restitution.
Both the applicant and the defendants appealed
against the judgment of
22 September 2003
.
In a judgment of
25 March
2004
the Ploiești Court of Appeal dismissed both the appeal by
the defendants relating to the lawfulness of the sale and the applicant’s
appeal relating to the claim for restitution of flat no. 2. Regarding the
appeal lodged by the applicant, the court held that any legal action for
recovery of possession of nationalised property had been debarred following the
entry into force of Law no. 10/2001, and that the appropriate remedy was to
bring administrative proceedings for restitution under that Law.
The parties appealed on points of law against the
judgment of
25 March 2004
.
On
14
December 2004
the Court of Cassation (formerly the Supreme Court of Justice)
dismissed the appeal lodged by the defendants and allowed the appeal lodged by
the applicant in so far as it concerned the Court of Appeal’s refusal to
determine her claim for restitution. The part of the judgment of
25 March 2004
concerning
rescission of the sale thus became final and immediately enforceable. Regarding
the part of the appeal concerning the claim for restitution, the Court of
Cassation noted that the administrative proceedings for restitution under Law
no. 10/2201 had been adjourned (see paragraph 33 above) and that,
accordingly, the applicant was entitled both to apply for the sale to be
rescinded – which she had in fact done – and to seek restitution of the
property following the rescission of the contract of sale. The Court of
Cassation accordingly set aside the judgment of
25 March
2004
in so far as the court had refused to determine the claim for
restitution, and remitted the case to the Court of Appeal for a fresh hearing
on that point.
In a decision of
21
December 2004
the mayor of
Ploiești
ordered the return to
the applicant, under Law no. 10/2001, of the entire property, consisting of a house
with a floor area of 120.40 sq.m and 229 sq.m of land.
On
16 March 2005
the applicant’s title
was entered in the Land Register.
The Ploiești Court of Appeal gave judgment
on
12 April 2005
. It observed that the sale of flat no. 2 had
been rendered null and void by the final judgment of
14 December 2004
and held
that, consequently, the parties had to be restored to the position in which
they had been prior to the sale and the flat had to be returned to the applicant.
The judgment of
12 April 2005
was immediately
enforceable.
The purchasers of flat no. 2 appealed to the
Court of Cassation on points of law against the judgment of
12 April 2005
. They
sought and obtained a stay of execution of that judgment.
Pursuant to Law no. 219 of
6 July
2005
, amending the Code of Civil Procedure, the Ploiești Court
of Appeal was vested with jurisdiction to entertain the appeal on points of
law. It dismissed the appeal in a final judgment of
4 November
2005
.
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
shall be calculated and paid.
THE LAW
On
21 February 2006
the Court received
the following declaration from the Government:
“1. I declare that the Government of Romania
offer to pay to the applicant a global sum of EUR 10,000 (ten thousand euros)
with a view to securing a friendly settlement of her application registered
under no. 30324/96 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 applicant and/or her 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 Ploiești Court of Appeal of 4 November 2005
recognising the applicant’s title to the property which was the subject of the
present application and ordering its restitution to her, constitute the final
settlement of the case. The Government point out in this connection that as
from
4 November 2005
the applicant effectively enjoys her
possession of 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
3 December
2002
.
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
22 February 2006
the Court received
the following declaration signed by the applicant’s representative:
“1. I,
Elena Smoleanu, note that the Government of Romania are prepared to pay me the global
sum
of EUR 10,000 (ten thousand euros) with
a view to securing a friendly settlement of my application registered under no. 30324/96
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 myself or my 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.
I
accept the proposal and waive any further claims against
Romania
in respect of the facts of
this application. I declare that t
his
payment, taken together with the final decision of the Ploiești Court of
Appeal of 4 November 2005 recognising my title to the property which was the
subject of the present application and ordering its restitution to me, constitute
the final settlement of the case.
This
declaration is made in the context of a friendly settlement which the
Government and I 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
3 December 2002
the
applicant has obtained restitution of the property which was the subject of
this application (see paragraphs 42 and 43 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 45 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