ÎCCJ, decizie (scj.ro #86589)
ÎCCJ, decizie (scj.ro #86589) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE
DES
DROITS DE
L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
THIRD SECTION
CASE OF
TUDOR TUDOR
v.
ROMANIA
(Application no.
21911/03)
JUDGMENT
STRASBOURG
24 March
2009
FINAL
24/06/2009
This judgment may be
subject to editorial revision.
In the case of Tudor Tudor v.
Romania
,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra,
judges,
and
Stanley
Naismith
,
Deputy
Section Registrar
,
Having deliberated in private on
3 March
2009
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
21911/03) against
Romania
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Tudor Tudor (“the applicant”), on
26 June 2003
.
The applicant, who had been granted legal aid, was
represented by Mr Florian Andreescu, a lawyer practising in
Bucharest
. The Romanian
Government (“the Government”) were represented by their Agent, Mr Răzvan-Horațiu
Radu, of the Ministry of Foreign Affairs.
On
10 April 2006
the Court decided to
give notice of the application to the Government, under Articles 6 of the
Convention and 1 of Protocol No. 1 to the Convention taken alone or
together with Article 14. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
On
17 June 2008
the Chamber decided
to ask the parties additional questions concerning the effectiveness of
remedies in respect of the complaint raised under Article 1 of Protocol No. 1
to the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1944 and lives in
Bucharest
.
From 1973 he lived in an apartment rented from the
State in a nationalised building. On
13 January
1997
, under Law no. 112/1995 on the legal status of certain
residential property, the applicant bought that apartment from the State.
In a final decision of 23 May 1997 the Bucharest
District Court allowed an action
(
acțiunea în revendicare
)
brought by the
former owner against the State for recovery of possession
of the
building where the applicant’s apartment was situated
.
Based on that decision, the former owner lodged
several actions for recovery of possession against the persons who had bought
apartments in the building in similar conditions, including the applicant.
In a final decision of
28 January
2003
the Bucharest Court of Appeal ordered the applicant to surrender
possession of the apartment to the plaintiff. The court found that the former
owner’s property title deed, as it had been confirmed by the final decision of
23 May 1997
, prevailed
over the applicant’s purchase contract. It also considered that the applicant’s
bona fides
in concluding the
13 January
1997
contract was relevant only in the event that the applicant
lodged an action for compensation against the State.
Meanwhile, the same Court of Appeal did take into
account the buyers’ good faith in dismissing actions lodged by the former owner
against other persons who had bought apartments in the same building. Thus, on
28 November 2002 the Court of Appeal dismissed the action against T.I. and
T.A., who had bought their apartment on 12 December 1996; on 7 February
2003 it dismissed the action against I.E. and M.S. and on 20 June 2003 it
dismissed the action against C.D., who had bought his apartment on 27 March
1997.
On
6 April 2006
the High Court of
Cassation and Justice, acting on an application by the Procurator General (
recurs
în anulare
), quashed the final decision of
28
November 2002
and sent the case back to the first‑instance court. According
to the information available to the Court, the proceedings are still pending
with the domestic courts.
On
9 February 2006
the High Court allowed a similar
application by the Procurator General and set aside the
20 June 2003
decision, thereby
allowing the former owner’s action against C.D.
A similar action by the Procurator General, lodged against the
7
February 2003
decision mentioned above, was allowed by the High Court on
14 February
2007
. The case was sent back to the Bucharest County Court for
re-examination of the appeal. The proceedings are still pending with that court.
As to the applicant, eviction proceedings lodged
by the former owner against him are currently pending with the domestic courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Action for recovery of possession
(
acțiunea
în revendicare
)
Under Romanian law, an action for recovery of
possession is one of the principal remedies for the protection of a right of
property. Such action is not governed by statute
per se
but has emerged
from case-law. An action for recovery of possession can be defined as the
bringing of proceedings to enforce a right
in rem
in which a
dispossessed owner claims back his or her property from the person currently in
possession of it. When both the plaintiff and the defendant have a title deed,
the court must compare the two deeds and decide which one is preferred. The
main outcome of such an action, if successful, is the acknowledgment by the
court of the claimant’s title to the property, with retrospective effect, thus
obliging the defendant to return the property. If physical restitution is no
longer possible, that obligation is replaced by an obligation to pay
compensation on the basis of an equivalent sum (see
Străin and Others
v. Romania
, no. 57001/00, § 26, ECHR 2005‑VII)
.
B. Action for compensation provided for in the Civil
Code: responsibility for eviction
(garanția pentru evicțiune)
Articles 1337-1351 of the Civil Code institute
the seller’s responsibility for eviction. They provide for the evicted buyer to
claim reimbursement of the price and also the payment of costs and damages,
regardless of the seller’s good or bad faith. The buyer can either join the
seller to the proceedings instituted against him by the third party or lodge a
new action against the seller after having been evicted. In the latter case, if
the seller proves that he could have won the case against the third party had he
been joined to the proceedings, he will be exempted from compensating the buyer
(Article 1351 of the Civil Code).
A
bona fide
buyer continues to enjoy the benefits of the
property until he is no longer considered
bona fide
, that is at the
latest when the action for eviction is lodged against him, at which time enjoyment
of the property reverts to the rightful owner. However, the buyer may still claim
compensation for his loss from the seller.
C. Actions for compensation available under Law no.
10/2001
At the date of the facts of the present case, Article
51 of Law no. 10/2001 on the rules governing immovable property
wrongfully seized by the State between 6 March 1945 and 22 December 1989, as
amended by the Government’s Emergency Ordinance no. 184 of 12 December
2002 (“Law no. 10/2001”), prescribed that an action for recovery of
the purchase price, indexed to take account of inflation, brought against the
State by a buyer whose contract had been declared null and void, was not
subject to court fees. It also provided that the indexed price was to be paid
by the Ministry of Finance from a special fund.
D. Case-law on compensation
At the Court’s request, the Government submitted case-law
on the different actions for compensation when property is lost in conditions
similar to those of the case at hand.
Of the seventeen relevant decisions adopted between
2005 and 2008 by courts all over the country, nine concerned actions lodged
against the State authorities by persons who lost their property in actions for
recovery of possession. The courts applied the Civil Code and awarded them the
indexed purchase price and, in most of the cases, damages and the
costs
reasonably incurred for the upkeep of the house
. Most of the courts
considered that Law no. 10/2001 was not applicable to actions for recovery
of possession when the sale contract was not declared null and void in such
proceedings.
When such contracts are cancelled, however, the
decisions submitted to the Court indicate that the courts consistently apply Law
no. 10/2001 and award the buyer the indexed purchase price.
E. Recent developments favourable to the tenants
In a decision no. 520/C of
3 December 2007
the
Constanța Court of Appeal found in favour of the buyer in an action for
recovery of possession lodged by the former owner of a nationalised apartment
against the person who in good faith had bought the apartment from the State in
The court decided that the restitution of the apartment to the former owner
was no longer possible and, based on the Court’s case-law on Article 1 of
Protocol No. 1 (in particular:
Pincová and Pinc v.
the Czech Republic
, no. 36548/97, ECHR 2002‑VIII;
Raicu v. Romania
, no. 28104/03, 19 October 2006
and
Păduraru
v. Romania
, no. 63252/00, ECHR 2005‑XII (extracts)), it
compelled the State to pay the market value of the apartment in compensation to
the former owner. In the court’s view, although the plaintiff had not asked for
compensation, in the circumstances of the case the monetary award was the only
solution to the action for recovery of possession.
In a similar decision of
12 December 2007
the High
Court of Cassation and Justice found in favour of the buyer in an action for recovery
of possession lodged by the former owner. The High Court took account of the
fact that the buyer’s title had been confirmed by the courts in an action in
nullity of the sale contract lodged against him by the former owner whereas the
former owner’s title had not been upheld by a court. It further considered that
dispossessing the buyer regardless of the circumstances, in order to surrender
the property to the former owner, would create disproportionate new wrongs in
the attempt to attenuate old injuries. It also considered, in a general
statement, that the reimbursement of the indexed purchase price under Law no.
10/2001 could not compensate the buyer as it did not reflect the property’s
market value.
In a decision no. 1055 of
9 October 2008
the
Constitutional
Court
declared Article 47 of Law no. 10/2001 unconstitutional in so
far as it breached the buyer’s property title. Under the provision concerned, persons
whose actions based on the Civil Code had been dismissed before the entry into
force of Law no. 10/2001 could use this Law in order once again to seek the
restitution of their property. The Constitutional Court considered that persons
whose title to property had been confirmed by a court decision could not be
compelled to surrender that property where there was no serious justification
for such a measure, based on public order, under Article 44 § 3 of the
Constitution.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
The applicant complained under Article 6 § 1
taken alone and in conjunction with Article 14 of the Convention
that the
proceedings giving rise to the final decision of 28 January 2003 were unfair,
in particular in so far as the same Court of Appeal adopted conflicting
decisions in identical cases brought against other buyers of apartments
situated in the same building.
Article 6 § 1 reads as follows in so far as relevant:
“In
the determination of his civil rights and obligations ... everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...”
Article 14 of the Convention reads as follows:
“The
enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The parties’ submissions
The Government submitted that the proceedings had
been fair and that the courts that had dealt with the applicant’s case had
given a well reasoned decision. In their view, the mere fact that the courts
had reached opposing decisions in similar cases did not trigger a violation of
the Convention. They pointed out that the controversial issue in these cases was
the interpretation given by the courts to the notion of “good faith”, but that the
conflicting decisions were justified by a different interpretation of the relevant
facts in each case.
The applicant disagreed with the Government’s
position and reiterated that the Court of Appeal had reached opposing decisions
in identical cases.
The Court’s assessment
The Court considers that while the Convention
does not impose an obligation on States to restore confiscated assets, let
alone to dispose of them in accordance with the elements of the right of
property, once a solution has been adopted by a State, it must be implemented
with reasonable clarity and coherence in order to avoid, in so far as possible,
uncertainty and ambiguity for the persons concerned by the measures to
implement it. In that context, it should be stressed that uncertainty – be it
legislative, administrative or arising from practices applied by the
authorities – is an important factor to be taken into account in assessing the
State’s conduct (see
Broniowski v. Poland
[GC], no. 31443/96, §
151, ECHR 2004‑V;
Păduraru
, cited above, § 92 and
Beian v. Romania
(no. 1)
, no. 30658/05, § 33, ECHR 2007‑... (extracts)).
The Court notes that, in the particular context
of the restitution of nationalised properties in Romania, the lack of legislative
coherence and the conflicting case-law on the interpretation of certain aspects
of the restitution laws created a general climate of lack of legal certainty
(see
Păduraru
, §§ 99, 109, cited above).
The same uncertainty appeared in the instant case:
the same Court of Appeal gave opposing interpretations of the relevance of the buyers’
good faith in concluding sale contracts with the State (see paragraphs 9-11
above).
While certain divergences in interpretation could
be
an inherent consequence of any judicial system which, like the
Romanian one, is based on a network of trial and appeal courts with authority
over the area of their territorial jurisdiction,
the Court notes that in
the case at hand the conflicting interpretations stemmed from the same
jurisdiction which, in addition, was the court of last resort in the matter.
Moreover, no effective mechanism was available for the Supreme Court to resolve
conflicts between decisions of the lower courts (
see
Păduraru
,
§§ 99 and 109, and
Beian
, § 37, cited above, and,
mutatis
mutandis
,
Schwarzkopf and Taussik v. the Czech Republic
(dec.),
no. 42162/02, 2 December 2008). In the instant case, when assessing the
Procurator General’s application (see paragraph 11 above) the High Court of
Cassation and Justice was not called to settle conflicting interpretation but
rather to examine particular applications of the law in individual cases; in
addition, its intervention in the case was only possible by means of an extraordinary
appeal that contradicts in itself the principle of the legal certainty (see
Brumărescu
v. Romania
[GC], no. 28342/95, § 62, ECHR 1999‑VII;
SC
Mașinexportimport Industrial Group SA v. Romania
, no. 22687/03, § 36,
1 December 2005).
Lastly, the Court observes that seven years after
the adoption of Law no. 10/2001, the interpretation of essential aspects
of the restitution law is still changing at the first-instance level, through
individual decisions (see paragraphs 19-21 above), and there is still no
definitive settlement of the interpretation given by the courts to various
aspects of the restitution laws.
While it does not contest the domestic courts’ power to change
their practice, the Court notes that, in the particular context of restitution
in
Romania
, this new trend in interpretation favourable
to former tenants could prove to be nothing more than another temporary change
in the case-law.
The Court considers that, in the absence of a
mechanism which ensures consistency in the practice of the national courts,
such profound and long-standing differences in approach in the case-law,
concerning a matter of considerable importance to society, are such as to
create continual uncertainty (see,
mutatis mutandis
,
Păduraru
,
cited above, § 98).
In the case at hand this uncertainty deprived the
applicant of a fair trial before the Court of Appeal.
There has consequently been a violation of Article 6 § 1 on this
account.
Having regard to this finding of a violation, the
Court considers that it is not necessary to examine whether, in this case,
there has also been a violation of Article 14 taken together with Article 6 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
The applicant complained that the fact that the
domestic courts had preferred the former owner’s property title deed to his own
made it impossible for him at present to exercise his property rights over the
apartment, in violation of Article 1 of Protocol No. 1 to the Convention. He
also complained of discrimination, under Article 14 taken together with Article
1 of Protocol No. 1, in so far as the same Court of Appeal adopted contrasting decisions
in identical cases brought against the buyers of apartments situated in the
same building.
Article 1 of Protocol
No. 1 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.”
A. The parties’ submissions
In their submissions of
13 August 2008
, the
Government contended that the applicant had not exhausted the domestic
remedies, in so far as he had not lodged an action for responsibility for eviction
against the State authorities under the Civil Code. This action would have
allowed him to recover from the State the indexed purchase price and damages.
The applicant averred that there had been no need
for him to join the State in the proceedings lodged against him, in so far as
the court of first instance and the appeal court had found in his favour. He
also considered that as the interference with his property rights had been
caused by the 28 January 2003 decision, if he had lodged a new action
against the State he would have missed the six-month time-limit provided for in
Article 35 § 1 of the Convention.
B. The Court’s assessment
The Court recalls that under Article 35 normal
recourse should be had by an applicant to remedies which are available and
sufficient to afford redress in respect of the breaches alleged. The existence
of the remedies in question must be sufficiently certain not only in theory but
in practice, failing which they will lack the requisite accessibility and effectiveness
(see
Akdivar and Others v. Turkey
,
16 September
1996
, § 66,
Reports of Judgments and Decisions
1996‑IV).
In the present case, the domestic courts compared
the title deeds presented by the applicant and the former owner and decided to
give preference to the former owner’s deed. In so doing the Court of Appeal did
not set aside or declare null and void the applicant’s title deed, nor did it
award him any compensation for his loss.
However, the applicant, who can no longer validly use his title
deed, may seek compensation from the seller, under the Civil Code, for eviction,
either by joining the State in the proceedings lodged against him or by lodging
a separate action to that end. The case‑law submitted by the Government
indicates a consistent domestic practice of awarding damages in cases similar
to the present one. The remedy is therefore available both in theory and in
practice.
It remains to be determined whether the amount of
compensation that can be awarded by the national courts is sufficient
to afford
redress in respect of the breaches alleged
. In this context, the
Court notes that the case at hand stems from the application of the laws on the
restitution of nationalised properties. W
hile acknowledging the
particularly difficult context of compensation for property nationalised during
the communist regime, the Court has expressed the view that it is necessary to
ensure that the attenuation of those old injuries does not create disproportionate
new wrongs (see
Pincová and Pinc,
cited above, § 58,
and
Velikovi and Others v. Bulgaria
, nos. 43278/98, 45437/99,
48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02,
§§ 178‑179, 15 March 2007).
The case-law provided by the Government indicates
that persons in the applicant’s situation would have been awarded at least the
indexed purchase price, and possibly damages up to the property’s current
market value, as well as the reimbursement of any costs reasonably incurred for
the upkeep of the house.
Although the Court cannot speculate in this case what
the outcome of the proceedings for compensation would have been should the
applicant have chosen to use them, it notes that the awards made by the
domestic courts in similar situations are significantly higher than those in
the case of
Pincová and Pinc
, where the Court found a violation of
Article 1 of Protocol No. 1 in so far as the applicants, who were in a similar
situation to that of the applicant in the instant case, were only granted the
purchase price as compensation for the lost property (see
Pincová and Pinc
,
cited above, §§ 61-64; see also
Velikovi and Others
, cited above, §§ 140-141,
and
Kalinova v. Bulgaria
, no. 45116/98, § 76, 8 November 2007).
Lastly, although the restitution law does not
provide for a specific action against the State for persons in the applicant’s
situation (see,
mutatis mutandis
,
Velikovi and Others
, § 127,
and
Kalinova
, § 77, cited above), the Court is satisfied that this
remedy, afforded by the Civil Code, is sufficient to provide redress in the
applicant’s situation.
The applicant should thus have exhausted this remedy
before lodging his complaint with the Court.
It follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion of
domestic remedies.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If
the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if necessary,
afford just satisfaction to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of pecuniary damage, representing the value of his apartment, and EUR
5,000 in respect of non-pecuniary damage.
The Government did not comment on these claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 5,000 in
respect of non‑pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,000 and
100,000,000 Romanian lei (RON) for costs and expenses incurred before the
domestic courts and before the Court. He sent invoices for RON 1,059.95
representing translation costs, and ROL (old Romanian lei) 9,000,000, RON 500 and
EUR 1,500 for lawyers’ fees.
The Government considered that the claims were
unjustified and exorbitant.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to the
information in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,200 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Declares
the complaint concerning
Article 6 taken alone and together with Article 14 admissible;
2.
Declares
the complaint under Article 1 of
Protocol No. 1 to the Convention taken alone and in conjunction with Article 14
inadmissible for non-exhaustion;
3.
Holds
that there has been a violation of
Article 6 § 1 of the Convention;
4.
Holds
that there is no need to examine the
complaint under Article 14 together with Article 6 of the Convention;
5.
Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts to be converted into the respondent State’s national currency
at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 2,200 (two thousand two hundred euros) for
costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6.
Dismisses
the remainder of the applicant’s
claim for just satisfaction.
Done in English, and
notified in writing on
24 March 2009
, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Stanley
Naismith Josep
Casadevall
Deputy Registrar President