ÎCCJ, decizie (scj.ro #86346)
ÎCCJ, decizie (scj.ro #86346) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE DES
DROITS DE L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
SECOND SECTION
CASE OF CROITORU v.
ROMANIA
(Application no.
54400/00)
JUDGMENT
STRASBOURG
9 November
2004
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Croitoru v.
Romania
,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr
J.-P.
Costa
,
President
,
Mr
A.B.
Baka,
Mr
L.
Loucaides
,
Mr
C.
Bîrsan
,
Mr
K.
Jungwiert
,
Mr
V.
Butkevych
,
Mrs
A.
Mularoni,
judges
,
and Mr T.L
.
Early
,
Deputy
Section
Registrar
,
Having deliberated in private on
19 October
2004
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
54400/00) 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 Viorel Croitoru (“the applicant”), on
3 July 1999
.
The Romanian Government (“the Government”) were initially
represented by Mrs C.I. Tarcea, who was succeeded by Mr B. Aurescu, Under‑Secretary
of State, and Mrs R. Rizoiu, Agents.
On
22 October 2002
the Court decided to
communicate the application to the Government.
On
13 November 2003
, under the provisions
of Article 29 § 3 of the Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1929 and lives in
Bucharest
.
On
26 September 1991
, the local commission
in Pătrăuți for the application of Law no. 18/1991 (“the local commission”)
issued a certificate to the applicant recognising his ownership of a plot of
land measuring 1,500 square metres.
In 1993, the Suceava county commission for the
application of Law no. 18/1991 (“the county commission”) issued ownership
titles to the applicant's neighbours for several plots of land which had become
State property in 1944.
In 1993 the applicant brought an action in the
Suceava District Court seeking the restitution of the aforementioned land,
which he had inherited before the collectivisation. On
9 June 1993
the
District Court ordered the restitution of part of the claimed land, measuring 3,087
square metres, on the site known by the name “
Acasă
”. Both litigants
appealed against this decision. On
25
February 1994
the
Bucharest County Court
quashed the decision
and remitted the case to the Suceava District Court. On
13 March 1995
the
District Court ordered the same partial restitution to the applicant. No appeal
was lodged and the decision became final.
On
9 November 1993
the applicant had filed
an action with the Bucharest County Court seeking to compel the local commission
to enforce the judgment of
9 June 1993
and the certificate
of
26 September 1991
. He also claimed
compensation for the profits derived from the cultivation of the land by third
parties.
On
25 January 1996
the County Court required
the local commission to restore to the applicant the two plots of land (3,087
square metres and 1,500 square metres) as ordered in the final judgment of
13 March 1995
and the
certificate of
26 September 1991
. In the same
decision, the County Court dismissed the applicant's claim for cultivation
profits as the evidence produced was insufficient to make an evaluation. No
appeal was lodged and the decision became final.
On 29 May 1998, in response to complaints
by the applicant about the non-enforcement of the above judgment, the prefect
of the county informed the applicant that, as long as there was a valid
ownership title in respect of the land in question (issued to the applicant's
neighbours) which had not been declared null and void, the judgment could not
be enforced. The prefect suggested that the applicant lodge with the competent
court an action for that purpose.
On
16 March 1999
, the applicant brought
an action seeking a declaration that the ownership title issued on
24 May 1993
in favour
of H.M., one of the neighbours, was null and void.
In a judgment of
28 June
1999
given by the Suceava District Court, upheld by the final
decision of
24 April 2001
of the Suceava Court of Appeal, the action
was rejected on the ground that the applicant had not proven his ownership
rights over the plot of land in question.
In 2000 the applicant brought an action in the
Suceava District Court to compel the local commission to enforce the judgment
of
13 March 1995
. On
15 May 2001
the
District Court dismissed the action because of the
res judicata
effect of the County Court's decision of
25 January 1996
.
It appears from the parties' submissions that the
judgments of 13 March 1995 and
25 January 1996
have to
date not been enforced.
II. RELEVANT
DOMESTIC LAW
The
relevant domestic legislation and case-law are set out in the case of
Sabin Popescu
v. Romania
(no. 48102/99, §§ 42-46,
2 March 2004
).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that his right to have
his civil rights determined by a court had been violated by the authorities'
failure to enforce the final judgments of
13 March 1995
and
25 January 1996
. He based
his arguments on Article 6 § 1 of the Convention, which, in so far as
relevant, reads as follows:
“In
the determination of his civil rights and obligations ..., everyone is entitled
to a fair ... hearing ... by [a] ... tribunal...”
A. Admissibility
From the outset, the Court observes that the
alleged violation of the right of access to a court constitutes a continuous
situation which persists until the relevant court decision is executed (see the
Sabin Popescu
judgment, cited above, § 50). Therefore, the
six-month time limit cannot start until the continuous situation that gave rise
to the alleged violation ends.
The Government's preliminary objection based on
non‑exhaustion of domestic remedies
The Government stated that the applicant had failed
to exhaust the relevant domestic remedies on the ground that he had not brought
an action against all the neighbours seeking a declaration that the ownership
titles issued to them in 1993 were null and void. They submitted that such an action
was a precondition for the authorities to be able to enforce the judgments in
favour of the applicant. The one action he did bring was lost for failure to
present the evidence in his favour. They therefore concluded that the State
could not be held liable for the applicant's failures.
The applicant contested this argument.
The Court notes that it has already dismissed a
similar objection raised by the respondent Government because such a remedy was
not capable of directly redressing the alleged violation, and the obligation to
enforce the original judgments fell on the authorities and not on the applicant
(the
Sabin Popescu
judgment, cited above, §§ 56-60).
The Court sees no reason to reach a different
conclusion in the present case. Indeed, as in the case of
Sabin Popescu
,
the applicant's complaint refers to the non‑enforcement of final
judgments favourable to him. The action seeking to declare the ownership titles
issued to the third parties null and void is a separate matter from the non‑enforcement
issue, and is not a remedy that would lead directly to the enforcement of the
said judgments.
Accordingly, the Government's preliminary
objection must be dismissed.
Whether the complaint is manifestly ill-founded
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 Government repeated that the authorities
could not be held responsible for the non-enforcement of the judgments issued
in favour of the applicant since the execution depended upon the applicant
taking action in this respect, namely bringing an action seeking a declaration
that the ownership titles issued to the third parties were null and void.
The applicant argued that it was for the domestic
authorities to declare the said titles null and void and to allow him to take
possession of the plots of land as ordered by the final judgments.
The Court recalls that, according to its
established case-law, the execution of a judgment given by any court must be
regarded as an integral part of the “trial” for the purposes of Article 6 § 1
of the Convention, and that the right of access to a court would be illusory if
a Contracting State's domestic legal system allowed a final, binding judicial
decision to remain inoperative to the detriment of one party (see
Hornsby v.
Greece
, judgment of 19 March 1997,
Reports of Judgments and Decisions
1997-II,
pp. 510‑511, § 40;
Burdov v. Russia
judgment, no. 59498/00, 7
May 2002, §§ 34-35;
Jasiuniene v. Lithuania
,
no. 41510/98,
, 6 March 2003 and
Sabin Popescu
, cited above, § 64).
The Court notes that in the current case, although
the authorities had an obligation to execute the judgments of
13 March 1995
and
25 January 1996
by
restoring the relevant land to the applicant, the aforementioned judgments remain
un-enforced to date (see paragraph 15 above). They are nevertheless still
valid, no proceedings having been instituted under the Romanian law for their
modification or annulment before the domestic courts.
The foregoing considerations are sufficient to
enable the Court to conclude that, by failing to take the necessary measures to
comply with the judgments of 13 March 1995 and 25 January 1996, the Romanian
authorities deprived the provisions of Article 6 § 1 of the Convention of all
useful effect.
There has accordingly been a violation of Article
6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
The applicant complained of a violation of his
property rights over the plots of land as a consequence of the non-enforcement
of the final judgments of
13 March 1995
and
25 January 1996
. He relied
on Article 1 of Protocol No. 1 to the Convention which provides 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.”
The Government contested this argument. In their
view, the final judgments alone could not constitute an authorisation to
transfer title. To have that effect, they should have been accompanied by a
court decision declaring the ownership titles issued to the third parties null
and void.
The Court notes that this complaint is linked to
the one examined above and must likewise be declared admissible.
On the merits, the Court recalls that a “claim”
can constitute a “possession” within the meaning of Article 1 of Protocol No. 1
to the Convention if it is sufficiently established as enforceable (see the
Jasiuniene
judgment cited above, § 44 and
Stran Greek Refineries and Stratis
Andreadis v. Greece
, judgment of 9 December 1994, Series A no. 301-B, p. 84,
). In the present case, it has already found that the authorities had
an obligation to restore certain plots of land to the applicant (see paragraph 28
above) in accordance with the final judgments of
13 March 1995
and
25 January 1996
.
Therefore, the applicant has enforceable claims deriving from them.
In this context, t
he Court has previously held that, where the authorities have
acknowledged an applicant's right, he does not cease to be a victim of the
alleged violation until the national authorities have afforded effective
redress in this respect (see, among other authorities, the
Brumărescu v.
Romania
judgment of 28 October 1999 [GC], no. 28342/95, § 50,
ECHR 1999-VII).
The Court considers that the failure of the
domestic courts to enforce the judgments of 13 March 1995 and 25 January 1996
amounts to an interference with the applicant's right to the peaceful enjoyment
of possessions within the meaning of Article 1 of Protocol No. 1 to the
Convention.
By failing to comply with the final judgments,
the authorities placed the applicant in a state of uncertainty as to the
repossession of his property and, since 1995, have prevented him from actually enjoying
his possessions. The Government have not provided a plausible justification for
the interference which could be acceptable from the point of view of Article 1
of Protocol No. 1 to the Convention.
Accordingly, the Court considers that in the
present case there has been a violation of Article 1 of Protocol No. 1 to the
Convention on account of the non-enforcement of the final judgments of
13 March 1995
and
25 January 1996
.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained, under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention,
about the unfairness of the proceedings in respect of compensation for the
profits derived from the cultivation of the disputed land, and compensation for
a demolished house which had allegedly existed on part of that land. He
considered that the Suceava District Court, in rejecting by a final decision, on
15 May 2001, his fresh action to compel the local commission to
enforce the judgment of 13 March 1995, had not given him a fair hearing,
as required by Article 6 § 1 of the Convention. Lastly, he
considered that the outcome of the court proceedings with respect to his compensation
claims and the refusal of the authorities to enforce the final judgments
favourable to him had infringed his rights under Articles 13 and 17 of the
Convention.
The Court has examined the remainder of the
applicant's complaints as submitted by him. However, having regard to all the material
in its possession, and in so far as the matters complained of were within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. 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 sought execution of the final judgments in his favour. In addition,
he claimed 60,000 euros (EUR) in respect of pecuniary damage caused by the
demolition of a house (see paragraph 39 above) and EUR 15,000 for the
value of the crops he could have obtained from cultivating his land which the authorities
failed to restore to him. Furthermore, he claimed EUR 100,000 in respect of
non-pecuniary damage caused by the fact that it had been impossible for him and
his mother to use the land following their eviction from it and from their
house. Subsequently, he increased his claim to EUR 300,000, considering that sum
more appropriate for the suffering they had endured from the date of
expropriation to the present time.
The Government contended that no pecuniary or
non-pecuniary damages could be awarded to the applicant for the demolished
house since it was unconnected with the non‑enforcement of the final
judgments that had ordered the return of the plots of land to the applicant.
Consequently, they considered the claims for EUR 60,000 and EUR 100,000
unjustified.
They further submitted that, in their view, the
Court did not favour compensation for the loss of use, and therefore the EUR 15,000
claim should also be rejected. They cited
Papamichalopoulos and others
v. Greece
(judgment of
30 October 1995
(former Article
50), Series A no. 330-B, pp. 60-61, §§
38-39), and
Anghelescu
v. Romania
(no. 29411/95, §§ 75-77,
9 April 2002
).
In so far as the applicant sought enforcement of
the final domestic judgments favourable to him, the Court reiterates that a
judgment in which it finds a violation of the Convention or its Protocols
imposes on the respondent State a legal obligation not just to pay those
concerned the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general and/or, if
appropriate, individual measures to be adopted in its domestic legal order to
put an end to the violation found by the Court and make all feasible reparation
for its consequences in such a way as to restore as far as possible the
situation existing before the breach (see
Ilașcu and others v. Moldova and
Russia
[GC], no. 48787/99, § 487, 8 July 2004, and
Scozzari
and Giunta
v. Italy
[GC], nos. 39221/98 and 41963/98, §§
249-250, ECHR 2000-VIII). A similar approach is to be followed in the
present case.
Concerning the compensation sought by the
applicant, the Court reiterates that it has found violations of Article
6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the
Convention on account of the non‑enforcement of the final judgments ordering
the authorities to return certain plots of land to the applicant. Therefore,
only the pecuniary and non‑pecuniary damage that has a causal link with
this violation can be taken into account.
The Court considers that the applicant must have
suffered pecuniary damage owing to the fact that the judgments of 13 March 1995
and 25 January 1996 have not been executed to date, as well as stress
and frustration as a result of the non-enforcement, the more so given his
advanced age.
Making an assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the applicant
the global sum of EUR 5,000 for pecuniary and non-pecuniary damage.
B. Costs and expenses
The applicant
also claimed EUR 10,000 for the costs and expenses incurred before the domestic
courts and for those incurred before the Court.
The Government agreed to reimburse those legal
costs and expenses that the applicant could prove he had actually incurred.
According to Rule 60 § 2 of the Rules
of the Court, itemised particulars of all claims made, together with the
relevant supporting documents, are to be submitted, failing which the Chamber
may reject the claim in whole or in part.
52. Since the applicant did not submit such
information, the Court decides not to make any award for costs and expenses
(see
Amihalachioie v. Moldova
, no. 60115/00, § 48,
20 April 2004
).
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 complaints under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 to the Convention concerning the non‑enforcement of
the final judgments favourable to the applicant admissible and the remainder of
the application inadmissible;
2.
Holds
that there has been a violation of
Article 6 § 1 of the Convention;
3.
Holds
that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
4.
Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final according to Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of pecuniary and non-pecuniary damage, to be
converted into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from 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;
5.
Dismisses
the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on
9 November 2004
, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L.
Early
J.-P.
Costa
Deputy Registrar President