ÎCCJ, decizie (scj.ro #86405)
ÎCCJ, decizie (scj.ro #86405) (Înalta Curte de Casație și Justiție)
COUR EUROPÉENE
DES
DROITS DE
L’HOMME
EUROPEAN COURT OF
HUMAN RIGHTS
THIRD SECTION
CASE OF
GRIGORA
Ș
v.
ROMANIA
(Application no.
19188/03)
JUDGMENT
STRASBOURG
7 October
2008
FINAL
07/01/2009
This
judgment may be subject to editorial revision.
In the case of
Grigora
ș
v.
Romania
,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
judges,
and
Santiago
Quesada
,
Section Registrar
,
Having deliberated in private on
16
September 2008
,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
19188/03) against
Romania
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Romanian nationals, Mr Tiberiu Cristian Grigora
ș
and Ms Anca
Grigora
ș
(“the
applicants”), on
26 May 2003
.
The applicants were represented by Mr Bogdan-Nicolae
Bulai and
Ms Daniela-Anca Dete
ș
eanu, two lawyers practising in
Bucharest
. The Romanian
Government (“the Government”) were represented by their Agent, Mr
Răzvan-Horațiu Radu.
On
27 February 2006
the President of the
Third Section decided to give notice of the application to the Government. It
was also decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1956 and live in Bad
Neuenahr.
On
28 September 1989
Apartment
14
,
108 Turda
Street
,
Bucharest
, the applicants’ property, was seized by the
State under Decree no. 223/1974, with payment of compensation, following their
decision to leave the country. In appears from the file that the applicants
received
131,538 Romanian Lei in compensation.
On 14 November 1996 the R.V. company, a State-owned
company responsible for the management of property belonging to the State, sold
the flat to the then tenants, under Law no. 112/1995.
On
29 November 1996
the
Bucharest
Regional Court
, by a final decision, allowed an action by the applicants,
annulled the seizure as being unlawful and ordered
restitutio in integrum
.
On
5 September 1997
the Bucharest Town
Council ordered
restitutio in integrum
of the apartment and on
15 September
1997
informed the R.V. company of this.
On
14 May 2001
the Bucharest Court
of Appeal, by a final decision, dismissed the action lodged by the Town Council
and joined by the applicants against both the R.V. company and the former
tenants of the apartment, to have the sale declared null and void. The court
considered that the sale had complied with the provisions of Law no. 112/1995
and had been made in good faith. It also stated that the applicants would
receive compensation under Law no. 10/2001.
On 25 July and
14
November 2001
the applicants claimed restitution in kind of the apartment
under the Law no. 10/2001 governing immovable property wrongfully seized by the
State. So far they have not received any answer.
On 27 February 2003 the Supreme Court of Justice
dismissed an application (
recurs
î
n anulare
) by the
Procurator-General, acting at the instance of the applicants, to have the
judgment of 14 May 2001 quashed on the grounds that it was contrary to the
provisions of Article 1 of Protocol No. 1 of the Convention and to the
principle of legal certainty. The court considered that the sale had been made
in good faith and observed that the principle of legal certainty had not been
infringed, as the sale had preceded the final judgment which ordered
restitutio
in integrum
and, moreover, the former tenants had not been parties in that
set of proceedings, therefore the final judgment was not opposable by them.
II. RELEVANT DOMESTIC LAW
The relevant legal provisions and jurisprudence
are described in the judgments
Brumărescu v. Romania
([GC],
no. 28342/95, §§ 31-33,
ECHR 1999‑VII);
Străin and Others v. Romania
(no. 57001/00, §§ 19-26, ECHR 2005‑VII);
Păduraru v.
Romania
(no. 63252/00, §§ 38-53,
1 December
2005
); and
Tudor v. Romania
(no. 29035/05,
§§ 15-20,
17 January 2008
).
THE LAW
I.
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1
The applicants alleged that the sale by the State
of
Apartment
14 to a third party entailed a breach of
Article 1 of Protocol No. 1, which 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. 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 Government reiterated their arguments
previously submitted in similar cases. In particular, they considered that the
applicants had already received a considerable amount of money in compensation
at the time of nationalisation, namely the equivalent of 8,815 United States Dollars
(USD).
The applicants disagreed. They also submitted
that the compensation received was not just and fair.
The Court reiterates that, according to its
jurisprudence, the sale of another’s possessions by the State, even before the
question of the ownership had been finally settled by the courts, will be deemed
to be a deprivation of possessions. This deprivation, in combination with the
total lack of compensation, is contrary to Article 1 of Protocol No. 1 (see
Străin
and Others
, cited above, §§ 39, 43 and 59, and
Porteanu v. Romania
,
no. 4596/03, § 35,
16 February 2006
).
Having examined all the material in its
possession, the Court considers that the Government have not put forward any
fact or argument capable of persuading it to reach a different conclusion in
the present case. The sale by the State of the applicants’ possession still
prevents them from enjoying their right of property acknowledged by a final
decision. The Court considers that such a situation amounts to a
de facto
deprivation of possession and notes that it has continued for more than twelve
years, in the absence of compensation reflecting the commercial value of their
possession (see,
mutatis mutandis
,
Konnerth v. Romania
,
no. 21118/02,
in fine
, 12 October 2006)
. In that regard, the
Court notes that the applicants received the equivalent of USD 8,815 at the
time of nationalisation.
The Court also reiterates that at the material time
there was no effective means in Romanian law capable of providing the applicants
with compensation for this deprivation (see
Străin and Others
,
cited above, §§ 23, 26-27, 55-56;
Porteanu v. Romania
, cited above,
§§ 23-24 and
34-35). Moreover, it observes that to date the Government have not demonstrated
that the system of compensation set up in July 2005 by
Law no. 247/2005 would allow the beneficiaries of this law to recover damage
reflecting the commercial value of the possessions of which they had been
deprived, in accordance with a foreseeable procedure and timetable.
Having regard to its case-law on the subject, the
Court considers that in the instant case the deprivation of the applicants’
possession, together with the lack of compensation reflecting the commercial
value of their possession, imposed on the applicants a disproportionate and
excessive burden in breach of their right to the peaceful enjoyment of their
possessions, as guaranteed by Article 1 of Protocol No. 1.
There has accordingly been a violation of Article 1 of Protocol
No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicants claimed that the non-execution of
the final decision of
29 November 1996
given by the
Bucharest
Regional Court
had deprived them of the right to a fair trial. They
relied on Article 6 § 1 of the Convention, which provides:
“In
the determination of his civil rights and obligations ... everyone is entitled
to a fair ... hearing ... by [a] ... tribunal...”
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
Having regard to the findings in the paragraphs
above (17-20), the Court considers that it is not necessary to examine whether,
in this case, there has been a violation of Article 6 § 1 (see
Pais v. Romania
, no. 4738/04, § 39, 21 December
2006,
and,
mutatis mutandis
,
Zanghě v. Italy
,
judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23;
Laino v.
Italy
[GC], no. 33158/96, § 25, ECHR 1999‑I, and
Canea
Catholic Church v. Greece
, judgment of 16 December 1997,
Reports of
Judgments and Decisions
1997‑VIII, § 50).
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 applicants sought restitution of
Apartment
14
, as the
most appropriate manner for the State to provide redress. Should restitution
not be granted, they claimed a sum equivalent to the current value of their
property which, according to the expert report they submitted to the Court,
amounted to 62,500 euros (EUR). They also claimed EUR 7,000 in respect of
non-pecuniary damage.
The Government considered, in accordance with
their own expert report, that the market value of
Apartment
14
was EUR 35,896. Further, they
considered that the finding of a violation could constitute in itself
sufficient just satisfaction for any non-pecuniary damage which the applicants
may have suffered. In any event, they considered that the amount claimed in
this respect was too high.
The Court reiterates that a judgment in which it
finds a breach imposes on the respondent State a legal obligation under the
Convention to put an end to the breach and make reparation for its
consequences. If the internal law allows only partial reparation to be made,
Article 41 of the Convention gives the Court the power to award compensation to
the party injured by the act or omission that has led to the finding of a
violation of the Convention. The Court enjoys a certain discretion in the
exercise of that power, as the adjective “just” and the phrase “if necessary”
attest.
Among the matters which the Court takes into
account when assessing compensation are pecuniary damage, that is the loss
actually suffered as a direct result of the alleged violation, and non-pecuniary
damage, that is reparation for the anxiety, inconvenience and uncertainty
caused by the violation, and other non-pecuniary loss (see, among other
authorities,
Ernestina Zullo v. Italy
, no. 64897/01, § 25,
10 November 2004).
The Court considers, in the circumstances of the
case, that the return of the property in issue (Apartment 14), as ordered by
the final decision of 29 November 1996 of the Bucharest Regional Court, would
put the applicants as far as possible in a situation equivalent to the one in
which they would have been if there had not been a breach of Article 1 of
Protocol No. 1.
Failing such restitution by the respondent State,
the Court holds that the respondent State is to pay the applicants, in respect
of pecuniary damage, an amount which takes into account the current value of
the property and the compensation that the applicants have already received
(see paragraph 5 above). Having regard to the information at its disposal
concerning real estate prices on the local market, to the expert reports
submitted by the parties and to the amount of money that the applicants
received at the time of nationalisation, the Court awards them EUR 36,000 in
respect of pecuniary damage.
The Court considers that the serious interference
with the applicants’ right to the peaceful enjoyment of their possessions could
not be compensated in an adequate way by the simple finding of a violation of
Article 1 of Protocol No. 1. Making an assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards them jointly
EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 9,438 for costs
and expenses incurred before the domestic courts and before this Court, broken
down as follows: EUR 3,000 for lawyers’ fees in the proceedings before the
Court, EUR 3,639.15 for travel from Germany to Romania during proceedings, EUR
144 for the expert report, and the rest, detailed in a table, for sundry
expenses (lawyer’s fees in internal proceedings, notary’s fees, stamp duties, translations).
They submitted invoices for lawyers’ fees, for expert’s fees, stamp duties and
travel.
The Government contested the applicants’ claims and
considered they were excessive.
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 are
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 2,500 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 application admissible;
2.
Holds
that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
3.
Holds
that there is no need to examine on
the merits the complaint under Article
6 § 1
of the
Convention;
4.
Holds
(a) that the respondent State is to return to the
applicants Apartment 14, 108 Turda Street, Bucharest, within three months
from the date on which the judgment becomes final in accordance with Article 44
of the Convention;
(b) that, failing such restitution, the respondent
State is to pay jointly to the applicants, within the same three months, the
amount of EUR 36,000 (thirty-six thousand euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(c) that, in any event, the respondent State is to
pay jointly to the applicants, within the same three months, the amounts of EUR
4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 2,500
(two thousand five hundred euros) in respect of costs and expenses, plus any
tax that may be chargeable;
(d) that the aforementioned amounts shall be
converted into the national currency of the respondent State at the rate
applicable at the date of settlement;
(e) 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;
5.
Dismisses
the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on
7 October 2008
, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada
Josep
Casadevall
Registrar President