ÎCCJ, decizie (scj.ro #86448)

ÎCCJ, decizie (scj.ro #86448) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES

DROITS DE L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

GRAND CHAMBER

CASE OF LINDNER AND

HAMMERMAYER v.

ROMANIA

(Application no.

35671/97)

JUDGMENT

(Friendly settlement)

STRASBOURG

6 April

2006

This judgment is final

but may be subject to editorial revision.

In the case of Lindner and Hammermayer 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

35671/97) 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 two Romanian nationals, Mr Alexandru

Lindner and Mrs Cristina Hammermayer (“the applicants”), on

9 April

1997

.

a lawyer practising in

Bucharest

. The Romanian

Government (“the Government”) were represented by their Agent, Mrs B.

Ramașcanu, of the Ministry of Foreign Affairs.

Court of Appeal’s finding on 14 October 1996 that the courts had no

jurisdiction to determine an action for recovery of possession was contrary to

Article 6 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.

1 November 1998

, when

Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol

No. 11).

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.

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.

the admissibility and the merits of the case together (Article 29 § 3 of the

Convention), the Court declared the application partly admissible and held,

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

5,000 euros (EUR) for non-pecuniary damage and EUR 400 for costs and expenses.

13 December 2002

the applicants

requested that the case be referred to the Grand Chamber, in accordance with

Article 43 of the Convention and Rule 73.

24 September 2003

the panel of the

Grand Chamber accepted this request.

determined according to the provisions of Article 27 §§ 2 and 3 of the

Convention and Rule 24.

on the merits. The applicants also filed a memorial in reply to the Government’s

memorial.

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

27 February 2006

to agree

on the terms of a settlement, failing which a hearing would be held on

29 March 2006

.

correspondence between the Registrar and the parties, the Government and the

applicants submitted formal signed declarations accepting a friendly settlement

of the case, on 21 and

22 February 2006

respectively.

7 March

2006

the hearing scheduled for

29 March 2006

was

cancelled.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

2 October 1939

the applicants’

mother became the owner of a house in

Bucharest

, divided into three

flats, with 301 sq. m of land. On

30 March

1948

she sold one of the three flats to L.N.

Germany

, where she

died in 1985.

the State confiscated the property belonging to the applicants’ mother without

paying compensation. No notice of the confiscation was ever served on her, so

she was never informed of the grounds or legal basis for the confiscation.

A.  Action for recovery of possession

27 July 1992

the applicants, as

heirs, brought an action in the

Bucharest

(First District) Court

of First Instance against Bucharest City Council and H., a company responsible

for the management of public housing, seeking the annulment of the decision to

confiscate the property. They contended that their mother had been the owner of

the property and that the State had taken possession of it citing Decree no.

223/1974 on confiscation, but that this deprivation of property was unlawful

because their mother had never been notified of the administrative decision of

confiscation.

28

September 1995

, the Court of First Instance allowed the applicants’ claim,

finding that the administrative decision of confiscation in favour of the State

had breached the then applicable domestic and international legal provisions,

in particular Article 36 of the 1965 Constitution and Article 480 of the Civil

Code. Consequently, it held that the State had not lawfully acquired title and

that the applicants were the rightful owners. The court annulled the

confiscation decision and ordered the property to be returned to the

applicants.

judgment was dismissed by Bucharest County Court in an enforceable judgment of

17 May 1996

.

Bucharest Court of Appeal, which, in a judgment of

14 October

1996

, allowed the appeal and dismissed the applicants’ action for

recovery of possession. It found that the property at issue had passed into

State ownership on the basis of a decision by the City Council dated 18

September 1975 and held that the applicants could seek restitution or, failing

that, compensation, only by relying on legislation concerning the restitution

of nationalised property.

20

December 1996

the State sold one of the two flats in the disputed property to

the former tenant, V.V.S.

B.  Action for restitution under Law no. 10/2001

26 April 2001

the applicants lodged

an application with Bucharest City Council for the return of the two flats,

relying on Law no. 10/2001.

had been sold on

20 December 1996

(“flat no. 2”).

decision of Bucharest City Council dated

15

February 2006

.

C.  Action for rescission of the sale of flat no. 2

12 August 2002

the applicants

brought an action in the Bucharest Court of First Instance seeking the

rescission of the contract of sale dated

20 December

1996

between the State and the former tenant V.V.S.

7 September 2005

, given at

last instance after an initial appeal and a further appeal on points of law, the

Bucharest Court of Appeal declared that the applicants were the rightful owners

of flat no. 2 and that its sale was null and void. It ordered the flat to be

returned to the applicants.

flat, V.V.S., appealed to the Bucharest Court of Appeal, using a special form

of appeal, to have the judgment of

7

September 2005

set aside. The proceedings are still pending in the Court

of Appeal, before which a hearing has been scheduled for

28 March

2006

.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

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.

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

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 applicants a global sum of EUR 8,600 (eight thousand six

hundred euros) with a view to securing a friendly settlement of their application

registered under no. 35671/97 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.

court and administrative decisions (decision of the Bucharest Court of Appeal

of

7 September 2005

and decision of the

Bucharest

City

Hall

of

15 February 2006

) by which the

property which was the subject of the present application was returned to the

applicants, constitute the final settlement of the case.

implement fully the above-mentioned judicial and administrative decisions so as

to ensure the applicants’ enjoyment of their right to the entire property in

question.

acknowledgement by the Government of any violation of the Convention other than

the one found by the Court’s judgment of

3 December

2002

.

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.”

22 February 2006

the Court

received the following declaration signed by the applicants:

“1.  We, Alexandru Lindner

and Cristina Hammermayer, note that the Government of Romania are prepared to

pay us the global sum

of EUR 8,600 (eight

thousand six hundred euros) with a view to securing a friendly settlement of our

application registered under no. 35671/97 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.

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 domestic

court and administrative decisions (decision of the Bucharest Court of Appeal

of 7 September 2005 and decision of the Bucharest City Hall of

15 February 2006) by which the property which was the subject of the

present application was returned to us, constitute the final settlement of the

case.

undertaking to implement fully the above-mentioned judicial and administrative

decisions.

declaration is made in the context of a friendly settlement which the

Government and we have reached.”

reached between the parties (Article 39 of the Convention).

It notes that since the adoption of the Chamber judgment of

3 December 2002

the

applicants have obtained restitution of the property which was the subject of

this application (see paragraphs 25 and 27 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 30 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.

at any stage of the proceedings if it is satisfied that the matter has been

resolved.

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).

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