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THIRD
SECTION
CASE OF RUSU AND OTHERS v. ROMANIA
(Application
no. 4198/04)
JUDGMENT
STRASBOURG
19
July 2007
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 Rusu and Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 28 June 2007.
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4198/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Romanian nationals, Mrs Gabriela Rusu,
Mrs Maria Băjenaru and Mrs Ioana
Poenaru (“the applicants”), on 13 December 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mrs Ruxandra Paşoi, Co-Agent of the Government
of Romania before the European Court of Human Rights.
- On
27 February 2006 the Court decided to communicate the application to
the Government. 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
applicants were born in 1948, 1955 and 1976 respectively, and live in
Oradea.
- In
1950, the two-floors building and appurtenant land situated in
Bucharest, W. Filderman no. 1, the property of the applicants'
parents, was seized by the State under Decree no. 92/1950 on
nationalisation.
- On
13 April 1999 the applicants' action for recovery of possession of
immovable property was upheld in part by an enforceable judgment
which acknowledged that the nationalisation of the building had been
unlawful and ordered the administrative authorities to return the
building and appurtenant land to the applicants, with the exception
of a studio flat at the second floor, sold by the applicants' parents
in 1945.
- In
spite of having the judicial recognition of their property right, the
applicants were not able to recover possession over flat no. 1
because the State had sold it together with the appurtenant land to
the tenants, under Law no. 112/1995.
- On
11 October 1999 the applicants requested the court to find that the
sale by the State was null and void. They considered that, as the
nationalisation had been unlawful, the State was not the rightful
owner and consequently it could not lawfully have sold any part of
the building.
- On
12 September 2000 the Bucharest Tribunal, by a final decision,
dismissed the request for the rescission of the sale contract on the
ground that the applicants brought the action for the recovery of
possession after the sale of flat no. 1 by the State and that the
tenants had made the purchase in good faith. The tribunal had not
granted any compensation to the applicants.
- On
28 June 2001 the Bucharest Court of First Instance admitted by a
final decision the applicants' action to have acknowledged their
right of property regarding the whole building.
- On
13 February 2002 the applicants claimed compensation for the sale of
flat no. 1 under the Law no. 10/2001 governing immovable property
wrongfully seized by the State. At present, they have not received
any compensation.
- On
16 May 2002 the Bucharest Court of Appeal, by a final decision,
dismissed the applicants' action for the recovery of possession of
flat no. 1, considering that although the applicants were the
rightful owners, the sale was performed in good faith and therefore
the tenants could not be evacuated.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions and jurisprudence are described in the
judgments Străin and Others v. Romania (no. 57001/00, §§
19-26, 21 July 2005), Păduraru v. Romania (no.
63252/00, §§ 38-53, 1 December 2005),
Porteanu v. Romania (no. 4596/03, §§ 23-25,
16 February 2006), and Radu v. Romania
(no. 13309/03, § 18-20, 20 July 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants alleged that the sale by the State of flat no. 1 and
appurtenant land to a third party, for which they had received no
compensation, 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, after specifying that in their view the application
concerned flat no. 1 only, dwelt on the difficulties connected with
the legislative evolution in the field of property and on the new
developments occurred after 1989. In this respect, they considered
that the latest reform regarding property, namely the Law no.
247/2005, had aimed at restitutio in integrum of immovable
property wrongfully seized by the State during the communist regime
and, when the property could have not be returned, at granting
compensation. Law no. 247/2005 grants compensation at the market
value in the form of participation in a common system of placing for
movable securities, organised in the form of a joint stock company,
Proprietatea. The persons having right to compensation will
receive securities at face value which will be transformed into
shares once Proprietatea is listed on the stock market. The
Government considered that the compensation granted once Proprietatea
will be put in place is in accordance with the requirements of
Article 1 of Protocol No. 1 and that the delay in the effective
payment does not impinge upon the fair balance that must be struck
between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental
rights.
- The
applicants contested the Government's arguments. Insisting on the
abuses of the authorities, which sold their good in spite of the fact
that they were not the rightful owners, the applicants considered
that the authorities should have declared null and void the sale of
flat no. 1, especially taking into account the decision of 13 April
1999 which confirmed their title to the entire property, including
flat no. 1. In their view, the non-execution of a judgment ordering
the return of property to the applicants constituted a violation of
their property right and the Government' thesis regarding
compensation with shares in Proprietatea does not represent
just satisfaction.
- The
Court has already dealt with similar cases and found a violation of
Article 1 of Protocol No. 1 (see Porteanu, cited above,
§§ 32-35). Therefore the Court does not see any reason
to disregard the cases cited above, especially that the facts are
very similar.
- The
Court reiterates that, according to its jurisprudence, the sale of
other's possession by the State, even before the question of the
ownership had been finally settled by the courts, will be analyzed as
deprivation of possession. 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).
- Moreover,
in the case Păduraru, cited above, the Court founded that
the State had not fulfilled its positive obligation to act
efficiently and in due time as regards the issue of public interest
which is restitutio in integrum and sale of property
nationalized during the communist regime. The Court also considered
that the general uncertainty so created had reverberated upon the
applicants, who found themselves in the impossibility to recover
their property although they had an enforceable judgment in their
favour (Păduraru, cited above, § 112).
- Regarding
the Government's thesis that compensation will be available once the
stock company Proprietatea will start to function, the Court
recalls its previous finding, namely that Proprietatea does
not function at present in a way that may effectively grant
compensation to the applicants (see, among others, Radu v.
Romania, no. 13309/03, § 34, 20 July 2006 and
Ruxanda Ionescu v. Romania, no. 2608/02, § 39,
12 October 2006). Moreover, neither the Law no. 10/2001 nor the
Law no. 247/2005 (which amends the former) takes into
account the damage implied by the prolonged absence of any
remuneration and despite of a final judgment granting restitutio
in integrum (see, mutatis mutandis, Porteanu, cited
above, § 34).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the deprivation in question, contrary to the rule of
law which underlie the Convention and together with the total lack of
compensation caused 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 enforceable decision
of 13 April 1999 given by the Bucharest Court of First Instance 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 (22-26), 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, Zanghì 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, Canea Catholic Church v. Greece,
judgment of 16 December 1997, Reports of Judgments and Decisions
1997 VIII, § 50).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained in their observations of a violation of the
Articles 13 and 14 of the Convention.
- The
Court notes that the applicants failed to produce any particular
evidence in support of their allegations.
It follows that these complaints are manifestly ill-founded and must
be rejected under 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 applicants sought restitution of flat no. 1 and
appurtenant land, 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 – namely,
according to the expert report they submitted to the Court, 78 846
euros (EUR). In respect of non-pecuniary damage they sought EUR
20 000 for each of them. They also claimed EUR 46 000
for the loss of profit or any benefit from their possession
since 1999.
- The
Government considered that the claims were excessive and not
supported by material evidence. In particular, they criticised the
expert report because it did not take into account, when calculating
the value, the surfaces that appear in the sale contract regarding
flat no. 1. Therefore, having regard to the sale contract, the
Government considered that the market value of flat no. 1 was EUR
59 848. 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.
Regarding
the loss of profit, they considered that, in the view of its
jurisprudence (Anghelescu v. Romania, no. 29411/95,
§§ 75-77, 9 April 2002, Buzatu v.
Romania (just satisfaction), no. 34642/97, § 18,
27 January 2005), the Court should not grant it.
- 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).
- In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll v. Portugal [GC], no.
35382/97, § 29, ECHR 2000 IV).
- The
Court considers, in the circumstances of the case, that the return of
the property in issue (flat no. 1 and appurtenant land), as ordered
in the enforceable judgment of the Bucharest Court of First Instance
of 13 April 1999, 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 corresponding to the current value of the property.
Having regard to the information at its disposal concerning real
estate prices on the local market and to the expert reports submitted
by the parties, the Court estimates the current market value of the
property at EUR 64 000.
- As
regards the amount of money alleged by the applicants for the loss of
profit or any benefit from their possession since 1999, the Court
rejects this claim taking into account, on the one hand, that it has
ordered restitutio in integrum as reparation under Article 41
of the Convention and on the other hand, that granting a sum of money
on this basis would be a speculative process, having regard that the
profit from a possession depends on several factors. However, the
Court will take into account the deprivation of possession since 1999
when calculating the non-pecuniary damage (see, mutatis mutandis,
Radu v. Romania, no. 13309/03, § 49, 20
July 2006).
- 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 the applicants EUR 3 500 for each of them in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 3 405 for the costs and expenses they had
incurred in the proceedings in the domestic courts and before this
Court, broken down as follows: EUR 2 000 for lawyer's fees, EUR
1 360 for sundry expenses (notary's fees, translations,
transport), and EUR 145 for the expert report.
- The
Government considered that the applicants' claims were excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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, to the above criteria and to the low degree of
complexity of the case, which follows a well established
jurisprudence, and making an assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicants EUR 800 in respect of costs and expenses.
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
- Declares the complaints concerning Article 1 of
Protocol No. 1 and Article 6 § 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds that there is no need to examine on the
merits the complaint under Article 6 § 1
of the Convention;
- Holds
(a) that
the respondent State is to return to the applicants flat no. 1 and
appurtenant land situated in Bucharest, W. Filderman no. 1, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention;
(b) that,
failing such restitution, the respondent State is to pay the
applicants, 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 Romanian lei
(ROL) at the rate applicable at the date of settlement, plus any tax
that may be chargeable:
(i) EUR
64 000 (sixty-four thousand euros) jointly in respect of
pecuniary damage;
(ii) EUR
3 500 (three thousand five hundred euros) for each applicant in
respect of non-pecuniary damage;
(iii) EUR
800 (eight hundred euros) jointly in respect of costs and expenses;
(c) 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Boštjan M. Zupančič
Registrar President
