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THIRD
SECTION
CASE OF FRIEDRICH v. ROMANIA
(Application
no. 18108/03)
JUDGMENT
STRASBOURG
7 October
2008
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 Friedrich 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,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, 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. 18108/03) 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, Ms Gabriela Edit Friedrich
(“the applicant”), on
8 May 2003.
- The
applicant was represented by Mrs Claudia Vasii-Kolla, a lawyer
practising in Timişoara. The Romanian
Government (“the Government”) were represented by their
Agent, Mr Răzvan-Horaţiu 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
applicant was born in 1932 and lives in Timişoara.
- In
1950, a building situated in Timişoara,
Spl. N. Titulescu no. 7, which was the property of the applicant's
husband and mother-in-law, was seized by the State under Decree no.
92/1950 on nationalisation.
- On
26 May 1999 by a final decision the Timişoara
Court of Appeal (“the Court of Appeal”) allowed an action
by the applicant for rectification in the Land Register, acknowledged
that the nationalisation of the building had been unlawful and
ordered restitutio in integrum through the registration of the
applicant's right of property. It considered that the fact that some
apartments in the building had been bought by the tenants had no
influence on the solution, as the object of the proceedings was the
validity of the State's title and the titles of the buyers were
therefore to be evaluated in another set of proceedings.
- On
30 September and 30 November 1999 the Timişoara
Town Council certified in an official record signed by the applicant
that the latter had been allowed to take possession of the building,
made up of thirty-one apartments, and of 29.28 sq. m piece of
appurtenant land.
- On
26 January 2000 the applicant sold flat no. 11 of the building to
M.M. and M.D.
- On
27 April 2000 O.E., the then tenant of flat no. 11, requested the
court to declare the sale null and void, as on 16 January 1997 she
had bought that flat from the State under Law no. 112/1995. She also
claimed the registration of her right of property in the Land
Register.
The
applicant lodged a counterclaim requesting the court to declare the
sale by the State null and void.
- On
20 November 2001 by a final decision the Court of Appeal declared the
sale made by the applicant null and void, as it contravened O.E.'s
rights, and dismissed the claim by O.E. to register her right of
property, as she had not expressly applied to remove the applicant's
title from the Land Register. It also dismissed the applicant's
request for the rescission of the sale by the State on the grounds
that O.E. had made the purchase in good faith.
- On
4 November 2002 by a final decision the Court of Appeal allowed
O.E.'s action for rectification in the Land Register, registered her
right of property in respect of flat no. 11 and removed the
applicant's title from the Land Register. The court compared the land
titles and considered that the sale by the State had complied with
the provisions of
Law no. 112/1995 and that O.E. had made the
purchase in good faith.
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
applicant alleged that the sale by the State of flat no. 11 to O.E.
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 the arguments they had previously submitted in
similar cases. In particular, they submitted that the applicant could
have claimed compensation under Law no. 10/2001, amended by
Law no. 247/2005.
- The
applicant disagreed.
- The
Court reiterates that, according to its jurisprudence, the sale of
another's possessions by the State, even before the question of
ownership had been finally settled by the courts, will be analysed as
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 applicant's possession still prevents
her from enjoying her 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 nine years, in the absence of any compensation.
- The
Court notes that at the material time there was no effective means in
Romanian law capable of providing the applicant with compensation for
this deprivation (see Străin and Others, cited above,
§§ 23, 26-27, 55-56, and Porteanu, 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 applicant's possession,
together with the total lack of compensation, imposed on the
applicant a disproportionate and excessive burden in breach of her
right to the peaceful enjoyment of her possessions, as guaranteed by
Article 1 of Protocol No. 1.
There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention of an
unfair trial and about the outcome of the case.
- The
Court observes that the allegations in respect of abuses of process
by the authorities are unsubstantiated, whereas the complaint
regarding the outcome is of a “fourth-instance” nature.
Moreover, the Court considers that in the proceedings complained of,
seen as a whole, there is no appearance of unfairness or
arbitrariness which would infringe the guarantees of a fair hearing
within the meaning of Article 6 § 1 of the Convention.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
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 56,366 euros (EUR) in respect of
pecuniary damage, representing the value of flat no. 11 and of the
land appurtenant to it, on the basis of an expert report. On 5
September 2007, after the Government's comments on the applicant's
claims for just satisfaction, the applicant submitted another expert
report, updating the amount to EUR 66,620, and also asked the
Court to determine the amount of compensation in respect of
non-pecuniary damage.
- The
Government criticised the expert report and, having regard to their
own expert report, considered that the market value of flat no. 11
and of the land appurtenant to it was EUR 37,772. They also submitted
that the applicant had not claimed non-pecuniary damage, considering
that the finding of a violation could constitute in itself sufficient
just satisfaction for any non-pecuniary damage which the applicants
may have suffered.
- 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).
- 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 45,000.
- As regards non-pecuniary damage, the Court notes that
the applicant, who was represented by a lawyer, did not submit any
claim under that head within the time allowed. According to its
settled case-law (see, most recently, Giniewski v. France,
no. 64016/00, § 59, 31 January 2006), the Court does not
make any award by way of just satisfaction where quantified claims
and the relevant documentation have not been submitted within the
time-limit fixed for that purpose by Rule 60 § 1 of the Rules of
Court.
In
those circumstances, the Court considers that the applicant has
failed to comply with her obligations under Rule 60. As no valid
claim for just satisfaction in respect of non-pecuniary damage has
been submitted, the Court considers that no award should be made in
this connection.
B. Costs and expenses
- In
her letter of 5 September 2007, the applicant also claimed
4,000
New Romanian Lei for the costs and expenses incurred before the
domestic courts and before the Court, representing the fees for the
lawyer, expert report and translations.
- The
Government considered that the applicant had not claimed costs and
expenses.
- The
Court notes that pursuant to Rule 60 §§ 1 and 2 of the
Rules of Court an applicant who wishes to obtain an award of just
satisfaction under Article 41 of the Convention in the event of a
finding of a violation of his or her Convention rights must make a
specific claim to that effect within the time-limit fixed for the
submission of the applicant's observations on the merits. Since in
the present case the applicant's representative failed to specify the
claim for costs and expenses within the time allowed, the Court makes
no award under this head (Rule 60 § 3).
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 complaint concerning Article 1 of
Protocol No. 1 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- 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, EUR 45,000
(forty-five thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(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;
- Dismisses the remainder of the applicant's 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
