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THIRD
SECTION
CASE OF DRAGOMIR v. ROMANIA
(Application
no. 31181/03)
JUDGMENT
STRASBOURG
21 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 Dragomir v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31181/03) 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, Mr Toma-Leonida Dragomir
(“the applicant”), on 30 July 2003.
- The
applicant was represented by Mr Otto Eckstein Covaci, a lawyer
practising in Cluj-Napoca. 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 1945 and lives in Timişoara.
- In
1960, the plots of land situated in Cluj-Napoca, E. Murgu Street nos.
15-21 and 40, which were the property of the applicant's father, were
seized by the State under Decree no. 92/1950 on nationalisation.
- On
8 September 1998 the Cluj Court of Appeal, by a final decision,
allowed an action by the applicant, annulled the seizure as being
unlawful and ordered restitutio in integrum.
- Although
there had been judicial recognition of his property rights, the
applicant was not able to recover possession of some of these plots
of land because on 14 March 1996 the authorities had issued ownership
titles to third parties under Law no. 18/1991. These titles concerned
the plots of land situated on E. Murgu Street nos. 17, 19 and 21 and
registered in the Land Register under nos. 13956/9/2, 13958/4/2,
13956/10/2, 13958/5/2, 13956/11/3, 13958/6/3, 13957/9/3, 13956/11/2,
13958/6/2 and 12957/9/2, with a total surface of 1,088 sq. m.
- On
17 May 2001 the applicant brought proceedings against the
third
parties for the Land Register to be rectified. On 3 July 2003 the
Cluj Court of Appeal, by a final decision, dismissed the action. The
court noted that the final decision of 8 September 1998 had
certified the applicant's right of property, but refused to annul the
land titles of the third parties on the grounds that the applicant
had neither registered that action in the
Land Register nor
lodged an action under Laws nos. 18/1991 and 169/1997 to annul these
titles.
- On
12 November 2001 the applicant claimed restitution in kind of the
land under Law no. 10/2001 governing immovable property wrongfully
seized by the State. So far he has not received any response.
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,
ECHR 2005 ... (extracts)); 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 transfer of parts of his land to third
parties 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.
- 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 allocation by the State of the applicant's possessions to third
parties still prevents him from enjoying his rights of property which
have been acknowledged by a final decision. The Court considers that
such a situation amounts to a de facto deprivation of
possession and notes that this 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 possessions, together with the total lack of
compensation, imposed on the applicant a disproportionate and
excessive burden in breach of his right to the peaceful enjoyment of
his 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, of the length of proceedings, that the domestic courts
had failed to assess the facts correctly, had misinterpreted the
domestic law and had not been impartial, and about the outcome of the
case.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in 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 330,000 euros (EUR) in respect of pecuniary damage,
representing the value of the property on the basis of an expert's
report. He also claimed EUR 1,500 for the loss of profit or any
benefit from his possessions. In respect of non-pecuniary damage he
sought EUR 8,000.
On 13
April 2007, after the Government's comments on the applicant's claims
for just satisfaction, the applicant noted that their expert's report
was a theoretical one, written without the expert having seen the
property. He further considered that EUR 250,000 would be an
equitable amount of compensation for pecuniary damage.
- The
Government submitted an expert report which stated in its conclusions
that the value of the property was 768,056 new Romanian lei (RON),
the equivalent of EUR 216,208.
Regarding
the loss of profit, the Government considered that, in the view of
its jurisprudence, the Court should not grant it. Further, they
considered that the finding of a violation could constitute in itself
sufficient just satisfaction for any non-pecuniary damage which the
applicant 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 230,000.
- As
regards the amount of money claimed in respect of loss of profit or
benefit from the applicant's possessions, the Court rejects this
claim because granting a sum of money on this basis would be a
speculative process, having regard to the fact that profit derived
from possession of property depends on several factors. However, the
Court will take into account the deprivation of possession 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 applicant's
right to the peaceful enjoyment of his 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 him EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 2,850 (RON) for the costs and expenses
incurred before the domestic courts and before the Court,
representing the fees for the lawyer, expert's report, translations
and postal fees. He submitted invoices.
- The
Government noted that the applicant had not submitted the contract
for legal representation.
- 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 800 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
- 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 Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
230,000 (two hundred and thirty thousand euros), plus any tax that
may be chargeable, in respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
800 (eight hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
