BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF REICHARDT v. ROMANIA
(Application
no. 6111/04)
JUDGMENT
STRASBOURG
13
November 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 Reichardt 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 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6111/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by
two German nationals, Mr Johan Reichardt
and Mrs Gabriela Smaranda Reichardt (“the applicants”),
on 12 January 2004.
The
second applicant, the wife of the first applicant, died on 13
February 2005. For practical reasons, Mrs Gabriela Smaranda Reichardt
will also continue to be referred to as an “applicant” in
this judgment, although
Mr Johan Reichardt is now to be regarded
as the applicant (see Dalban v. Romania [GC],
no. 28114/95, § 1, ECHR 1999 VI).
- The
applicants were represented by their only son, Mr Alexandre
Reichardt. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu
Radu. The German Government did not make use of their right to
intervene (Article 36 § 1 of the Convention).
- 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
first applicant was born in 1925 and lives in Aachen (Germany). The
second applicant was born in 1929 and died in 2005.
- On
31 March 1976 the applicants’ property, comprising flat no. 1
and appurtenant land situated in Bucharest, Intrarea Traian
Demetrescu no. 14, was seized by the State under Decree no. 223/1974,
following their decision to leave the country. No compensation was
paid. No copy of the decision to seize the property was sent to the
applicants.
- On
18 December 1996 company T., a State-owned company responsible for
the management of property belonging to the State, sold the flat to
the then tenant, T.T., under Law no. 112/1995.
- On
3 May 2001 the applicants brought court proceedings for
restitutio
in integrum and seeking to have the sale by the State declared
null and void.
- On
24 August 2001 the applicants lodged an application with the
administrative authorities for restitution in kind of the property
under
Law no. 10/2001 governing immovable property wrongfully
seized by the State. So far they have not received any answer.
- On
11 October 2002 the Bucharest Court of First Instance allowed the
applicants’ action in part. In the operative part of the
judgment it held,
inter alia, that there were no grounds
for rescission of the sale by the State, but ordered T.T. to allow
the applicants to take possession of the flat and the appurtenant
land. The court compared the property titles, finding that the
seizure had been unlawful but that T.T. had made the purchase in good
faith.
- On
19 March 2003 the Bucharest Regional Court allowed an appeal by T.T.
and by company T. and, in the operative part of the judgment, varied
the judgment of the first-instance court by dismissing the
applicants’ action for recovery of the property. In its
reasoning, the court considered that the first-instance court had
been requested by the applicants to assess whether the seizure was
null and void because they had not been sent a copy of the seizure
decision, and that therefore the lower court should not have analysed
the lawfulness of the seizure of its own motion. The Regional Court
also considered that the failure to inform the applicants of the
seizure did not affect its validity and that the applicants had no
valid property title.
- On
25 June 2003 the Bucharest Court of Appeal, in the operative part of
a final decision, dismissed as groundless an appeal on points of law
by the applicants. In the reasoning of the judgment the court
considered that although some of the applicants’ criticisms
were well-founded, in particular regarding the misinterpretation of
the law by the Regional Court when it found that the Court of First
Instance had exceeded the limits of the request made by the
applicants, those criticisms did not constitute grounds for amending
the previous judgment in accordance with Article 304 § 9 of the
Code of Civil Procedure, but only for removing its reasoning.
Therefore, in the reasoning part of its decision, the Court of Appeal
considered, in line with the findings of the first-instance court,
that the State had no valid title and that therefore the applicants
had never lost their right of property. However, the court reasoned
that as the applicants had not contested T.T.’s good faith in
their appeal, the Regional Court had correctly dismissed their claim
for recovery of the property.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions and jurisprudence are set forth 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 XII (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
applicants alleged that the sale by the State of their property 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
Government raised an objection of incompatibility
ratione
materiae in respect of this complaint. They considered that the
applicants had not had the benefit of an irrevocable decision
recognising their right of property. The Government submitted that in
Romanian law the principle of res judicata applied only to the
operative part of a judgment, which was also enforceable, but not to
the reasoning part. Therefore the judgment of 25 June 2003 did
not represent a “possession” within the meaning of
Article 1 of Protocol No. 1, because its operative part merely
dismissed the applicants’ appeal on points of law and because
the reasoning part, in which the court admitted that the State had no
valid title, did not have the status of res judicata.
- The
Government also considered that the applicants had no legitimate
expectation because, unlike in the cases of Străin and Others
(cited above, § 38) and Porteanu v. Romania
(no. 4596/03, § 33, 16 February 2006), they did
not have the benefit of an irrevocable decision acknowledging that
the seizure had been unlawful. They stressed that the Court of Appeal
had not settled the issue of the lawfulness of the seizure in an
irrevocable manner in the operative part of the judgment of 25 June
2003.
- The
applicants did not express an opinion on the matter.
- The
Court reiterates that an applicant can allege a violation of Article
1 of Protocol No. 1 only in so far as the impugned decisions related
to his “possessions” within the meaning of this
provision. According to the established case-law of the Convention
organs, “possessions” can be “existing possessions”
or assets, including claims, in respect of which the applicant can
argue that he has at least a “legitimate expectation” of
obtaining effective enjoyment of a property right. By way of
contrast, the hope of recognition of the survival of an old property
right which it has long been impossible to exercise effectively
cannot be considered as a “possession” within the meaning
of Article 1 of Protocol No. 1, nor can a conditional claim which
lapses as a result of the non-fulfilment of the condition (see Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98,
§§ 82 and 83, ECHR 2001 VIII).
- In
the present case the Court notes that the applicants brought an
action for recovery of possession of immovable property, requesting
the court to declare the sale by the State null and void and to order
its return to them. In its final decision of 25 June 2003, the
Bucharest Court of Appeal established that the State had no valid
title and that therefore the applicants had never lost their right of
property. Nevertheless, the Court of Appeal refused to order the
return of the property, considering that the former tenant had made
the purchase in good faith.
- The
Government’s argument is that the reasoning and the operative
parts of a judgment do not have the same binding effect. The Court
reiterates that, generally speaking, the reasons do not have the same
binding effect as the operative part unless they form its essential
underpinning (see Perez v. France [GC], no. 47287/99,
§ 25 in fine, ECHR 2004 I). Accordingly, the
obligation to enforce a court decision is not limited to its
operative part, as its merits must simultaneously be respected and
applied (see Zazanis and Others v. Greece, no. 68138/01,
§ 36, 18 November 2004). The Court in its settled case-law
on matters similar to that in the present case has examined whether
the unlawfulness of the nationalisation in question has been
acknowledged in a final decision, either in its reasoning or in its
operative part. Moreover, neither in Străin and Others
nor in Porteanu, to which the Government referred, did the
Court make any distinction as regards the part of the final decision
in which the lawfulness of the seizure had been considered.
- In the Court’s opinion, the fact that the
nationalisation of the applicants’ property was unlawful and
that they never lost their right of property was clearly established
in a final decision which has not been quashed or challenged to date.
In this connection, the Court observes that the Court of Appeal in
its final decision considered it necessary to change the reasoning of
the lower court to include the fact that the seizure had been
unlawful (see paragraph 11 above). That reasoning formed the
ratio
decidendi for the court’s final decision, not merely
an expression of an opinion, and was thus manifestly indissociable
from the judgment’s operative provisions and had the same
binding effect as the operative provisions themselves. The Court
therefore considers that the applicants had a “possession”
within the meaning of Article 1 of Protocol No. 1 and dismisses the
Government’s objection.
- 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
applicants disagreed.
- The
Court reiterates that, according to its case-law, the sale of
another’s possessions by the State, even before the question of
ownership has been finally settled by the courts, amounts to 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, cited above, § 35).
- 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 possessions and notes that it has
continued for more than five 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 applicants with compensation
for this deprivation (see Străin and Others, cited above,
§§ 23, 26-27 and 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 were 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 total lack of compensation, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 that the outcome of
the proceedings had been unfair and that the domestic courts had
failed to assess the facts correctly and had misinterpreted the
domestic law.
- The
Court observes that the allegations of abuse of process by the
authorities are unsubstantiated, while the complaint regarding the
outcome of the proceedings 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
applicants sought restitution in kind of the property, as the most
appropriate manner for the State to provide redress. They considered
that the current value of the property amounted to a minimum of
300,000 euros (EUR). They also claimed EUR 300,000 in respect of
non-pecuniary damage.
- The Government considered, in line with their own
expert report based on a theoretical assessment of the value, that
the current value of the property was EUR 61,478. Further, they
considered that the finding of a violation would constitute in itself
sufficient just satisfaction for any
non-pecuniary damage which
the applicants might have suffered. In any event, they considered
that the amount claimed in this connection 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 (flat no. 1 and the appurtenant land) 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 jointly the first applicant and the heirs
of the second applicant, 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 report submitted by the Government,
the Court estimates the current market value of the property at
EUR 120,000.
- The
Court considers that the serious interference with the applicants’
right to the peaceful enjoyment of their possession 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 jointly the first applicant and the heirs of the second
applicant EUR 4,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants did not claim 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 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 return to the first applicant and to the
heirs of the second applicant flat no. 1 and the appurtenant
land situated in Bucharest, Intrarea Traian Demetrescu no. 14, 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 jointly the
first applicant and the heirs of the second applicant, within the
same three months, the amount of EUR 120,000 (one hundred and
twenty 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 the first
applicant and the heirs of the second applicant, within the same
three months, the amount of EUR 4,000 (four thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
