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THIRD
SECTION
CASE OF DUŢĂ v.
ROMANIA
(Application
no. 29558/02)
JUDGMENT
STRASBOURG
30
September 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 Duţă v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 9 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29558/02) 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 Ioan Duţă (“the applicant”),
on 16 July 2002.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
23 May 2007 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1928 and lives in Braşov.
- On
4 September 1991 the applicant brought an action against
nine
persons, seeking the division of property that was jointly owned and
was registered in the Land Register under no. 954 Moeciu de Jos
(“CF
954”). He requested to have a house made of wood and a stable
allocated to him.
- On
16 February 1993 the Braşov Court of
First Instance (“the Court of First Instance”) dismissed
the action. The court could not reach a conclusion because the expert
report had mentioned that the property registered under CF 954 was
linked up with another property registered under CF 417, belonging to
other owners and with no clear boundaries, and the parties had
refused to have another expert report produced.
- On
15 June 1993 the Braşov Regional Court
(“the Regional Court”) allowed an appeal by the
applicant, quashed the judgment of the
first-instance court and
sent the case back for a fresh examination. It considered that the
applicant should also bring the civil action against the owners of
the property registered under CF 417.
- Of
the fourteen hearings held between 8 September 1993 and 20 September
1995, one was adjourned at the applicant's request as his lawyer was
absent.
- On
15 July 1993 a certain M.A. brought proceedings against the applicant
for recovery of possession of the property registered under CF 417.
M.A.'s action was joined to the proceedings brought by the applicant.
In
1995 the applicant brought an action against M.A. to evict her from
the house, the stable and other outbuildings. This action was also
joined to the proceedings brought by the applicant in 1991.
- After
the retrial, on 25 October 1995 the Regional Court, taking into
account the three expert reports, upheld the applicant's action,
severed the joint tenancy in respect of the properties registered
under CF 954 and CF 417, allocated him the house registered
under CF 954 and ordered the eviction of M.A. It also dismissed
M.A.'s action for recovery of possession.
- On
15 May 1996 the Regional Court dismissed an appeal by M.A.
- M.A.
subsequently lodged an appeal on points of law. Of the
sixteen hearings held between 12 September 1996 and 3 March
1998, none was adjourned as a result of requests by the applicant.
- On
10 March 1998 the Braşov Court of
Appeal by a final decision upheld the subsequent appeal by M.A. and
quashed the judgment of the Court of First Instance, sending the case
back for a fresh examination as regards the division of the property
registered under CF 954, rejected the applicant's request for
division of the property registered under CF 417 and ordered him to
leave that property in the possession of M.A. It found that the lower
court had not divided the property under CF 954 into shares.
- During
the fresh proceedings, of the fifty hearings held between 12 June
1998 and 12 November 2004 six were adjourned at the applicant's
request, including between 4 October 2002 and 22 May 2003, when he
requested an adjournment pending an appeal he had lodged against an
interlocutory decision. Between 8 January and 26 February 1999 and
between 17 September 1999 and 1 September 2000 the proceedings
were stayed on account of the unjustified absence of the parties.
During
the hearings between 4 May and 29 June 2001 the court reconstructed
the file, following its disappearance.
- On
10 August 2000 the bailiff proceeded, on the basis of the final
decision of 10 March 1998, to put M.A. in possession of the house. As
the applicant refused to participate in this activity, the bailiff
made a valuation of his possessions. The bailiff put a seal on some
of the rooms and entrusted some of the applicant's possessions to the
keeping of G.I., who was acting as a proxy for him. The bailiff also
mentioned that the possessions would be put at the applicant's
disposal, at his request.
- On
29 March 2002 the Court of First Instance by an interlocutory
decision concluded from the expert reports that there was actually
only one house, registered under CF 417, and not two houses.
Therefore the court rejected the applicant's request to include the
house in the property to be divided.
On 17
February 2003 the Regional Court upheld an appeal by the applicant
against the interlocutory decision and included the house, the stable
and the appurtenant land of 1260 sq.m. in the property to be divided.
- On
6 August 2003 the Court of First Instance, by an interlocutory
decision, rejected a request by the applicant to challenge a judge
(recuzare) who had participated in the hearing of 29 March
2002 and fined the applicant, finding that he had acted in bad faith
in submitting the request one year and four months after the relevant
date.
- On
19 November 2004 the Court of First Instance dismissed the
applicant's action. The court found itself unable to proceed with the
division of the property registered under CF 954 owing to the fact
that, as had been shown in an expert report, the land making up that
property could not be identified and therefore evaluated. It also
mentioned that the applicant had been unwilling to produce another
expert report that was more specific and technical regarding the
conclusions.
- On
1 June 2005 the Regional Court by a final decision upheld an appeal
by the applicant, quashed the judgment of the first-instance court
and sent the case back for a fresh examination. It considered that,
under Article 129 § 4 of the Code of Civil Procedure, the
Court of First Instance should have informed the parties that it was
necessary to supplement the civil action with regard to the
rectification in the Land Register, on account of discrepancies
between the Register and the de facto situation, to draw the
borderline between the properties registered under CF 954 and CF 417
and to extend the civil action to the owners of the property
registered under CF 417.
- Between
9 December 2005 and 21 April 2006 at the latest, and between 8
September 2006 and 23 March 2007 at the latest the Court of First
Instance decided to stay the proceedings, as the applicant had not
conformed to the direction to supplement his action in writing.
- The
proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument, considering that the case had
been particularly complex because of the participation of more than
ten parties in the proceedings and the need to produce several
expert reports.
- The
period to be taken into consideration began only on
20 June 1994,
when Romania ratified the Convention. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time.
The
period in question has not yet ended. It has thus lasted more than
fourteen years and three months for three levels of jurisdiction.
Seven courts have examined the case during this period.
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
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The Court considers that while the applicant bore
responsibility for delays of several months, his conduct alone cannot
explain the overall length of the proceedings.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, 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.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the domestic courts had failed to assess
the facts correctly, had misinterpreted the domestic law, had lost
his file and had not been impartial. He also complained that he had
lost his right of inheritance as regards the house and the land, and
that he had been evicted and his possessions had deteriorated.
- 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 the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to 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
- In
his application form, the applicant claimed 500,000,000 Old Romanian
Lei (ROL) in respect of pecuniary and non-pecuniary damage. On 8
March 2007 he claimed 900,000 euros (EUR) under these heads. After
having been requested by the Court to submit his claim for just
satisfaction, the applicant stated in his observations that he
maintained his previous claim.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
6,500 under that head.
B. Costs and expenses
- The
applicant sought reimbursement of the costs and expenses he had
incurred in the proceedings in the national courts and before the
Court, and quantified them only as regards the amount of 300 New
Romanian Lei (RON) for a translation and ROL 100,000 for a court fee.
He did not provide any supporting documents.
- The
Government contested the claim as unsubstantiated.
- The
Court reiterates that under Article 41 of the Convention it will
reimburse only the costs and expenses that are shown to have been
actually and necessarily incurred and are reasonable as to quantum
(see Arvelakis v. Greece, no. 41354/98, § 34,
12 April 2001). Furthermore, Rule 60 § 2 of the Rules
of Court provides that itemised particulars of any claim made under
Article 41 of the Convention must be submitted, together with the
relevant supporting documents or vouchers, failing which the Court
may reject the claim in whole or in part.
- The
Court notes that the applicant did not submit any supporting
documents or particulars to substantiate his claim. Accordingly, the
Court does not award any sum under this head.
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 the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of 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 6,500 (six
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-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 30 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
