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THIRD
SECTION
CASE OF ENYEDI v. ROMANIA
(Application
no. 32211/02)
JUDGMENT
STRASBOURG
2 June 2009
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 Enyedi 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 12 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32211/02) 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 Vasile Enyedi (Enyedy)
(“the applicant”), on 20 August 2002.
The
applicant died on 16 March 2006. However, his widow, Ms Elena Enyedi
(Enyedy), his son, Mr Sándor Enyedi (Enyedy) and his daughter,
Ms Katalin-Erzsébet Csibi, expressed their wish to pursue
the application. For practical reasons Mr Vasile Enyedi (Enyedy) will
continue to be called “the applicant” in this judgment,
although Ms Elena Enyedi (Enyedy),
Mr Sándor Enyedi
(Enyedy) and Ms Katalin-Erzsébet Csibi are now to be regarded
as such (Dalban v. Romania [GC], no. 28114/95, § 1,
ECHR 1999 VI).
- The
applicant was represented by Mr Francisc Püsök from Zalău.
The Romanian Government (“the Government”) were
represented by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
9 February 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1924 and lived in Baia Mare.
- In
1950, a house and 1,867 sq. m of appurtenant land situated in Zalău,
Andrei Şaguna no. 20, the property of
the applicant's mother, were seized by the State under Decree no.
92/1950 on nationalisation.
- The
property was subsequently divided into two apartments. In 1973 the
applicant's father bought Apartment 1 and in 1974 the applicant's
uncle bought Apartment 2.
A. Recovery of property
- On
18 September 1997 the applicant brought court proceedings for
recovery of property, including restitution in kind of the
appurtenant land of 1,617 sq. m and compensation for the remaining
plot of 250 sq. m, which had been allocated to a third party as
building land. He also sought to have the sales of the two apartments
declared null and void.
- On
4 February 1999 the Zalău Court of
First Instance allowed the action in part and awarded the applicant
the equivalent value of Apartment 2 and the updated amount paid by
his father for Apartment 1. The court refused to declare the sale of
Apartment 2 null and void, as the applicant had been given
compensation, and dismissed his demand for restitution in kind of the
1,617 sq. m of appurtenant land on the ground that it had not
satisfied the conditions required by Law no. 18/1991.
- On
3 August 1999 the Sălaj County Court upheld an appeal by the
applicant and by the town council, quashed the judgment of the
first-instance court and sent the case back for fresh
consideration.
- During
retrial, on 7 December 1999 the Court of First Instance decided that
the case was within the competence of the County Court.
- On
20 October 2000 the Sălaj County Court awarded the applicant the
equivalent value of Apartment 2, the updated amount paid by his
father for Apartment 1 and dismissed his request to have the sale of
Apartment 2 declared null and void.
- The
applicant and the Ministry of Public Finance (“the Ministry”)
appealed, the former claiming restitution in kind of Apartment 2 as
well.
- On
11 May 2001 the Cluj Court of Appeal dismissed the
two appeals.
It held that the applicant's uncle had acquired a right of property
over Apartment 2 by acquisitive prescription. The court also held
that the seizure of the property had been unlawful and following the
decease of his father Apartment 1 had entered into the ownership of
the applicant and of his father's sister, being thus registered in
the Land Register. It further confirmed that there were no
allegations that Apartment 1 was in the ownership of the State or of
third parties.
- On
25 June 2003 the Supreme Court of Justice allowed a further appeal by
the applicant and by the Ministry, quashed the previous judgment and
sent the case back for a fresh examination. It found that the lower
courts had not been concerned with the precise description of the
property which was the object of the applicant's action.
- After
the retrial, on 14 April 2004 the Cluj Court of Appeal allowed the
appeal by the Ministry and rejected the applicant's action,
considering that the buyers of the two apartments were in good faith.
It held that the appurtenant land of 1,617 sq. m belonged to the
private domain of the State and therefore it was the Mayor who should
have been brought to trial, not the Ministry. The court also
considered that, for the plot of 250 sq. m of appurtenant land, the
third party should have been brought to trial, and that the claim for
damages for the two apartments had been time-barred, and was anyway
incidental to the request for the annulment of the sales.
- On
10 October 2005 the Cluj Court of Appeal, by a final decision, upheld
in part a further appeal by the applicant and declared null and void
the sale of Apartment 1. It considered that the seizure of the whole
property which had belonged to the applicant's mother was unlawful
and that his father had clearly been in bad faith when he had bought
Apartment 1. It ordered the State to pay the applicant pecuniary
damages in respect of Apartment 1, representing the updated amount
paid by his father.
As
for Apartment 2, the court considered that the applicant's uncle had
made the purchase in good faith, trusting the content of the Land
Register. However, it held that the applicant expressly requested
only restitution in kind, not alternative compensation, hence the
first-instance court was at fault when it awarded compensation for
Apartment 2.
With
reference to Apartment 1, the court considered impossible to rectify
the situation in the Land Register by establishing a right of
property for the applicant's mother over that apartment, as the
applicant had failed to bring to trial his father's sister, who owned
a portion of it.
B. First administrative action
- On
8 November 2001 the applicant made a request under
Law
no. 10/2001 governing immovable property wrongfully seized by
the State, seeking restitution in kind of his property, namely the
house and the 1,867 sq. m of appurtenant land.
- On
6 June 2005 the Mayor of Zalău
rejected his request on the ground that the applicant had not
submitted all necessary documents to substantiate his claims.
- The
applicant contested the mayor's decision before the courts. There is
no evidence in the file as to the course of the proceedings.
C. Second administrative action
- In
2005 the applicant lodged an administrative request for
restitutio
in integrum of the appurtenant land of 1,867 sq. m.
- On
25 August 2006 the county commission in Sălaj responsible for
the application of property laws rejected that request. The
applicant's wife contested that decision before the courts, claiming
the plot of 1,867 sq. m in the original location.
- Two
expert reports of 23 May and 13 July 2007 certified that the
applicant's quota of Apartment 1 was in the ownership of his three
heirs, as also mentioned in the certificate of inheritance, that the
appurtenant land of 1,367 sq. m was in the State's ownership and that
250 sq. m of appurtenant land were in the ownership of a third party.
Apartment 2, having an area and therefore situated on a plot of land
of 75 sq. m, together with two plots of appurtenant land of 82 sq. m
and 93 sq. m, were in the ownership of the heirs of the applicant's
uncle.
- On
11 October 2007 the Zalău Court of
First Instance, on the basis of the expert reports, allowed the
action, authorised the applicant's wife to recover possession of
1,867 sq. m of land, and ordered the local authorities to enable her
to take possession of the 1,367 sq. m of land appurtenant to the
house and to allocate her a plot of 500 sq. m in another location, as
provided by Article 10 of Government Ordinance no. 890/2005.
An
appeal by the applicant's wife, claiming restitution in kind of the
plot of 250 sq. m inherited by the heirs of the buyers of Apartment
2, was subsequently dismissed and that judgment became final.
- On
10 June 2008 the applicant's wife requested the courts to declare
that the judgment of 11 October 2007 could be enforced.
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. SCOPE OF THE APPLICATION
- In
a letter of 26 September 2005 the applicant claimed before the Court
restitution in kind for the house and for the 1,617 sq. m of
appurtenant land and compensation for the remaining 250 sq. m of
appurtenant land. He also claimed the updated amount paid by his
father for Apartment 1.
After
the Cluj Court of Appeal gave its final decision of 10 October 2005
by which, inter alia, granted the applicant compensation for
the amount paid by his father for Apartment 1, the applicant claimed
before the Court, in a letter of 29 November 2005, restitution in
kind of the whole property situated in Zalău,
Andrei Şaguna no. 20.
Following
the communication of the present application to the Government, the
representative of the applicant's heirs alleged in a letter of 16
July 2007 that the successors had not been authorised to take
possession of the property. He also submitted that, in the event he
was authorised by the courts to take possession of the two plots of
82 sq. m and 93 sq. m of appurtenant land (see paragraphs 21 and 22
above), he would claim from the respondent Government only
compensation for Apartment 2 and for the land under that apartment,
as well as for the plot of 250 sq. m of appurtenant land which had
been allocated to a third party for construction.
On 27
November 2008, in reply to a plea of no victim status raised by the
Government (see below), the representative of the applicant's heirs
maintained that they had not received any compensation for the
property.
- In
their observations of 28 May 2007 the Government considered that the
applicant had no victim status in so far as Apartment 1 was concerned
because, inter alia, he had been awarded the updated amount
paid by his father for that apartment (see below).
- The
Court notes that following the final decision of 10 October 2005 of
the Cluj Court of Appeal the applicant has no longer expressly
complained before the Court of the amount awarded as compensation for
the price paid by his father for Apartment 1. The Court finds no
reason to examine it.
Therefore
it considers the property made up of the house divided into two
apartments and the appurtenant land of 1,867 sq. m as being covered
by the present application. However, the applicant has the
opportunity to lodge a new application in respect of a possible
complaint related to the amount awarded as compensation for Apartment
1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant alleged that the sale by the State of his property 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
Government submitted that the applicant had no victim status as far
as Apartment 1 was concerned on the ground that, on the one hand, the
applicant was in the possession of that apartment and, on the other
hand, the applicant had been awarded the updated amount paid by his
father for that apartment.
- The
applicant responded that he had not received any compensation for the
whole property.
- The
Court notes that the applicant alleged a breach of Article 1 of
Protocol No. 1 entailed by the sale by the State of his property to
third parties. Having regard the fact that the domestic courts
declared null and void the sale of Apartment 1 and certified that
that apartment was in the ownership of the applicant and of the other
heir of his father (see paragraphs 13, 16 and 22 above), the Court
upholds the Government's preliminary objection in respect of
Apartment 1 and this part of the application, which is incompatible
ratione personae with the provisions of the Convention, must
be rejected pursuant to Article 35 §§ 3 and 4. However, as
mentioned above (see paragraph 28 above), the Court does not consider
it necessary to pronounce as to the issue of compensation awarded by
the courts for that apartment.
- 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 their arguments previously submitted in similar
cases.
- The
applicant disagreed.
- The
Court notes that the final judgment of 10 October 2005 of the Cluj
Court of Appeal acknowledged the unlawfulness of the seizure of the
entire property, which belonged to the applicant's mother. However,
the applicant recovered only a part of it. The Court considers that
the finding, in a final decision which has not been quashed or
challenged to date, that the nationalisation of the property was
unlawful, had the effect of recognising, indirectly and with
retrospective effect, that the applicant had title to the entire
property, including Apartment 2 and the land appurtenant to the
entire house. That finding was irrevocable (see, among others, Străin
and Others, cited above, § 38; Sebastian Taub v. Romania,
no. 58612/00, § 37, 12 October 2006, and Gabriel
v. Romania, no. 35951/02, §§ 25-26,
8 March
2007).
- The
Court reiterates that, according to its jurisprudence, the sale of
another's possessions by the State, even before the question of the
ownership had been finally settled by the courts, will be deemed to
be 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 possessions still prevents
him from enjoying his 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 three years, in the absence of any compensation.
- The
Court notes that 1,367 sq. m of the land appurtenant to the house was
not transferred to a third party and that the courts ordered that
plot to be returned in kind to the applicant and that the applicant
be compensated for the remaining 500 sq. m with land in another
location (see paragraph 23 above). However, there is no evidence that
the applicant has in fact been given possession of any land. This
situation may therefore be regarded as akin to those cases where
properties were unlawfully nationalised by the communist regime and
sold to tenants (see Străin and Others and Păduraru,
cited above) and where the applicants were the owners of the
possessions thus sold.
- 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 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 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.
III. 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.
- The
period to be taken into consideration began on 18 September 1997 and
ended on 10 October 2005. It thus lasted eight years and twenty-four
days for three levels of jurisdiction.
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 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).
Moreover,
the Court has already found that, although it is not in a position to
analyse the juridical quality of the case-law of the domestic courts,
since the remittal of cases for re-examination is usually ordered as
a result of errors committed by lower courts, the repetition of such
orders within one set of proceedings discloses a serious deficiency
in the judicial system. This deficiency is imputable to the
authorities and not the applicants (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003, and Matica v. Romania,
no. 19567/02, § 24, 2 November 2006).
- 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.
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
- In
a letter of 16 July 2007 (see paragraph 26 above) the applicant's
successors submitted to the Court an expert report according to which
the value of the entire property, namely the house and the land
appurtenant to it, amounted to 196,000 euros (EUR). In a letter of 7
July 2008 the applicant's representative informed the Court that the
applicant's heirs had managed to obtain judicial recognition of their
right over the appurtenant land and that they were expecting to be
effectively allowed to take possession of that land.
In
their observations of 27 November 2008 the applicant's successors
claimed EUR 50,000 in respect of pecuniary damage, representing the
value of the “construction” situated in Zalău,
Andrei Şaguna no. 20.
In
his application form, the applicant claimed EUR 7,000 in respect of
non-pecuniary damage.
- The
Government submitted an expert report valuing only the constructions
situated on that property at EUR 27,242 without the VAT. 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 Apartment 2
at EUR 30,000.
- As regards non-pecuniary damage, the Court notes that
the representative of the applicant's successors did not submit any
claim under that head within the time allowed. According to its
settled case-law (see, most recently, Friedrich v. Romania,
no. 18108/03, § 29, 7 October 2008), 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's
successors have failed to comply with their 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
- The
applicant's successors did not claim costs and expenses. Accordingly,
there is no call to make an award 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 complaints concerning Article 1 of
Protocol No. 1
in respect of Apartment 2 and 1,867 sq. m of
appurtenant land and Article 6 § 1 in
respect of the length of proceedings 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 that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay jointly to the applicant's successors,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 30,000 (thirty 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 2 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
