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THIRD
SECTION
CASE OF TRAIAN-CONSTANTIN NICOLESCU v. ROMANIA
(Application
no. 10311/03)
JUDGMENT
STRASBOURG
23
February 2010
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 Traian-Constantin Nicolescu
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10311/03) 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 Traian-Constantin
Nicolescu (“the applicant”), on 28 January 2003.
The
applicant died on 6 June 2005. His daughter, Ms Mariana Dinu,
expressed her wish to pursue the application. For practical reasons,
Mr Traian-Constantin Nicolescu will continue to be called “the
applicant” in this judgment, although Ms Mariana Dinu is
now to be regarded as such (see Dalban v. Romania [GC],
no. 28114/95, § 1, ECHR 1999 VI).
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- On
10 July 2008, 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 1929 and formerly lived in Slatina.
- On
24 October 1991, the Slatina Local Commission responsible for the
application of Law 18/1991 (“the local commission”)
issued in the applicant’s favour an ownership certificate
(“adeverinţă de proprietate”) for a plot
of land measuring 2.13 hectares located in the city of Slatina, but
did not put him into possession of the land.
- The
applicant brought administrative proceedings against the local
commission, seeking to take possession of the land granted to him by
the ownership certificate. On 19 January 1998, the Olt County Court
allowed the action and ordered the local commission to enable
him to take possession of the land on the original placement held by
his father. That judgment became final.
- In
2000, the applicant filed another action against the local
commission, the Olt County Commission responsible for the application
of Law 18/1991 (“the county commission”) and a natural
person, D.E., seeking to take possession of the 2.13 hectares of
land, to obtain the ownership title for that land and the partial
annulment of an ownership title issued in favour of D.E. for the area
of 0.75 hectares that should have been restored to him in accordance
with the final judgment of 19 January 1998. The District Court of
Slatina allowed the action on 12 February 2001. Appeals filed by the
commissions and D.E. were dismissed by the Olt County Court on
27 September 2001. By a decision of 2 April 2002, the Craiova
Court of Appeal allowed an appeal on points of law filed by the
commissions, quashed the decision rendered in appeal and remitted the
file to the Olt County Court for a fresh examination of the
appeals. The appeals were again dismissed on 4 June 2002. On 23
September 2002, the Craiova Court of Appeal allowed the appeal on
points of law filed by the local commission. It partially dismissed
the action filed by the applicant with respect to the obligation of
the commissions to authorise him to take possession of the land and
to issue the ownership title, on the ground that the judgment of 19
January 1998 rendered in his favour had the force of res judicata.
8. By
an interlocutory judgment of 2 December 2002, the Slatina District
Court allowed the applicant’s claim for the payment of
300,000 Romanian lei (ROL) in damages per day of delay until
the enforcement of the final judgment of 19 January 1998.
- In
2003, the applicant filed another action against the local commission
seeking to obtain payment by the latter of damages for the loss of
profit caused by the non-enforcement of the final judgment of
19 January 1998. On 7 November 2003, the Slatina District
Court partially allowed the applicant’s claim and awarded him
18,898,880 ROL. The judgment was upheld by Olt County Court on
26 November 2004.
- On
31 November 2003, the county commission issued two ownership
titles, but for other plots of land than those to which the applicant
was entitled. The applicant lodged an action seeking to obtain
the annulment of the ownership titles and new ownership titles
in accordance with the judgment of 19 January 1998, namely on the
former placement. During the proceedings, on 6 June 2005, the
applicant died and his daughter, Ms Mariana Dinu, expressed her
wish to pursue the action. The Slatina District Court allowed
the applicant’s claim on 31 March 2006. It ordered the
county commission to issue on behalf of the applicant’s
daughter an ownership title for 2.13 hectares of land on the former
placements. The judgment became final.
- Following
the judgment of 31 March 2006, the local commission authorised the
applicant to take possession of the land, a minute (proces verbal)
being drafted to that effect on 3 October 2008.
- On
October 2008, the Slatina City Council forwarded to the Slatina Land
Office (Oficiul de Cadastru şi Publicitate Imobiliară)
all the documents necessary for the issue of the ownership title in
accordance with the judgment of 19 January 1998.
- The
proceedings for the issue of the ownership title are pending. So far
the applicant’s daughter has not received an ownership title.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Sabin Popescu
v. Romania (no. 48102/99, §§ 42-46, 2 March
2004) and Drăculeţ v. Romania,
no. 20294/02, § 29, 6 December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the final judgment
of 19 January 1998 in his favour had infringed his rights guaranteed
by Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 to the Convention, which, in so far as
relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
Article 1 of Protocol No. 1
“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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application 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 acknowledged that the applicant was entitled to enter into
possession of 2.13 hectares of land in Slatina in accordance with the
final judgment of 19 January 1998. It contended that the local
authorities were not acting in bad faith and that the delay in
enforcement was due to objective reasons. It contended that on 30
November 2003, an ownership title for a plot of land of 2.13 hectares
was issued, but the applicant refused it on the ground that the land
was not located on the former placement. It also noted that
following the judgment of 31 March 2006, the local commission
authorised the applicant to take possession of the land, a minute
(proces verbal) being drafted to that effect on 3 October
2008. It added that the proceedings for the issue of the ownership
titled are pending.
- The
applicant’s daughter disagreed. She contended that despite all
her efforts and requests addressed to all authorities she had not
obtained the execution of the final judgment.
- The
Court notes that the judgment of 19 January 1998 authorised the
applicant to recover his property. It thus conferred on the applicant
a legitimate expectation of being able to take possession of the land
referred to in those judgments and of subsequently obtaining title to
the land, as provided by the internal legislation (see the relevant
domestic law in Drăculeţ, cited above, § 29).
- Based
on the documents submitted by the Government, the Court notes that
the applicant’s heir was allowed to take possession of the plot
of land of 2.13 hectares on the former placement as ordered by the
1998 and 2006 judgments.
- However,
in order for the applicant’s daughter to fully enjoy
the prerogatives conferred by the right of property over her
land, she must have not only a de facto possession, but also
an ownership title certifying her right. Having regard to the fact
that the applicant’s daughter has not received an ownership
title, the Court therefore considers, in that regard, that although
the authorities had an obligation to enforce court judgments, namely
by allowing the applicant’s daughter to take possession of the
relevant land and by providing her with a document of title to her
land in the instant case, the judgments of 19 January 1998 and 31
March 2006 remain partially unenforced to date. Those judgments are
nevertheless still valid, no proceedings having been instituted under
Romanian law for their modification or annulment before the domestic
courts. Apart from enforcement, it is only by such an annulment or
substitution by the courts with an equivalent obligation that the
continuing situation of nonenforcement may come to an end (see
Sabin Popescu, cited above, § 54).
- The
Court notes that, in the present case, the authorities have failed to
take all necessary steps for the complete enforcement of the final
judgments. It has frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the ones in the present case (see, among others,
Sabin Popescu, cited above, and Dragne and Others v.
Romania, no. 78047/01, 7 April 2005).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
There has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. 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’s daughter sought enforcement of the judgment of
19 January 1998, namely to be allowed to take possession of the
2.13 hectares of land and to receive ownership titles. She also
claimed 2,130,000 Euros (EUR) for the loss of profit or any
benefit from her possessions, representing the value of the rent
she could obtain by renting the land for a period of ten years (10
Euros per square metre per year). In respect of nonpecuniary
damage, she claimed EUR 4,000.
- The
Government noted that the applicant’s daughter had already been
allowed to take possession of her land and the proceedings for the
issue of the ownership title had been initiated.
With
respect to the amount requested for the loss of profit, they
contended that granting such an amount would have a speculative
character.
Further,
they considered that the finding of a violation would constitute in
itself sufficient just satisfaction for any non-pecuniary damage
which the applicant may have suffered.
- The Court reiterates that, where it has found a breach
of the Convention in a judgment, the respondent State is under a
legal obligation to put an end to that breach and make reparation for
its consequences in such a way as to restore as far as possible
the situation existing before the breach (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 32, ECHR
2000-XI).
- The
Court considers, in the circumstances of the case, that the
ad litteram enforcement of the judgment of 19 January
1998 would put the applicant’s heir as far as possible in
a situation equivalent to the one in which she would have been if
there had not been a breach of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1. In this connection, the Court
considers that the applicant’s daughter has been enabled to
take possession of the land specified in this judgment. Therefore, it
holds that the respondent State is to provide the applicant’s
daughter with title in respect of that land.
- As
regards the amount of money alleged by the applicant’s daughter
for the loss of profit or any benefit from her possessions, the Court
rejects this claim, taking into account on the one hand that it has
ordered restitution in integrum as reparation under
Article 41 of the Convention and on the other hand that granting a
sum of money on this basis would be a speculative process, having
regard to the fact that the profit from a possession depends on
several factors (see Luca v. Romania, no. 1204/03, § 40,
13 May 2008).
- The
Court considers that the serious interference with the applicant’s
right of access to a court and to the peaceful enjoyment of his
possessions had caused moral prejudice to the applicant. Making an
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicant’s daughter EUR 1,600
in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant’s daughter also claimed the costs and expenses
incurred before the Court with respect to the correspondence, without
specifying a certain amount.
- The
Government noted that the applicant’s daughter did not submit
relevant supporting documents certifying a particular amount for the
costs and expenses incurred and therefore, they requested the
dismissal of this claim.
- 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 were
reasonable as to quantum. In the present case, regard being had the
above criteria, the Court rejects the claim for costs and
expenses in the proceedings before the Court.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 and Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State shall ensure, by appropriate means, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the enforcement of the Olt County Court’s judgment of 19
January 1998 by providing the applicant’s daughter with an
ownership title;
(b) that
in any event, the respondent State is to pay to the applicant’s
daughter, within the same three months, the amount of EUR 1,600
(one thousand six hundred Euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(c) that
the above amount shall be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(d) 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
daughter’s claim for just satisfaction.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
