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THIRD
SECTION
CASE OF POPESCU AND DIMECA v. ROMANIA
(Application
no. 17799/03)
JUDGMENT
STRASBOURG
9 December
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 Popescu and Dimeca
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17799/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Romanian nationals, Mrs Matilda Lelia
Popescu and Mr Simionel Dimeca (“the applicants”), on 7
April 2003.
- The
second applicant was represented by the first applicant. The Romanian
Government (“the Government”) were represented by their
Agent, Mr Răzvan-Horaţiu Radu.
- On
3 July 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
applicants are brothers, who were born in 1931 and 1925 respectively
and live in Bucharest and Aachen (Germany) respectively.
- In
1932 the applicants' parents bought a 596 sq. m plot of land with a
one-storey building on it. In 1936 they built a three-storey
building, linked to the existing one. The property is situated in
Constanţa, at the crossroad of two streets, Dacia no. 1 and
Răscoala din 1907 no. 38.
- In
1967 the property of the applicants' parents was seized by the State
under Decrees nos. 218/1960 and 712/1966.
- In
1974 two of the then tenants bought two of the flats.
- On
30 September and 18 October 1976 respectively, the Constanţa
Court of First Instance declared the two sales null and void on the
ground that they had ignored the legal provisions. However, on 9
February 1978 and 24 November 1992 respectively the two sales were
deemed valid by court decisions.
- On
10 April 1996 the first applicant brought an action for the recovery
of possession of immovable property, requesting the court to declare
the nationalisation of her property unlawful and to order its return
to her. The second applicant and the former tenants intervened in the
proceedings. The former tenants claimed to be the owners of the two
flats bought in 1974 and sought a declaration that they had acquired
a right of property through acquisitive prescription, being in good
faith.
- On
23 July 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
15 October 2002 the Supreme Court of Justice, in the operative part
of a final decision, allowed in part the applicants' action for
recovery of possession, excepting the two flats bought by the former
tenants, who were considered as being their owners. In the reasoning
of the judgment the court stated that the seizure had been unlawful,
that the State had no title to property since the two decrees had
been contrary to the Constitutions of 1952 and 1965 respectively, and
that the entire property belonged to the applicants' parents, the
applicants being their sole heirs. However, it considered that the
former tenants, although buying from a non-owner, the State, had been
in good faith and had acquired a right of property through
acquisitive prescription. It would have been exaggerated and
manifestly unfair to have requested the former tenants to question
the validity of the State's title at that moment.
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-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 the two flats 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 raised an objection of incompatibility
ratione materiae in respect of this complaint. They
considered that the judgment of 15 October 2002 did not
represent a “possession” within the meaning of the
Convention, because the court admitted the unconstitutionality of the
two decrees only in its reasoning part, which did not have the status
of res judicata. 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.
- The Government also considered that the applicants had
no legitimate expectation because they did not have the benefit of an
irrevocable decision acknowledging their right of property over the
two flats. In this respect, they were “merely claimants”
(see Pentia and Pentia v. Romania (dec.), no. 57539/00,
23 March 2006).
- The applicants did not express an opinion on the
matter.
- The Court considers that the objection raised by the
Government is very closely linked to the substance of the applicants'
complaint under Article 1 of Protocol No. 1. It therefore considers
it appropriate to join this objection to the merits.
- 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 notes that the final judgment of 15 October 2002 of the Supreme
Court of Justice acknowledged the unlawfulness of the seizure of the
entire property, which belonged to the applicants' parents. However,
the applicants 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 applicants had title to the entire
property, including the two flats in question. 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 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. The Court
did not make any distinction as regards the part of the final
decision in which the lawfulness of the seizure had been considered.
Therefore, it is not persuaded by the Government's argument that the
fact that the unlawfulness of the nationalisation had been
acknowledged only in the reasoning part of a final judgment may
justify a different approach in the instant case.
- Unlike
the Government, the Court considers that the present case is
different from the case of Pentia and Pentia, cited above, in
so far as in the latter the domestic courts considered the
nationalisation lawful, whereas in the instant case they acknowledged
its unlawfulness.
- 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 of incompatibility ratione materiae.
- 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 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 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 six 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the domestic courts had been partial, had
failed to assess the facts correctly and had misinterpreted the
domestic law. They relied on Article 6 § 1 of the
Convention, which provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
... impartial tribunal ...”
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
- Having
regard to the findings in the paragraphs 21-28 above, the Court
considers that it is not necessary to examine whether, in this case,
there has been a violation of Article 6 § 1 (see, among
others, Davidescu v. Romania, no. 2252/02, § 57,
16 November 2006; Pais v. Romania, no. 4738/04, § 39,
21 December 2006; and, mutatis mutandis, Zanghì
v. Italy, 19 February 1991, § 23, Series A
no. 194 C; Laino v. Italy [GC], no. 33158/96,
§ 25, ECHR 1999 I; and Canea Catholic Church v.
Greece, 16 December 1997, § 50, Reports of Judgments
and Decisions 1997 VIII).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained, without explanation, of a violation of the
Article 13 of the Convention.
- Having
carefully considered the applicants' 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 set out in the
Article 13 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.
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
- The
applicants claimed 179,000 euros (EUR) in respect of pecuniary
damage, representing the value of the two flats, on the basis of an
expert report. They also claimed EUR 20,000 in respect of
non-pecuniary damage.
- The
Government did not express an opinion regarding the pecuniary damage,
having previously submitted an expert report assessing the market
value of the two flats at EUR 155,570 and of the land appurtenant to
them at EUR 77,622.48. 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).
- 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 considers the claim in respect of pecuniary damage
justified and, consequently, awards the full amount, namely
EUR 179,000.
- 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 them jointly 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
- Joins to the merits the Government's
preliminary objection of incompatibility ratione materiae in
respect of the complaint under Article 1 of Protocol No. 1 and
dismisses it;
- Declares the complaints concerning Article 1 of
Protocol No. 1 and Article 6 § 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds that there is no need to examine on the
merits the complaint under Article 6 § 1
of the Convention;
- Holds
(a) that
the respondent State is to pay jointly the applicants, within
three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the amounts of
EUR 179,000 (one hundred and seventy-nine thousand
euros) in respect of pecuniary damage and EUR 4,000 (four thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable, 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 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 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
