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THIRD
SECTION
CASE OF
NICOLAE CONSTANTINESCU v. ROMANIA
(Application
no. 10277/04)
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 Nicolae Constantinescu v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
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. 10277/04) against Romania
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Romanian national, Mr Nicolae Constantinescu (“the applicant”),
on 9 February 2004.
The
applicant died on 30 March 2005. However, his widow, Ms Floarea
Constantinescu, and his daughter, Ms Silvia Surcel, expressed their
wish to pursue the application. For practical reasons Mr Nicolae
Constantinescu will continue to be called “the applicant”
in this judgment, although Ms Floarea Constantinescu and Ms Silvia
Surcel are now to be regarded as such (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
3 May 2007 the Court
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 1929 and lived in Sopot.
- On
8 March 1994 the applicant, together with four relatives, lodged a
civil action claiming restitutio in integrum of a mill, the
property of their parents, which had been taken by the State in 1948.
- Of
the twenty-two hearings held between 6 April 1994 and
12 January
1996, five were adjourned at the applicant's request.
- On
9 February 1996 the Craiova Court of First Instance (“the Court
of First Instance”) rejected the action, considering that the
mill had been nationalised in accordance with the law and that
therefore the applicant and his relatives had no right of property.
- The
applicant and his relatives appealed. Of the twenty-four hearings
held between 23 August 1996 and 14 May 1998 one was adjourned at the
applicant's request.
- On
21 May 1998 the Dolj Regional Court (“the Regional Court”),
taking into account the expert's report produced during the appeal,
dismissed the appeal as being groundless.
- On
1 February 1999 the Craiova Court of Appeal (“the Court of
Appeal”) by a final decision upheld the findings of the lower
courts, considering that the nationalisation had been lawful.
- The
applicant and his relatives made use of extraordinary remedies and on
12 May 1999 the Court of Appeal allowed the application to set aside
the final decision of 1 February 1999, quashed the previous judgments
and sent the case back for fresh examination. The court noted that
under Government Ordinance no. 447/1997 the Ministry of Finance
should have been summoned to appear in the proceedings as the State's
representative.
- During
the retrial, of the twenty-five hearings held between 26 August
1999 and 21 January 2002 two were adjourned at the applicant's
request.
On 8
September 2000 the Court of First Instance held that it had no
jurisdiction ratione materiae, considering the case to be
within the competence of the Regional Court. On 14 December 2000 the
Regional Court also refused to exercise jurisdiction. Following the
dispute as to jurisdiction, the Court of Appeal decided on 12 June
2001 that it was the Court of First Instance which had jurisdiction
ratione materiae.
- On
28 January 2002 the Court of First Instance, having regard to the two
experts' reports and to the witnesses produced during the retrial,
upheld in part the action lodged by the applicant and his relatives,
considering that the legal requirements for nationalisation had not
been fulfilled and therefore the State had no valid title. The court
granted restitutio in integrum in respect of the mill and of
the appurtenant land.
- The
defendant party appealed. Of the eleven hearings held between 10 May
2002 and 14 February 2003 none was adjourned as a result of requests
by the applicant. A new expert's report was produced.
- On
21 February 2003 the Regional Court allowed the appeal by the
defendant and rejected on the merits the action lodged by the
applicant and his relatives, considering that the nationalisation had
been lawful. That decision was upheld on 7 October 2003 by a final
decision of the Court of Appeal.
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 six parties in
the proceedings and the need to produce four experts' reports.
- The
period to be taken into consideration began 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 the proceedings at the time.
The
period in question ended on 7 October 2003. It thus lasted nine
years, three months and seventeen days for three levels of
jurisdiction. Seven courts 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 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 under Article 6 § 1 of the Convention of an
unfair trial. He also complained under Article 1 of Protocol No. 1 in
respect of the nationalisation of 1948 and as regards the courts'
refusal to grant restitutio in integrum of the mill and of the
land appurtenant to it.
- 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
- The
applicant's successors claimed around 271,000 euros (EUR) in respect
of pecuniary damage, representing EUR 80,000-90,000 for the value of
the mill, EUR 131,000 for the value of the tools inside the mill and
EUR 50,000 for the loss of profit over fourteen years. They also
claimed EUR 5,000 in respect of non-pecuniary damage, out of which
EUR 2,000 represented the cost of the applicant's funeral. However,
they asked the Court to determine the amount of compensation in
respect of pecuniary and non-pecuniary damage.
- 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 in respect of the violation found. Ruling on an
equitable basis, the Court awards a total sum of EUR 2,600 under that
head to be paid jointly to the applicant's successors.
B. Costs and expenses
- The
applicant's successors sought reimbursement of the costs and expenses
incurred in the proceedings in the national courts and before the
Court, and quantified them only as regards the amount of EUR 142 for
each expert report, between EUR 80 and 120 for lawyers' fees and EUR
280 for sundry expenses. They did not provide any supporting
documents, submitting that they had no receipts.
- The
Government contested the claim as being 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's successors did not submit any
supporting documents or particulars to substantiate their 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 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 2,600 (two thousand six 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
