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THIRD
SECTION
CASE OF NICOLESCU v. ROMANIA
(Application
no. 31153/03)
JUDGMENT
STRASBOURG
20 January
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 Nicolescu v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31153/03) 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 Alexandru Nicolescu
(“the applicant”), on 19 August 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- On
11 January 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 1926 and lives in Bîra.
1. Recovery of land
- On
21 November 1990 the applicant brought an action against the Bîra
agricultural cooperative for the recovery of possession of 5,000 sq.
m of land.
- On
16 July 1991 the Roman Court of First Instance authorised the
applicant to recover possession of a 5,000 sq. m plot of land
situated in Bîra village at a place
called “Cimitir” (“the cemetery”). The land
had boundaries with the cemetery (to the north), a road (to the
south), pastureland (to the east) and land belonging to B.A., a third
party (to the west). The court ordered the agricultural cooperative
to enable the applicant to take possession of the land. That judgment
became final.
On 5
December 1991 the bailiff certified in an official record that the
applicant had been able to take possession of the land and that some
constructions built by the former agricultural cooperative, including
a stable and part of a shed, were situated on it.
- On
9 August 1991 the county commission in Neamţ for the application
of Law no. 18/1991 (“the county commission”) authorised
the applicant to recover possession of 52,600 sq. m of land.
- On
5 October 1992 the applicant contested the administrative decision
before the court on the ground that he was also entitled to recover
possession of a further 11,200 sq. m approximately of land.
- On
15 December 1992 the Court of First Instance allowed the applicant's
action, taking the view that he was entitled to recover possession of
a total surface area of 63,800 sq. m of land, and ordered the
administrative authorities to issue him with a document of title for
that land, situated in Bîra village.
That judgment became final.
- On
17 January 1994 the local commission in Bîra
for the application of Law no. 18/1991 (“the local commission”)
certified in an official record that the applicant had been able to
take possession of a 6,152 sq. m plot of land at Cimitir. The
applicant signed the official record.
2. First administrative action
- On
18 September 1997 the applicant brought an administrative action
against the local commission seeking to have it perform the procedure
for enabling him to take possession of the land and to prepare the
documentation pertaining to the issuance of a document of title for
the 63,800 sq. m of land.
- On
26 January 1998 the Neamţ Regional Court upheld the applicant's
action and ordered the local commission to implement the procedure
for enabling him to take possession of the 63,800 sq. m of land
situated in Bîra village, to issue
the official record and to provide him with a title document, in
accordance with the judgment of 15 December 1992. That judgment
became final.
3. Second administrative action
- On
3 April 2000 the applicant brought an administrative action against
the local commission seeking a daily pecuniary penalty for the
refusal to enable him to take possession of the entire surface area
of 63,800 sq. m of land in Bîra
village, and to prepare the documentation pertaining to the
acquisition of title, as ordered by the judgment of 26 January
1998.
- On
27 November 2000 the Regional Court, by an enforceable decision,
upheld the applicant's action and ordered the local commission to pay
a daily pecuniary penalty of 100,000 Romanian lei (ROL). The court
noted that the applicant had taken possession of 59,400 sq. m of land
and that the local commission had refused to enable him to take
possession of the plot of 5,000 sq. m of land situated at Cimitir,
thus preventing the preparation of the necessary documentation for
the acquisition of title. The court also noted that the plot of 5,000
sq. m of land had been leased by Bîra town
council to a private company.
The
expert report produced during the proceedings mentioned the plot of
5,000 sq. m of land at Cimitir, which was expressly referred to in
the judgment of 16 July 1991, as part of the total of 63,800 sq. m of
land for which the authorities were supposed to prepare the
documentation pertaining to the acquisition of title. It also
mentioned that on 5 December 1991 the applicant had been able to take
possession of the land in question at Cimitir, in a location situated
in the yard of the former agricultural cooperative, but that
subsequently the local commission had allocated to him a 5,000 sq. m
plot of land next to the yard.
4. Authorities' approach
- On
28 December 2000 the town council invited
the applicant to take possession of a plot of 5,000 sq. m of land as
provided for by the judgment of 27 November 2000, in one of three
locations proposed by the authorities, none of them at Cimitir.
- On
10 January 2001 the local commission certified in an official record
that the applicant had been able to take possession of a 5,000 sq. m
plot of land in a place called “Arie”, which was not one
of the three above mentioned locations. The applicant
refused to sign the official record, as it did not relate to the
original location.
- On
11 and 22 January 2001 the town council
invited the applicant to sign the official record and the forms for
the issuance of the document of title. The applicant refused,
claiming the land in the original location.
- On
28 July 2005 the Neamţ prefecture, in a written note following
an interview with the applicant, acknowledged that the latter's right
of ownership over the plot of 5,000 sq. m had been certified by the
judgment of 16 July 1991 and that the bailiff had enabled him to take
possession in 1991. The prefecture further admitted that the
applicant could not enjoy possession, as the local authorities had
refused several times to take that judgment into account. Hence, the
buildings on the land had been systematically leased out, without the
question of ownership of the land being examined, and were currently
leased to a third party, with the town council receiving a lease tax
for the land. Finally, the note mentioned that the prefecture had
informed the mayor that according to the law it was the applicant who
should have entered into the lease contract as the owner of the land
and of the buildings on it. Therefore, the applicant was directed to
lodge either an application for determination of ownership or an
application concerning the obligation to take action.
5. Objection to execution by the local authorities
- On
7 November 2002 the bailiff, at the applicant's request, directed the
local commission to execute the judgment of 27 November 2000 and to
pay the daily pecuniary penalty with effect from 1 January 2001.
- On
19 November 2002 the local commission lodged an objection to
execution, alleging that the failure to enable the applicant to take
possession of 63,800 sq. m of land and to issue him with a document
of title was due to his own refusal.
- On
3 December 2002 the Court of First Instance dismissed the objection
as groundless, stating that the acts performed by the local
commission were not in conformity with the judgments given in the
applicant's favour and that his claim to take possession of the 5,000
sq. m plot of land in the original location at Cimitir was justified.
- On
6 March 2003 the Regional Court, by a final decision, upheld an
appeal by the local commission and annulled the bailiff's injunction.
The court noted that the establishment of the location of plots of
land fell within the exclusive competence of the local commission and
that the authorities had made several proposals to the applicant with
a view to providing him with equivalent land in compensation. It also
considered that the evidence proved that the applicant was already in
possession of a 5,400 sq. m plot of land at Cimitir, in accordance
with the judgment of 16 July 1991.
6. Fresh attempt by the applicant to obtain a document
of title
- On
12 April 2005 the applicant brought proceedings against the local
authorities seeking to obtain a document of title for the 5,000 sq. m
plot of land at Cimitir as granted by the judgment of 16 July 1991,
with the following boundaries: the road (to the north and south),
pastureland (to the east) and buildings belonging to the town council
(to the west). He submitted that he was the owner of that land
according to the judgment of 16 July 1991 and that he had been
granted possession by the bailiff on 5 December 1991, but that
the authorities were planning to prepare documentation for the
acquisition of title for land in other locations.
- On
30 November 2005 the Court of First Instance, taking into
consideration an expert report produced in the proceedings and
refusing a request by the applicant for a new expert report,
dismissed the action on the ground that the land claimed by the
applicant within those boundaries included the stables of the former
agricultural cooperative and had no connection with the plot of land
awarded by the judgment of 16 July 1991, being adjoining to it. The
court acknowledged the applicant's interest in claiming that land, as
it had the stables of the former agricultural cooperative on it.
- On
26 June 2006 the Regional Court, by a final decision, dismissed as
groundless an appeal by the applicant in which he had contested the
location on which the expert report produced before the
first-instance court was based and the dismissal of his request for a
new expert report.
- On
12 April 2007 the town council informed the
Agent of the Government that the applicant was in possession of a
plot of land at Cimitir, certified by the official record of 17
January 1994 and, according to an expert report of 16 November 2005,
with a surface area of 6,002 sq. m. That land was the land mentioned
by the judgment of 16 July 1991.
- So
far the applicant has not received a document of title.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments in 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. SCOPE OF THE APPLICATION
- The
Government submitted that the present application concerned only the
plot of 5,000 sq. m of land claimed by the applicant in order to
complement the plot of 63,800 sq. m granted by the judgment of
15 December 1992, situated in a location having as its
boundaries the road (to the north and south), buildings belonging to
the town council (to the west) and pastureland (to the east).
- The
applicant did not express an opinion on the matter. In his first
letter to the Court he complained that the judgment of 6 March 2003
of the Neamţ Regional Court had been unlawful. He referred to
the land leased by the Town Council, which had buildings on it, and
to the fact that there was no court judgment allowing the authorities
to give him another plot of land in compensation. He also mentioned
that the judgment of 16 July 1991 had been enforced by the bailiff in
1991.
- In
his application form the applicant referred to a 5,000 sq. m plot of
land wrongfully possessed since 1962. He enumerated the judgments of
16 July 1991, 26 January 1998, 27 November 2000, 3 December 2002
and 6 March 2003 and stated that the last two judgments were
“unlawful and groundless”.
In a
letter of 14 February 2007 the applicant contested the authorities'
assumption that he had been in possession of the land at Cimitir
since 1991, and referred to the letter from the prefecture certifying
the existence of buildings on the 5,000 sq. m plot of land.
In
his observations of 23 May 2007 the applicant referred to the
official record of 5 December 1991, alleging that he was not in
possession of the land at Cimitir. He also alleged that the town
council had not granted him possession of 55,000 sq. m of forest and
45,000 sq. m of land, for which he had a supporting document. In
letters of 16 November 2007, 3 March and 19 May 2008 he alleged that
the town council had so far not issued him with a document of title.
He did not submit to the Court a copy of the judgment of 15 December
1992.
- The
Court notes that the applicant did not make express reference to the
judgment of 15 December 1992, either in his application form or in
his observations. Even if the Court were to consider that the
applicant's reference in his observations to the 55,000 sq. m of
forest and 45,000 sq. m of land related to the land mentioned in the
judgment of 15 December 1992, it recalls that it has already decided
that there is no need to give a ruling on complaints raised after the
communication of an application to the Government (see Vigovskyy
v. Ukraine, no. 42318/02, § 14, 20 December 2005).
However, the applicant has the possibility of lodging a new
application in respect of a possible complaint related to that
judgment.
- Having
regard to the fact that the applicant's complaints revolve around the
plot of 5,000 sq. m of land at Cimitir, the Court considers that land
as being covered by the present application.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant alleged in substance that the non-enforcement of the
judgment 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 read, in so far as relevant, 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
Government submitted that the Court had no jurisdiction ratione
temporis to examine the alleged non-enforcement of judgments in
the period before 20 June 1994.
- The
applicant did not express an opinion on the matter.
- The
Court's jurisdiction ratione temporis covers only the period
after the ratification of the Convention or its Protocols by the
respondent State. From the ratification date onwards, all the State's
alleged acts and omissions must conform to the Convention or its
Protocols and subsequent facts fall within the Court's jurisdiction
even where they are merely extensions of an already existing
situation. The Court may, however, have regard to the facts prior to
ratification inasmuch as they could be considered to have created a
situation extending beyond that date or may be relevant for the
understanding of facts occurring after that date (see Broniowski
v. Poland (dec.) [GC], no. 31443/96, ECHR 2002 X).
- The
Court considers in the present case that the alleged impossibility
for the applicant to enjoy his right of property acknowledged by a
final decision involves a continuing situation (see Funke v.
Romania, no. 16891/02, § 20, 26 April 2007). The
Government's plea of inadmissibility on the ground of lack of
jurisdiction ratione temporis must accordingly be rejected.
- 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 submitted that the applicant had a right to recover
possession of 5,000 sq. m of land and that on 5 December 1991 and
17 January 1994 he had been granted possession of 5,000 sq. m of
land in the place mentioned by the judgment of 16 July 1991. They
considered that the source of the applicant's entitlement was the
judgment of 15 December 1992. As the court had not established the
location of the land in that judgment, the applicant's entitlement
was subject to determination of the location by the local commission.
While the applicant had possession of 5,000 sq. m as provided by the
judgment of 16 July 1991, only the local commission could establish
the location of the 5,000 sq. m needed to make up the full surface
area of 63,800 sq. m mentioned by the judgment of 15 December
1992.
- The
Government further considered that the partial non-enforcement of the
judgment of 15 December 1992 was due to objective reasons, namely the
applicant's refusal to sign the official record granting him
possession of the land, in order for the authorities to issue him
with a document of title. The applicant had also attempted to change
the location of the land.
- The
applicant disagreed. In particular, he submitted that he still had no
document of title and that his land at Cimitir was currently divided
into three parts. He also made reference to the official record of 5
December 1991 which certified the existence of buildings on the land.
- The
Court notes that on 21 November 1990 the applicant brought an action
for the recovery of possession of a plot of land. It may be
reasonably assumed that the applicant sought a court decision
allowing him to enjoy all the prerogatives of a property right over
that land, which involves not only taking possession of the land but
also acquiring ownership title, as provided by the internal
legislation (see the relevant domestic law in Drăculeţ,
cited above, § 29).
The
judgment of 16 July 1991 of the Roman Court of First Instance allowed
the applicant's action and thus conferred on him a legitimate
expectation of being able to take possession of the 5,000 sq. m of
land mentioned in that judgment and of acquiring, subsequently, title
to the land. While on 5 December 1991 and 17 January 1994 the
applicant was granted possession of the land to which he was
allegedly entitled (see paragraphs 6 and 10 above) and while he
consented at least to the first course of action (see paragraph 23
above), he has still not received a document of title for the land
specified in that judgment.
- The
Government alleged that the applicant had a right to receive a
document of title to 5,000 sq. m of land in accordance with the
judgment of 15 December 1992, which had not specified the location of
the land, whereas the applicant claimed the land in the location
specified by the judgment of 16 July 1991. Having regard to its
findings in paragraphs 32, 33 and 44 above, the Court considers that
the applicant has a right to be issued with a document of title as a
result of the judgment of 16 July 1991.
- The
Court cannot but notice that the enforceable decision of 27 November
2000 of the Neamţ Regional Court recorded the local authorities'
refusal to enable the applicant to take possession of the 5,000 sq.
m of land at Cimitir and their use of the applicant's land in their
own interest, thus preventing the issuance of a document of title
(see paragraph 14 above). Further, the Neamţ prefecture
also acknowledged in 2005 the refusal of the local authorities to
comply with the judgment of 16 July 1991 and the fact that they
had leased out the land (see paragraph 18 above). The Court is
therefore concerned at the fact that the local administrative
authorities not only refused to comply with a court decision for so
long, but also disposed of the applicant's land, despite clear
findings in this connection by the judiciary and other administrative
bodies.
- The
Court considers therefore that although the authorities have an
obligation to enforce court judgments, in this case by restoring the
relevant land to the applicant, the judgment of 16 July 1991 remains
unenforced to date. That judgment is nevertheless still valid, no
proceedings having been instituted under Romanian law to have it
amended or annulled by the domestic courts. Apart from enforcement,
it is only by means of such annulment or amendment by courts with an
equivalent obligation that the continuous situation of
non-enforcement may come to an end (see Sabin Popescu, cited
above, § 54).
- The
Court notes that, in the present case, the authorities failed to
inform the applicant, by a formal decision, of the alleged objective
impossibility of ad litteram performance of the
above-mentioned judgment and to take all necessary steps for its
enforcement. Moreover, the national courts never ruled that the ad
litteram enforcement of the judgments of 16 July 1991 was
bound to fail. On the contrary, they noted the authorities' refusal
to execute that judgment (see paragraph 14 above).
- The
Court 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.
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 sought to recover possession of the 5,000 sq. m plot of
land at Cimitir. He also claimed 1,000,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government considered that the applicant should not be awarded
pecuniary damage, as he had not specified the amount and had not
submitted any supporting documents. Further, they considered that the
finding of a violation would constitute in itself sufficient just
satisfaction for any non-pecuniary damage which the applicant might
have suffered. In any event, they considered that the amount claimed
in that connection was too high.
- 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 judgments of 16 July 1991
would put the applicant as far as possible in a situation equivalent
to the one in which he would have been if there had not been a breach
of Article 6 § 1 of the Convention and Article 1 of Protocol No.
1.
- The
Court considers that the serious interference with the applicant's
rights of access to a court and to the peaceful enjoyment of his
possessions has caused a 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 EUR 5,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed costs and expenses incurred before the
domestic courts and before this Court, representing lawyers' fees and
postage and translation costs. He quantified these costs in part, in
the amount of 280 new Romanian lei (RON) for translation costs,
alleging that he had submitted four invoices in that connection.
However, there are no invoices in the file.
- The
Government contested the claim as being unsubstantiated.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 covering costs
under all heads.
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 of the Convention and Article 1 of Protocol No. 1;
- 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 judgment of 16 July 1991 of the Roman Court of
First Instance;
(b) that
the respondent State is to pay the applicant, within the same three
months, the following amounts, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(c) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
