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THIRD
SECTION
CASE OF DUMBRAVĂ v.
ROMANIA
(Application
no. 25234/03)
JUDGMENT
STRASBOURG
17 February 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 Dumbravă
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 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25234/03) 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. Tudor Dumbravă
(“the applicant”), on 7 July 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
27 February 2006 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 1946 and lives in Bucharest.
- In
1984 the house, which was the property of the applicant's mother and
was where they had been living was demolished by the State without
compensation. Therefore on 18 October 1984 the applicant's mother was
authorised to take on the tenancy of Apartment 18 situated at 2 Valea
Călugărească
Street in Bucharest.
- On
25 March 1991 the applicant's mother made a request to the
O. company, a State-representative company responsible for the
management of property belonging to the State, to buy the apartment
under Decree-law no. 61/1990 and Law no. 85/1992 regarding the sale
to the population of dwellings built with State funds. She died on 9
July 1993, the applicant being her only heir.
- On
26 January 1994 V.V. took on the tenancy of Apartment 18. According
to the applicant, he was living in the apartment at that time.
On 29
March 1994 the applicant was evicted from that apartment, as he had
no tenancy. The goods in the apartment were entrusted to the keeping
of V.V., most of them being placed under a seal in one room. At the
latest on 7 December 2000 the O. company demanded that the
applicant take the goods removed from the apartment, as it had no
suitable place to keep them.
- On
17 March 1994 the applicant requested the court to oblige both O. and
R. companies, as State-representative companies responsible for the
management of property belonging to the State, to sell him Apartment
18.
- On
11 May 1998 the Bucharest Court of First Instance allowed the
applicant's action, considering that he had inherited his mother's
right to buy that apartment, and ordered the two companies to
conclude a sale contract with the applicant for Apartment 18.
- On
30 September 1999 the Bucharest Court of Appeal, by a final decision,
dismissed as groundless an appeal by the two companies, which sought
to declare the apartment governed by Law no. 112/1995, not by
Decree-law no. 61/1990 and Law no. 85/1992.
- Although
there had been judicial recognition of the authorities' obligation to
sell Apartment 18 to the applicant, the latter was not able to buy
it, being informed that on 27 January 1997 the former had sold the
apartment to V.V., the then tenant, under Law no. 112/1995.
- On
12 February 2001 the applicant requested the court to find the sale
of Apartment 18 null and void and to oblige the authorities to
perform the sale as provided by the judgment of 30 September 1999.
On 5
February 2003 the Bucharest Court of Appeal, by a final decision,
dismissed the action, considering that the property was governed by
Law no. 112/1995, not by Decree-law no. 61/1990 and Law no.
85/1992, and that V.V. had made the purchase in good faith.
- On
27 February 2002 the applicant lodged a criminal complaint against
the two managers of the O. company for damaging his personal interest
in the course of their duties as civil servants and for giving false
information for inclusion in a document. On 5 November 2003 the
public prosecutor decided not to initiate criminal proceedings
because of the prescription of criminal liability. However, the
prosecutor considered that the constitutive elements of both criminal
offences had been met because, on the one hand, the apartment had
been sold despite being the object of pending proceedings and before
a final decision on the matter and, on the other hand, the two
representatives had been in bad faith when they had signed the sale
contract with V.V.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law which is pertinent to the
present case can be found in Suciu v. Romania (dec.) (no.
49009/99, 9 September 2003); Străin and Others v.
Romania (no. 57001/00, §§ 20-22, ECHR
2005 VII); and Păduraru v. Romania (no. 63252/00,
§§ 38-39 and 49-53, 1 December 2005).
- Article
16 of Decree-law no. 61/1990 provides that the sale and purchase
agreement and the official record authorising the purchaser to take
possession of a dwelling confirm the right of property over the
dwellings purchased under the present decree-law and constitute
ownership title.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant alleged that the sale by the State of Apartment 18 to a
third party 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government raised an objection of incompatibility ratione materiae
in respect of this complaint. They considered that the applicant had
neither a “possession” within the meaning of the
Convention, nor a legitimate expectation because he had not had the
benefit of either a legislative provision or of an irrevocable
decision recognising his right of property. The judgment of 11 May
1998 represented a conditional claim, depending on the payment of the
price. The applicant was “merely a claimant” (see Pentia
and Pentia v. Romania (dec.), no. 57539/00, 23 March 2006),
the present matter being different from that in the cases of Străin
and Others v. Romania (cited above, § 38); Păduraru
v. Romania (cited above) and Porteanu v. Romania
(no. 4596/03, § 33, 16 February 2006).
- The
applicant contested that argument.
- The
Court reiterates that an applicant can allege a violation of Article
1 of Protocol No. 1 only in so far as the impugned decisions related
to his “possessions” within the meaning of this
provision. According to the established case-law of the Convention
organs, “possessions” can be “existing possessions”
or assets, including claims, in respect of which the applicant can
argue that he has at least a “legitimate expectation” of
obtaining effective enjoyment of a property right. By way of
contrast, the hope of recognition of the survival of an old property
right which it has long been impossible to exercise effectively
cannot be considered as a “possession” within the meaning
of Article 1 of Protocol No. 1, nor can a conditional claim which
lapses as a result of the non-fulfilment of the condition (see Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98,
§§ 82 and 83, ECHR 2001 VIII).
- However,
in certain circumstances, a “legitimate expectation” of
obtaining an “asset” may also enjoy the protection of
Article 1 of Protocol No. 1. Thus, where a proprietary interest
is in the nature of a claim, the person in whom it is vested may be
regarded as having a “legitimate expectation” if there is
a sufficient basis for the interest in national law, for example
where there is settled case-law of the domestic courts confirming its
existence (Kopecký v. Slovakia [GC], no. 44912/98, §
52, ECHR 2004 IX).
- In the present case the Court notes that the applicant
brought an action to oblige two State-representative companies
responsible for the management of property belonging to the State to
sell him Apartment 18. In its final decision of 30 September 1999 the
Bucharest Court of Appeal established the applicant's right to buy
that apartment and ordered the authorities to conclude the sale
contract, in accordance with the provisions of Decree-law no. 61/1990
and Law no. 85/1992.
- It
is true that the right of property would only come into being when
the price of the apartment was paid by the applicant. Nevertheless,
when he brought his action to be authorised to buy the apartment, the
applicant was entitled to expect that it would be examined under the
applicable legislation if he satisfied the other relevant substantive
and procedural conditions. When the courts established the legal
obligation of the authorities to sell that apartment, the applicant
clearly expected to be able to buy it and thus to acquire a right of
property, as provided under Romanian legislation (see, mutatis
mutandis, Stretch v. the United Kingdom, no.
44277/98, § 34, 24 June 2003). However, he was not able to
carry out the purchase, as the authorities had sold the apartment to
V.V. during the trial.
- The
Court considers, in the circumstances of this case, that the
applicant must be regarded as having at least a legitimate
expectation to perform the purchase. Indeed, the sale did not occur
because of an act of the authorities, not because of any failure by
the applicant to satisfy the legal requirements related to his
entitlement to perform the purchase (see, per a contrario,
Öneryıldız v. Turkey [GC], no. 48939/99, §
126, ECHR 2004 XII). It therefore dismisses the Government's
objection.
- 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 considered that the courts' refusal to declare null and
void the sale to a third party had not represented an interference
with the applicant's right. Were the Court to hold that there had
been interference, the Government submitted that it had been provided
for by law and proportionate to its aim. The sale to the third party
was legally performed, in accordance with Law no. 112/1995 and with
his valid title to property.
- The
applicant disagreed. In particular, he referred to the public
prosecutor's finding that the sale to V.V. had been performed in bad
faith.
- The
Court considers, unlike the Government, that the matter in the
present case is similar to a certain extent to its settled case-law
concerning properties unlawfully nationalised by the communist regime
and sold to tenants (see Străin and Others and
Păduraru, cited above), where the applicants were the owners
of the possessions thus sold. Thus, it notes that the final judgment
of 30 September 1999 of the Bucharest Court of Appeal acknowledged
the applicant's legal right to buy – and thus to obtain a right
of property – the apartment used by his mother and by himself
since 1984. The Court considers that the finding, in a final decision
which has not been quashed or challenged to date, that the applicant
had a right provided under Romanian law to acquire that property, had
the effect of recognising, indirectly and with retrospective effect,
that the applicant had a substantial interest to the apartment in
question. That finding was irrevocable (see, mutatis mutandis,
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 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).
- The
Court considers that this principle may be applied mutatis
mutandis in the present case. The national authorities also
acknowledged that, as it was the object of pending proceedings, the
sale of the apartment should had not been performed before a final
decision as to who could claim a right over it (see paragraph 13
above).
- 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 to a third party of the apartment which it was
obliged by a court final decision to sell to the applicant still
prevents the latter from enjoying his proprietary right 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 nine years, in the absence of any
compensation.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the deprivation of the applicant's possession,
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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
his trial had been unfair, that the domestic courts had failed to
assess the facts correctly and had misinterpreted the domestic law,
and about the outcome of the proceedings. He also complained, without
relying on any Article, that all the goods which were in the
apartment when he was evicted in 1994 had been deposited by the
State-representative company in unsuitable places, which had caused
deterioration and disappearance of the valuable goods.
- 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 complaint is manifestly ill-founded and must be
rejected in accordance with 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 sought Apartment 18 to be sold to him, evaluating it at
65,000 euros (EUR). He also claimed non-pecuniary damage, asking the
Court to determine the amount.
- The Government submitted that the applicant had not
claimed any amount in respect of pecuniary or non-pecuniary damage.
Having regard to their own expert report based on a theoretical
assessment of the value, they considered that the market value of the
apartment was EUR 45,135. Further, they considered that an eventual
finding of a violation would constitute in itself sufficient just
satisfaction for any non-pecuniary damage 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).
- In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll v. Portugal [GC], no.
35382/97, § 29, ECHR 2000 IV).
- The
Court considers, in the circumstances of the case, that the
performance of the sale of the property in issue (Apartment 18
situated in Bucharest, Valea Călugărească
Street no. 2), as ordered in the judgment of 11 May 1998 of the
Bucharest Court of First Instance, which became final, 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 1
of Protocol No. 1.
- Failing
such performance by the respondent State, the Court holds that the
respondent State is to offer the applicant the sale of an apartment
of equivalent surface and value, or if the applicant does not find
the offer acceptable, a sum of compensation for loss of opportunity
of EUR 10,000.
- The
Court considers that the serious interference with the applicant's
right to the peaceful enjoyment of his possessions 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 him EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed reimbursement of the costs and expenses he had
incurred in the proceedings in the national courts, without
quantifying them or submitting any supporting documents. He left it
to the Court's discretion to determine the amount to be awarded under
this head.
- The
Government considered that the applicant had not made a claim in this
respect.
- 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.
- In
the instant case, the Court observes that the applicant has not
substantiated his claim in any way, as he has neither quantified his
costs nor submitted any supporting documents. Accordingly, the Court
does not award any sum under this head (see Cumpǎnǎ and
Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134,
ECHR 2004 XI).
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 Article 1 of
Protocol No. 1 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
(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 performance of the sale to the applicant of Apartment 18 situated
in Bucharest, Valea Călugărească
Street no. 2, as ordered in the judgment of 11 May 1998 of the
Bucharest Court of First Instance;
(b) that,
failing such performance, the respondent State is to offer the
applicant, within the same three months, the sale of an apartment of
equivalent surface and value, or if the applicant does not find the
offer acceptable, a sum of compensation for loss of opportunity of
EUR 10,000 (ten thousand euros), plus any tax that may be
chargeable;
(c) that,
in any event, the respondent State is to pay the applicant, within
the same three months, the amount of EUR 4,000 (four thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(d) that
the aforementioned amounts shall be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(e) 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 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
