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THIRD
SECTION
CASE OF GRIGORAŞ v.
ROMANIA
(Application
no. 19188/03)
JUDGMENT
STRASBOURG
7 October
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 Grigoraş
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,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19188/03) 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, Mr Tiberiu
Cristian Grigoraş and Ms Anca Grigoraş
(“the applicants”), on 26 May 2003.
- The
applicants were represented by Mr Bogdan-Nicolae Bulai and
Ms
Daniela-Anca Deteşeanu, two lawyers
practising in Bucharest. 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
applicants were born in 1956 and live in Bad Neuenahr.
- On
28 September 1989 Apartment 14, 108 Turda Street, Bucharest, the
applicants' property, was seized by the State under Decree no.
223/1974, with payment of compensation, following their decision to
leave the country. In appears from the file that the applicants
received
131,538 Romanian Lei in compensation.
- On
14 November 1996 the R.V. company, a State-owned company responsible
for the management of property belonging to the State, sold the flat
to the then tenants, under Law no. 112/1995.
- On
29 November 1996 the Bucharest Regional Court, by a final decision,
allowed an action by the applicants, annulled the seizure as being
unlawful and ordered restitutio in integrum.
- On
5 September 1997 the Bucharest Town Council ordered
restitutio
in integrum of the apartment and on 15 September 1997 informed
the R.V. company of this.
- On
14 May 2001 the Bucharest Court of Appeal, by a final decision,
dismissed the action lodged by the Town Council and joined by the
applicants against both the R.V. company and the former tenants of
the apartment, to have the sale declared null and void. The court
considered that the sale had complied with the provisions of Law no.
112/1995 and had been made in good faith. It also stated that the
applicants would receive compensation under Law no. 10/2001.
- On
25 July and 14 November 2001 the applicants claimed restitution in
kind of the apartment under the Law no. 10/2001 governing immovable
property wrongfully seized by the State. So far they have not
received any answer.
- On
27 February 2003 the Supreme Court of Justice dismissed an
application (recurs în
anulare) by the Procurator-General, acting at the instance of the
applicants, to have the judgment of 14 May 2001 quashed on the
grounds that it was contrary to the provisions of Article 1 of
Protocol No. 1 of the Convention and to the principle of legal
certainty. The court considered that the sale had been made in good
faith and observed that the principle of legal certainty had not been
infringed, as the sale had preceded the final judgment which ordered
restitutio in integrum and, moreover, the former tenants had
not been parties in that set of proceedings, therefore the final
judgment was not opposable by them.
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, 1 December 2005); 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 Apartment 14 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.”
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
Government reiterated their arguments previously submitted in similar
cases. In particular, they considered that the applicants had already
received a considerable amount of money in compensation at the time
of nationalisation, namely the equivalent of 8,815 United States
Dollars (USD).
- The
applicants disagreed. They also submitted that the compensation
received was not just and fair.
- The
Court reiterates that, according to its jurisprudence, the sale of
another's possessions by the State, even before the question of the
ownership had been finally settled by the courts, will be deemed to
be 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 possession and notes that it has continued
for more than twelve years, in the absence of compensation reflecting
the commercial value of their possession (see, mutatis mutandis,
Konnerth v. Romania, no. 21118/02,
§ 76 in
fine, 12 October 2006). In that regard, the Court notes that the
applicants received the equivalent of USD 8,815 at the time of
nationalisation.
- The
Court also reiterates 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, 55-56; Porteanu
v. Romania, 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 had been 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 lack of compensation reflecting the commercial
value of their possession, 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 claimed that the non-execution of the final decision of 29
November 1996 given by the Bucharest Regional Court had deprived them
of the right to a fair trial. 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 [a]
... 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 above (17-20), the Court
considers that it is not necessary to examine whether, in this case,
there has been a violation of Article 6 § 1 (see Pais v.
Romania, no. 4738/04, § 39, 21 December 2006, and,
mutatis mutandis, Zanghì v. Italy, judgment
of 19 February 1991, Series A no. 194-C, p. 47, § 23;
Laino v. Italy [GC], no. 33158/96, § 25,
ECHR 1999 I, and Canea Catholic Church v. Greece,
judgment of 16 December 1997, Reports of Judgments and Decisions
1997 VIII, § 50).
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
applicants sought restitution of Apartment 14, as the most
appropriate manner for the State to provide redress. Should
restitution not be granted, they claimed a sum equivalent to the
current value of their property which, according to the expert report
they submitted to the Court, amounted to 62,500 euros (EUR). They
also claimed EUR 7,000 in respect of non-pecuniary damage.
- The Government considered, in accordance with their
own expert report, that the market value of Apartment 14 was EUR
35,896. Further, they considered that the finding of a violation
could constitute in itself sufficient just satisfaction for any
non-pecuniary damage which the applicants may have suffered. In any
event, they considered that the amount claimed in this respect 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).
- The
Court considers, in the circumstances of the case, that the return of
the property in issue (Apartment 14), as ordered by the final
decision of 29 November 1996 of the Bucharest Regional Court, would
put the applicants as far as possible in a situation equivalent to
the one in which they would have been if there had not been a breach
of Article 1 of Protocol No. 1.
- Failing
such restitution by the respondent State, the Court holds that the
respondent State is to pay the applicants, in respect of pecuniary
damage, an amount which takes into account the current value of the
property and the compensation that the applicants have already
received (see paragraph 5 above). Having regard to the information at
its disposal concerning real estate prices on the local market, to
the expert reports submitted by the parties and to the amount of
money that the applicants received at the time of nationalisation,
the Court awards them EUR 36,000 in respect of pecuniary damage.
- The
Court considers that the serious interference with the applicants'
right to the peaceful enjoyment of their 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 them jointly EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 9,438 for costs and expenses incurred
before the domestic courts and before this Court, broken down as
follows: EUR 3,000 for lawyers' fees in the proceedings before the
Court, EUR 3,639.15 for travel from Germany to Romania during
proceedings, EUR 144 for the expert report, and the rest, detailed in
a table, for sundry expenses (lawyer's fees in internal proceedings,
notary's fees, stamp duties, translations). They submitted invoices
for lawyers' fees, for expert's fees, stamp duties and travel.
- The
Government contested the applicants' claims and considered they were
excessive.
- 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 2,500 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
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 return to the applicants Apartment 14,
108 Turda Street, Bucharest, within three months from the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention;
(b) that,
failing such restitution, the respondent State is to pay jointly to
the applicants, within the same three months, the amount of
EUR 36,000 (thirty-six thousand euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(c) that,
in any event, the respondent State is to pay jointly to the
applicants, within the same three months, the amounts of EUR 4,000
(four thousand euros) in respect of non-pecuniary damage and
EUR 2,500 (two thousand five hundred euros) in respect of costs
and expenses, plus any tax that may be chargeable;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
