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THIRD
SECTION
CASE OF HÎRGĂU
AND ARSINTE v. ROMANIA
(Application
no. 252/04)
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 Hîrgău
and Arsinte 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. 252/04) against Romania lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Romanian nationals, Mrs Maria Hîrgău and Mr
Radu Arsinte (“the applicants”), on 12 November 2003.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- On
10 January 2008 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 1940 and 1938 and live in Oniceni and Cornu
Luncii respectively.
1. Recovery of land
- On
11 October 1995 the Fălticeni Court of First Instance upheld an
action by the applicants and authorised them to recover in
co-ownership, as their mother's heirs, a plot of land measuring 0.26
hectares situated in Cornu Luncii village, in a place known as
Cotromanţi.
The
first page of that judgment states that it became final on 7 November
1995. That statement is accompanied by a signature and a stamp of the
Court of First Instance. According to the Government, the judgment
became final on 28 November 1996, when an appeal by G.M., a third
party intervening in the proceedings, was dismissed as groundless.
The Government did not submit either a copy of the alleged judgment
of 28 November 1996 or any other document making reference to
that judgment.
- On
21 November 1995 the authorities granted third parties title to a
plot of land measuring 0.15 hectares situated at Cotromanţi.
According to the Government, the land formed part of the plot of 0.26
hectares granted to the applicants by the judgment of 11 October
1995.
- On
20 August 1997 the third parties sold that land to G.M.
2. Attempts by the applicants to enforce the judgment
- On
6 May 1996 the applicants brought administrative proceedings against
the local commission in Cornu Luncii responsible for the application
of Law no. 18/1991 (“the local commission”), seeking to
take possession of the 0.26 hectares of land at Cotromanţi. On
21 November 1996 the Suceava County Court upheld the action and
ordered the local commission to enable them to take possession of the
land at Cotromanţi. That judgment became final.
- On
1 September 1997 the applicants brought proceedings against G.M.
seeking annulment of the sale of 20 August 1997. On 13 December 2002
the Suceava Court of Appeal dismissed the action in a final decision,
taking the view that G.M. had acted in good faith.
- Between
1997 and 2003, according to the applicants, they lodged several
criminal complaints against the mayor alleging abuse of authority and
non-compliance with court decisions. The public prosecutor found no
grounds which would justify initiating a criminal action against the
mayor. On 25 November 1998 and 26 June 2001 these decisions were
upheld by the senior prosecutor.
- On
14 July 1998 the Court of First Instance, in an enforceable decision,
upheld an action by the applicants and ordered the local commission
to enable them to take possession of the 0.26 hectares of land at
Cotromanţi. It ordered the mayor, in his capacity as chairman of
the local commission, to pay the applicants a pecuniary penalty of
3,000 Romanian lei (ROL) for each day's delay in enforcement.
- On
8 January 2001 the County Court, by an enforceable decision,
increased the amount of the daily pecuniary penalty to ROL 150,000 at
the applicants' request, considering the mayor to be acting in bad
faith and ignoring the law.
- On
14 September 2001 the County Court, by an enforceable decision,
allowed an action by the applicants and attached the accounts of the
Cornu Luncii Town Council with the Fălticeni Treasury up to an
amount of ROL 77,700,000 and, for the future, up to ROL 150,000 per
day.
- On
3 April 2003 the applicants lodged an action seeking, inter alia,
to have the title of the third parties who had sold the land to G.M.
declared partially null and void, in respect of a surface area of
0.13 hectares.
On 14
September 2006 the Court of Appeal, by a final decision, allowed the
action taking the view, inter alia, that the land had belonged
to the applicants' mother and therefore had been illegally included
in the third parties' title.
- On
5 June 2003 the bailiff, at the applicants' request, asked the court
to authorise the seizure of up to ROL 172,750,000.
- On
19 December 2003 the County Court, by a final decision, dismissed the
request on the ground that the judgment of 8 January 2001 did not
represent an enforceable title because the coercive fine was of a
provisional nature and therefore it was only after enforcement of the
obligation to enable the applicants to take possession that the
actual amount of damage caused by the delay in enforcement could be
established.
- On
10 August 2006 the applicants brought proceedings to have the sale of
20 August 1997 declared partially null and void, in respect of
0.13 hectares of land, and to require G.M. to remove a fence
built on that land.
- On
4 January 2008 the Court of First Instance allowed the action, taking
the view that G.M. had acted in bad faith when he purchased the land.
That judgment became final on 27 May 2008.
3. Attempts by the authorities to enforce the judgment
- On
13 February 1998 the local commission invited the first applicant to
take possession of a plot of 0.26 hectares of land. She refused, as
the land was not situated in the original location.
- On
10 November 2003 the Town Council certified in an official record
that the first applicant had refused to take possession of 0.35
hectares of land at Cotromanţi, as that land was the subject
matter of court proceedings.
- According
to the Government, on 20 July 2006 the local commission made a fresh
attempt to enable the applicants to take possession, but was hindered
by G.M., who had title to part of the land.
- On
24 March 2008 the local commission invited the first applicant to its
headquarters with a view to enforcing the 1995 judgment. As the
judgment of 4 January 2008 had not become final at the time, the
parties agreed to adjourn enforcement until it had become final.
- On
14 August 2008 the Town Council certified in an official record that
the applicants had been able to take possession of, inter alia,
0.26 hectares of land at Cotromanţi. The applicants signed
the official record.
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. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicants complained that the non-enforcement of the judgment in
their favour had infringed their rights guaranteed by Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention, which, in so far as relevant, read 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 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 authorities had fulfilled their tasks
arising out of the obligation to enforce. The delay in enforcement
had been due to objective reasons, namely valid property titles
issued to third parties, as well as the conduct of the applicants,
who had not accepted either an alternative plot of land or even their
own land on 10 November 2003. They also considered that, while it was
true that the local commission had issued a property title to third
parties in respect of the disputed land, that title had been issued
before the 1995 judgment became final. The applicants had been
informed of the circumstances preventing them from taking possession;
knowing about the dispute over the land since 1995, it had been open
to them to facilitate the taking of possession by commencing at an
earlier date the proceedings they had brought in 2003 seeking to have
the third parties' title to the land declared null and void.
- In
their supplementary observations of 16 September 2008 the Government
submitted that on 14 August 2008 the applicants had been able to take
possession of their land; thus, the judgment of 11 October 1995,
which became final only on 28 November 1996, had been enforced.
Following the proposal of the local commission, the county commission
responsible for the application of Law no. 18/1991 would issue the
applicants with title to the land.
- The
applicants disagreed. In particular, they submitted that the judgment
of 11 October 1995 had become final on 7 November 1995, as proved by
the stamp of the Court of First Instance on its first page. Moreover,
the mayor had an obligation under Law no. 18/1991 not to assign
disputed land before a final judgment.
- The
Court notes that the judgment of 11 October 1995 authorised the
applicants to recover their property. It thus conferred on the
applicants a legitimate expectation of being able to take possession
of the land referred to in that judgment and of subsequently
obtaining title to the land, as provided by the internal legislation
(see the relevant domestic law in Drăculeţ, cited
above, § 29). Although on 14 August 2008 the applicants
were able to take possession of their land (see paragraph 23 above),
they have yet to receive a document of title to the land. Having
regard to the fact that the administrative proceedings are still
pending, the Court cannot accept the Government's argument that the
above-mentioned judgment has been enforced. In order for the
applicants to fully enjoy the prerogatives conferred by the ownership
of their land, they must have not only de facto possession,
but also a document of title certifying their ownership.
- 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 applicants, the judgment of 11 October 1995
remains unenforced to date. That judgment is nevertheless still
valid, no proceedings having been instituted under Romanian law to
have it varied 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 continuing situation of
non-enforcement may come to an end (see Sabin Popescu, cited
above, § 54).
- The
Court has previously held that an action seeking to have the
ownership titles issued to third parties declared null and void is a
separate matter from the non-enforcement issue and is not a remedy
capable of leading directly to enforcement of the judgment (see
Croitoriu v. Romania, no. 54400/00, § 22, 9
November 2004, and Sabin Popescu, cited above, §§ 56-60).
Having regard to its case-law on the subject (see Pântea
v. Romania, no. 5050/02, § 36, 15 June 2006),
the Court considers that, in the present case, the authorities failed
to inform the applicants by means of 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 judgment of 11 October 1995 was bound
to fail due to the fact that third parties had the title to the plot
of land in question.
- The
Court notes the divergence between the parties in the present case as
to the moment when the judgment of 11 October 1995 became final.
Notwithstanding the Government's failure to substantiate their
allegation, the Court reiterates that by transferring a part of the
disputed land to a third party when court proceedings are pending and
before the question of ownership had been finally settled by the
courts, the State deprived the applicants of any possibility of
recovering possession (see, mutatis mutandis, Străin
and Others v. Romania, no. 57001/00, §§ 39
and 43, ECHR 2005 VII). Even if the Government's allegations
were to be accepted, the Court is still deeply concerned about the
fact that the administrative authorities issued title for the benefit
of a third party before the legal status of the property had been
finally decided.
- The
Court considers that when two ownership titles co-exist in respect of
the same property, any attempt by the applicants to enjoy their
possession is bound to fail (see Ioan v. Romania, no.
31005/03, § 54, 1 July 2008). Therefore, it does not
consider it unreasonable that the applicants refused to take
possession of their land while a dispute as to its ownership was
pending.
- 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.
II. 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 enforcement of the judgment of 11 October 1995.
They also claimed 12,318 euros (EUR) for the loss of profit or any
benefit from their possession since 1995, representing the value of
the vegetables that could have been cultivated, and EUR 18,831.08 in
respect of non-pecuniary damage, representing the equivalent, from 11
October 1995 onwards, of the pecuniary penalty fixed by the judgment
of the Suceava County Court of 8 January 2001.
- The
Government noted that the applicants had already been able to take
possession of the 0.26-hectare plot of land at Cotromanţi.
Regarding the loss of profit, it had not been supported by documents.
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. The
coercive fine had the nature of a civil penalty, with the purpose of
guaranteeing performance of an obligation and not of granting
compensation; the applicants had the possibility of requesting the
court to convert it into damages for delayed enforcement.
- 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 judgment of 11 October
1995 would place 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 6 § 1 of the Convention and Article 1
of Protocol No. 1. In this connection, the Court observes that the
applicants have been enabled to take possession of their land and
that they have agreed to this course of action. Therefore it holds
that the respondent State is to provide the applicants with title in
respect of that land.
- Having
regard to the fact that the applicants have been enabled to take
possession of their land and that it has ordered restitutio in
integrum as reparation under Article 41 of the Convention, the
Court considers that the applicants have recovered the loss sustained
(damnum emergens) (see Sabin Popescu, cited
above, § 91).
- As
regards the amount of money alleged by the applicants for the loss of
profit or any benefit (lucrum cessans) from their possession
since 1995, the Court notes that the applicants did not submit any
supporting documents to substantiate their claim. In the absence of
any evidence, the Court will not speculate as to the loss of profit
or any benefit and, therefore, will not make an award under this head
(see Dragne and Others v. Romania (just satisfaction),
no. 78047/01, § 18, 16 November 2006).
- As
regards the amount alleged by the applicants as the equivalent of the
periodic pecuniary penalty, the Court reiterates that under Romanian
law a coercive fine is of a provisional nature and therefore cannot
be enforced in the absence of a new court decision establishing the
actual level of damage caused by the delay in enforcement (see
Gavrileanu v. Romania, no. 18037/02, § 66,
22 February 2007). In the present case, as the applicants have
not made full use of the judicial mechanism of the coercive fine, the
Court will not speculate as to its amount and, therefore, will not
make an award under this head.
- The
Court considers that the serious interference with the applicants'
right of access to a court and with the peaceful enjoyment of their
possessions has caused a moral prejudice to the applicants. Making an
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards them jointly EUR 5,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicants did not expressly claim costs and expenses, but submitted
invoices for payment of translation, fax and postal expenses to the
Court, in a total amount of ROL 1,184.
- The
Government pointed out that the applicants had not made an express
claim in this respect.
- Having
regard to the fact that the applicants submitted invoices for costs
and expenses incurred in the Strasbourg proceedings, the Court
considers that they did make, in substance, a claim in this respect.
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 320 for the
proceedings before the Court.
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 11 October 1995 of the Fălticeni
Court of First Instance by providing the applicants with a document
of title to their land;
(b) that
the respondent State is to pay the applicants jointly, 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
320 (three hundred and twenty euros), plus any tax that may be
chargeable to the applicants, 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 applicants' 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
