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THIRD
SECTION
CASE OF TUDOR TUDOR v. ROMANIA
(Application
no. 21911/03)
JUDGMENT
STRASBOURG
24 March
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 Tudor Tudor 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 Stanley Naismith,
Deputy
Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21911/03) 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 Tudor (“the
applicant”), on 26 June 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr Florian Andreescu, a lawyer practising in Bucharest. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu, of the
Ministry of Foreign Affairs.
- On
10 April 2006 the Court decided to give notice of the application to
the Government, under Articles 6 of the Convention and 1 of
Protocol No. 1 to the Convention taken alone or together with
Article 14. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
- On
17 June 2008 the Chamber decided to ask the parties additional
questions concerning the effectiveness of remedies in respect of the
complaint raised under Article 1 of Protocol No. 1 to the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Bucharest.
- From
1973 he lived in an apartment rented from the State in a nationalised
building. On 13 January 1997, under Law no. 112/1995 on the legal
status of certain residential property, the applicant bought that
apartment from the State.
- In
a final decision of 23 May 1997 the Bucharest District Court allowed
an action (acţiunea în revendicare) brought by the
former owner against the State for recovery of possession of the
building where the applicant's apartment was situated.
- Based
on that decision, the former owner lodged several actions for
recovery of possession against the persons who had bought apartments
in the building in similar conditions, including the applicant.
- In
a final decision of 28 January 2003 the Bucharest Court of Appeal
ordered the applicant to surrender possession of the apartment to the
plaintiff. The court found that the former owner's property title
deed, as it had been confirmed by the final decision of 23 May 1997,
prevailed over the applicant's purchase contract. It also considered
that the applicant's bona fides in concluding the 13 January
1997 contract was relevant only in the event that the applicant
lodged an action for compensation against the State.
- Meanwhile,
the same Court of Appeal did take into account the buyers' good faith
in dismissing actions lodged by the former owner against other
persons who had bought apartments in the same building. Thus, on
28 November 2002 the Court of Appeal dismissed the action
against T.I. and T.A., who had bought their apartment on 12 December
1996; on 7 February 2003 it dismissed the action against I.E.
and M.S. and on 20 June 2003 it dismissed the action against
C.D., who had bought his apartment on 27 March 1997.
- On
6 April 2006 the High Court of Cassation and Justice, acting on
an application by the Procurator General (recurs în
anulare), quashed the final decision of 28 November 2002 and sent
the case back to the first instance court. According to the
information available to the Court, the proceedings are still pending
with the domestic courts.
On 9
February 2006 the High Court allowed a similar application by the
Procurator General and set aside the 20 June 2003 decision, thereby
allowing the former owner's action against C.D.
A
similar action by the Procurator General, lodged against the
7
February 2003 decision mentioned above, was allowed by the High Court
on 14 February 2007. The case was sent back to the Bucharest
County Court for re-examination of the appeal. The proceedings are
still pending with that court.
- As
to the applicant, eviction proceedings lodged by the former owner
against him are currently pending with the domestic courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Action for recovery of possession (acţiunea
în revendicare)
- Under
Romanian law, an action for recovery of possession is one of the
principal remedies for the protection of a right of property. Such
action is not governed by statute per se but has emerged from
case-law. An action for recovery of possession can be defined as the
bringing of proceedings to enforce a right in rem in which a
dispossessed owner claims back his or her property from the person
currently in possession of it. When both the plaintiff and the
defendant have a title deed, the court must compare the two deeds
and decide which one is preferred. The main outcome of such an
action, if successful, is the acknowledgment by the court of the
claimant's title to the property, with retrospective effect, thus
obliging the defendant to return the property. If physical
restitution is no longer possible, that obligation is replaced by an
obligation to pay compensation on the basis of an equivalent sum (see
Străin and Others v. Romania, no. 57001/00, § 26,
ECHR 2005 VII).
B. Action for compensation provided for in the Civil
Code: responsibility for eviction (garanţia pentru evicţiune)
- Articles
1337-1351 of the Civil Code institute the seller's responsibility for
eviction. They provide for the evicted buyer to claim reimbursement
of the price and also the payment of costs and damages, regardless of
the seller's good or bad faith. The buyer can either join the seller
to the proceedings instituted against him by the third party or lodge
a new action against the seller after having been evicted. In the
latter case, if the seller proves that he could have won the case
against the third party had he been joined to the proceedings, he
will be exempted from compensating the buyer (Article 1351 of
the Civil Code).
A
bona fide buyer continues to enjoy the benefits of the
property until he is no longer considered bona fide, that is
at the latest when the action for eviction is lodged against him, at
which time enjoyment of the property reverts to the rightful owner.
However, the buyer may still claim compensation for his loss from the
seller.
C. Actions for compensation available under Law no.
10/2001
- At
the date of the facts of the present case, Article 51 of
Law no. 10/2001 on the rules governing immovable property
wrongfully seized by the State between 6 March 1945 and 22 December
1989, as amended by the Government's Emergency Ordinance no. 184
of 12 December 2002 (“Law no. 10/2001”),
prescribed that an action for recovery of the purchase price, indexed
to take account of inflation, brought against the State by a buyer
whose contract had been declared null and void, was not subject to
court fees. It also provided that the indexed price was to be paid by
the Ministry of Finance from a special fund.
D. Case-law on compensation
- At
the Court's request, the Government submitted case-law on the
different actions for compensation when property is lost in
conditions similar to those of the case at hand.
- Of
the seventeen relevant decisions adopted between 2005 and 2008 by
courts all over the country, nine concerned actions lodged against
the State authorities by persons who lost their property in actions
for recovery of possession. The courts applied the Civil Code and
awarded them the indexed purchase price and, in most of the cases,
damages and the costs reasonably incurred for the upkeep of the
house. Most of the courts considered that Law no. 10/2001 was
not applicable to actions for recovery of possession when the sale
contract was not declared null and void in such proceedings.
- When
such contracts are cancelled, however, the decisions submitted to the
Court indicate that the courts consistently apply Law no. 10/2001 and
award the buyer the indexed purchase price.
E. Recent developments favourable to the tenants
- In
a decision no. 520/C of 3 December 2007 the Constanţa Court of
Appeal found in favour of the buyer in an action for recovery of
possession lodged by the former owner of a nationalised apartment
against the person who in good faith had bought the apartment from
the State in 2000. The court decided that the restitution of the
apartment to the former owner was no longer possible and, based on
the Court's case-law on Article 1 of Protocol No. 1 (in
particular: Pincová and Pinc v. the Czech Republic,
no. 36548/97, ECHR 2002 VIII; Raicu v. Romania,
no. 28104/03, 19 October 2006 and Păduraru v.
Romania, no. 63252/00, ECHR 2005 XII (extracts)), it
compelled the State to pay the market value of the apartment in
compensation to the former owner. In the court's view, although the
plaintiff had not asked for compensation, in the circumstances of the
case the monetary award was the only solution to the action for
recovery of possession.
- In
a similar decision of 12 December 2007 the High Court of Cassation
and Justice found in favour of the buyer in an action for recovery of
possession lodged by the former owner. The High Court took account of
the fact that the buyer's title had been confirmed by the courts in
an action in nullity of the sale contract lodged against him by the
former owner whereas the former owner's title had not been upheld by
a court. It further considered that dispossessing the buyer
regardless of the circumstances, in order to surrender the property
to the former owner, would create disproportionate new wrongs in the
attempt to attenuate old injuries. It also considered, in a general
statement, that the reimbursement of the indexed purchase price under
Law no. 10/2001 could not compensate the buyer as it did not reflect
the property's market value.
- In
a decision no. 1055 of 9 October 2008 the Constitutional Court
declared Article 47 of Law no. 10/2001 unconstitutional in so far as
it breached the buyer's property title. Under the provision
concerned, persons whose actions based on the Civil Code had been
dismissed before the entry into force of Law no. 10/2001 could use
this Law in order once again to seek the restitution of their
property. The Constitutional Court considered that persons whose
title to property had been confirmed by a court decision could not be
compelled to surrender that property where there was no serious
justification for such a measure, based on public order, under
Article 44 § 3 of the Constitution.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
- The
applicant complained under Article 6 § 1 taken alone and in
conjunction with Article 14 of the Convention that the proceedings
giving rise to the final decision of 28 January 2003 were unfair, in
particular in so far as the same Court of Appeal adopted conflicting
decisions in identical cases brought against other buyers of
apartments situated in the same building.
Article
6 § 1 reads as follows in so far as relevant:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
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
1. The parties' submissions
- The
Government submitted that the proceedings had been fair and that the
courts that had dealt with the applicant's case had given a well
reasoned decision. In their view, the mere fact that the courts had
reached opposing decisions in similar cases did not trigger a
violation of the Convention. They pointed out that the controversial
issue in these cases was the interpretation given by the courts to
the notion of “good faith”, but that the conflicting
decisions were justified by a different interpretation of the
relevant facts in each case.
- The
applicant disagreed with the Government's position and reiterated
that the Court of Appeal had reached opposing decisions in identical
cases.
2. The Court's assessment
- The
Court considers that while the Convention does not impose an
obligation on States to restore confiscated assets, let alone to
dispose of them in accordance with the elements of the right of
property, once a solution has been adopted by a State, it must be
implemented with reasonable clarity and coherence in order to avoid,
in so far as possible, uncertainty and ambiguity for the persons
concerned by the measures to implement it. In that context, it should
be stressed that uncertainty – be it legislative,
administrative or arising from practices applied by the authorities –
is an important factor to be taken into account in assessing the
State's conduct (see Broniowski v. Poland [GC], no. 31443/96,
§ 151, ECHR 2004 V; Păduraru, cited above, §
92 and Beian v. Romania
(no. 1), no.
30658/05, § 33, ECHR 2007 ... (extracts)).
- The
Court notes that, in the particular context of the restitution of
nationalised properties in Romania, the lack of legislative coherence
and the conflicting case-law on the interpretation of certain aspects
of the restitution laws created a general climate of lack of legal
certainty (see Păduraru, §§ 99, 109, cited
above).
- The
same uncertainty appeared in the instant case: the same Court of
Appeal gave opposing interpretations of the relevance of the buyers'
good faith in concluding sale contracts with the State (see
paragraphs 9-11 above).
- While
certain divergences in interpretation could be an inherent
consequence of any judicial system which, like the Romanian one, is
based on a network of trial and appeal courts with authority over the
area of their territorial jurisdiction, the Court notes that in the
case at hand the conflicting interpretations stemmed from the same
jurisdiction which, in addition, was the court of last resort in the
matter. Moreover, no effective mechanism was available for the
Supreme Court to resolve conflicts between decisions of the lower
courts (see Păduraru, §§ 99 and 109, and
Beian, § 37, cited above, and, mutatis mutandis,
Schwarzkopf and Taussik v. the Czech Republic (dec.), no.
42162/02, 2 December 2008). In the instant case, when assessing the
Procurator General's application (see paragraph 11 above) the High
Court of Cassation and Justice was not called to settle conflicting
interpretation but rather to examine particular applications of the
law in individual cases; in addition, its intervention in the case
was only possible by means of an extraordinary appeal that
contradicts in itself the principle of the legal certainty (see
Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR
1999 VII; SC Maşinexportimport Industrial Group SA v.
Romania, no. 22687/03, § 36, 1 December 2005).
- Lastly,
the Court observes that seven years after the adoption of Law no.
10/2001, the interpretation of essential aspects of the restitution
law is still changing at the first-instance level, through individual
decisions (see paragraphs 19-21 above), and there is still no
definitive settlement of the interpretation given by the courts to
various aspects of the restitution laws.
While
it does not contest the domestic courts' power to change their
practice, the Court notes that, in the particular context of
restitution in Romania, this new trend in interpretation favourable
to former tenants could prove to be nothing more than another
temporary change in the case-law.
- The
Court considers that, in the absence of a mechanism which ensures
consistency in the practice of the national courts, such profound and
long-standing differences in approach in the case-law, concerning a
matter of considerable importance to society, are such as to create
continual uncertainty (see, mutatis mutandis, Păduraru,
cited above, § 98).
- In
the case at hand this uncertainty deprived the applicant of a fair
trial before the Court of Appeal.
There
has consequently been a violation of Article 6 § 1 on this
account.
- Having
regard to this finding of a violation, the Court considers that it is
not necessary to examine whether, in this case, there has also been a
violation of Article 14 taken together with Article 6 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
- The
applicant complained that the fact that the domestic courts had
preferred the former owner's property title deed to his own made it
impossible for him at present to exercise his property rights over
the apartment, in violation of Article 1 of Protocol No. 1 to the
Convention. He also complained of discrimination, under Article 14
taken together with Article 1 of Protocol No. 1, in so far as the
same Court of Appeal adopted contrasting decisions in identical cases
brought against the buyers of apartments situated in the same
building.
Article 1 of Protocol No. 1 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. The parties' submissions
- In
their submissions of 13 August 2008, the Government contended that
the applicant had not exhausted the domestic remedies, in so far as
he had not lodged an action for responsibility for eviction against
the State authorities under the Civil Code. This action would have
allowed him to recover from the State the indexed purchase price and
damages.
- The
applicant averred that there had been no need for him to join the
State in the proceedings lodged against him, in so far as the court
of first instance and the appeal court had found in his favour. He
also considered that as the interference with his property rights had
been caused by the 28 January 2003 decision, if he had lodged a
new action against the State he would have missed the six-month
time-limit provided for in Article 35 § 1 of the
Convention.
B. The Court's assessment
- The
Court recalls that under Article 35 normal recourse should be had by
an applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports of Judgments and Decisions
1996 IV).
- In
the present case, the domestic courts compared the title deeds
presented by the applicant and the former owner and decided to give
preference to the former owner's deed. In so doing the Court of
Appeal did not set aside or declare null and void the applicant's
title deed, nor did it award him any compensation for his loss.
However,
the applicant, who can no longer validly use his title deed, may seek
compensation from the seller, under the Civil Code, for eviction,
either by joining the State in the proceedings lodged against him or
by lodging a separate action to that end. The case law submitted
by the Government indicates a consistent domestic practice of
awarding damages in cases similar to the present one. The remedy is
therefore available both in theory and in practice.
- It
remains to be determined whether the amount of compensation that can
be awarded by the national courts is sufficient to afford redress in
respect of the breaches alleged. In this context, the Court notes
that the case at hand stems from the application of the laws on the
restitution of nationalised properties. While acknowledging the
particularly difficult context of compensation for property
nationalised during the communist regime, the Court has expressed the
view that it is necessary to ensure that the attenuation of those old
injuries does not create disproportionate new wrongs (see Pincová
and Pinc, cited above, § 58, and Velikovi and Others
v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99,
51362/99, 53367/99, 60036/00, 73465/01 and 194/02, §§ 178 179,
15 March 2007).
- The
case-law provided by the Government indicates that persons in the
applicant's situation would have been awarded at least the indexed
purchase price, and possibly damages up to the property's current
market value, as well as the reimbursement of any costs reasonably
incurred for the upkeep of the house.
- Although
the Court cannot speculate in this case what the outcome of the
proceedings for compensation would have been should the applicant
have chosen to use them, it notes that the awards made by the
domestic courts in similar situations are significantly higher than
those in the case of Pincová and Pinc, where the Court
found a violation of Article 1 of Protocol No. 1 in so far as the
applicants, who were in a similar situation to that of the applicant
in the instant case, were only granted the purchase price as
compensation for the lost property (see Pincová and Pinc,
cited above, §§ 61-64; see also Velikovi and
Others, cited above, §§ 140-141, and Kalinova
v. Bulgaria, no. 45116/98, § 76, 8 November 2007).
- Lastly,
although the restitution law does not provide for a specific action
against the State for persons in the applicant's situation (see,
mutatis mutandis, Velikovi and Others, § 127,
and Kalinova, § 77, cited above), the Court is satisfied
that this remedy, afforded by the Civil Code, is sufficient to
provide redress in the applicant's situation.
- The
applicant should thus have exhausted this remedy before lodging his
complaint with the Court.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
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 claimed 10,000 euros (EUR) in respect of pecuniary damage,
representing the value of his apartment, and EUR 5,000 in respect of
non-pecuniary damage.
- The
Government did not comment on these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 5,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 and 100,000,000 Romanian lei (RON)
for costs and expenses incurred before the domestic courts and before
the Court. He sent invoices for RON 1,059.95 representing translation
costs, and ROL (old Romanian lei) 9,000,000, RON 500 and EUR 1,500
for lawyers' fees.
- The
Government considered that the claims were unjustified and
exorbitant.
- 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 were
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 2,200 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 complaint concerning Article 6
taken alone and together with Article 14 admissible;
- Declares the complaint under Article 1 of
Protocol No. 1 to the Convention taken alone and in conjunction with
Article 14 inadmissible for non-exhaustion;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 14 together with Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into the respondent State's national currency
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; and
(ii) EUR
2,200 (two thousand two hundred euros) for costs and expenses, plus
any tax that may be chargeable to the applicant;
(b) 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 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
