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THIRD
SECTION
CASE OF FORNA v. ROMANIA
(Application
no. 34999/03)
JUDGMENT
(merits)
STRASBOURG
5 May 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 Forna 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 7 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34999/03) 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, Mrs Norina Consuela Forna
(“the applicant”), on 18 September 2003.
- The
applicant was represented by Mr Gheorghe Şuhan,
a lawyer practising in Iaşi. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- On
5 March 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
applicant was born in 1961 and lives in Iaşi.
- On
21 December 2000 the county commission in Iaşi
for the application of Law no. 18/1991 (“the county
commission”) authorised the applicant, as inheritor of C.C., to
recover possession of 20.4 ha of land situated in Rediu and ordered
the local administrative authorities to enforce that decision.
- The
applicant’s submissions to the town council to execute that
decision were to no avail. The mayor’s refusal to prepare the
documentation pertaining to the acquisition of title prevented the
applicant from obtaining an ownership title.
- In
2001 the applicant brought proceedings against the Mayor of Rediu
village and against the local commission in Rediu responsible for the
application of Law no. 18/1991 seeking to have them ordered to
prepare the documentation pertaining to the acquisition of title. She
also claimed a daily pecuniary penalty until execution.
The
local authorities of Rediu village stated that it was impossible to
ensure the execution of the decision of the county commission on the
ground that third parties had been allowed to take possession of that
land. An expert’s report produced in the proceedings certified
that the surface of 20.4 ha had been allocated to thirty-four
persons.
- On
3 February 2003 the Iaşi Court of
First Instance allowed the action and ordered the Rediu local
commission to provide the applicant with the cadastral plan and with
the official record certifying that she had been able to take
possession of the 20.4 ha of land, as specified by the decision of
21 December 2000. It also ordered the Mayor of Rediu to pay the
applicant a pecuniary penalty of 300,000 Romanian lei for each day’s
delay in enforcement. The court dismissed the local authorities’
plea that it was impossible to execute that decision due to the fact
that the land had been attributed to third parties, considering that
the applicant could not be held responsible for what was the
authorities’ fault.
That
judgment became final on 26 May 2003.
- On
31 July 2003 the bailiff, at the applicant’s request and
following a meeting with the mayor in his capacity as the chairman of
the local commission, certified in an official record that the latter
had not executed the judgment of 3 February 2003. The bailiff
enjoined the mayor to enforce that judgment.
- On
1 July and 24 November 2005 the applicant requested the Iaşi
Prefecture to identify 20.4 ha of land in a location adjoining Rediu
village, as there was a lack of available land in Rediu. Eventually,
the applicant changed her request, claiming only 16 ha of land.
- The
State Property Authority (Agenţia
Domeniilor Statului) informed the county commission, at the
latter’s request, that it had identified an unoccupied plot of
land of 16 ha, with the cadastral identification T6, T8 and T9,
placed under the administration of the Agromixt company, a company
that used to be responsible for the management of property belonging
to the State.
- On
26 July 2006 the county commission upheld the request and varied the
decision of 21 December 2000, authorising the applicant to recover
possession of the 16 ha of land situated in Miroslava village, which
was under the administration of the Agromixt company. It further
stated that the provisions of the present decision were to be carried
out by the local commission in Miroslava responsible for the
application of property laws.
- The
Miroslava local commission and the Mayor of Miroslava brought
proceedings for the annulment of that decision on the ground, inter
alia, of an existing final decision ordering the Rediu local
commission to allow the applicant to take possession of land and of
the fact that the issuing authority, namely the county commission,
may not itself annul a previous decision.
The
county commission submitted that by the contested decision it had
offered the Miroslava local commission land in a location that was
vacant from a judicial point of view, with the aim of proceeding to
the enforcement of the judgment of 3 February 2003. It also submitted
that the proposed plot of 16 ha of land had been offered from the
reserve of the State Property Authority, and not from that of the
Miroslava local commission. As provided by Law no. 268/2001 regarding
the privatisation of the companies having under their administration
lands from the private and public property of the State, that land
was to be transmitted, at the request of the county commission and on
the basis of a protocol, to the local commission.
On 18
May 2007 the Iaşi County Court, by a
final decision, dismissed the request of the Miroslava local
authorities.
- According
to the applicant, P.R.V., the then Prefect of Iaşi
and head of the county commission, and I.F., the then head of the
State Property Authority in Iaşi,
claimed from her 3 ha of land out of the area of 16 ha as a
“condition” of enforcement of the administrative decision
of 26 July 2006. Following a complaint lodged by the applicant and
her husband with the Anti-Corruption General Directorate within the
Ministry of Administration and Interior and with the National
Anti-Corruption Directorate within the General Prosecutor’s
Office attached to the High Court of Cassation and Justice, the two
officials and two other persons were first arrested for a thirty-day
period and then committed for trial for corruption. The criminal
proceedings are pending.
- On
23 August 2007 and 7 March 2008 the applicant requested the county
commission and the Miroslava local commission to enforce the
administrative decision of 26 July 2006.
An
exchange of official letters also took place between the Mayor of
Miroslava and the State Property Authority in Iaşi
with regard to the enforcement of that decision. The Mayor of
Miroslava informed the Authority that in reality the location of the
16 ha plot of land, with the cadastral identification T6, T8 and T9,
was not vacant, but was claimed by third parties entitled to receive
that land and also by the Miroslava Town Council. He also stated that
the administrative decision of 26 July 2006 did not mention an
obligation on the Miroslava local commission to allow the applicant
to take possession of that land.
- So
far the applicant has not received her land.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in Sabin Popescu v. Romania
(no. 48102/99, §§ 42-46, 2 March 2004).
THE LAW
I. SCOPE OF THE APPLICATION
- In
her application form the applicant referred to the 20.4 ha plot of
land. In a letter of 10 May 2008 to the Court the applicant
complained that the Miroslava local commission had refused to enforce
the administrative decision of 26 July 2006 and to enable her to take
possession of the plot of 16 ha of land.
In
her observations of 31 July 2008 the applicant complained of serious
abuses by the Miroslava local commission in respect of her right over
the 16 ha plot of land, but her claims for just satisfaction
were related to the plot of 20.4 ha. However, in a letter of 1
September 2008 she complained that she had not been allowed to take
possession of her plot of land of 16 ha.
On 4
November 2008, after receiving the Government’s comments on her
claims for just satisfaction, the applicant complained that she had
not been able to recover the plot of 20.4 ha.
- In
their observations, the Government referred to both areas. However,
as to the applicant’s claim in respect of pecuniary damage,
they referred to the value of the land situated in Rediu village.
- The
Court notes that the applicant changed her request before the
national authorities and agreed to claim a plot of 16 ha of land
instead of the surface of 20.4 ha to which she had been entitled.
Following her request, the national authorities varied the
administrative decision. The applicant did not contest the
administrative decision as it was thus varied and insisted on its
enforcement. Moreover, she referred to the plot of 16 ha in
subsequent correspondence with the Court, with the exception of the
alleged pecuniary damage, which she reported in respect of the bigger
area of 20.4 ha.
- Having
regard to the fact that the applicant complained before the Court of
the non-enforcement of a final decision closely connected with an
administrative decision which had been varied in agreement with her
request, the Court considers the plot of 16 ha of land as 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 complained that the non-enforcement of the judgment in her
favour had infringed her 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 considered that the non-enforcement of the judgment of 3
February 2003 of the Iaşi Court of
First Instance, which became final on 26 May 2003, was due to
objective conditions, not to the authorities’ fault. The local
authorities were not acting in bad faith. The State Property
Authority had identified an unoccupied plot of land of 16 ha, but the
Miroslava local commission was not able to allow the applicant to
take possession of that land because the entire area of 16 ha was
claimed both by third parties entitled to receive it and by the local
authorities.
- The
applicant disagreed. In particular, she submitted that the plot of 16
ha of land belonged to the State and that the State Property
Authority had transferred that land to the local authorities with the
very purpose that it be allocated to her. There was no connection
between that land and the potential claims from third parties lodged
with the local authorities.
- The
Court notes that, although the authorities had an obligation to
enforce court judgments, namely by restoring the relevant land to the
applicant in the instant case, the judgment of 3 February 2003
remains unenforced to date. That judgment is nevertheless still
valid, no proceedings having been instituted under Romanian law for
its modification or annulment before the domestic courts. Apart from
enforcement, it is only by such an annulment or substitution by the
courts with an equivalent obligation that the continuous situation of
non-enforcement may come to an end (see Sabin Popescu, cited
above, § 54).
- 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 applicant by means of a formal decision of the alleged
objective impossibility of performance of the
above-mentioned
judgment or to take the necessary steps for its enforcement. Thus,
the national courts never ruled that the enforcement of the judgment
of 3 February 2003 was bound to fail due to the fact that the land
had been assigned to third parties (see paragraphs 7 and 8 above).
Moreover, in spite of the fact that the State Property Authority had
identified a specific and unoccupied plot of 16 ha of land to be
allocated to the applicant, the local authorities alleged that that
land was actually claimed by third parties. Although it is not the
Court’s task to assess whether the location of that land had
been correctly established, it considers that it was up to the
authorities to take specific steps to avoid concurrent decisions that
they have to enforce or at least to clarify the situation thus
created (see Popescu and Daşoveanu v. Romania, no.
24681/03, § 36, 19 July 2007). Therefore the Court cannot
accept that in the present case the authorities were not at fault and
took all necessary steps for the enforcement of that judgment.
- 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.”
- The
applicant sought to recover possession of her land. She further
claimed 2,448,000 euros (EUR) for the current value of 20.4 ha of
land situated in Rediu, on the basis of information from a real
estate company, EUR 642,104 for the loss of profit or any benefit,
representing the value of the bank interest for the previous amount,
and 17,907 United States dollars (USD), representing the equivalent
of the pecuniary penalty fixed by the judgment of the Iaşi
Court of First Instance of 3 February 2003. She also claimed
non-pecuniary damage, asking the Court to determine the amount.
- The
applicant also claimed EUR 11,000 for the fee for the lawyer on the
basis of a contract of judicial assistance and, without specifying an
amount or submitting invoices, the equivalent of the costs and
expenses incurred before the domestic courts and before this Court,
representing postal service, translations, photocopies and transport.
- The
Government considered, in line with the information provided by the
Chamber of Notaries Public, that the price of one square metre in
Rediu varies between EUR 5.5 for land extra muros and EUR 10
for land intra muros. Regarding the loss of profit, there is
no causal link between the supposed violation of the Convention and
the pecuniary damage alleged. However, the applicant calculated the
bank interest with reference to the value of the land at present, not
in 2003.
The
Government submitted that the coercive fine had the nature of a civil
penalty, with the purpose of guaranteeing the execution of an
obligation and not of granting compensation; the applicant had the
opportunity to request the court to convert it into damages for
delayed enforcement. 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.
- The
Government contested the claim for costs and expenses on the ground
that it was partly unsubstantiated, that no causal link between the
payment of some fees and the present case could be found, that the
contract of judicial assistance was not accompanied by a “time
sheet”, that the stipulated amount, as the applicant admitted,
had not already been paid by her, and that the fee for the lawyer was
excessive, having regard to the low degree of complexity of the case,
which follows the well-established jurisprudence of the Court.
- In
the circumstances of the case and having regard to the parties’
submissions, the Court considers that the question of the application
of Article 41 of the Convention is not ready for decision and
reserves it in whole, due regard being had to the possibility that an
agreement between the respondent State and the applicant may be
reached (Rule 75 § 1 of the Rules of Court).
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 that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within six months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 5 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
