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THIRD
SECTION
CASE OF
MARIA VIOLETA LĂZĂRESCU v. ROMANIA
(Application
no. 10636/06)
JUDGMENT
STRASBOURG
23
February 2010
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 Maria Violeta Lăzărescu v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10636/06) 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, Ms Maria Violeta Lăzărescu
(“the applicant”), on 8 March 2006.
- The
applicant was represented by Mr George Tudor Laurenţiu, a lawyer
practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
23 March 2007 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 1926 and lives in Bucharest.
- In
1950 the State seized under Decree no. 92/1950 on nationalisation the
building situated in Bucharest, Cobălcescu no. 36, property of
the applicant’s ancestor.
- On
1 June 1999 company R.V., a State-owned company responsible for the
management of property belonging to the State, sold a 104,98 sq. m.
flat of the building and the appurtenant land to the tenants, V.D and
D.M., under Law no. 112/1995.
- On
20 November 2002, the applicant sought annulment of the contract
before the Bucharest Court of First Instance requesting the court to
declare the nationalisation of her property unlawful and to order its
return to her.
- On
9 September 2005, the Bucharest Court of Appeal, in the operative
part of a final decision, dismissed as groundless an appeal on points
of law by the applicant. In the reasoning of the judgment the court
considered that although the seizure was null and void the bona
fide principle should apply to the tenants who bought the flat
from the State, who at that time was its legal owner.
- On
an unknown date the applicant lodged an application with the
administrative authorities for restitution in kind of the property
under Law no. 10/2001 governing immovable property wrongfully seized
by the State. Since she had not received any answer, she brought
court proceedings against the Mayor of Bucharest seeking to have him
ordered to issue a reasoned decision upon her request. She also
claimed a daily pecuniary penalty until execution.
- On
25 January 2007 the Bucharest County Court upheld in part her action
and ordered the Mayor to issue a reasoned decision regarding the
restitution of the building located in Bucharest, Cobălcescu no.
36 as the applicant requested. On 22 May 2007 the Bucharest Court of
Appeal dismissed the Mayor appeal. There is no evidence in the file
as to the course of the proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant legal provisions and jurisprudence are
set forth 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, ECHR 2005-XII
(extracts)); and Tudor v. Romania (no. 29035/05,
§§ 15 20, 17 January 2008).
- Measures
in order to urge the award of compensation through the Proprietatea
company have recently been adopted by the national authorities,
especially in accordance with the Emergency Ordinance no. 81/2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant alleged that the sale by the State of her property 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
Government raised an objection of incompatibility ratione materiae
in respect of this complaint. They considered that the applicant had
not had the benefit of an irrevocable decision recognising her right
of property. The Government submitted that in Romanian law the
principle of res judicata applied only to the operative part
of a judgment, which was also enforceable, but not to the reasoning
part.
Therefore
the judgment of 9 September 2005 did not represent a “possession”
within the meaning of Article 1 of Protocol No. 1 as the courts
had not settled the issue of the lawfulness of the seizure in an
irrevocable manner in the operative part of a judgment.
- The
Court notes that a similar objection by the Government was dismissed
in the Reichardt v. Romania (no. 6111/04, §§ 14-20,
13 November 2008), Popescu and Dimeca v.
Romania (no. 17799/03, §§ 21-24,
9 December 2008), Filipescu v. Romania (no. 34839/03, §
19, 30 September 2008) judgments and finds no reasons to depart
from its conclusion in those cases. It therefore dismisses the
Government’s objection.
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. Nor is
it inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government reiterated the arguments they had previously submitted in
similar cases.
- The
applicant disagreed with those arguments.
- 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. Such deprivation, in combination with a
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, cited above, § 35).
- 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 applicant’s possessions still
prevents her from enjoying her right of property as acknowledged by a
final decision. The Court considers that such a situation amounts to
a de facto deprivation of possessions, without any
compensation having been paid.
- The
Court notes that at the material time there was no effective means in
Romanian law capable of providing the applicant with compensation for
this deprivation (see Străin and Others, cited above,
§§ 23, 26-27 and 55-56, and Porteanu, 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 were
deprived, in accordance with a foreseeable procedure and timetable
(see Reichard, cited above, § 26).
- This
conclusion does not prejudge upon any subsequent positive development
of the financing mechanisms provided by the special law in order to
provide compensation to those who, just like the applicant, had had
their property right acknowledged by a final decision.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the deprivation of the applicant’s
possessions, together with the total lack of compensation, imposed on
the applicant a disproportionate and excessive burden in breach of
her 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
applicant complained under Article 6 § 1 of the Convention that
the outcome of the proceedings had been unfair and that the domestic
courts had failed to assess the facts correctly and had
misinterpreted the domestic law.
- Having
carefully considered the applicants’ 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 Article 6 § 1 of the Convention.
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 46 OF THE CONVENTION
- Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The
Court notes that the above finding of a violation in respect of
Article 1 of Protocol No. 1 discloses a widespread problem in
the legal framework for recovery of nationalised
properties which have been sold by the State to third parties.
The Court considers therefore that the State should adjust as
soon as possible the procedure set up by the restitution laws
(currently Laws nos. 10/2001 and 247/2005) in
order to render it genuinely coherent, accessible, rapid and
foreseeable (see Viaşu v. <<Romania>>,
no. 75951/01, § 83, 9 December
2008, Faimblat v. Romania,
no. 23066/02, §§ 48-54, 13
January 2009, Katz v. <<Romania>>,
no. 29739/03, §§
30-37, 20 January 2009).
IV. 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 restitution in kind of the property, as the most
appropriate manner for the State to provide redress. Should
restitution not be granted, she claimed a sum equivalent to the
current value of the property. She considered that the current value
of the property amounted to 251,266 euros (EUR). She did not submit
an expert report in this matter. She also claimed EUR 3,000 in
respect of non-pecuniary damage.
- The Government considered, in line with their own
expert report based on a theoretical assessment of the value, that
the current value of the property was EUR 104,229 without the VAT.
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. They
considered that there is not a casual link between the alleged
non-pecuniary damage and the breach of the Convention.
- 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 (the 104,98 sq. m. flat and the appurtenant
land) would put the applicant as far as possible in a situation
equivalent to the one in which she 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 applicant, in respect of pecuniary
damage, an amount corresponding to the current value of the property.
Having regard to the information at its disposal concerning real
estate prices on the local market and to the expert report submitted
by the Government, the Court estimates the current market value of
the property at EUR 104,229.
- The
Court considers that the serious interference with the applicants’
right to the peaceful enjoyment of their possession 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 the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not claim costs or expenses.
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 is to return to the applicant the flat and the
appurtenant land situated in Bucharest, Cobălcescu no. 36,
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 the
applicant, within the same three months, the amount of EUR 104,229
(one hundred and four thousand two hundred twenty nine euros), plus
any tax that may be chargeable, in respect of pecuniary damage;
(c) that,
in any event, the respondent State is to pay to the applicant and,
within the same three months, the amount of EUR 3,000 (three 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
