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THIRD
SECTION
CASE OF CHIOREAN v. ROMANIA
(Application
no. 20535/03)
JUDGMENT
STRASBOURG
21 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 Chiorean 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,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20535/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by
three Romanian nationals, Mr Viorel
Chiorean, Mr Vintilă Chiorean and
Ms
Maria Chioreanu (“the applicants”), on 3 June 2003.
- The
applicants were represented by Ms Anca Ioana Chiorean, a lawyer
practising in Cluj-Napoca. 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 are brothers, who were born in 1941, 1933 and 1937
respectively and live in Cluj-Napoca.
- In
1950, a property situated in Cluj-Napoca, 15-17 Someşului
Street, which was the property of the applicants' parents, was seized
by the State under Decree no. 92/1950 on nationalisation. The
property was made up of ten apartments and appurtenant land.
- On
31 January 2001 the Cluj Court of Appeal, by a final decision,
allowed an action by the applicants, annulled the seizure as being
unlawful and ordered restitutio in integrum.
- Although they had judicial recognition of their
property right, the applicants were not able to recover possession of
Apartments 5 to 9 because the State had sold them in 1996-1997 to the
then tenants under
Păduraru v. Romania, no. 63252/00,
§ ..., ECHR 2005 ... (extracts) Law no. 112/1995.
- On
12 July 2001 the applicants claimed restitution in kind of the
property under Law no. 10/2001 governing immovable property
wrongfully seized by the State. So far they have not received any
answer.
- On
6 December 2002 the Cluj Court of Appeal, by a final decision, upheld
in part an action by the applicants to declare the sale by the State
of Apartments 5 to 9 null and void. The court declared the sale of
Apartments 8 and 9 null and void, striking the third parties off the
Land Register, on the ground that the sale was made after the entry
into force of Government Decision no. 11/1997 prohibiting the sale by
the State of property to which it had no lawful title. As for
Apartments 5 and 6, it considered that the third parties had made the
purchase in good faith.
- On
16 December 2002 the applicants took possession of Apartments 1-4, 7
and 10 and of 1,490 sq. m of appurtenant land.
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,
ECHR 2005 ...(extracts)); 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 Apartments 5 and 6
to third parties 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 the arguments they had previously submitted in
similar cases. In particular, they submitted that the applicants
could have claimed compensation under Law no. 10/2001, amended by
Law no. 247/2005.
- The
applicants submitted that their claim for restitution in kind of the
property under Law no. 10/2001 had not been resolved and disagreed
with the system of compensation by shares in various State-owned
companies.
- 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' possessions 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 seven years, in the absence of any compensation.
- 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, 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 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' possessions,
together with the total lack of compensation, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention of
an unfair trial, that judges had not been impartial and about the
outcome of the case.
- The
Court observes that the allegations in respect of abuses of process
by the authorities are unsubstantiated, whereas the complaint
regarding the outcome is of a “fourth-instance” nature.
Moreover, the Court considers that in the proceedings complained of,
seen as a whole, there is no appearance of unfairness or
arbitrariness which would infringe the guarantees of a fair hearing
within the meaning of 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 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
- In
their application form, the applicants sought restitution of
Apartments 5 and 6, as the most appropriate manner for the State to
provide redress. Should restitution not be granted, they claimed the
amount of 50,000 euros (EUR). They also claimed EUR 5,000 in respect
of
non-pecuniary damage.
In
response to the Government's observations, the first applicant sought
restitution of the two apartments or, if not possible, EUR 150,000 in
respect of pecuniary damage.
In a
letter of 20 September 2007, submitted by the first applicant
after the Government's comments on the claims for just satisfaction,
it is stated that the applicants claimed EUR 120,000 in respect of
pecuniary damage and submitted an expert report mentioning that the
current value of the two apartments was EUR 123,857.
- The Government considered, in accordance with their
own expert report, that the market value of Apartments 5 and 6 was
EUR 35,385. They submitted that their expert report was technical and
theoretical and that the expert did not see the apartments. 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
their supplementary observation on Article 41 of 27 June 2007 the
Government noted that the claim for just satisfaction had been
submitted only by the first applicant, who had no power of authority
from the other two applicants. They considered that the first
applicant may claim only a part of the pecuniary damage.
- 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 notes that the present application has been introduced by the
three applicants and that all of them claimed damage in the
application form. It also notes that the applicants' observations and
claims for just satisfaction have been submitted by one of the
applicants only, in spite of the fact that all of them had a common
representative. Having regard to the wording of the letter of
20 September 2007, submitted by the first applicant, but
referring to all the three applicants, the Court is not persuaded
that in the instant case the first applicant claimed just
satisfaction only on his own behalf rather than on behalf of his
brothers as well.
Therefore
the Court will not make use in the instant case of excessive
formalism and will consider that the claim for damage was introduced
on behalf of all the applicants.
- The
Court considers, in the circumstances of the case, that the return of
the property in issue (Apartments 5 and 6), as ordered by the final
decision of 31 January 2001 of the Cluj Court of Appeal, 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 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 reports submitted
by the parties, the Court awards EUR 90,000 to the applicants
jointly.
- 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 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
- In
their application form, the applicants claimed reimbursement of the
costs and expenses, without quantifying them or submitting any
supporting documents.
- The
Government contested the claim as unsubstantiated.
- The
Court reiterates that under Article 41 of the Convention it will
reimburse only the costs and expenses that are shown to have been
actually and necessarily incurred and are reasonable as to quantum
(see Arvelakis v. Greece, no. 41354/98, § 34,
12 April 2001). Furthermore, Rule 60 § 2 of the Rules
of Court provides that itemised particulars of any claim made under
Article 41 of the Convention must be submitted, together with the
relevant supporting documents or vouchers, failing which the Court
may reject the claim in whole or in part.
- In the instant case, the Court observes that the
applicants have not substantiated their claim in any way, as they had
neither quantified their costs nor submitted any supporting
documents. Accordingly, the Court does not award any sum under this
head (see Cumpǎnǎ and Mazǎre v. Romania [GC],
no. 33348/96, §§ 133-134, ECHR 2004 XI).
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 applicants Apartments 5
and 6, 15-17 Someşului Street,
Cluj-Napoca, 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 the
applicants, within the same three months, the amount of EUR 90,000
(ninety 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 the applicants,
within the same three months, the amount of EUR 5,000 (five 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 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
