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THIRD
SECTION
CASE OF DEKANY v. ROMANIA
(Application
no. 22011/03)
JUDGMENT
STRASBOURG
1 April
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 Dekany 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,
Ineta
Ziemele, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22011/03) against Romania
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by two
Romanian nationals, Mr Emeric Dekany and Mrs Esztera Dekany
(“the
applicants”), on 9 June 2003. On 3 September 2004 the second
applicant died and the first applicant, as her only successor,
continued the application.
- The applicants were represented by Mrs R. Bercea, a
lawyer practising in Timişoara. The
Romanian Government (“the Government”) were represented
by their Agent, Mr R.-H. Radu.
- On
3 May 2007 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
- The
first applicant was born in 1948 and lives in Timişoara.
The second applicant, the mother of the first applicant, was born in
1921 and died on 3 September 2004. In a letter of 4 June 2007 the
first applicant, as the only successor of her mother, informed the
Court that he wished to pursue the application.
- On
9 September 1991 the applicants lodged an action with the Timişoara
Court of First Instance seeking rectification of the Land Registry
and, accordingly, registration of their ownership right with regard
to a plot of land. Of the twenty one hearings held between 2 October
1991 and 19 June 1997 five were adjourned at the applicants'
request, including between 11 February 1992 and 18 January 1993,
between 2 March 1993 and 6 July 1994, and between 11 October 1994 and
27 February 1996, when the proceedings were stayed during criminal
investigations against one of the defendants. On 19 June 1997 the
Timişoara Court of First Instance
dismissed the applicants' action.
- On
28 April 1998 the Timiş Regional Court upheld the applicants'
appeal and quashed the judgment of the First Instance Court, sending
the case back for retrial. The court considered that, as the land had
been sold during the appeal proceedings, the new owner should be
involved in the lawsuit. This ruling was upheld on 22 October 1998 by
a final decision of the Timişoara
Court of Appeal.
- After retrial, on 10 January 2000 the Timişoara
Court of First Instance rejected the applicants' action as
groundless. On 19 July 2000 the Timiş Regional Court confirmed
this decision.
- On
10 November 2000 the Timişoara Court
of Appeal allowed the applicants' appeal, quashed the two preceding
judgments and referred the case back to the First Instance Court for
a fresh examination, on the ground that the two courts had omitted to
rule on two complaints and with regard to another defendant.
- On
21 December 2001 the Timişoara Court
of First Instance re-examined the action and dismissed it. Of the
eighteen hearings held between 12 December 2000 and 21 December 2001
one was adjourned at the applicants' request.
- On
2 July 2002 the applicants' appeal was upheld by the Timiş
Regional Court, which ordered rectification of the Land Registry,
declared null and void the subsequent sale contracts and ordered the
administrative authorities to restitute the plot of land in kind.
- On
10 December 2002 the Timişoara Court
of Appeal by a final decision allowed the opposing parties' appeal
and therefore annulled the judgment of 2 July 2002 considering, inter
alia, that the courts cannot act as a substitute for the
administrative authorities set up by the Real Property Act (Law
no. 18/1991) to deal with claims for return of land.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 20 June 1994, when
Romania ratified the Convention. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time.
The
period in question ended on 10 December 2002. It thus lasted eight
years, five months and twenty days for three levels of jurisdiction.
Nine courts examined the case throughout this period.
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
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, 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.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 that the proceedings
in the case were unfair, since the domestic courts had failed to
assess the facts correctly, had misinterpreted the domestic law and
had not given reasoned decisions. They also claimed to be victims of
a violation of Article 1 of Protocol No. 1 in so far as the
proceedings had not allowed them to recover their property.
- As
regards the first limb of the applicants' complaints, the Court
reiterates that Article 6 § 1 obliges the courts to give reasons
for their judgments, but cannot be understood as requiring a detailed
answer to every argument. Therefore the question whether a court has
failed to fulfil the obligation to state reasons can only be
determined in the light of the circumstances of the case (see Ruiz
Torija v. Spain, judgment of 9 December 1994, Series A
no. 303-A, § 29). Further, the Court is not called upon to
deal with errors of fact and law allegedly committed by a national
court unless and in so far as they may have infringed rights and
freedoms protected by the Convention (see García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
- Having
regard to the above, 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.
- In
so far as Article 1 of Protocol No. 1 is concerned, the Court
considers that the applicants have not shown that they had a claim
which was sufficiently established to be enforceable, and they
therefore cannot argue that they had a “possession”
within the meaning of Article 1 of Protocol No. 1 (see, among other
authorities, Gratzinger and Gratzingerova v. the Czech Republic
(dec.), no. 39794/98, ECHR 2002 VII).
- It
follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the
meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
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
surviving applicant claimed 40,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the claim on the ground that no causal link
between the pecuniary damages sought and the alleged violation of the
reasonable length of proceedings could be found. They also pointed
out that damage was claimed only by one of the applicants and that
there was no precise amount for non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicants must have sustained
non-pecuniary damage in respect of the violation found. Ruling on an
equitable basis, it awards a total sum of EUR 3,500 under that head
to be paid to the surviving applicant.
B. Costs and expenses
- The
surviving applicant also claimed EUR 5,000 for the costs and expenses
incurred before the Court. He did not provide any supporting
document.
- The
Government contested the claim as excessive and unsubstantiated.
- According
to the Court's case-law, an award can be made in respect of costs and
expenses only in so far as they have been actually and necessarily
incurred by the applicant and are reasonable as to quantum (see
Arvelakis v. Greece, no. 41354/98, § 34,
12 April 2001). The Court points out that under Rule 60 of
the Rules of Court “the applicant must submit itemised
particulars of all claims, together with any relevant supporting
documents failing which the Chamber may reject the claim in whole or
in part”.
- The
Court notes that the surviving applicant did not submit any
supporting documents or particulars to substantiate his claim.
Accordingly, the Court does not award any sum under this head.
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 the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the surviving applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 3,500
(three thousand five hundred euros) in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 1 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep
Casadevall
Deputy Registrar President
