BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF VENIAMIN v. ROMANIA
(Application
no. 19438/05)
JUDGMENT
STRASBOURG
26 January 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 Veniamin 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,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19438/05) 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 Nicolae
Veniamin and Mr Lascăr Veniamin (“the applicants”),
on 28 April 2005.
- The
applicants were represented by Mr A. Vasiliu, a lawyer practising in
Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu.
- On
1 September 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
French Government, to whom a copy of the application was transmitted
under Rule 44 § 1 (a) of the Rules of Court, did
not exercise their right to intervene in the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Both
applicants, who are brothers, were born in 1946: Mr Nicolae Veniamin
lives in Boulogne and Mr Lascăr Veniamin in Paris.
- On
an unspecified date, the State seized possession of an apartment
belonging to the mother of the applicants, on the 4th
floor of no.43, Dacia Street, in Bucharest.
- By
a final decision of 19 June 1998, the Bucharest District Court
allowed the action brought by the applicants against the State for
recovery of possession (acţiune în revendicare).
The applicants were granted possession of the apartment on 19 January
1999.
- Within
less than one month from the final decision favourable to the
applicants, on 6 July 1998, the State sold the apartment to the
tenants under Law no. 112/1996. Subsequently, on 11 February 1999 the
Mayor of Bucharest issued a decision for the restitution of the
apartment to the tenants who had bought it.
- The
applicants lodged an action against the tenants, seeking to have the
contract of sale concluded by them with the State set aside and the
restitution of ownership of the apartment. By a final decision of
2 November 2004, the High Court of Cassation and Justice
dismissed the action on the ground that the buyers had concluded the
contract in good faith.
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, 1 December 2005); and Tudor v.
Romania (no. 29035/05, §§ 15-20, 17 January
2008).
- In
particular, section 46 § 2 of Law no. 10/2001 provides that the
sale or donation of immovable property unlawfully seized by the State
shall be declared null and void, save where the transactions have
been concluded in good faith.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE
CONVENTION
- The
applicants complained that the sale by the State of their apartment
to the tenants, validated by the final decision of the High Court of
Cassation and Justice of 2 November 2004, without any compensation
entails a violation of Article 1 of Protocol No.1 of the Convention,
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 the 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. Furthermore, they contended that the applicants had
not followed the procedure provided by Law no. 10/2001.
- The
applicants disagreed with those arguments. They argued that they did
not see any reason to follow the procedure provided by
Law no. 10/2001, as long as they had obtained the
restitution of their apartment by a final decision. Furthermore, they
had lodged an action for the annulment of the sale contract against
the former tenants, which had already been pending when Law no.
10/2001 entered into force. They added that until 2 November
2004, when they obtained a final decision dismissing their claim for
annulment and restitution, they had still been the owners of
the apartment. Besides, they noted that they could not follow
the procedure provided by Law no. 10/2001 for obtaining compensation
since such a procedure did not envisage the situation of former
owners of immovable property restored by a final decision and then
sold by the State to third parties after 22 December 1989.
- The
Court reiterates that, according to its case-law, the sale of
another's possessions by the State 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 applicants' apartment prevents them from
enjoying their right of property as acknowledged by a final decision.
The Court considers that such a situation amounts to a de facto
deprivation of possessions and notes that it has continued for more
than 10 years without any compensation being paid.
- The
Court 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 system to recover
damages reflecting the market value of the possessions of which they
have 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
about the outcome of the proceedings, the allegedly incorrect
assessment of the facts and a lack of impartiality on the part of the
domestic judges.
- 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 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.
- Under
the same Article of the Convention, Article 6 § 1, the
applicants complained about the impossibility to obtain the execution
of a final decision, that is, of the decision of 19 June 1998 of the
Bucharest District Court.
- Having regard to the fact that
this issue has been analysed above under Article 1 of Protocol No. 1
of the Convention and to the finding relating to it, the Court
considers that it is not necessary to examine the admissibility or
the merits of this complaint under Article 6 § 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.”
A. Damage
- The
applicants sought to recover possession of their apartment or, if
that proved impossible, the sum of 213,472 Euros (EUR), on the
basis of an expert report dated 27 November 2006. They further
claimed EUR 50,000 for the loss of profit or other benefits deriving
from their property as of 1998. In respect of non-pecuniary damage,
they claimed EUR 30,000.
- The
Government considered, in line with their own expert report drawn up
in March 2007, that the value of the property was EUR 36,818. The low
value established by the expert appointed by the Government was
justified by the precarious condition of the building in which the
apartment is situated, which needed extensive restoration.
They
also considered that the claim for loss of profit should be dismissed
and that the claim in respect of non-pecuniary damage was excessive.
- 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
degree of 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, 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 flat and the appurtenant land) 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 jointly to 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 report
submitted by the parties, the Court estimates the current market
value of the property at EUR 120,000.
- 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 jointly to the applicants EUR 4,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed 3,600 Romanian lei (RON) (equivalent to EUR
1000) for the fees paid to their lawyer. They submitted an invoice in
this respect.
- The
Government contested the claim for costs and expenses on the ground
that the applicant had not submitted copies of the contracts for
legal assistance, which would have allowed the Court to determine the
connection between the legal assistance received and the invoice
submitted.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant submitted relevant documents for proving
his expenses and the above criteria, the Court considers it
reasonable to award the sum of EUR 1000 for costs and expenses
incurred before the Court.
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 complaint concerning Article 6 §
1 regarding the outcome of the proceedings and the lack of
impartiality of the domestic judges inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
3. Holds that there is no need to examine the
admissibility or the merits of the complaint raised under Article 6 §
1 regarding the non-execution of the final decision of 19 June 1998;
- Holds
(a) that
the respondent State is to return to the applicants flat no. 4,
situated on the 4th floor of 43, Dacia Street, Bucharest,
and the appurtenant land, 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 to
the applicants, within the same three months, the amount of
EUR 120,000 (one hundred and twenty 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 to the
applicants, within the same three months, the amount of EUR 4,000
(four thousand Euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(d) that,
in any event, the respondent State is to pay jointly to the
applicants, within the same three months, the amount of EUR 1,000
(one thousand Euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(e) that
the aforementioned amounts shall be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(f) 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;
5. Dismisses
the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
