RACHITA v. ROMANIA - 15987/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 421 (17 May 2016)

In the case of Răchită v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Boštjan M. Zupančič,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 19 April 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15987/09) 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, Mr Doru Răchită (“the applicant”), on 17 March 2009. He was represented before the Court by Ms C.G. Răchită, a lawyer practising in Bucharest.

2. The applicant, who was born in 1949, died on 2 May 2009. On 8 October 2010 his son, Mr Răzvan Răchită, born in 1975, applied to pursue the application before the Court in his name and retained the same lawyer to represent him. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

3. The applicant alleged, in particular, under Article 6 § 1 of the Convention that he had not had a fair hearing before the domestic courts inasmuch as the said courts had dismissed his action seeking the removal of a fence built by a third party on a public street without properly examining the evidence submitted to them, in particular by relying on the incorrect finding that he had not informed the administrative authorities of their mistake in misidentifying the third party about whom he had been complaining. In addition, he alleged under Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention, that the decision of the Bucharest Court of Appeal had breached his property rights and his right to freedom of movement because his access to his property had been obstructed and he had been unable to use or build on his property or to sell it.

4. On 17 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. On 31 October 2002 the Bucharest Commission for the Enforcement of Law no. 18/1991 on Land Return acknowledged the applicant’s property rights in respect of 350 square metres of land that had been nationalised under the communist regime, issued a property title, and granted him possession of the said land. The land was located on V. Street, in Bucharest.

6. According to the applicant, on an unspecified date the unidentified owner of a plot of land located across the street from his property built a fence, which encroached onto V. Street.

B. Administrative proceedings

7. On an unspecified date in 2007 the applicant asked the Department of Discipline in Constructions (Serviciul de Disciplină ȋn Construcṭii hereinafter “the SDC”) attached to the office of the Mayor of Bucharest District No. 5 to remove the part of the fence that was encroaching onto V. Street. He argued that he had intended to build on his property, but had noticed that the width of V. Street (and therefore the access to his land) had been significantly reduced because the owner of the property located opposite to his had unlawfully closed off a large part of the street by building the fence in question.

8. On 23 November 2007 the applicant asked the Mayor of Bucharest, as well as the Bucharest General and Local Councils, to take the necessary measures to remove the fence. The applicant informed those authorities that on 17 September 2007 the SDC had, by letter, dismissed his request for the removal of the fence built by his neighbour. The SDC had done so on the ground that his request related to a fence - for which a building permit had been issued - erected by a certain C.M. The applicant stated that after the fence had been built he could no longer access his land by car, but only on foot. He asked the authorities to verify his claims because, as confirmed by the land expert who had prepared the documents needed for the registration of the applicant’s property rights, they had been “wrongfully established” in the letter that the applicant received from the SDC on 17 September 2007.

C. Court proceedings

9. On 22 April 2008 the applicant brought an action against the Mayor of Bucharest and the Bucharest General Council and the Bucharest District No. 5 Local Council seeking a court order requiring the Mayor to give the owner of the fence notice to remove it. Moreover, he asked the court to require the Mayor to arrange for the removal of the fence without the owner’s consent if the fence’s owner ignored such removal notice. In the alternative, he asked the court to order the Bucharest General and Local Councils to start expropriation proceedings with a view to enlarging the road and thus restoring full car access. He stated inter alia that in its letter to him of 17 September 2007 the SDC had indicated that the neighbour who was the target of his complaint had had a building permit for the fence. However, the applicant also stated that those responsible for investigating his claim had failed to notice that C.M. was not the owner of the property located opposite his land, which was owned by an unidentified neighbour, but the owner of the property adjoining his. Consequently, their findings had had no bearing on his claim. Moreover, his requests of 23 November 2007 had not received any answers.

10. On 9 May 2008, at the first-instance court’s instruction, the applicant specified his court action. By relying on the relevant domestic legislation (see paragraph 24, below) he argued that the proceedings had concerned the refusal by the public authorities to issue an act or to carry out the administrative formalities needed for the removal of the fence built on V. Street and for the reopening of access to the street. He also argued that the administrative authorities had failed to examine his demands - probably because they had been confused as to which neighbour was the subject of his concerns. The authorities’ confusion had been caused by an identical complaint against C.M. having been lodged by a third party living on the same street.

11. On 17 June 2008 the Bucharest County Court dismissed the applicant’s action. It held that the applicant had not specified which of his neighbours had closed off part of the street by building the fence, either in his applications to the administrative authorities or in his application to that court. Moreover, the neighbour in question could not be identified because the applicant had not specified that neighbour’s address. Consequently, the Mayor of Bucharest’s Office had informed the applicant that the owner of the land at no. 30 V. Street - namely C.M. - had had a lawful building permit. Because the applicant had referred only in general terms to the person whose fence had closed off part of the street, the Bucharest General Council had merely replied to him in general terms about the future development plans for the area in question and the size of the street in question. In such circumstances, the court could not accept that the authorities had refused to address the applicant’s request.

12. The court further considered that the Mayor of Bucharest would have had to be informed of a person’s identity and his actions before he could have issued an order or notice to such person. Given that the street in question had been used by several other property owners, the applicant would have had to identify the person unlawfully occupying part of the street before the authorities could have acted. The administrative authorities could not have been considered to have been inactive as long as the applicant had failed to specify which of the owners of the neighbouring plots of land had diminished the width of the road.

13. The court also dismissed - on the grounds that they were unnecessary and would not further the resolution of the case - the applicant’s request for additional testimonial evidence, an onsite investigation and an expert report that would (according to the applicant) have demonstrated that the road had been obstructed by the construction of the fence.

14. The court lastly dismissed the administrative authorities’ claim that the applicant’s action had been inadmissible on the ground that the applicant had claimed a breach of his rights as a result of the restricted use of a public road which ensured his access to his property. Moreover, it dismissed the aforementioned authorities’ claim that they lacked legal standing (capacitate procesuală pasivă) on the ground that the street ensuring access to the applicant’s property was on the public domain which was managed by them.

15. The applicant appealed on points of law (recurs) against the judgment. He argued, inter alia, that the evidence that had been requested by him before the first-instance court would have clarified the circumstances of the case and the identity of the owner of the fence; however, the court had wrongfully dismissed that request. Moreover, during a meeting with the administrative authorities, the applicant’s representative had informed them that in his opinion it had not been C.M. but the neighbour whose property had been located opposite his who had blocked the street by building the fence. The applicant had himself been unable to establish the identity of the owner of the fence, because that owner’s property had been empty and no visible postal number had been attached to the entrance gate. The fence had diminished the width of V. Street, preventing vehicular access to the applicant’s property. Consequently, he had been unable to use that property for its practical purpose - namely, to build a home. The authorities had not asked him to provide the name of the owner of the fence; indeed, it was the duty of the public servants - not the applicant - to inform the Mayor of Bucharest of the impugned person’s identity.

16. On 15 August 2008 the applicant informed in writing the Public Domain Administration (attached to the office of the Mayor of Bucharest District No. 5) that, inter alia, his complaint concerning the occupation of part of V. Street had concerned not C.M. but the unidentified neighbour whose property was located across the street from C.M.’s property.

17. On 19 September 2008 the Public Domain Administration attached to the office of the Mayor of Bucharest District No. 5 informed the applicant by letter that, inter alia, they had contacted the local tax and land register office in order to identify the owner of the fence. There is no information in the file about the final outcome of the aforementioned measures taken by the authorities or whether they had yielded any results for the applicant.

18. By a final judgment of 3 November 2008 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law against the judgment of 17 June 2008. It noted that no further evidence had been added to the file and that the local authorities had not submitted any observations (ȋntâmpinare) even though they had been lawfully summoned.

19. The court held that the applicant’s claims had been ill-founded. Moreover, according to the SDC’s letter of 17 September 2007, C.M. had been the owner of the land to which the applicant had been referring. It followed that the administrative authorities had not unjustifiably refused to address the applicant’s complaints, as those authorities had not been competent to issue orders in respect of a third party’s private property. The applicant had argued before the judicial authorities that the administrative authorities had been mistaken as to the identity of the owner of the fence; however, he had failed to inform them of the alleged mistake in order that they might clarify the situation. As to a request by the applicant concerning the initiation of eviction proceedings, the court considered that only the relevant administrative authorities could have assessed whether such a measure would have been appropriate. Therefore, it could not conclude that the applicant had been unjustifiably denied an answer in that regard.

D. Other relevant information

20. On 22 January 2009 the office of the Mayor of Bucharest District No. 5 issued the urban planning certificate (certificat de urbanism) requested by the applicant in respect of his land; this document attested that construction may have been authorised (autorizat) on the land in question.

21. On 30 October 2015 the applicant’s son, who had inherited the land following his father’s death, had sold the land to a third party. The sale contract had expressly mentioned that the applicant’s son had reserved all the rights resulting from the present application before the Court.

22. On 11 November 2015 the applicant’s son informed the Court that he had incurred additional damage following the sale of the land and had asked it to examine his loss. He stated that the notary public who had drafted the sale contract had calculated the taxes for the transfer of the land’s ownership based on a guideline for property prices used by notary public offices and not based on the price actually received by him for the land. As a result the applicant had to pay an additional 414 Euros (EUR) in tax. Also given the state of the land, in particular no road access and no utilities (fără utilități), he had been unable to ask the buyer to pay the price per square meter mentioned by the aforementioned guideline. Consequently, he had lost EUR 20,725 as a result of the lower sale price.

II. RELEVANT DOMESTIC LAW

A. The Romanian Constitution

23. Article 121 § 2 of the Romanian Constitution provides that the mayors and local councils operate as autonomous administrative authorities and do the public work in villages and towns, under the conditions provided for by law.

B. Law no. 554/2004 on administrative litigation

24. Article 8 § 1 provides inter alia that a person may open proceedings before an administrative court if he considers that his rights and legitimate interest had been breached by the failure (of the administrative authorities) to solve his request within the lawfully allowed time-limit or by the unjustified refusal to solve his request as well as by the refusal to carry out an administrative operation needed for the exercise or protection of the aforementioned rights or interest.

25. Article 20 § 1 provides inter alia that the first-instance court judgment may be challenged by way of an appeal on points of law.

26. Article 28 § 1 provides inter alia that the provisions of the present law are complimented by the provisions of the Romanian Civil Procedure Code.

C. The Romanian Civil Procedure Code

27. Article 304¹ provides inter alia that a court may examine a case in respect of all its aspects if the respective appeal on points of law was lodged against a judgment which, according to law, is not subject to an appeal.

D. Ordinance no. 43/1997 on public roads

28. Articles 43 (e) and 61 § 1(b) prohibit the occupation of part of a public road in any way, on pain of a fine of between 3,000 and 4,000 Romanian lei (RON).

29. Article 46 provides, inter alia, that any construction work carried out on or around a public road has to (i) receive prior approval from the relevant road authority and (ii) comply with the relevant legislation governing the authorisation of construction work.

E. Bucharest General Council’s Rules on Assigning and Changing Names and Postal Numbers in Respect of Immovable Property in Bucharest (Decision no. 31/2003)

30. Rule 11 provides that each unit of immovable property has to be identified by a postal number which has to be displayed by the owner in a visible place within 30 days from the date of collection of such number from the Mayor of Bucharest’s Office.

31. Rule 16 provides that the Mayor of Bucharest’s Office has to furnish the owner of a unit of property with the number plate corresponding to such property, upon payment of the relevant fee.

F. Law no. 7/1996 on the register of immovable property

32. Section 41 provides, inter alia, that any person can consult the land register and the other documents forming the land register. Copies of the land register, the plans and the documents may be provided upon request, subject to the payment of the required fees.

THE LAW

I. PRELIMINARY POINT

33. The applicant died on 2 May 2009 and his son informed the Court that he wished to pursue the application introduced by him (see paragraph 2 above). In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see Léger v. France (striking out) [GC], no. 19324/02, § 43, 30 March 2009, with further references). It has not been disputed that he is entitled to do so in the present case, and the Court sees no reason to hold otherwise (see Dimitar Krastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013).

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

34. The applicant complained that he had not had a fair hearing before the domestic courts inasmuch as the said courts dismissed his action seeking the removal of the fence erected by an unknown neighbour on V. Street (thus obstructing his access to his property) without properly examining the evidence submitted to them - in particular, by relying on the incorrect finding that he had not informed the administrative authorities of their mistake in misidentifying the neighbour about whom he had complained. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. The parties’ submissions

(a) The Government

35. The Government submitted that the court proceedings initiated by the applicant had sought to obtain information about the identity of the fence’s owner and to compel the administrative authorities to take against that person the measures provided for by Ordinance no. 43/1997. They considered that the outcome of the proceedings had not had a directly decisive link to the applicant’s civil rights and therefore could not have fallen within the scope of Article 6 of the Convention. Moreover, the proceedings initiated by the applicant had not been a pre-requisite for any other set of proceedings that could have been opened against the person who erected the fence.

36. The Government argued that none of the applicant’s requests lodged with the office of the Mayor of Bucharest District No. 5 had specifically asked for the identity to be established of the person who erected the fence. Also the applicant’s submissions to the domestic courts of 9 May 2008 had not mentioned the identity of the fence owner. According to the Court’s case-law - in particular MacKay and BBC Scotland v. the United Kingdom, no. 10734/05, § 22, 7 December 2010, and Geraguyn Khorhur Patgamavorakan Akumb v. Armenia (dec.), no. 11721/04, 14 April 2009 - proceedings concerning access to information could not be described as regarding rights which are civil in nature for the purpose of Article 6 of the Convention. Unlike in the case of Shapovalov v. Ukraine, no. 45835/05, § 22, 30 July 2012 - where the applicant had had a pressing professional need to access the requested information - in the instant case the information the applicant had been seeking did not lend itself to any immediate use; rather, it could have proved useful in subsequent proceedings.

37. The Government further contended that the measures the applicant could have been seeking under Ordinance no. 43/1997 amounted to an imposition of administrative penalties against a third party. However, according to the Court’s case-law, Article 6 is not applicable in respect of civil proceedings opened purely for punitive purposes or to obtain private retribution. Also the Convention did not confer any right to have third parties prosecuted or sentenced for a criminal offence, nor mutatis mutandis subject to an administrative sanction.

(b) The applicant

38. The applicant argued that he had not been interested in the identity of the fence’s owner because he had had no power to take action against him. In his opinion only the administrative authorities had had the legal power to take any direct action against him. The main purpose of the proceedings initiated by him had been to free from any obstacles the road approaching his property; he had not opened the proceedings against the owner of the fence for punitive purposes or to secure private retribution. The applicant had considered that establishing the identity of the fence’s owner would be a first step in resolving the aforementioned issue. The outcome of the proceedings initiated by him had directly impacted his right to use his own property.

2. The Court’s assessment

39. The Court reiterates that, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law (see Steiner and Steiner-Fassler v. Switzerland (dec.), no. 18600/13, § 28, 7 October 2014).

40. The Court notes that it is undisputed between the parties that the applicant was the owner of the 350 square metres of land located on V. Street or that he had unrestricted access to it prior to 2007. It also notes that the applicant opened proceedings against several administrative authorities seeking a court order for the removal of a fence built by an unidentified neighbor on the ground that the aforementioned fence was encroaching onto V. Street and was restricting the use of and the access to his property. The Court further observes that the domestic courts accepted the fact that the proceedings opened by the applicant, and therefore their legal basis, could have served the protection of his property rights and that he had an interest warranting protection. Consequently, the Court concludes that the applicant could rely on a right that was recognised under Romanian law.

41. As to whether the right in issue was a civil right, the court reiterates that Article 6 § 1 is applicable if there is a close link beween the proceedings brought by the applicant and the consequences of their outcome for the applicant’s property (see Joos v. Switzerland, no. 43245/07, § 18, 15 November 2012). The Court observes that according to the applicant’s submissions the fence encroaching onto V. Street had a direct impact on the use of his own property. Consequently, unlike the Government, the Court considers that the outcome of the proceedings was directly related to the applicant’s property and thus to his civil rights.

42. Moreover, the Court notes that the main scope of the proceedings initiated by the applicant was the removal of the fence and not private retribution; purely punitive sanctions, administrative or otherwise, against the unknown neighbour who had built the fence; or the establishment of the aforementioned person’s identity.

43. Therefore, unlike the Government, the Court considers that Article 6 § 1 of the Convention is applicable in the instant case.

44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

45. The applicant submitted that under Rule 11 of the Bucharest General Council’s Rules on Assigning and Changing Names and Postal Numbers in respect of Immovable Property, it had been mandatory for each property owner to identify his property by displaying the respective postal number and for the administrative authorities to provide owners with a number plate for that purpose. However, the owner of the fence encroaching on V. Street had not displayed in a visible place the postal number assigned to his property. Consequently, it had been impossible for the applicant to indicate the name of the fence’s owner.

46. The applicant submitted that in his letter of 15 August 2008 he had informed the administrative authorities that the property whose fence encroached onto V. Street had been located across the street from C.M.’s property. Moreover, the administrative authorities in their letter of 19 September 2008 had acknowledged their own competence in the proceedings concerning the applicant’s request for the fence’s owner to be identified and had made enquiries regarding the identity of the owner of the fence. Consequently, the applicant considered that the administrative authorities should have pursued his request by way of attempting to resolve the issue.

47. The applicant argued that the domestic courts had ignored the actual purpose of the proceedings initiated by him and the degree of severity of the issue.

(b) The Government

48. The Government contended that the applicant had not submitted clear explanations to the judicial authorities regarding the fact that he had been interested in determining the identity of the builder of the fence. The request for an expert report that he had lodged with the domestic courts had stated that the aim of said request had been to determine that the fence indeed encroached onto the road and not to determine the identity of the builder of the fence. The Government emphasised that the applicant had not substantiated his claims to the contrary and that he had been unable to do that due to the paucity of his written submissions. It would have been superfluous for any expert report to have concluded that the road had narrowed in the vicinity of the applicant’s property, given that the administrative authorities had already acknowledged that the road had been narrowed and the applicant had proved this by submitting ample photographic evidence.

49. The Government contended that they had been unable to discern in the applicant’s petition to the administrative authorities anything that would have pointed to a mistake in their response. Consequently, they considered that the domestic courts had concluded correctly that the applicant had failed to indicate to the authorities any alleged mistake. Moreover, the domestic authorities had neither erred in not taking any measures against C.M. (whose construction permit had appeared to be valid), nor had they failed to answer the applicant, given that he had never informed them in the first place of their alleged mistake.

50. The Government argued that there was no evidence in the file attesting to an appearance of arbitrariness in the domestic courts’ assessment of the case.

2. The Court’s assessment

(a) General principles

51. The Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of submissions, arguments and evidence adduced by parties to a case, without prejudice to its assessment of whether they are relevant to its decision, given that the Court is not called upon to examine whether arguments have been adequately met (see Moldovan v. Romania (dec.), no. 1867/06, § 22, 15 October 2013; Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005; and Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Moldovan v. Romania (dec.), no. 7986/06, § 37, 19 November 2013, and Burg v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Sivova and Koleva v. Bulgaria, no. 30383/03, § 76, 15 November 2011, and Ruiz Torija v. Spain, 9 December 1994, § 29, Series A nos. 303-A).

(b) Application of these principles to the instant case

52. The Court notes that in 2008 the applicant opened court proceedings against the Mayor of Bucharest, the Bucharest General Council and the Bucharest District No. 5 Local Council seeking a court order requiring the Mayor to give an owner of a fence blocking part of a public street and full car access to his property notice to remove it or to arrange for the removal of the fence without the owner’s consent if the fence’s owner ignored such removal notice. In the alternative, he asked the court to order the Bucharest General and Local Councils to start expropriation proceedings with a view to enlarging the road and thus restoring full car access to his property.

53. The Court notes that the domestic courts dismissed the applicant’s action by relying mainly on the grounds that the applicant had not specified and subsequently clarified to the administrative authorities which of his neighbours had closed off part of the street by building the fence in question.

54. In this connection, the Court notes that in 2007, in his request to SDC to have the fence that was encroaching onto the public road removed, the applicant had clearly stated that the builder of the fence had been the owner of the property located opposite his.

55. The Court also notes that the administrative authorities replied to the applicant’s aforementioned request by informing him that the owner of the property adjoining his, namely C.M., held a lawful building permit. Consequently, it appears that the confusion as to the identity of the person the applicant was actually complaining against had been generated by the domestic authorities and not the applicant.

56. The Court further notes that the applicant expressly argued before the last-instance court that his representative had informed the administrative authorities that his complaint had concerned the neighbour whose property had been located opposite his and not C.M. Moreover, he had contended before that court that he had been unable to establish himself the identity of the owner of the fence, because that owner’s property had been empty and no visible postal number had been attached to the entrance gate. However, the Court observes that although the last-instance court dismissed the applicant’s appeal on points of law, it did not expressly address the applicant’s aforementioned arguments.

57. Given the decisive implications of these arguments for the applicant’s case, the Court considers that the last-instance court (see paragraphs 18 and 19, above) was required to give a specific and express response, irrespective of what would have been its final conclusion (see Jaćimović v. Croatia, no. 22688/09, § 52, 31 October 2013). However, in the absence of such a response it is impossible to ascertain whether the domestic court simply neglected to examine his arguments or whether it intended to dismiss them and, if that were its intention, what its reasons were for so deciding.

58. In the light of the foregoing, the Court concludes that the applicant’s case did not receive a fair hearing.

Accordingly, there has been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

59. The applicant complained - relying on Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention - that the decision of the Bucharest Court of Appeal had breached his property rights and his right to freedom of movement in so far as he had been unable to use or build on his property and had also been unable to sell it.

60. The Court considers that the applicant’s allegations should be examined solely under Article 1 of Protocol No. 1 to the Convention, which reads:

“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.”

Admissibility

1. The parties’ submissions

(a) The Government

61. The Government contended that the applicant’s property had been zoned as agricultural land and there was no evidence in the file that he had taken steps to have his property re-zoned for construction or to obtain a building permit. Also, according to the available evidence the length of the road in question was 64 meters and stopped far short of the applicant’s property. By the time it reached the applicant’s land it was more of a path. The available photographs showed that the road was narrow, but was nevertheless capable of accommodating a small car. Therefore, the applicant had not suffered any significant disadvantage, given that any damage that he might have incurred had been either speculative or a mere inconvenience.

62. The Government also submitted that the applicant’s complaint had to be dismissed as incompatible ratione materiae because the domestic legislation did not guarantee him the right to access his property by car. The administrative authorities’ plans to pave and enlarge V. Street, had not amounted to the recognition of an existing right of the applicant to access his property by car.

63. The Government argued that the present case amounted to a dispute between private parties and that in such circumstances the State’s obligations were deemed to have been met if a forum for the resolution of the dispute had been provided. They considered that the applicant had had the opportunity to present his case clearly before the domestic authorities during adversarial proceedings at two levels of jurisdiction. Moreover, the applicant could have asked the local land registry office to provide him with information on the identity of the owner of the plot of land in question. Subsequently, he could have instituted proceedings against the aforementioned owner for any alleged damage incurred and could have asked the courts to verify the compliance of the fence with any existing relevant building permit. Consequently, the applicant’s complaint was ill-founded.

(b) The applicant

64. The applicant contended that the administrative authorities had issued an urban planning certificate (certificat de urbanism) which had attested that construction on his land was possible. However, by the time that certificate had been delivered to him it had already expired. Consequently, he had had to apply for a second urban planning certificate before he could apply for a building permit in respect of his property.

65. The applicant contested the Government’s argument that (i) he had not suffered any damage by not being able to access his property under normal conditions and (ii) that he had not intended to use the land. He stated that the requested planning certificates were the first step towards obtaining a mortgage loan for building on the land. Moreover, he argued that the domestic legislation stipulated that roads must be sufficiently large to allow emergency vehicles to access the property. Furthermore, the administrative authorities’ plans to modernize the road must also have been aimed at ensuring adequate car access.

66. The applicant argued that in order for him to have been able to obtain information regarding the identity of the builder of the fence from the local land registry office, certain conditions had to be met. Specifically, he had to provide the land registry office with the relevant postal address or justify a legal reason for wishing to access such information. However, in the absence of a visible street number on the fence owner’s property, it had been impossible to determine his postal address. Moreover, as the applicant was not the owner of the road and no action against the fence’s owner had been lodged with the domestic courts, he could not have had a legally justifiable reason for requesting such information.

2. The Court’s assessment

67. The Court notes from the outset that after the applicant’s case had been communicated to the Government, the applicant’s son had also complained about the alleged losses incurred by him as a result of the decision of a notary public to calculate the sales taxes based on a guideline for property prices used by notary public offices and not based on the price actually received by him (see paragraph 22 above). However, the aforementioned complaint does not fall within the scope of the present application as delimited by the communication of 17 October 2012 and must therefore be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

68. The Court also notes that the Government raised preliminary objections in respect of the applicant’s complaint. However, it finds that it is not necessary to examine the said objections as the complaint is in any event inadmissible for the following reasons.

69. The Court observes that according to the available evidence the applicant’s access to his land was not completely obstructed. It appears that he had direct access to it either by foot or by a small size car. Moreover, it does not appear from the applicant’s submissions before the Court that he had been interested in using the land for other purposes than building on it.

70. In this connection, the Court notes however that there is no evidence in the file that the applicant had actually attempted to obtain the necessary authorisations for building on his property. While the urban planning certificate issued by the domestic authorities in January 2009 attested that construction on his land was possible, the aforementioned document did not amount to a building permit or to other lawfully required approvals for building purposes. Moreover, there is no evidence in the file that the applicant had applied for a new urban planning certificate, given that according to him the urban planning certificate issued in January 2009 had expired by the time it had been delivered to him and that he had needed a valid one before he could have applied for a building permit in respect of his property. Consequently, in the absence of any clear evidence, the Court is not prepared to speculate that the inability to access his land by larger vehicles would have been the only and the decisive factor preventing the applicant from building on his property.

71. The Court further notes that the applicant’s son was able to sell the land to a third party.

72. In these circumstances, the Court is not convinced that the applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention had been breached.

73. It follows that this part of the applicant’s complaints is also manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

74. Relying on Article 6 of the Convention the applicant complained of the unfairness of the proceedings in so far as the domestic courts dismissed some of the evidence submitted by him and did not provide sufficient reasons for their decisions.

75. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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

77. The applicant claimed EUR 30,000 in respect of pecuniary damage on account of his inability to use the land and the domestic authorities’ inaction to remedy the situation. He also claimed EUR 50,000 in respect of non-pecuniary damage on account of his suffering caused by his inability to access his property.

78. The Government considered the applicant’s claim for pecuniary damage unsubstantiated and mostly attributable to the neighbour who had built the fence allegedly encroaching onto the public road. Moreover, as the applicant mainly sought the re-opening of the domestic proceedings he could have recovered any pecuniary damage incurred in the course of those new proceedings. They also argued that the amount claimed by the applicant in respect of non-pecuniary damage was excessive and unjustified.

79. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

80. Having regard to all the circumstances of the present case, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

B. Costs and expenses

81. The applicant also claimed EUR 11,56 for the costs and expenses incurred before the Court.

82. The Government did not object to the amount claimed in this respect.

83. 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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 11,56 covering costs for the proceedings before the Court.

C. Default interest

84. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 of the Convention concerning the unfairness of the proceedings opened by the applicant against the administrative authorities inasmuch as the domestic courts had dismissed his action by relying on the incorrect finding that he had not informed the administrative authorities of their mistake in misidentifying the third party about whom he had been complaining admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant’s son, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 11,56 (eleven euros and fifty-six cents), plus any tax that may be chargeable, in respect of costs and expenses;

(b) 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> RACHITA v. ROMANIA - 15987/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 421 (17 May 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/421.html Cite as: [2016] ECHR 421