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 OLIMPIA-MARIA TEODORESCU v. ROMANIA
(Application
no. 43774/02)
JUDGMENT
STRASBOURG
4 November
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 Olimpia-Maria Teodorescu
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43774/02) 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 Olimpia-Maria
Teodorescu (“the applicant”), on 18 November 2002.
The
applicant died on 31 August 2004. On 12 June 2007, her son,
Mr
Mircea-Decebal-Nicolae Teodorescu, expressed his wish to pursue the
application. For practical reasons, Ms Olimpia-Maria Teodorescu
will
continue to be called “the applicant” in this judgment,
although
Mr Mircea-Decebal-Nicolae Teodorescu is now to be
regarded as such (see Dalban v. Romania [GC], no. 28114/95,
§ 1, ECHR 1999 VI).
- The
applicant was represented by Mr S. Diaconescu, a lawyer practising in
Cluj-Napoca. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu.
- On
11 April 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 1908 and lived in Sebeş.
- In
1950, a house and 1,460 sq. m of appurtenant land situated in
Cluj-Napoca, Calea Turzii no. 26, the property of the applicant's
parents, were seized by the State under Decree no. 92/1950 on
nationalisation.
- On
24 July 1996 the applicant claimed compensation for the property
under Law no. 112/1995. She states that she has not received any
compensation.
- On
an unknown date the property was divided into several parts. It
appears from the documents in the file that the property, made up of
two constructions and appurtenant land, was divided into five
apartments and two plots of appurtenant land of 1,058 sq. m and 116
sq. m respectively.
- On
31 October, 15 November and 10 December 1996, and 3 February and 27
March 1997 the State sold the five apartments to the then tenants. It
appears from the file that the two plots of appurtenant land were not
made the object of a sale.
- On
3 March 2000 the Cluj Court of Appeal by a final decision allowed the
applicant's action for annulment of the State's title to property,
acknowledged that the nationalisation of the building and of the
1,460 sq. m of land appurtenant to it had been unlawful and ordered
restoration in the name of the applicant's parents.
- On
4 June 2001 the applicant requested the court to find that the sales
by the State on 10 December 1996 and 3 February 1997 of apartments
nos. 1 and 2 respectively, situated on Calea Turzii no. 28, were null
and void. According to the applicant, she did not request the
annulment of the sale of the other apartments, considering the action
pointless in so far as the constant practice was to dismiss this kind
of action.
On 4
September and on 27 November 2002 respectively the Cluj Court of
Appeal by final decisions dismissed the two actions by the applicant
to declare null and void the sales by the State. The court considered
that the sales had complied with the provisions of Law no. 112/1995
and that the former tenants had made the purchase in good faith.
- On
2 August 2001 the applicant made two different requests under the Law
no. 10/2001 governing immovable property wrongfully seized by
the State, seeking restitution in kind or compensation of the parts
of her property situated in Cluj, Calea Turzii nos. 26 and 28 and of
the appurtenant land.
- On
12 June 2007 the Cluj-Napoca Town Council, by two decisions, proposed
that the applicant be given compensation under Law no. 247/2005. The
Town Council mentioned that the apartments and the land claimed in
kind were in the possession of third parties.
So
far, she has not received any compensation.
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.
THE LAW
I. PRELIMINARY OBJECTION
- The
Government submitted in their observations of 11 July 2007 that the
case should be struck out of the Court's list of cases on the ground
that the applicant's son, after her decease, had not manifested his
clear intention to pursue the application.
- The
Court observes that Mr Mircea-Decebal-Nicolae Teodorescu, the
applicant's son, expressed his wish to continue the application in a
letter of 12 June 2007.
- In
view of the above, the Court holds that the applicant's son has
standing to continue the present proceedings in the applicant's
stead. Consequently, the Government's objection that the case should
be struck out is dismissed.
II. SCOPE OF THE APPLICATION
- The
Government submitted that the two plots of appurtenant land of 1,058
sq. m and 116 sq. m, which belong to the courtyard of the building,
were in the applicant's possession and therefore were not to be
included in the object of the present application.
- The
applicant did not contest that she was in the possession of the
courtyard of the building. However, she considered herself to have no
objective possibility to make use of this land as long as she was not
in the possession of the apartments to which this land was
appurtenant.
- The
Court notes that these plots of land appurtenant to the building were
not the object of the sales by the State (see paragraph 8 above) and
that the applicant did not contest the Government's assertions.
Therefore it considers that the applicant is the owner of this land
in accordance with the final decision of 3 March 2000 and that the
two plots of land are not to be considered included in the object of
the present application.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant alleged that the sale by the State of her property 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 the application 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 their arguments previously submitted in similar
cases. In particular, they submitted that the administrative
authorities proposed that the applicant be given compensation under
Law no. 247/2005.
- The
applicant disagreed, considering the system of compensation under Law
no. 247/2005 ineffective and uncertain.
- 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 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 applicant's possession still prevents
her from enjoying her 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 eight 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 v. Romania,
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 damages
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 applicant's possession,
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 her possessions, as guaranteed by
Article 1 of Protocol No. 1.
There
has accordingly been a violation of Article 1 of Protocol No. 1.
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's successor sought restitution of the property as the most
appropriate manner for the State to provide redress. Should
restitution not be granted, he claimed a sum equivalent to the
current value of the property which, according to the expert report
he had submitted to the Court, amounted to 470,000 euros (EUR). He
also claimed at least EUR 500 monthly for the loss of profit or
any benefit from the applicant's possession since the judgment
certifying her right of property and until the restitution in kind.
In respect of non-pecuniary damage he sought EUR 100,000.
- The Government contested the claims. Having regard to
their own expert report, based on a theoretical assessment of the
value, they considered that the market value of the property was EUR
390,330. Regarding the loss of profit, the Government considered
that, in the view of its jurisprudence, the Court should not grant
it. Further, they submitted that the finding of a violation could
constitute in itself sufficient just satisfaction for any
non-pecuniary damage which the applicant may have suffered.
- 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).
- In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll v. Portugal [GC], no. 35382/97, §
29, ECHR 2000 IV).
- The
Court considers, in the circumstances of the case, that the return of
the property in issue (two constructions and remaining appurtenant
land situated in Cluj-Napoca, Calea Turzii nos. 26-28), as ordered in
the final decision of 3 March 2000 of the Cluj Court of Appeal, 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's successor, 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 430,000.
- As
regards the amount of money alleged by the applicant's successor for
the loss of profit or any benefit from the applicant's possession,
the Court rejects this claim taking into account, on the one hand,
that it has ordered restitutio in integrum as reparation under
Article 41 of the Convention and on the other hand, that granting a
sum of money on this basis would be a speculative process, having
regard to the fact that the profit from a possession depends on
several factors.
- The
Court considers that the serious interference with the applicant's
right to the peaceful enjoyment of her 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
the applicant's successor EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant's successor also claimed EUR 1,000 for the costs and
expenses before the Court, representing lawyer's and postal fees. He
submitted a contract for legal representation, stating that the
applicant had paid 6,500,000 old Romanian lei for the filling in of
the application form.
- The
Government contested the claim as unsubstantiated.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 for the
proceedings 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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention;
- Holds
(a) that
the respondent State is to return to the applicant's successor the
property made up of two constructions and appurtenant land, situated
in Cluj-Napoca, Calea Turzii nos. 26-28, 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's successor, within the same three months, the amount of
EUR 430,000 (four hundred and thirty 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 the applicant's
successor, within the same three months, the amounts of EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 1,000 (one thousand
euros), plus any tax that may be chargeable to the applicant's
successor, in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
