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THIRD
SECTION
CASE OF PETROIU v. ROMANIA
(Application
no. 33055/09)
JUDGMENT
(merits)
STRASBOURG
24
November 2009
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 Petroiu 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
Stanley Naismith,
Deputy
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33055/09) 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, Mrs Florica-Maria Petroiu
(“the applicant”), on 5 August 2005.
- The
applicant was represented by Mr Dumitru Rădescu, a lawyer
practising in Bucharest. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
10 November 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
applicant was born in 1932 and lives in Bucharest.
- In
1952, a property situated in Bucharest at 10 Negustori Street and
belonging to I.A. was seized by the State under Decree no. 224/1951,
following an alleged unpaid debt. I.A.'s only heir was his wife, the
applicant being the latter's sole legatee.
The
property consisted of a building placed on a 458 sq. m plot of land.
The building was divided into five apartments.
- On
10 July 1996 the applicant requested the authorities to authorise her
to recover the whole property and to refrain from selling it to the
tenants under Law no. 112/1995. However, on 9 December 1996, 12
March, 30 September and 7 October 1997 and 22 October 1998 the F.
company, a State-owned company responsible for the management of
property belonging to the State, sold the five apartments with the
appurtenant land to the then tenants under Law no. 112/1995.
- On
5 June 2001 the applicant, in her capacity as legatee of I.A.'s wife,
claimed restitution or compensation, under Law no. 10/2001 governing
immovable property wrongfully seized by the State, for a plot of 460
sq. m of land and for the constructions on it situated in Bucharest
at 10 Negustori Street. It appears from the file that she did not
receive any answer.
- On
6 August 2002 the applicant brought court proceedings to have the
sales of the five apartments declared null and void. She considered
that the seizure by the State had been unlawful.
- On
16 June 2003 the Bucharest Court of First Instance dismissed the
action, considering that the third parties had made the purchase in
good faith, although the authorities were in bad faith since they had
sold the property before resolving her request to recover it. The
court also acknowledged that the seizure by the State of the whole
property had been unlawful and that the applicant was the legatee of
I.A.'s wife. However, relying on section 46 § 2 of Law no.
10/2001, it considered that the applicant had not also proved the
buyers' bad faith.
- Two
subsequent appeals by the applicant were dismissed, on 14 October
2003 by the Bucharest County Court and on 11 February 2005 by a final
judgment of the Bucharest Court of Appeal.
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 these transactions have
been concluded in good faith.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant alleged that the sale by the State to third parties of the
five items of immovable property 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
Government raised an objection of incompatibility
ratione
materiae in respect of this complaint. They submitted that the
courts had dismissed the applicant's allegations by a final judgment
and had upheld the findings of the lower courts regarding the State's
title to the seizure. They considered that the applicant had no
“possession” within the meaning of Article 1 of Protocol
No. 1 and that the courts had not settled the issue of the lawfulness
of the seizure or conferred any property right in the operative part
of a final judgment.
- The
Government also considered that the applicant had no legitimate
expectation because, unlike in the cases of Străin and Others
(cited above, § 38) and Porteanu v. Romania
(no. 4596/03, § 33, 16 February 2006), she did
not have the benefit of an irrevocable decision acknowledging that
the seizure had been unlawful. The applicant was “merely
claimant” (see Pentia and Pentia v. Romania (dec.), no.
57539/00, 23 March 2006) and had no legitimate expectation based on a
court decision or on a legal provision of recovering the properties
at issue.
The
Government pointed out that the final judgment of 11 February 2005
(see paragraph 10 above) did not acknowledge that the seizure had
been unlawful. They invoked that the higher courts had examined the
applicant's requests also from the perspective of the provisions of
section 46 of
Law no. 10/2001 regarding the validity of
sales performed in good faith and in compliance with the laws in
force at that moment.
- The applicant disagreed.
- The
Court notes that a similar objection by the Government was dismissed
in the Reichardt v. Romania (no. 6111/04, §§ 14-20,
13 November 2008) and Popescu and Dimeca v. Romania (no.
17799/03, §§ 21-24, 9 December 2008) judgments. In
particular, the Court observes that the final judgment of 11 February
2005 invoked by the Government upheld the first-instance judgment of
16 June 2003, which had acknowledged the unlawfulness of the seizure
(see paragraph 9 above).
- The
Court reiterates that in its settled case-law on matters similar to
that in the present case it has examined whether the unlawfulness of
the nationalisation in question has been acknowledged in a final
decision, either in its reasoning or in its operative part. The Court
did not make any distinction as regards the part of the final
decision in which the lawfulness of the seizure was considered.
Therefore it finds no reasons to depart from its conclusion in those
above-mentioned cases and dismisses the Government's objection.
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. Nor is
it 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.
- The
applicant disagreed with those arguments.
- The
Court reiterates that, according to its case-law, the sale of
another's possessions by the State, even before the question of
ownership has been finally settled by the courts, 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 applicant's possessions inherited from
I.A. still prevents her from enjoying her 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 four 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 commercial 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 applicant's possessions,
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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings and the solution had been unfair, and that the
domestic courts had failed to assess the facts correctly and had
misinterpreted the domestic law.
- Having
carefully considered the applicant's 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.
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.”
- The
applicant sought to recover possession of her property made
of
“building and land” or, if that would be impossible, the
sum
of 1,464,000 euros (EUR), on the basis of an expert
report from
February 2007. According to that expert report, which
was also signed by an expert from the Ministry of Culture, the
building had been included on the 2004 List of Historical Monuments,
as an historic monument of “B” category. The applicant
alleged that the Government had not taken into account that aspect.
She further claimed EUR 422,496 for loss of profit or benefit from
her property for three years. In respect of non-pecuniary damage she
claimed EUR 500,000.
In a
letter of 30 November 2007 the applicant alleged that the expert
report submitted by the Government had not taken into account the
plots of appurtenant land.
- The
applicant also claimed 9,053 Romanian lei for the fee for the lawyer
and for the expert report. She submitted invoices and copies of
contracts for judicial assistance.
- The
Government considered, in line with their own expert report from
September 2007 based on a theoretical assessment of the value, that
the value of the property before VAT was EUR 259,603.
They
also considered that the claim for loss of profit should be
dismissed. Further, the claim in respect of non-pecuniary damage was
highly excessive.
- The
Government contested the claim for costs and expenses on the ground
that it was unsubstantiated, that the applicant had not submitted
copies of the contracts for judicial assistance, which would have
allowed the Court to determine whether the costs were incurred in
domestic proceedings or in the proceedings before the Court.
Moreover, the amount claimed in lawyer's fee was excessive.
- In
the circumstances of the case and having regard to the parties'
submissions, the Court considers that the question of the application
of Article 41 of the Convention is not ready for decision and
reserves it in whole, due regard being had to the possibility that an
agreement between the respondent State and the applicant may be
reached (Rule 75 § 1 of the Rules of Court).
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 that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, their written observations on the matter
and, in particular, to notify the Court of any agreement that they
may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep
Casadevall
Deputy Registrar President
