THIRD SECTION
CASE OF
BOROBAR AND OTHERS v. ROMANIA
(Application no.
5663/04)
JUDGMENT
STRASBOURG
29 January 2013
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 Borobar and Others v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section
Registrar,
Having deliberated in private on 8 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
5663/04) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by three Romanian nationals, Mrs Hortensia Borobar,
Mrs Cecilia Colcea and Mrs Carmen Valeria Miulescu Dosmaneanu (“the
applicants”), on 13 December 2003.
The applicants, who had been granted legal aid,
were represented by Mr A. Gociu, a lawyer practising in Timişoara. The Romanian Government (“the Government”) were
represented by their Agent, Mr Răzvan-Horaţiu Radu.
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules of
Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc
judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules
of Court).
The applicants alleged that they had not
benefited from a trial within a reasonable time, as the criminal proceedings
initiated by them had lasted almost eight years and had been closed on the
grounds that the limitation period for criminal responsibility had expired. As
a consequence, they had been denied the right of access to court, as the courts
had not rendered any decision in respect of their joint civil action and
their right to enjoy their possessions had been infringed.
On 2 September 2010 the President of the Third
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. General context
The applicants were born in 1953, 1954 and 1945
respectively and live in Banloc.
S.C. and his father lent money to the applicants,
who secured the loans with their apartments located in Timişoara.
The applicants concluded sale contracts of their
apartments with S.C. on 10 October 1995, 9 February 1996 and 15 July 1996
respectively.
B. Criminal proceedings initiated by the applicants
The three applicants lodged criminal complaints
of abuse of trust (abuz de încredere) and false statements (fals in
declaraţii) against S.C. and his father on 14 October 1996,
12 November 1996 and 30 September 1997 respectively. They stated
that their intention had been to secure the loan agreements, and not to sell
their apartments.
On 23 October 1997 all the criminal
complaints were joined in a single file and sent to the prosecutor’s office
attached to the Timişoara Court of Appeal.
On 4, 5 and 7 November 1997 the
applicants joined civil complaints to the criminal proceedings.
On 30 May 1999 the prosecutor’s office attached
to the Timişoara Court of Appeal decided to discontinue the
criminal investigation against S.C. and his father.
The applicants lodged a further complaint with
the prosecutor’s office attached to the Supreme Court of Justice. It was
allowed by a decision of 15 May 2002 and the file was remitted to the
prosecutor’s office attached to the Timişoara Court of Appeal in order to
continue the investigation. The decision stated that new evidence should be
adduced in order to clarify the applicants’ allegations.
On 28 May 2003 the prosecutor’s office attached
to the Timişoara Court of Appeal again decided to discontinue the criminal
investigation against S.C. and his father. On 11 August 2003 this decision was
upheld by the chief prosecutor of the prosecutor’s office attached to the
Bucharest Court of Appeal.
The applicants lodged a complaint with the
Timişoara District Court against the said decision on the basis of Article 278
of the Code of Criminal Procedure (CCP).
By a judgment of 19 March 2004, the court
relinquished jurisdiction in favour of the Timişoara Court of Appeal.
On 31 March 2004 the Timişoara Court of
Appeal dismissed the complaint on the grounds that S.C. and his father had not
committed an offence.
An appeal on points of law lodged by the
applicants with the High Court of Cassation and Justice on 10 February
2005 was allowed. The court held that the evidence in the file was not
sufficient to establish whether the complaint was well-founded and remitted the
file to the prosecutor’s office for further investigation.
On 30 September 2005 the prosecutor’s office
attached to the Timişoara Court of Appeal dismissed the complaint on the
grounds that the statutory time-limit for criminal liability had expired in
respect of all the alleged crimes. It held that the special limitation period
was seven years and six months and that it had started running on the date when
the sale contracts had been signed (namely on 10 October 1995, 9 February 1996
and 15 July 1996). It gave no decision in respect of the civil
complaints.
It appears from the material submitted by the
parties that the applicants did not lodge a complaint against the decision of
30 September 2005.
C. Civil
proceedings related to the applicants’ apartments
1. Action for rescission of the sale contract
concluded by the first applicant
On 18 November 1996 the first applicant lodged a
civil action against S.C. seeking the rescission of the sale contract of her
apartment. She claimed that she had been misled by the fraudulent behaviour of
S.C. that made her believe that they had concluded a contract securing the
loan, and not a sale contract. S.C. lodged a counterclaim requesting her to vacate
the apartment.
By a judgment delivered on 3 March 1997, the
Timişoara District Court dismissed the action on the grounds that the
first applicant was aware of the purpose of the contract as she had signed
it in the presence of a public notary.
On 11 December 1997 the Timiş County Court
allowed an appeal lodged by the first applicant. It set aside the judgment and
remitted the file to the court of first instance, holding that the court had
not thoroughly analysed the evidence adduced by the parties.
On 10 March 1999 the Timişoara District
Court delivered a new judgment on the merits. It allowed the first applicant’s
action, holding that the applicant had had no intention of concluding a sale
contract but had sought instead to secure a loan agreement.
On 22 December 1999 the Timiş County Court
dismissed an appeal lodged by S.C as unfounded.
On 7 November 2000 the Timişoara Court of
Appeal allowed an appeal on points of law lodged by S.C., set aside the
judgment of 10 March 1999 and the decision of 22 December 1999, and
delivered a final judgment on the merits. It dismissed the first applicant’s
action and allowed the counterclaim ordering the first applicant to vacate the
apartment.
2. Eviction proceedings against the second and third
applicants
On 24 February 1997 S.C. brought an action
against the second applicant seeking her eviction from the apartment that
he had bought on 15 July 1996.
On 31 March 1997 the Timişoara District
Court allowed the action ordering the eviction of the second applicant.
On 22 December 1997 the Timiş County
Court dismissed an appeal lodged by the second applicant on the grounds that
she had not submitted the reasons for her appeal within the statutory time-limit.
On 11 June 1998 the Timişoara Court of
Appeal dismissed as unfounded an appeal on points of law lodged by the second
applicant.
On the basis of a judgment delivered by the
Timişoara District Court on 24 June 1996, the third
applicant was evicted from the apartment which she had sold to S.C. Although
duly summoned to attend the eviction proceedings initiated against her, the
third applicant was not present at the proceedings. She did not lodge an appeal
against the judgment of 24 June 1996.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the CCP in force at
the time of the relevant facts read as follows:
Article 14
“The aim of the civil action is to establish the civil
liability of the accused and the liability for damages of any other person who
may be held legally responsible.
The civil action can be brought together with the criminal
action in a criminal trial, by way of joining the proceedings.”
Article 15
“A person who has suffered civil damage can join the criminal
proceedings...
He or she can do so either during the
criminal investigation... or before the court...”
Article 22
“The findings contained in a final judgment of the criminal
court concerning the issue whether the act in question was committed and the
identification of the perpetrator and establishment of his guilt are binding on
the civil court when it examines the civil consequences of the criminal act.”
The provisions of Articles 19 and 20 of the CCP
are mentioned in Forum Maritime S.A. v. Romania, nos. 63610/00
and 38692/05, §§ 64 and 65, 4 October 2007.
The relevant provisions of the Criminal Code
concerning the limitations of criminal liability are the following:
Article 121
“Limitation removes criminal responsibility...”
Article 122
“Limitation periods for criminal responsibility are as follows:
.....
d) five years, when the law provides for
imprisonment of more than one year, but no more than five years for the
perpetrated crime;
.....
The periods mentioned in the present article are calculated
from the date of the commission of the crime.”
Article 123
The limitation periods provided for in Article 122 shall be
interrupted by any procedural action which has been initiated in order to
prosecute the perpetrator for the criminal offence in question.
The limitation periods shall be renewed following any
interruption.”
Article 124
“A criminal prosecution shall be statute-barred in any case
after the expiry of the period provided for under Article 122 plus a half of
that period.”
In accordance with Article 213 of the CCP, a
person who had committed the offence of abuse of trust was liable to
imprisonment for a period of between three months and four years.
In accordance with Article 292 of the CCP, a
person who had committed the crime of making a false statement was liable to
imprisonment for a period of between three months and two years.
Dumitru Popescu v. Romania (no. 1) (no. 49234/99,
§§ 43 and 44, 26 April 2007) contains a description of the
development of the law concerning complaints against decisions of the
prosecutor (Article 278 of the CCP and Article 2781
introduced by Law no. 281/24, June 2003, applicable from
1 January 2004).
THE LAW
I. PRELIMINARY OBJECTIONS
The Government raised as a preliminary objection
the non-observance by the third applicant of the six-month time-limit
for lodging an application with the Court. In this respect they contended that
even though the domestic bodies had delivered their final decision on 3 October 2005,
the first letter signed by the third applicant had not been submitted to the
Court until 22 October 2008.
From the analysis of the material submitted by
the applicants, the Court notes that the first letter submitted to the
Court on 13 December 2003 was signed only by the first and second
applicants. However, it also notes that the said letter was accompanied by a
power of attorney signed by the third applicant, who had granted the power to
represent her before the Court to the second applicant.
In
the light of the above, the Court finds that the third applicant has
complied with the six-month time-limit under Article 35 § 1 of
the Convention. The Government’s objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
Relying on Article 6 § 1 of the Convention, the
applicants complained that they had been denied the right of access to court
and that the length of the proceedings had been excessive.
Article 6 § 1 of the Convention, in so far as
relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a reasonable time by
[a] ... tribunal ...”
A. The right of access to court
Admissibility
The Government raised a preliminary objection of
non-exhaustion of domestic remedies in so far as the applicants had not
lodged any complaint against the decision of 30 September 2005 delivered
by the prosecutor’s office attached to the Timişoara Court of Appeal.
They further submitted that the applicants had
had the opportunity to lodge a complaint against that decision with the chief
prosecutor on the basis of Article 278 § 3 of the CCP. They
added that if the applicants had not been satisfied with the chief prosecutor’s
decision, they could have lodged a complaint with the court competent to judge
the case on the merits, on the basis of Article 278 of the CCP.
They maintained that the remedies in question
had been available to the applicants, were sufficient to afford redress in
respect of the breaches alleged, and were sufficiently certain not only in
theory but also in practice. In support of their arguments, they referred to
the judgment delivered by the Court in Stoica v. Romania (no.
42722/02, § 109, 4 March 2008).
The applicants did not agree with the Government’s
position. They submitted that, as held by the Court in Ghibusi v. Romania
(no. 7893/02, 23 June 2005), the Convention does not require the
exhaustion of remedies that are neither available nor adequate. They also
maintained that in order to be adequate, any domestic remedies must provide a
degree of certainty, not only in theory but in practice.
The Court reiterates that the object of the rule
on exhaustion of domestic remedies is to allow the national authorities
(primarily the judicial authorities) to address allegations that a Convention
right had been violated and, where appropriate, to afford redress before those
allegations are submitted to the Court (see Azinas
v. Cyprus [GC], no. 56679/00, § 38,
28 April 2004, and Kudla v. Poland
[GC] no. 30210/96, § 152, ECHR 2000-XI).
Under Article 35 of the Convention, normal
recourse should be had by an applicant to remedies that are available and
sufficient to afford redress in respect of the breaches alleged. The existence
of the remedies in question must be sufficiently certain not only in theory but
also in practice, failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that these various
conditions are satisfied (see, inter alia,
Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII,
and Dalia v. France, no. 26102/95,
§ 38, ECHR 1998I).
In respect of the present case, the Court
considers that although there was a possibility of lodging a complaint on the
basis of Article 278 of the CCP against the decision made by the
prosecutor’s office attached to the Timişoara Court of Appeal on 30 September
2005, such a remedy would have been not only ineffective but also illusory.
The Court notes that the prosecutor’s office
dismissed the criminal complaint in connection with the offences of abuse of
trust and false statements on the grounds that the criminal liability of the
defendants had become statute-barred.
In accordance with Article 122 of the CCP, the
limitation period for the crimes allegedly committed by the defendants was
five years. Article 124 of the CCP provided that a criminal
prosecution was statute-barred in any case, independently of interruptions,
after the expiry of the period provided for under Article 122 of the CCP plus
one half of that period.
The Court notes that by applying Article 122 in
conjunction with Article 124 of the CCP, the special criminal liability
limitation period for the crimes allegedly committed by S.C. and his father
expired (see paragraph 19). In this context, as no prosecution or judgment
would have been possible after the expiry of the limitation period, the Court
notes that lodging another complaint against the decision of 30 September 2005
would have been ineffective.
Moreover, the Court notes that the applicants
have already repeatedly used the procedure provided for by Article 278 of
the CCP without obtaining any analysis of the merits of their case in almost
eight years from the submission of their complaint.
In the light of the above considerations, the
Court considers that no effective remedy was available for the applicants against
the decision delivered on 30 September 2005.
Another argument raised by the Government in
their observations in respect of non-exhaustion of domestic remedies was that
although the prosecutor’s office had dismissed the criminal complaint, the
applicants had had the opportunity to file separate civil actions with the
civil courts.
The Court reiterates that in other cases in
which the domestic courts did not analyse the civil complaint on grounds of the
inadmissibility of the criminal complaint to which it was joined (see Moldovan v. Romania
(no. 2), nos. 41138/98 and 64320/01, §§ 119-22, ECHR 2005-VII
(extracts), and Forum Maritime S.A., cited above, § 91), it
stressed the importance of the existence of other effective remedies for the
civil claims. If such remedies existed, it did not find a violation of the
right of access to court (see also Assenov and Others v. Bulgaria, 28
October 1998, § 112, Reports of Judgments and Decisions 1998-VIII,
and Ernst and Others v. Belgium, no. 33400/96,
§§ 5355, 15 July 2003).
Under Article 20 of the CCP in force at the
material time, an injured party who joined a civil action to criminal
proceedings was entitled to lodge a separate new action with the civil courts
if the criminal courts did not give any decision in respect of the civil
claims.
With respect to the present case the Court notes
that the applicants had the possibility of bringing separate actions for the
rescission of the sale contracts.
The Court also notes that the first applicant
availed herself of such a remedy before joining a civil complaint to the criminal
proceedings in November 1997. Thus on 18 November 1996 she lodged an
action for the rescission of the sale contract, which the Timişoara
Court of Appeal dismissed by a final decision on
7 November 2000 (see paragraphs 21-26).
The Court observes that the second and third
applicants did not lodge separate actions with the civil courts either before
or after dismissal of their criminal complaint. Furthermore, they were quite
passive when S.C. lodged civil actions for their eviction from their
apartments. Thus, the appeal lodged by the second applicant against the
judgment of the court of first instance which allowed her eviction was
dismissed on the grounds that she had not submitted her reasons for appeal
within the statutory time-limit. The third applicant, although duly
summoned, was not present in court and did not submit any arguments in her
favour in the eviction proceedings initiated by S.C.
In the light of these circumstances and having
regard to the subsidiary character of the Convention machinery, the Court
considers that the second and third applicants should have brought a separate
new action before the civil courts and that it is not for the Court to
speculate on the outcome of such an action.
It follows that the complaints raised by the
second and third applicants concerning the infringement of their right of
access to court must be rejected under Article 35 §§ 1 and 4 of the Convention
for non-exhaustion of domestic remedies.
Therefore, the Court will continue with the
analysis of the complaint concerning the right of access to court only with
respect to the first applicant.
The Government contended that the right of
access to court was not absolute, mentioning in this respect the judgments
pronounced by the Court in Golde v. the United Kingdom (21
February 1975, § 38, Series A no. 18).
They submitted that although the first applicant
had joined civil complaints to the criminal proceedings, the domestic courts
had in the meantime decided her civil claims. Therefore, they concluded that
the applicant could not contend that she had not had access to a court with
respect to her civil claims.
The first applicant alleged that she had been
denied the right of access to court as the applicants’ criminal complaint had
been dismissed on the grounds that the criminal liability for the alleged
crimes was statute-barred. As a consequence, the civil complaint joined
to the criminal proceedings had been left undecided.
The Court reiterates that Article 6 § 1 secures
to everyone the right to have any claim relating to his or her civil rights and
obligations brought before a court or tribunal. The right of access to court in
civil matters constitutes one aspect of the “right to a court” embodied in
Article 6 § 1 (see, amongst many other authorities, Aksoy v. Turkey, judgment of
18 December 1996, Reports 1996-VI,
p. 2285, § 92; Waite and Kennedy
v. Germany [GC],
no. 26083/94, § 50, ECHR 1999-I;
and Golder, cited above, § 36).
The Court reiterates that the Convention does
not confer any right, as such, to have third parties prosecuted or sentenced
for a criminal offence. In order to fall within the scope of the Convention,
such a right must be indissociable from the victim’s exercise of his right to
bring civil proceedings in domestic law (see Perez v. France [GC], no.
47287/99, § 70, ECHR 2004-I).
The Court also reiterates that the right of
access to court secured by Article 6 § 1 of the Convention is
not absolute, but may be subject to limitations; these are permitted by
implication since the right of access by its very nature calls for regulation
by the State. In this respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the individual
in such a way or to such an extent that the very essence of the right is
impaired (see Waite and Kennedy, cited
above, § 59).
Furthermore, the Court reiterates that it is not
its task to substitute itself for domestic jurisdictions. It is primarily for
the national authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see, inter alia,
Pérez de Rada Cavanilles v. Spain, 28 October 1998,
§ 43, Reports of Judgments and Decisions 1998-VIII).
In the instant case, the Court notes that the
first applicant had lodged a separate civil action even before she lodged the
criminal complaint. It had been analysed on the merits by the domestic courts,
which had dismissed it as ill-founded.
The Court considers that the separate civil
action represented an effective remedy in respect of the applicant’s civil
claims.
Therefore, in the light of the foregoing
considerations it cannot be said that she was denied access to court or
deprived of a fair hearing in the determination of her civil rights.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
B. Length of criminal proceedings
1. 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.
2. Merits
(a) The parties’ submissions
The applicants complained that the length of the
criminal proceedings had been excessive. They contended that the period to be
taken into account had begun on 14 October 1996 and ended on
30 September 2005. They added that the case was not especially
complex and that they had not hindered the proceedings in any way.
The Government submitted that the period to be taken
into consideration had begun only on 4, 5 and 7 November 1997 and
ended on 30 September 2005. It had thus lasted less than eight years.
They also maintained that the case was rather complex, raising controversial
issues and involving many parties. Furthermore, they submitted that there had
been no periods of inactivity attributable to the authorities.
(b) The Court’s assessment
The Court reiterates that Article 6 of the
Convention applies to proceedings involving civil-party complaints from the
moment the complainant is joined as a civil party, unless he or she has waived
the right to reparation in an unequivocal manner (see Gorou v. Greece (no.
2) [GC], no. 12686/03, § 25, ECHR 2009-...).
Therefore, the Court does not agree with the
applicants’ submissions according to which the period to be taken into account
began on 14 October 1996 and ended on 30 September 2005. The Court
notes that the applicants joined their civil claims to the criminal proceedings
only on 4, 5 and 7 November 1997 respectively. Therefore, it
considers that the period to be taken into consideration began on 4, 5 and
7 November 1997 and ended on 30 September 2005. It thus lasted almost
eight years at three levels of jurisdiction.
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 (see, among
many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67,
ECHR 1999-II, and Foley v. the United Kingdom, no. 39197/98,
§ 36, 22 October 2002). It also reiterates that one of the
purposes of the right to trial within a reasonable period of time is to protect
individuals from “remaining too long in a state of uncertainty about their
fate” (see Stögmüller v
Austria, 10 November 1969, Series A no. 9, p. 40,
§ 5).
In particular, the Court notes that on
15 May 2002 and 10 February 2005 respectively, the High
Court of Cassation and Justice allowed appeals on points of law lodged by the
applicants on the grounds that there was not enough evidence in the file to
establish whether the complaints were well-founded, and remitted the file to
the prosecutor’s office attached to the Timişoara Court of Appeal for
further evidence.
The Court has already found that, although it is
not in a position to analyse the juridical quality of the case-law of the
domestic courts, the repeated remittal of cases for re-examination discloses a
serious deficiency in the judicial system (see Matica
v. Romania, no. 19567/02, § 24, 2 November 2006).
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
Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01,
§ 26, ECHR 2005-VIII, and
Soare v. Romania, no. 72439/01, § 29, 16 June 2009).
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
in respect of the length of the criminal proceedings.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION
The applicants complained of a violation of the
right to enjoy their possessions. They contended that they had been
deprived of the right to their properties on account of the fraudulent way in
which S.C. had persuaded them to sign sale contracts while they had believed
that they had been concluding mortgage contracts. They relied on Article 1
of Protocol No. 1 to the Convention, which in so far as relevant,
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.”
Admissibility
The Government raised a preliminary objection of
inadmissibility ratione materiae of the applicants’ complaint. They
maintained that the applicants did not have “possessions”, as defined by the
Court’s case-law. In this connection they submitted that the domestic
civil courts had rendered final decisions holding that the applicants had
concluded valid sale contracts of their apartments with S.C., who had become
the owner of the apartments.
The applicants did not agree with the Government’s
submissions. They contended that by lodging a criminal complaint against S.C.
and his father and by joining their civil claims to the criminal
proceedings, they had had a legitimate expectation of recovering the ownership
of their apartments.
The Court reiterates that an applicant can
allege a violation of Article 1 of Protocol No. 1 only in so far
as the impugned decisions relate to his “possessions” within the meaning of
this provision. “Possessions” can be either “existing possessions” or assets,
including claims, in respect of which the applicant can argue that he or she
has at least a “legitimate expectation” of obtaining effective enjoyment of a
property right (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land
Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-X).
The issue that needs to be examined is whether the circumstances of the case,
considered as a whole, conferred on the applicant title to a substantive
interest protected by Article 1 of Protocol No. 1 (see, among many other
examples, Beyeler v. Italy [GC],
no. 33202/96, § 100, ECHR 2000-I).
In the instant case the Court notes that the
action for the rescission of the sale contract lodged by the first applicant was
dismissed by a final decision rendered by the Timişoara Court of Appeal on
7 November 2000. The court held that the sale contract was valid and
ordered the applicant to vacate the apartment.
With respect to the other two applicants, the
Court also notes that the civil actions lodged by S.C. for the eviction of the
second and third applicants from the apartments were allowed by final decisions
delivered by the Timişoara Court of Appeal on 11 June 1998 and by the
Timişoara District Court on 24 June 1996 respectively.
It therefore follows that the applicants cannot
claim to have an asset within the meaning of Article 1 of Protocol No. 1 to the
Convention. Consequently, their complaints are 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.
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
In respect of pecuniary damage, the applicants
claimed 78,242 euros (EUR), EUR 71,818 and EUR 90,153 respectively, representing
the value of their apartments and the inability to use them.
Each of the applicants claimed EUR 400,000 in
respect of non-pecuniary damage.
The Government submitted that the applicants’
claims in respect of pecuniary damage should be rejected as the applicants had
not proved that they had a possession in accordance with the Court’s case-law.
With regard to non-pecuniary damage they contended that the applicants
had not proved any connection between the alleged violations of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 to the Convention and the damage they had allegedly incurred.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim.
As to non-pecuniary damage, the Court considers
it likely that the applicants suffered frustration on account of the excessive
length of proceedings.
Ruling on an equitable basis, the Court
considers that each applicant should be awarded EUR 2,400 in compensation
for non-pecuniary damage.
B. Costs and expenses
The first applicant also claimed EUR 318 for the
costs and expenses incurred before the domestic courts. The other two
applicants did not claim any costs and expenses.
The Government submitted that the first
applicant had not proved that she had actually incurred the said costs and
expenses.
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 were actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to the fact
that the first applicant did not submit any documents proving the alleged
incurred expenses and the above criteria, the Court rejects the claim for costs
and expenses in the domestic proceedings.
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
1. Declares
the complaint under Article 6 § 1 of the Convention concerning the length of
the criminal proceedings admissible and the remainder of the application
inadmissible;
2. Holds that
there has been a violation of Article 6 § 1 of the Convention in
respect of the length of the criminal proceedings;
3. Holds
(a) that the respondent State is to pay to each applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 2,400
(two thousand four hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into the respondent State’s national
currency at the rate applicable at the date of settlement;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 29 January
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena
Tsirli Josep
Casadevall Deputy Registrar President
