European Court of Human Rights

 

 

FOURTH SECTION

CASE OF BÜTTNER AND OTHERS v. ROMANIA

(Applications no. 31560/04 and 4 others)

 

 

 

 

JUDGMENT
(Revision)

STRASBOURG

12 October 2021

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Büttner and Others v. Romania (request for revision of the judgment of 29 September 2020),

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

          Branko Lubarda, President,
          Carlo Ranzoni,
          Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having deliberated in private on 14 September 2021,

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

PROCEDURE

1.  The case originated in an application (no. 6531/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Adrian Tilică Popescu and Mr Sergiu Popescu, on 31 January 2005.

2.  In the judgment Büttner and Others v. Romania delivered on 29 September 2020, the Court held that there had been a violation of Article 1 of Protocol No. 1 of the Convention on account of the applicants’ inability to recover possession or to be compensated for the loss of their properties, despite the existence of final domestic court decisions retroactively acknowledging their property rights. As regards application no. 6531/05 (Popescu v. Romania) the Court also decided to award the applicants jointly 202,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR 500 for costs and expenses and dismissed the remainder of the claims for just satisfaction.

3.  On 26 October 2020 the Government informed the Court that they had learned that Mr Adrian Tilică Popescu had died on 27 June 2014 and that Mr Sergiu Popescu had died on 23 September 2013. They accordingly requested a revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4.  On 8 December 2020 the Court considered the request for revision and decided to give the applicants’ potential heirs four weeks in which to submit any observations. Those observations were received on 20 January and 14 April 2021 and sent to the Government who replied on 5 February and 18 May 2021.

THE LAW

THE REQUEST FOR REVISION

5.  The Government requested a revision of the judgment of 29 September 2020 as regards the case of Popescu v. Romania. They explained that during the execution phase the applicants’ heirs informed them that they wished to pursue the application. Given that the applicants’ heirs neither informed the Court about the death of the applicants nor expressed their wish to pursue the proceedings before the Court delivered its judgment, the Government asked the Court to allow the request for revision and strike the application out of the list. Moreover, they pointed out that the last correspondence with the Court dated 15 January 2015 was sent in the applicant’s name. They also submitted copies of the applicants’ heirs inheritance certificates.

6.  In reply, the applicants’ heirs, Mr Popescu Angelo-Gabriel, Ms Popescu Rodica-Cristina-Angela and Mr Popescu Lucian Iorgu, stated that they obtained the inheritance certificates on 30 July 2020 and 12 August 2020 and that on 23 October 2020 they informed the Government about their intention to pursue the application. They had expressed their wish to pursue the proceedings in their parents’ stead, which would entitle them to receive the sums awarded to their deceased fathers.

7.  The Court considers that the judgment of 29 September 2020 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.

...”

8.  The Court considers that the death of the applicants constitutes a fact of “decisive influence” on the outcome of the judgment within the meaning of Rule 80 § 1 (Association of Victims of Romanian Judges and Others v. Romania (revision), no. 47732/06, § 9, 22 March 2016). In particular, it reiterates that where the applicant has died after the application was lodged, the Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (Nicolae Augustin Rădulescu v. Romania (revision), no. 17295/10, § 8, 19 May 2015). However, it has been the Court’s practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed in a timely manner a wish to pursue the application without providing any explanation for such failure (Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania (revision), no. 27153/07, § 10, 13 November 2018).

9.  The Court takes note of the fact that the applicants’ heirs did not inform the Court about the death of the applicants before it delivered judgment in the case at hand on 29 September 2020. However, it observes that the applicant’s heirs obtained their inheritance certificates only on 30 July 2020 and 12 August 2020 and that they informed the Government about their intention to pursue the application without delay after the delivery of the judgment of 29 September 2020 (see paragraph 6 above). In these circumstances, the Court considers that they presented a valid reason for not informing the Court sooner about the applicants’ deaths and that they expressed timely their wish to pursue the application.

10.  It accordingly decides to award the heirs jointly the amounts it previously awarded jointly to Mr Adrian Tilică Popescu and Mr Sergiu Popescu, namely EUR 202,000 for pecuniary and non-pecuniary damage and EUR 500 for costs and expenses.

11.  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.      Decides to revise the judgment Büttner and Others of 29 September 2020 as regards the application Popescu v. Romania (no. 6531/05);

accordingly,

2.      Holds

(a)  that the respondent State is to pay jointly to the heirs of Mr Adrian Tilică Popescu and Mr Sergiu Popescu, within three months, EUR 202,000 (two hundred and two thousand euros) for pecuniary and non-pecuniary damage and EUR 500 (five hundred euros) for costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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.

Done in English, and notified in writing on 12 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

        Ilse Freiwirth                                                                Branko Lubarda
     Deputy Registrar                                                                   President