Last Updated on December 4, 2020 by LawEuro
. The case concerns the length of the civil proceedings initiated by the applicants in order to recover possession of a property which had been nationalised under the former communist regime and had been sold by the State to third parties.
FOURTH SECTION
CASE OF NISTOR AND OTHERS v. ROMANIA
(Application no. 22039/03)
JUDGMENT
STRASBOURG
20 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Nistor and Others v. Romania,
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 regard to:
the application (no. 22039/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals, Mr Ioan Mihai Nistor, Ms Maria Nistor, Mr Mircea Nestor and Ms Maria Nicola Georgescu (“the applicants”), on 9 June 2003;
the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning the length of the civil proceedings and the restitution of property;
the parties’ observations;
Having deliberated in private on 29 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the length of the civil proceedings initiated by the applicants in order to recover possession of a property which had been nationalised under the former communist regime and had been sold by the State to third parties.
THE FACTS
2. The applicants were born in 1927, 1931, 1936 and 1932 respectively and live in Bucharest. Ms Maria Nicola Georgescu also holds Belgian nationality. MrIoan Mihai Nistor died in 2006 and his heirs, Ms Magdalena-Niculina Nistor (his wife) and Maria Nistor (his sister, the second applicant) expressed their intention to pursue the application on his behalf. Ms Maria Nistor died in 2010 and Mr Mircea Nestor (the third applicant, her sole heir), expressed his intention to pursue the application on her behalf.
3. The applicants were represented by Ms M.N. Georgescu, a lawyer practising in Bucharest.
4. The Government were represented by their Agent, most recently Ms O.F. Ezer of the Ministry of Foreign Affairs.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 05 August 1996 the applicants lodged an action before the Constanţa District Court seeking to recover possession of a property which had been nationalised in 1950 from their respective grandfathers, the brothers V.N. and C.I.N., under the former communist regime and then sold to third parties.
7. The case was examined by six courts representing three levels of jurisdiction. After a first set of proceedings, on 27 September 1999, the Constanţa Court of Appeal, acting as a court of last resort, sent the case back to the first instance court, as it found that the latter had failed to establish the scope of the application and the object of the case and to identify the parties to the proceedings. In a final decision of 20 December 2002 the Supreme Court of Justice found that the nationalisation of the property in question had been lawful.
THE LAW
I. locus standi
8. The Court notes that Ms Magdalena-Niculina Nistor and Mr Mircea Nestor, expressed the intention to pursue the application on behalf of the applicants who had died in the course of the proceedings (see paragraph 2 above). The Government did not object to this. Having regard to the close family ties and the heirs’ legitimate interest in pursuing the application, the Court accepts that the deceased applicants’ heirs may pursue the applications in their stead (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 101, ECHR 2013 and Preda and Others v. Romania, nos. 9584/02 and 7 others, § 75, 29 April 2014). It will therefore continue to deal with the application at the heirs’ request.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. Length of the civil proceedings
9. The applicants complainedthat the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article6 § 1 of the Convention, which reads as follows:
Article 6 § 1
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
10. The Government pleaded that the length of the proceedings had been reasonable and that no delays were imputable on the authorities.
11. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v.France [GC], no. 30979/96, § 43, ECHR 2000-VII).
12. In the present case, the Court notes that the domestic proceedings started on 5 August 1996 when the applicants lodged their action before the domestic courts (see paragraph 6 above) and ended on 20 December 2002 when a final decision was rendered in the case (see paragraph 7 above, in fine). The domestic proceedings thus lasted for 6 years, 4 months and 16 days. During that time, the case was examined by six courts on three levels of jurisdiction (see paragraph 7 above). On this point, the Court must note that a first set of proceedings was invalidated when on 27 September 1999, thus more than three years after the beginning of the proceedings, the Court of Appeal quashed the previous decisions because of procedural defects which could not be imputed to the applicants (see paragraph 7 above).
13. The Court further notes that nothing in the file indicates that the applicants were responsible for any significant delays in the domestic proceedings.
14. In the leading case of Vlad and Others v. Romania (nos. 40756/06 and 2others, 26 November 2013), the Court already found a violation in respect of issues similar to those in the present case.
15. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. 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 (see, mutatis mutandis, among many others, Drăguşanu and Christoulacis v.Romania [Committee], no. 4125/12, § 8 and the Appendix, 26 July 2018, Teică and Others v. Romania [Committee], no. 2337/04 and 22 others, § 9 and positions nos. 6, 7 and 23 in the Appendix, 20 October 2016, and Cadar and Others v. Romania [Committee], no.62868/09 and 4 others, § 14 and position no. 3 in the Appendix, 16 May 2019).
16. This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.
B. Fairness of the proceedings
17. The applicants also complained that the proceedings in question had been unfair, notably concerning the manner in which the domestic courts had assessed the evidence and interpreted the applicable legal provisions. They further claimed that the domestic courts had lacked impartiality.
18. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, 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.
19. Accordingly, these complaints are manifestly ill-founded and must be rejected in accordance with Article35 §§3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
20. Lastly, the applicants complained that the failure of the authorities to return to themthe part of the immovable property sold by the State to the tenants or to offer compensation entailed a breach of Article1 of Protocol No. 1 to the Convention.
21. The Government pleaded incompatibility rationemateriae with the provisions of the Convention, but the applicants contested that point of view.
22. The Court reiterates that given the autonomous scope of the notion of “possessions” and the criteria adopted in its case-law, there can be no doubt that an individual has an “existing possession” if the courts, in a final and binding judgment, have recognised his or her title to the property concerned and have explicitly ordered its return in the operative part of the judgment (see Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, § 140, 12 October 2010).
23. However, in the present case no such recognition by the domestic courts ever took place (see paragraph 7 above). The applicants had thus lost possession in 1950 (see paragraph 6 above and, in contrast, Ana Ionescu and Others v.Romania, nos. 19788/03 and 18others, § 27, 26 February 2019, and Străin and Others v. Romania, no.57001/00, §§ 54-56, ECHR 2005‑VII).
24. Moreover, in order for a proprietary interest resulting simply from a finding that the nationalisation was unlawful to be considered as an “asset” for the purposes of Article 1 of Protocol No. 1, the person concerned must meet the statutory requirements in the context of the procedures established by the reparation laws and must have exhausted the remedies provided for by those laws (see Maria Atanasiu and Others, cited above, § 142). However, nothing in the file indicates that the applicants have exhausted the domestic procedure for requesting compensation for their lost possession.
25. In the light of the above, the Court considers that the applicants cannot claim to have “existing possessions” or a claim which may constitute a “proprietary interest”, for the purpose of Article 1 of Protocol No. 1 to the Convention.
26. Accordingly, this complaint is incompatible rationemateriae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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.”
28. The applicants claimed 40,793 euros (EUR) in respect of pecuniary damage representing the value of the property in question and EUR 5,000 in respect of non-pecuniary damages caused notably by the excessive length of the proceedings.
29. The Government contested the claims and argued that they were excessive and lacked a causal link to the violations claimed.
30. Regard being had to the documents in its possession and to its case‑law, the Court dismisses the applicants’ claim in respect of pecuniary damages. On the other hand, it considers it reasonable to award the applicants jointly EUR 800 in respect of non-pecuniary damages, plus any tax that may be chargeable on the applicants.
31. 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.
32. Lastly, the Court notes that the applicants did not submit any claims for costs and expenses and thus finds no reason to award them any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that the heirs of the applicants who have expressed the wish to pursue the proceedings in place of the late applicants have standing to do so;
2. Declares the complaint concerning length of the civil proceedings admissible and the remainder of the application inadmissible;
3. Holdsthat there has been a violation of Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants jointly, within three months, EUR 800 (eight hundred euros), to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 20 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Branko Lubarda
Deputy Registrar President
Leave a Reply