Last Updated on June 17, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 3014/12
Gabriela LĂZĂRESCU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Dept Section Registrar,
Having regard to the above application lodged on 23 November 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Gabriela Lăzărescu, is a Romanian national, who was born in 1930 and lives in Bucharest. She was represented before the Court by Mr D. Cernea, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Romanian Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 20 October 2005 and 12 September 2007, respectively, the applicant was given possession of and issued a property title for approximately 21 ha of nationalized land which had belonged to her family. Approximately 18 ha of the land had been occupied since the 1970’s by removable buildings, outdoor deposits, a football pitch, transport vehicles and waist belonging to a State owned mining company operating in the area (hereinafter referred to as “the mining company”) and by the mining operations of the said company.
5. On 3 December 2007, with the help of a bailiff, the applicant asked the organisation managing the mining company to remove the mining company’s possessions and waist from her land. She further notified it that if they failed to comply with her request she would claim 4 to 6 euros per square meter in monthly rent for the use of her land.
6. On 15 January 2010 the applicant, who was assisted by a lawyer of her own choosing, brought proceedings against the mining company before the Târgu-Jiu District Court asking for compensation for not having been able to use her land from 12 September 2007 to 12 January 2008. In her submissions before the court she argued that, after having been issued a property title, she had contacted the mining company’s management in an attempt to reach an agreement to have the company’s possessions and waist removed from or to have a rent contract signed for the land. The mining company had refused negotiations and the applicant had reiterated her demands on 3 December 2007. Soon after, the company had brought court proceedings against her seeking annulment of her property title. The mining company’s claim had eventually been dismissed by a final judgment of 12 November 2009.
7. The applicant submitted a copy of the notification of 3 December 2007 to the court.
8. On 30 November 2010 the applicant clarified the scope of the proceedings against the mining company. She argued that she had brought the proceedings to obtain a judgment ordering the mining company to pay a rent in compensation for her inability to use the land. Her scope was not to obtain a judgment ordering the payment of the value of the usufruct. Also, her claim for compensation concerned both the non-agricultural land and the agricultural one which was rendered unusable for agriculture by the mining company and was occupied by it.
9. On the same date the Târgu-Jiu District Court allowed the applicant’s action and ordered the mining company to pay the applicant 137,826 Romanian lei (approximately 33,000 euros (EUR)) in damages. It held that starting from September 2007, the applicant had been the owner of the land which was occupied and used by the mining company without her agreement. It was true that the land in question had been previously taken over by the State from the applicant’s father and that the State had given possession of the land to the mining company. However, once a property title was issued in the applicant’s name, the documents grating the mining company the possession of the land had become obsolete. The court further held that regardless of the nature of the mining company’s activity, the company was under a lawful obligation to compensate the applicant for using her land. According to the expert evidence available in the file, the land in question could not be used for agriculture anymore. Therefore the applicant could claim compensation only for loss of rent. The same expert evidence showed that, according to the lowest prices of the renting contracts signed in the area, the rent due would be approximately EUR 33,000.
10. The mining company appealed against the judgment.
11. On 23 February 2011 the Gorj County Court allowed the mining company’s appeal and dismissed the applicant’s action. It held that the first instance court’s view that the applicant could obtain only rent for the land which could no longer be used for agriculture and its approach of calculating the said rent by relying on the lowest prices of the lease contracts signed in the area, could not be accepted. This would have indirectly resulted in the mining company being forced to conclude a lease contract by a court and to have the amount of rent settled by the said court and not by the parties’ own will.
12. The applicant appealed on points of fact and law (recurs) against the judgment to the Craiova Court of Appeal. She argued that the scope of the proceedings brought by her against the mining company was to obtain compensation for her inability to use the land and not to force the mining company to sign a lease contract for the land. The only way of calculating the damage suffered by her, however, was to consider the value of other lease contracts signed in the area.
13. On 31 May 2011 the Craiova Court of Appeal questioned the applicant’s lawyer. The court noted that he had acknowledged that the notification of 3 December 2007 (see paragraphs 6 and 7 above) was required. The court further noted that he had also stated that the compensations were claimed for the period of time following the notification.
14. By a final judgment delivered on the same date, the Craiova Court of Appeal dismissed the applicant’s appeal on points of fact and law. By taking into account also the statements made by her lawyer, the court held that the applicant had failed to prove that she had suffered any damage for a period of time of little more than one month (between 3 December 2007, date of the notification to the mining company, and 12 January 2008). The winter months were unsuitable for agriculture. No lease contract had been signed by the parties in the past and the court could not force the parties to sign one with retroactive effect. The mining company had had a choice of signing such a contract as long as it intended to continue using the applicant’s land. Even though it was undisputed that part of the applicant’s land was occupied by the mining company, and that the applicant was unable to use it, it could not be argued that the applicant suffered any damage during the winter months because the work for which the land was suitable could not be done due to weather conditions. This latter point was not contested by the applicant.
15. In relation to the rent, which could have been claimed by the applicant, the court held that she had been required to notify the mining company as the documents which had given the company a right to use the land had not been annulled or challenged by her. Moreover, the fact that the parties did not have a lease contract for a specific amount could not push the court to take a decision in that regard, which would have replaced the parties’ will. Furthermore, given the nature of the land in dispute, its location, the applicant’s low chances of finding an economic agent interested in signing a lease, and the period of little more than one month for which rent would have been due, the court was unable to find that the applicant had clearly proved the damage she alleged.
B. Relevant domestic law
16. Articles 480, 481, 482 and 483 of the former Civil Code, in force until 1 October 2011, provided that property was a person’s right to enjoy and exclusively and absolutely decide about an inanimate object, within the limits set by law. No person could be forced to give up his or her property, except in cases of public necessity and after he or she was justly compensated. Ownership of a movable or immovable object also entitled to everything that was produced by the object or was incorporated by it either naturally or artificially, including the natural and industrial fruits of the land and the civil fruits.
COMPLAINTS
17. The applicant complained under Article 6 § 1 of the Convention that the court proceedings brought by her against the mining company were unfair because the last two instance courts had failed to examine all her arguments and submissions properly. In addition, she complained under Article 1 of Protocol No. 1 to the Convention that the decisions of the last two instances had breached her property rights because they had denied her right to be compensated for the inability to use her property.
THE LAW
A. Complaint under Article 6 § 1 of the Convention
18. The applicant complained about the unfairness of the proceedings because the appellate courts failed to examine all her arguments and submissions properly. She relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
1. The parties’ submissions
19. The applicant considered that the appellate courts had ignored some of the evidence available in the domestic case-file, notably the expert evidence, which attested that she had suffered damage, the notification of 3 December 2007, which she had sent to the mining company claiming rent for her land, and her statement that she did not claim damages for losses incurred from her inability to cultivate the land.
20. The applicant contended that the aim of her application to the Court was to obtain a fair determination of her case and not to challenge the outcome of the domestic proceedings or the interpretation of the available evidence by the appellate courts.
21. The Government submitted that the domestic courts, including the last-instance court, examined the available evidence and the arguments raised by the applicant and provided reasons for their decisions. They considered that the guarantees set out by Article 6 of the Convention were observed in the applicant’s case, given that according to the Court’s case-law it was for the domestic courts to interpret and apply domestic law.
2. The Court’s assessment
22. The Court reiterates the principles set out in its case-law in circumstances relating the alleged failure of tribunals to comply with their duty to conduct a proper examination of submissions, arguments and evidence adduced by the parties to a case (see, amongst other authorities, Moldovan v. Romania (dec.), no. 1867/06, § 22, 15 October 2013, with further references).
23. In the instant case the Court notes that the applicant had the opportunity to argue her case before the domestic courts and to make oral and written submissions in support of her claim. Moreover, it appears that she was allowed to submit evidence to support her arguments, including expert evidence concerning the alleged damage suffered by her.
24. The Court further notes that the first instance court allowed the applicant’s claim for compensation. However, the said judgment was eventually quashed by the appelate courts.
25. In dismissing the applicant’s claim for compensation, the appellate courts, in particular the last-instance court, held – by taking also into account the express statements made by the applicant’s lawyer on 31 May 2011 (see paragraph 13 above) – that the applicant had failed to prove that she suffered any damage for a period of time of little more than one month. For reaching this conclusion, the Craiova Court of Appeal took into account elements such as the weather conditions, the nature of the applicant’s land, its location and its attractiveness for investors. While the said court did not make any express reference to the expert evidence in the file and its reasoning is rather succinct, it does not appear that the domestic court ignored the evidence relied on by the applicant. Having regard to the reasons advanced by the last instance court for its decision (see paragraphs 14-15 above), the Court does not consider that the said court failed to examine the applicant’s arguments and submissions or that the conclusion reached by it bears any appearance of arbitrariness.
26. In these circumstances, the Court finds no indication that the appellate courts, and in particular the last-instance court, failed to duly consider the arguments and evidence put forward by the applicant.
27. The applicant’s mere disagreement with the judgment delivered by the last-instance court is not sufficient to conclude that the proceedings were unfair (see, mutatis mutandis, Sivova and Koleva v. Bulgaria, no. 30383/03, § 78, 15 November 2011).
28. It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 1 of Protocol No. 1 to the Convention
29. The applicant complained that the decisions of the appellate courts breached her property rights in so far as they denied her right to be compensated for the inability to use her land. She relied on Article 1 of Protocol No. 1 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.”
1. The parties’ submissions
30. The Government raised a preliminary objection and argued that the applicant’s complaint was incompatible ratione materiae with the provisions of the Convention. They considered that the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1 because the domestic courts held that she had failed to prove the damage she suffered.
31. Moreover, the Government alleged that the applicant’s main complaint was the one under Article 6 of the Convention, and that a separate examination of the case under Article 1 of Protocol No. 1 was unnecessary.
32. The applicant contested the Government’s submissions. She argued that accepting them would be tantamount to leave property owners unprotected against potential abuses committed by private parties using the said properties against the owners’ will. Moreover, the first instance court had acknowledged her right to compensation and therefore she had at least a legitimate expectation to be compensated.
33. While acknowledging that her complaint under Article 1 of Protocol No. 1 was linked to her grievance under Article 6, the applicant disagreed with the Government’s submission that an examination under the former provision was unnecessary.
2. The Court’s assessment
34. In the circumstances of the present case, it is unnecessary to examine the Government’s objection of incompatibility ratione materiae (see paragraph 30 above). In fact, even assuming Article 1 of Protocol No. 1 to be applicable to the facts of the present case, this complaint is in any event inadmissible for the following reasons.
35. The Court reiterates that any interference with the right to the peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought. In each case involving the alleged violation of this right the Court must, therefore, ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden (see, among other authorities, Sporrong and Lönnroth, cited above, § 73; Broniowski v. Poland [GC], no. 31443/96, § 150, ECHR 2004‑V; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005‑VI).
36. The Court observes that in September 2007 the applicant was issued a title deed to the land used by the mining company (see paragraph 4 above). The fact that the mining company was using part of her property did not change the legal ownership of the land in question.
37. The Court considers that, given the finding of the last-instance court concerning the mining company’s right to use the applicant’s land (see paragraph 15 above), and the fact that the applicant had never challenged the documents allowing the company to such use, there was a sufficient legal basis for the impugned interference with the applicant’s right. The Court further considers that the interference had pursued a legitimate aim, namely the conservation of a State company’s mining and operating facilities which was a matter of public interest.
38. The Court notes that by the time the applicant sought acknowledgment of her property rights in respect of her predecessors’ land, the mining company was already using the land. The applicant never argued that she was unaware of the company’s presence there at the time when she was granted possession and given the title deed to the land in question. Also, it appears from the available evidence that the applicant accepted the property in question without reservation. She did not initiate any court proceedings against the mining company with the aim of having either its possessions removed from the land or the land restored to its former agricultural use.
39. It is true that the applicant brought proceedings against the mining company seeking compensations in the form of rent as she could not use her land for a brief period of time. However, the domestic courts examined her claim and the evidence adduced by her, interpreted the applicable legal provisions and dismissed her action by providing reasons for their decision which do not appear arbitrary or manifestly erroneous.
40. The Court further notes that the aforementioned decision of the domestic courts did not prevent the applicant from initiating other sets of court proceedings aimed at recovering the complete use of her land.
41. In the light of the above considerations, the Court considers that the decision of the appellate courts to dismiss the action brought by the applicants against the mining company did not impose a disproportionate and excessive burden on her.
42. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 July 2018.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President
Leave a Reply