CASE OF RASIDESCU v. ROMANIA
(Application no. 39761/03)
7 April 2015
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 Rasidescu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra, President,
Iulia Antoanella Motoc, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 March 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 39761/03) 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 Mihai Rasidescu, Mr Radu Rasidescu, Ms Angelica-Corina Rasidescu and Mr Ștefan Mihai Carol Rasidescu (“the fourth applicant”), on 3 November 2003.
2. In a judgment delivered on 15 September 2009 (“the principal judgment”), the Court held that there has been a violation of Article 6 of the Convention as a result of the non-enforcement of a final judgment in the applicants’ favour and of Article 1 of Protocol No. 1 with regard to the applicants’ property rights (see Rasidescu v. Romania, no. 39761/03, 15 September 2009).
3. When the fourth applicant, Mr Ștefan Mihai Carol Rasidescu, died on 25 January 2015, his heir, Mr Alecsandru Ion Ștefan Rasidescu, expressed the wish to pursue the proceedings on his behalf. For practical reasons, Mr Ștefan Mihai Carol Rasidescu will continue to be referred to in this judgment as "the fourth applicant", although Mr Alecsandru Ion Ștefan Rasidescu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013).
4. Under Article 41 of the Convention the applicants sought just satisfaction of pecuniary damage sustained as a result of the above violations.
5. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., paragraph 46 and point 5 of the operative provisions).
6. On 5 March 2009 three of the applicants, Mr Mihai Rasidescu, Mr Radu Radisescu and Ms Angelica-Corina Rasidescu, transferred to private parties their litigation rights, namely half of the requested real estate. They have not submitted any claims under Article 41 of the Convention.
The fourth applicant and the Government each filed observations.
7. On 23 July 2013, the Court invited these parties to submit updated observations.
8. 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.”
9. The fourth applicant sought to obtain the equivalent of one half of the value of the two ha of land, corresponding to his inheritance share. In his updated submissions, the applicant maintained that the value of the two ha of land was 20,440,000 euros (EUR). He nevertheless has submitted an updated expert report of 27 March 2014, according to which the value of the two ha of land was equivalent to EUR 6,180,000.
10. The Government contended in their updated submissions that the new mechanism which had been introduced by Law no. 165/2013 constituted an effective domestic remedy and was capable of providing sufficient redress to the fourth applicant. For this reason the Government submitted that the fourth applicant had failed to exhaust domestic remedies.
In any event, they submitted an expert report dated March 2014, according to which the value of one ha of land was equivalent to EUR 320,250.
11. The Court does not accept the Government’s argument that the fourth applicant should now be required at this stage of the proceedings, where the Court has already decided on the merits, to use the new remedy provided by the Law no. 165/2013 in order to seek reparation for his damages (see Xenides-Arestis v. Turkey (just satisfaction), no. 46347/99, § 37, 7 December 2006).
12. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 80, 19 February 2009).
13. The Court further notes that the Government did not submit any evidence which would indicate that the fourth applicant has recovered possession over one ha of land or that he has received any compensation for the deprivation of his possession.
14. Consequently, the Court considers that the return of the land he is entitled to, namely half of the two ha (see the principal judgment, § 21, and point 1 of the operative provisions), would put the fourth applicant as far as possible in a situation equivalent to the one in which he would have been if there had not been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Therefore, it holds that the respondent State is to enable the fourth applicant to take effective possession of one ha of the land in issue and to provide him with title in respect of that land. Failing to do so, the Court, having regard to the information at its disposal, holds that the respondent State is to pay the fourth applicant EUR 750,000 for pecuniary damage.
15. The Court notes that the fourth applicant did not request any sum in respect of non-pecuniary damage.
16. The Court further notes that the first three applicants have not submitted any claims for just satisfaction and thus no award will be made in this respect.
B. Costs and expenses
17. The fourth applicant did not claim the equivalent of the costs and expenses incurred before the domestic courts or before this Court.
C. Default interest
18. 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,
(a) that the respondent State shall enable, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the fourth applicant to take effective possession of one ha of the land in issue and also that he shall be provided with a document of title to his land;
(b) that, in the absence of such arrangements, as set out under (a) above, the respondent State is to pay the fourth applicant, within the same period of three months, EUR 750,000 (seven hundred fifty thousand euros) for pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) 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;
2. Dismisses the remainder of the fourth applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Luis