(Application no. 31153/03)
20 January 2009
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 Nicolescu v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Recovery of land
On 5 December 1991 the bailiff certified in an official record that the applicant had been able to take possession of the land and that some constructions built by the former agricultural cooperative, including a stable and part of a shed, were situated on it.
2. First administrative action
3. Second administrative action
The expert report produced during the proceedings mentioned the plot of 5,000 sq. m of land at Cimitir, which was expressly referred to in the judgment of 16 July 1991, as part of the total of 63,800 sq. m of land for which the authorities were supposed to prepare the documentation pertaining to the acquisition of title. It also mentioned that on 5 December 1991 the applicant had been able to take possession of the land in question at Cimitir, in a location situated in the yard of the former agricultural cooperative, but that subsequently the local commission had allocated to him a 5,000 sq. m plot of land next to the yard.
4. Authorities' approach
5. Objection to execution by the local authorities
6. Fresh attempt by the applicant to obtain a document of title
II. RELEVANT DOMESTIC LAW
I. SCOPE OF THE APPLICATION
In a letter of 14 February 2007 the applicant contested the authorities' assumption that he had been in possession of the land at Cimitir since 1991, and referred to the letter from the prefecture certifying the existence of buildings on the 5,000 sq. m plot of land.
In his observations of 23 May 2007 the applicant referred to the official record of 5 December 1991, alleging that he was not in possession of the land at Cimitir. He also alleged that the town council had not granted him possession of 55,000 sq. m of forest and 45,000 sq. m of land, for which he had a supporting document. In letters of 16 November 2007, 3 March and 19 May 2008 he alleged that the town council had so far not issued him with a document of title. He did not submit to the Court a copy of the judgment of 15 December 1992.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“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.”
The judgment of 16 July 1991 of the Roman Court of First Instance allowed the applicant's action and thus conferred on him a legitimate expectation of being able to take possession of the 5,000 sq. m of land mentioned in that judgment and of acquiring, subsequently, title to the land. While on 5 December 1991 and 17 January 1994 the applicant was granted possession of the land to which he was allegedly entitled (see paragraphs 6 and 10 above) and while he consented at least to the first course of action (see paragraph 23 above), he has still not received a document of title for the land specified in that judgment.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State shall ensure, 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 enforcement of the judgment of 16 July 1991 of the Roman Court of First Instance;
(b) that the respondent State is to pay the applicant, within the same three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) 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 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep