by Letiţia TOBOLTOC
The European Court of Human Rights (Third Section), sitting on 7 July 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 13 August 2003,
Having regard to the declaration submitted by the respondent Government on 15 January requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicant, Mrs Letiţia Toboltoc, is a Romanian national who was born in 1940 and lives in Constanţa. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan Horaţiu Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 October 2000, the former owner of an immovable property, nationalized by the State under the Decree no. 92/1950, lodged an action for the recovery of ownership against the applicant. The applicant inherited the immovable property from the former tenant of the immovable property who bought it from the State pursuant to Law 112/1995. She filed a counterclaim requiring the counter value of all the expenses she incurred for the reparation and the improvements made to the immovable property, as well as an action for compensation against the State, represented by the Ministry of Finance, for the price paid for the immovable property.
By a judgement of 13 June 2001, the Constanţa County Court dismissed the action on the ground that the plaintiff did not have locus standi. The appeal filed by the plaintiff was allowed by the Constanta Court of Appeal on 13 May 2002.
On 4 October 2005, the High Court of Cassation and Justice allowed the appeals on points of law filed by the parties, quashed the decision rendered on appeal and sent the file to the Constanta Court of Appeal for a re-examination.
In a decision of 5 July 2006, the Constanţa Court of Appeal allowed the plaintiff’s claim and dismissed all the applicant’s claims on the ground that the immovable property was unlawfully seized by the State from the plaintiff’s ancestors. The High Court of Cassation and Justice, in a decision of 25 October 2007, partly allowed the appeals on points of law filed by the plaintiff and the applicant, decided the annulment of the sale-purchase contract concluded between the State and the former tenant, the restitution of the immovable property to the plaintiff and sent the file back to the Constanţa County Court for the re-examination of the applicant’s claims. The applicant’s counterclaim and action on compensation against the State are still pending.
A. Length of proceedings
The applicant complained about the length of the proceedings. She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...”
By letter dated 15 January 2009, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“Le Gouvernement déclare – au moyen de la présente déclaration unilatérale – qu’il reconnaît la durée excessive de la procédure pénale dans laquelle la partie requérante s’était constituée partie civile.
Le Gouvernement déclare être prêt à verser conjointement a la partie requérantes au titre de satisfaction équitable la somme de 1600 EUR, montant qu’il considère comme raisonnable au vu de la jurisprudence de la Cour. Cette somme qui couvrira le préjudice moral ainsi que les frais et dépens, ne sera soumise à aucun impôt. Elle sera versée en lei roumains au taux applicable à la date du paiement sur le compte bancaire indiqué par la partie requérante, dans les trois mois suivant la date de la notification de la décision de la Cour rendue conformément à l’article 37 § 1 de la Convention européenne des droits de l’Homme. A défaut de règlement dans ledit délai, le Gouvernement s’engage à verser, à compter de l’expiration de celui-ci et jusqu’au règlement effectif de la somme en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque centrale européenne, augmenté de trois points de pourcentage.
Le Gouvernement invite respectueusement la Cour à dire que la poursuite de l’examen de la requête n’est plus justifiée et à la rayer du rôle en vertu de l’article 37 § 1 c) de la Convention.”
In a letter of 10 February 2009, the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low since she lost not only the house that she inherited but also all the money that she invested in the said house.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007 and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Romania, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; Nicolau v. Romania, no. 1295/02, 12 January 2006, Cârstea and Grecu v. Romania, no. 56326/00, 15 June 2006 and Cârjan v. Romania, no. 42588/02, 25 January 2007).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.
B. Remaining complaints
The applicant further complained, relying on Articles 6 § 1 of the Convention that the domestic proceedings were unfair.
The applicant also alleges a violation of Article 1 of Protocol No. 1 of the Convention, claiming that she had been deprived of her right of property over the claimed immovable property.
The Court found that domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention, since the proceedings giving rise to the issues under the Convention were still pending.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall