(Application no. 21911/03)
24 March 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 Tudor Tudor v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 3 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
On 9 February 2006 the High Court allowed a similar application by the Procurator General and set aside the 20 June 2003 decision, thereby allowing the former owner's action against C.D.
similar action by the Procurator General, lodged against the
7 February 2003 decision mentioned above, was allowed by the High Court on 14 February 2007. The case was sent back to the Bucharest County Court for re-examination of the appeal. The proceedings are still pending with that court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Action for recovery of possession (acţiunea în revendicare)
B. Action for compensation provided for in the Civil Code: responsibility for eviction (garanţia pentru evicţiune)
A bona fide buyer continues to enjoy the benefits of the property until he is no longer considered bona fide, that is at the latest when the action for eviction is lodged against him, at which time enjoyment of the property reverts to the rightful owner. However, the buyer may still claim compensation for his loss from the seller.
C. Actions for compensation available under Law no. 10/2001
D. Case-law on compensation
E. Recent developments favourable to the tenants
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
Article 6 § 1 reads as follows in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The parties' submissions
2. The Court's assessment
While it does not contest the domestic courts' power to change their practice, the Court notes that, in the particular context of restitution in Romania, this new trend in interpretation favourable to former tenants could prove to be nothing more than another temporary change in the case-law.
There has consequently been a violation of Article 6 § 1 on this account.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
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.”
A. The parties' submissions
B. The Court's assessment
However, the applicant, who can no longer validly use his title deed, may seek compensation from the seller, under the Civil Code, for eviction, either by joining the State in the proceedings lodged against him or by lodging a separate action to that end. The case law submitted by the Government indicates a consistent domestic practice of awarding damages in cases similar to the present one. The remedy is therefore available both in theory and in practice.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into the respondent State's national currency 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; and
(ii) EUR 2,200 (two thousand two hundred euros) for costs and expenses, plus any tax that may be chargeable to the applicant;
(b) 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 24 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President