by Simona Rucsandra BABEŞ
The European Court of Human Rights (Third Section), sitting on 24 March 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 16 March 2004,
Having regard to the declaration submitted by the respondent Government on 5 February 2009 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 Simona Rucsandra Babeş, is a Romanian national who was born in 1932 and lives in Bucharest. 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 14 May 1992, the applicant lodged an action for the recovery of ownership of a flat and a plot of land and for the annulment of a sale contract concerning the same flat, concluded between a married couple and the State in 1974.
On 29 October 1993, the Supreme Court of Justice, in an interlocutory judgment, accepted the applicant’s request to have the case examined by the Bucharest District Court. The latter court dismissed the claim on 20 March 1995. In a decision of 31 October 1997, the Bucharest County Court quashed the first instance judgment and ordered a re-examination. Subsequently, in a judgment of 10 December 1998, the Bucharest District Court declined its competence to judge the case. This judgment was also quashed by the Bucharest County Court, in a decision of 7 June 1999.
In a judgment of 12 March 2001, the Bucharest County Court dismissed the applicant’s action on the ground that she had failed to prove that the claimed flat was the one that had belonged to the applicant’s ancestors. It also established that the buyers of the flat had acted in good faith and that the ground of nullity which she invoked was one which could only be raised by one of the parties to the contract.
The Bucharest Court of Appeal, in a decision of 25 September 2001, reversed that judgement, and partly upheld the applicant’s claim.
On 22 December 2003, the High Court of Cassation and Justice quashed the above-mentioned decision and confirmed the solution of the first instance court.
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:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By a letter dated 5 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 l’existence d’une violation de l’article 6 § 1 de la Convention.
Le Gouvernement déclare être prêt à verser à la partie requérante au titre de la satisfaction équitable la somme de 2 400 EUR, montant qu’il considère comme raisonnable au vu de la jurisprudence de la Cour. Cette somme qui couvrira tout préjudice matériel et 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 4 February 2009, the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and insisted on the fact that the main object of her application was the recovery of ownership over the claimed flat and plot of land.
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 the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); Kalanyos and Others v. Romania, no. 57884/00, § 25, 26 April 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 the 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; 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 the 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, this part of the application should be struck out of the list.
B. Remaining complaints
The applicant further complained, relying on Articles 6 § 1, 13 and 17 of the Convention that the proceedings were unfair in that her action was dismissed by the domestic courts. The Court notes, however, that the proceedings at stake were adversarial, that the applicant could adduce evidence supporting her claim and that the domestic courts delivered duly reasoned decisions, there being no indication of arbitrariness. Moreover, the applicant had available a domestic legal remedy by which to assert her civil right in the domestic courts, having benefited of fair proceedings, involving three levels of jurisdiction. Therefore, the complaint under Articles 6 § 1 and 13 should be declared inadmissible as manifestly ill-founded.
The Court notes that the complaint under Article 17 of the Convention lacks any substantiation and therefore should be declared inadmissible as manifestly ill-founded.
The applicant alleges furthermore 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 building and plot of land. The Court notes that the applicant does not have a “possession” within the meaning of the Convention, as no administrative or final judicial decision had recognised her right of ownership of the claimed property. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention.
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 regarding the length of the proceedings 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 complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall