(Application no. 34999/03)
5 May 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 Forna 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 7 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
The local authorities of Rediu village stated that it was impossible to ensure the execution of the decision of the county commission on the ground that third parties had been allowed to take possession of that land. An expert’s report produced in the proceedings certified that the surface of 20.4 ha had been allocated to thirty-four persons.
That judgment became final on 26 May 2003.
The county commission submitted that by the contested decision it had offered the Miroslava local commission land in a location that was vacant from a judicial point of view, with the aim of proceeding to the enforcement of the judgment of 3 February 2003. It also submitted that the proposed plot of 16 ha of land had been offered from the reserve of the State Property Authority, and not from that of the Miroslava local commission. As provided by Law no. 268/2001 regarding the privatisation of the companies having under their administration lands from the private and public property of the State, that land was to be transmitted, at the request of the county commission and on the basis of a protocol, to the local commission.
On 18 May 2007 the Iaşi County Court, by a final decision, dismissed the request of the Miroslava local authorities.
An exchange of official letters also took place between the Mayor of Miroslava and the State Property Authority in Iaşi with regard to the enforcement of that decision. The Mayor of Miroslava informed the Authority that in reality the location of the 16 ha plot of land, with the cadastral identification T6, T8 and T9, was not vacant, but was claimed by third parties entitled to receive that land and also by the Miroslava Town Council. He also stated that the administrative decision of 26 July 2006 did not mention an obligation on the Miroslava local commission to allow the applicant to take possession of that land.
II. RELEVANT DOMESTIC LAW
I. SCOPE OF THE APPLICATION
In her observations of 31 July 2008 the applicant complained of serious abuses by the Miroslava local commission in respect of her right over the 16 ha plot of land, but her claims for just satisfaction were related to the plot of 20.4 ha. However, in a letter of 1 September 2008 she complained that she had not been allowed to take possession of her plot of land of 16 ha.
On 4 November 2008, after receiving the Government’s comments on her claims for just satisfaction, the applicant complained that she had not been able to recover the plot of 20.4 ha.
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.”
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.”
The Government submitted that the coercive fine had the nature of a civil penalty, with the purpose of guaranteeing the execution of an obligation and not of granting compensation; the applicant had the opportunity to request the court to convert it into damages for delayed enforcement. Further, they considered that the finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicant might have suffered.
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question in whole;
(b) invites the Government and the applicant to submit, within six months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 5 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep