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You are here: BAILII >> Databases >> European Court of Human Rights >> JARNEA AND OTHERS v. ROMANIA - 36268/02 [2012] ECHR 915 (31 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/915.html
Cite as: [2012] ECHR 915

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THIRD SECTION

CASE OF JARNEA AND OTHERS v. ROMANIA

(Applications nos. 36268/02, 25416/04, 25500/04, 43454/06, 24717/07, 16297/08 and 17068/08)

JUDGMENT

STRASBOURG

31 May 2012

This judgment is final but it may be subject to editorial revision.

In the case of Jarnea and Others v. Romania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Egbert Myjer, President,
Luis López Guerra,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 10 May 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in seven applications (nos. 36268/02, 25416/04, 25500/04, 43454/06, 24717/07, 16297/08 and 17068/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Romanian nationals (“the applicants”).

In applications nos. 36268/02 and 17068/08 the applicants also hold the American and Swiss citizenships respectively.

In application no. 24717/07 the applicant died in 2011. His heirs Liliana Dorogan and Iosif Gheorghe continued the procedure.

The applicants were represented as indicated in the appended table. The Romanian Government (“the Government”) were represented by their Agent, Mrs Irina Cambrea.

The applications were communicated to the Government on 25 January 2010, with the exception of application no. 25500/04 that was communicated on 1^st September 2008.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants are Romanian nationals. They are all owners of immovable property which was occupied by tenants by virtue of lease agreements concluded with the State. After the fall of the Communist regime, the applicants’ ownership was confirmed by the courts. The applicants therefore attempted, unsuccessfully though, to evict the tenants or to cash in the rent due to them. The relevant court decisions are set out in the table appended hereto.

THE LAW

I. JOINDER OF THE APPLICATIONS

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

The applicants complained that the restrictions on the right to use their property infringed the right to peaceful enjoyment of possessions as provided under Article 1 of Protocol No. 1 to the Convention which 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. Admissibility

The Court notes that this part of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government accepted that the refusal by the domestic courts to grant the action for the tenants’ eviction had constituted an interference with the applicants’ right to make use of their property, which amounted to control of the use of property. They considered that the interference had been provided for by law, had pursued a legitimate aim in the general interest, and had not been disproportionate to that aim.

The Government pointed out the differences between the present case and that in Hutten-Czapska v. Poland ([GC], no. 35014/97, ECHR 2006 VIII) and explained that the statutory extension of the tenancy agreements in issue had been limited to five years, that the owners had been free to negotiate the amount of the rent with the tenants, under certain conditions, and that the cost of maintaining the building, under Law no. 114/1996, was divided between owners and tenants, with the latter being required to cover the cost of repairs if the building was damaged as a result of improper use on their part.

Referring to Robitu v. Romania (no. 33352/96, Commission decision of 20 May 1998, unreported), the Government considered that the statutory extension of tenancy agreements – provided for in the Ordinance and noted in the present case by the domestic courts which entertained the applicants’ eviction actions – pursued an aim that was in the general interest, namely the protection of tenants’ interests in a situation characterised by a shortage of cheap housing. This statutory extension, in the Government’s view, struck a fair balance between the general interest of the community and the requirements of the protection of individuals’ fundamental rights.

The applicants considered that the domestic regulations concerning relations between landlords and tenants, together with the decisions of domestic courts taken on that basis, had breached their property rights.

The Court has repeatedly stated that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. These rules are not, however, unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the principle enunciated in the first rule (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98, which reiterates in part the principles laid down by the Court in Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52; see also Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 V, and Hutten-Czapska, cited above, § 157).

The Court has already held that the Government Emergency Ordinance no. 40/1999 resulted in a control of the use of property falling under the second paragraph of Article 1 of Protocol No. 1 (Radovici and Stănescu v. Romania, cited above, § 74).

The Court notes that it has previously considered similar complaints and found a violation of Article 1 of Protocol No. 1 to the Convention (see Radovici and Stănescu cited above, Burzo v. Romania, no. 75240/01, 4 March 2008, Popescu and Toader v. Romania, no. 27086/02, 8 March 2007, Arsenovici v. Romania, no. 77210/01, 7 February 2008). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The applicants in the present applications also had to bear restrictions on their right to use of property due to the faulty legislation and legal lacunae existing in the Government Emergency Ordinance no. 40/1999 on tenancies.

There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention on account of the interference with the applicants’ right to the peaceful enjoyment of their possessions.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Invoking Articles 6, 14 of the Convention and Article 1 of Protocol No. 1 to the Convention the applicants complained about the outcome, the length and the impartiality of the civil proceedings in which they were involved and about the fact they have been discriminated against.

Having considered the applicants’ submissions in the light of all the material in its possession, the Court finds that, insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“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.”

A. Damage

The applicants have submitted the following claims in respect of pecuniary and non-pecuniary damage:

	Application no.	Pecuniary damage (EUR)	Non-pecuniary damage (EUR)
1.	36268/02	302,000	350,000
2.	25416/04	59,000	5,000
3.	25500/04	19,366	15,000
4.	43454/06	156,640	No claims
5.	24717/07	48,000	25,000
6.	16297/08	307,028	No claims
7.	17068/08	29,100	Finding a violation

The Government contested these claims.

The Court has found a breach of Article 1 of Protocol No. 1 on account of the applicants’ inability to receive rent, for a number of years, as a result of the defective provisions and omissions in the relevant housing legislation. An award for the deprivation of the enjoyment of their property would therefore be directly related to the violation found by the Court in paragraph 16 above. The Court nevertheless observes that the material in the case files does not allow it to make a precise assessment of the pecuniary damage actually sustained by the applicants (Cleja and Mihalcea v. Romania, no. 77217/01, § 70, 8 February 2007).

The Court also accepts that the applicants have suffered non-pecuniary damage as a consequence of the violation of their right to peaceful enjoyment of their possessions.

In these circumstances, having regard to all the evidence before it and ruling on an equitable basis, in accordance with Article 41 of the Convention, the Court awards the applicants in each application EUR 5,000 in respect of all heads of damage taken together.

B. Costs and expenses

Some of the applicants have submitted claims for costs and expenses and documents related thereto.

Regard being had to the documents in its possession and to its case-law, the Court considers that there is no call to award any sum in this respect to the applicants who have not submitted such claims. Furthermore, the claims submitted by the applicants and which are not supported by documents are to be rejected. Finally, the Court considers it reasonable to award the following sums covering costs under all heads, as follows:

	Application no.	Requested amounts	Amounts supported by documents	Amount awarded
1.	36268/02	RON 1,200 and USD 200 (EUR 1,500)	RON 1,200 and USD 200	EUR 1, 500
2.	25416/04	EUR 1,000	EUR 1,000	EUR 1,000
3.	25500/04	EUR 750	EUR 350	EUR 350
4.	43454/06	EUR 2,874	EUR 2,270	EUR 2,200
5.	24717/07	EUR 2,400	EUR 1,000	EUR 1,000
6.	16297/08	EUR 1,447	EUR 1,447	EUR 1,500
7.	17068/08	No claims	n/a	n/a

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to join the applications;

2. Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the applications inadmissible;

Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, plus any tax that may be chargeable, to be converted into Romanian lei at the rate applicable at the date of settlement:

(i) in application no. 36268/02: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 1,500 (one thousand and five hundred euros) in respect of costs and expenses;

(ii) in application no. 25416/04: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 1,000 (one thousand euros) in respect of costs and expenses;

(iii) in application no. 25500/04: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 350 (three hundred and fifty euros) in respect of costs and expenses;

(iv) in application no. 43454/06: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 2,200 (two thousand and two hundred euros) in respect of costs and expenses;

(v) in application no. 24717/07: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 1,000 (one thousand euros) in respect of costs and expenses;

(vi) in application no. 16297/08: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage; and

EUR 1,500 (one thousand and five hundred euros) in respect of costs and expenses;

(vii) in application no. 17068/08: EUR 5,000 (five thousand euros) in respect of pecuniary and non-pecuniary damage;

(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;

Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 31 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Egbert Myjer
Deputy Registrar President

Appendix

Case no. and date of lodging	Applicants and representative	Final decision rejecting the applicants’ eviction proceedings
36268/02 lodged on 02/08/2002	Ioan JARNEA Virginia JARNEA Vasile JARNEA	Final decision of 6 February 2002 of the Bucharest Court of Appeal
25416/04 lodged on 01/04/2004	Ecaterina FÂRTĂŢESCU, represented by Ana Tănasie, attorney at law	Final decision of 22 October 2003 of the Bucharest Court of Appeal
25500/04 lodged on 01/04/04	Magdalena Veronica TARA, represented by Gheorghe Tara	Final decision of 3 October 2003 of the Bucharest County Court
43454/06 lodged on 19/10/2006	Ladislau and Iosif ORGONAS, represented by Anica Kosa, attorney at law	Final decision of 20 April 2006 of the Timişoara Court of Appeal regarding flat no. 6 Final decision of 25 April 2006 of the Timişoara Court of Appeal regarding flat no. 3
24717/07 lodged on 25/05/2007	Grigore IOSIF (deceased in 2011) Liliana DOROGAN and Iosif GHEORGHE, his heirs, represented by Carmen Teteşanu, attorney at law	Final decision of 3 October 2003 of the Bucharest Court of Appeal Final decision of 28 November 2006 of the Bucharest Court of Appeal
16297/08 lodged on 28/03/2008	Cristian DRĂGOI	Final decision of 27 April 2007 of the Bucharest Court of Appeal conditioning the eviction of the tenants on an award by the Town Hall of an equivalent flat. The Town Hall has never awarded an equivalent flat.
17068/08 lodged on 31/03/2008	Constantin GRIGORIU represented by Constantin Cernat	Final decision of 9 November 2007 of the Bucharest Court of Appeal