CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 août 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sB853CD26 { font-family:Arial; font-size:8pt } .sDFB308E1 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 1234/02 by Marie-Jeanne BOICESCU and Others against Romania The European Court of Human Rights (Third Section), sitting on 24   August   2010 as a Chamber composed of:   Josep Casadevall, President,   Elisabet Fura,   Corneliu Bîrsan,   Boštjan M. Zupančič,   Alvina Gyulumyan,   Ineta Ziemele,   Luis López Guerra, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 3 May 2001, Having deliberated, decides as follows: THE FACTS The applicants, Ms Marie-Jeanne Boicescu, Mr Vlad Boicescu and Mr   Şerban Ion Boicescu are Romanian nationals who were born in 1937, 1945 and 1953, respectively, in Craiova and live in Bucharest. They were represented before the Court by Mr Dan Mihai, a lawyer practising in Bucharest. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On unspecified dates the applicants filed two administrative applications with the Dolj County Commission for the Implementation of Law   No.   112 of 1995 (the Commission) seeking the restitution in   natura of the immovable property located at no.   82 Unirii   St. in Craiova and nationalised by the State on the basis of the provisions of Law-Decree No.   92 of 1950. By two decisions of 20   March and 8   May   1997 the Commission rejected the applicants' claim seeking the restitution in   natura of the immovable property, on the ground that it was occupied by tenants, and acknowledged their right to compensation under the procedure provided for by Law   No.   112 of 1995. On 29 July 1997 the applicants brought an action against the Commission seeking the recovery of possession of the claimed immovable property. On 8 January 1998 the Commission valued the immovable property to be worth 412,041,096   lei   (ROL), capped the amount in accordance with Article   13   §   2 of Law   No.   112 of 1995 and awarded the applicants the total sum of ROL   170,458,080 in compensation. By a decision of 28   October   1998 the Craiova   District   Court rejected the applicants' action seeking the recovery of possession of the claimed immovable property. It held that by pursuing the procedure provided for by Law No.   112 of 1995 the applicants had acknowledged that the immovable property had been nationalised legally by the State. Therefore, they could no longer bring court proceedings seeking the recovery of possession of their property, as the legal bases of the two sets of proceedings were different and irreconcilable. The applicants appealed the decision. By a decision of 20 April 2000 the Dolj County   Court allowed the applicants' appeal and quashed the decision of 28 October 1998 on the ground that the claimed immovable property had been nationalised illegally by the State. The court also ordered the restitution in   natura of the immovable property to the applicants. The Commission appealed the decision. By a final decision of 10 November 2000 the Craiova Court   of   Appeal allowed the Commission's appeal ( recurs ) and upheld the decision of 28   October 1998 on the ground that the administrative decisions acknowledging the lawfulness of the nationalisation had not been contested by the applicants, the said administrative decisions remained final and therefore the applicants could no longer institute proceedings seeking the recovery of possession of the claimed immovable property. In a letter of 12 September 2001 the applicants informed the Court that they refused to collect the compensation awarded to them on the basis of Law No.   112 of 1995 on the ground that the compensation awarded did not reflect the market value of the property. There is no evidence in the file that the applicants filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws (Laws Nos.   10 of 2001, 247 of 2005 and 1 of 2009) seeking restitution in   natura or compensation equivalent to the market value of the claimed immovable property. In a letter of 10 February 2010, delivered to the applicants on 15   February 2010, they were asked to inform the Court if they had filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws. The letter remains unanswered to date. B.     Relevant domestic law a)     The relevant domestic legal provisions concerning excerpts from Law   Decree No. 92/1950 regulating the nationalisation of immovable property and excerpts from Law No.   112/1995 regulating the legal status of immovable property nationalised for apartment building use are summarised in Constantinescu v. Romania ((dec.), no. 61767/00, 14   September 2004). b)     The relevant provisions of Law No. 10/2001 of 14 February 2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, as it was amended by Law No.   247/2005, are summarised in Halmagiu   and   Belu   v.   Romania (no.   10012/03, §§   18-20, 3   June   2008). c)     The relevant provisions of Law No.   1/2009 of 30 January 2009 amending Law   No.   10/2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22   December   1989, which entered force on 6 February 2009, read as follows: Article 7 “(1).     Individuals who were compensated under the procedure provided for by the provisions of Law No. 112 of 1995, (...), could claim the restitution in natura of the claimed immovable property insofar as the property had not been sold by the time of the entry into force of the law and insofar as they had returned the amount received as compensation, (...). (2).     Where the immovable property was sold in compliance with the provisions of Law No. 112 of 1995, (...), the entitled individuals have a right to equivalent compensatory measures which reflect the market value of the immovable property (...). Where the entitled individuals were awarded compensation on the basis of the procedure provided for by Law No. 112 of 1995, (...), they have a right to be awarded the difference in value between the sums they had cashed in and the market value of the immovable property (...).” COMPLAINTS 1.     The applicants complained under Article   6   §   1 of the Convention about a breach of their right of access to court in so far as the domestic courts failed to examine on the merits their action seeking the recovery of possession of the immovable property on the ground that they had already pursued the procedure provided for by Law   No.   112 of 1995. 2.     The applicants complained under Article   1 of Protocol   No.   1 to the Convention that the decision of the Craiova   Court of Appeal breached their property rights in so far as the domestic courts failed to examine their action seeking the recovery of possession of the claimed immovable property and the compensation awarded to them did not reflect the market value of the property. THE LAW 1.     Invoking Article   6   §   1 of the Convention the applicants complained that the failure of the Craiova Court of Appeal to examine on the merits their action seeking the recovery of possession of the immovable property located at no.   82   Unirii   St. in Craiova breached their right of access to court.   Article   6   §   1 reads, in the relevant part: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Court recalls that the right to a court, of which the right of access constitutes one aspect, is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Stubbings and Others v.   the   United   Kingdom judgment of 22   October 1996, §   50, Report   of   Judgments   and   Decisions   1996-IV). It is therefore for the Court to analyse whether an alleged interference pursued a legitimate aim and whether the means employed were proportionate to the legitimate aim pursued. The Court recalls that in the case of Constantinescu , cited above, it has already decided that the rejection of the applicant's action seeking the recovery of possession of claimed immovable property without examining the merits of the claim amounts to an interference with the applicant's right of access to court. The Court also held that Law   No.   112 of 1995 pursues in itself a legitimate aim in so far as it awards compensation ( in   rem or in equivalent) to former immovable property owners whose properties had been nationalised by the State. It decided that the interference with the applicant's right of access to court was proportionate to the legitimate aim pursued as it considered that the compensation awarded to the applicant on the basis of Law No.   112 of 1995 was reasonable and enforceable. Consequently, it did not find a violation of Article   6 of the Convention. In the present case the Court notes that the applicants' action seeking the recovery of possession of the claimed immovable property was rejected by a final decision of the Craiova Court of Appeal on the ground that they had already pursued the procedure provided for by Law No.   112 of 1995 and had been awarded compensation which they did not contest. Like in the case of Constantinescu , cited above, the applicants in the present case were awarded compensation based on the procedure provided for by Law No.   112 of 1995 which they could have collected immediately, but for their refusal to do so. The Court notes that the value of the compensation awarded to the applicants had been established in 1998 following a valuation of the property conducted by a competent technical commission. The applicants did not contest the administrative decisions or the amount of the compensation received, seeking solely the recovery of possession of the immovable property. Furthermore, although the applicants have refused to collect the compensation they still hold enforceable administrative decisions in this respect. The Court considers that the amount awarded to the applicants does not seem disproportionate considering the estimated value of the property established by the technical commission and having regard to the limitation cap imposed by Law No.   112 of 1995. Moreover, there is no evidence in the file that the applicants brought administrative or judicial proceedings under the procedure provided for by the restitution laws seeking compensation which reflects the market value of the property. The fact that the applicants have refused to enforce the administrative decisions awarding them compensation and to collect the said compensation cannot bring the responsibility of the State into play and cannot change the Court's conclusion mentioned above. In light of the above, the Court considers that the interference with the applicants' right of access to court pursued a legitimate aim and that the means employed were proportionate to the aim pursued. It follows that the application is manifestly ill-founded within the meaning of Article   35   §   3 of the Convention and must be rejected pursuant to Article   35   §   4. 2.     Invoking Article   1 of Protocol   No.   1 the applicants complained that the compensation awarded to them, which did not reflect the market value of the claimed immovable property, and the decision of the Craiova Court   of   Appeal breached their property rights over the immovable property in question. Article   1 of Protocol   No.   1 of the Convention reads, in the relevant part: “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.” The Court has already decided that the holder of an administrative decision awarding compensation has a claim which was sufficiently established to be enforceable (see Constantinescu , cited above). The Court recalls that the first and most important requirement of Article   1 of Protocol   No.   1 is that any interference by a public authority with the peaceful enjoyment of possession should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see The   Former   King   of   Greece   and   others   v.   Greece   [GC], no.   25701/94, §   79, ECHR   2000-XII). It is therefore for the Court to examine whether the conduct of the State – insofar as it could be considered an interference – was justified in the light of the above-mentioned principles. The Court notes that the final judgment of the Craiova Court   of   Appeal was grounded on the existence of the procedure provided for by Law   No.   112 of 1995 and on the administrative decision awarding compensation to the applicants. The Court recalls that the compensation terms provided for by the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. The taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article   1 of Protocol   No.   1 only in exceptional circumstances (see The   Former   King   of   Greece   and   others , cited above, §   89). The Court reiterates its finding that in situations such as the one in the present case, involving a wide-reaching legislative scheme with significant economic impact for the country as a whole, the national authorities must have considerable discretion in selecting not only the measures to secure respect for property rights or to regulate ownership relations within the country, but also the appropriate time for their implementation. The choice of measures may necessarily involve decisions restricting compensation for the taking or restitution of property to a level below its market value. Thus, Article   1 of Protocol   No.   1 does not guarantee a right to full compensation in all circumstances (see Broniowski   v.   Poland ,   [GC], no.   31443/96, §   182, 22 June 2004). With regard to the above principles the Court notes that in the present case the applicants were awarded a substantial compensation calculated by a competent technical commission on the basis of the procedure provided for by Law No.   112 of 1995. The compensation awarded does not appear to be disproportionate taking into account the value of immovable property estimated by the competent technical commission and the limitation cap on compensation introduced by Law No.   112 of 1995. Moreover, the Court notes that the aim pursued by the adoption of Law   No.   112 of 1995 was to eliminate a judicial void and to provide redress for the former owners whose immovable properties had been nationalised by the State. Furthermore, the Court notes that there is no evidence in the file that the applicants instituted proceedings under the procedure provided for by Laws Nos.   10 of 2001, 247 of 2005 and 1 of 2009 to seek either the return in   natura of the claimed immovable property or compensation reflecting the market value of the property. In light of the above and taking into account the particular situation of the present case, the Court considers that no disproportionate burden has been imposed on the applicants and that a fair balance has been struck between the public interest and the applicants' rights.                   It follows, that the application is manifestly ill-founded within the meaning of Article   35 §   3 of the Convention and must be rejected pursuant to Article   35   §   4. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President