CEDH · CASELAW;CLIN;ENG — 2 décembre 2008

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Romania - 21447/03 Judgment 2.12.2008 [Section III] Article 37 Article 37-1-c Continued examination not justified Pursuit of application brought on behalf of a deceased person: inadmissible for abuse of right of petition (in respect of the deceased's son) and refusal of the Government's strike-out request (in respect of the daughter)   Facts : By virtue of a 1950 decree on nationalisation the State took possession of a building owned by Maria Predescu (“the owner”). In 1997 the county council concluded a contract of sale with the E. family for the ground floor flat in the building concerned. In 1999 the owner lodged an action for recovery of possession with the first-instance court, seeking the annulment of the contract. Soon after, she died and her attorney continued the proceedings. In 2002 the domestic courts allowed the action in part, considering that the building concerned had been nationalised illegally by the State, and ordered its restitution, except for the flat that had been sold and which the E. family had purchased in good faith. In 2003 the attorney lodged an application with the Court on behalf of the owner and was appointed by her son to represent them. In 2007, when the Court’s registry contacted him about the owner’s status, the attorney informed it that she had died in 1999 and that he had not thought it necessary to inform the registry. The owner’s son and daughter confirmed that their mother had died and added that they thought the Court had been informed. In 2008 the daughter also stated her wish to continue the proceedings before the Court on her mother’s behalf.   Law : The Government’s request for the application to be struck out of the list because the owner of the building in dispute had died : (a)     Allowed in respect of the owner’s son: At no time had he informed the Court that his mother had died. Nor had he confirmed that essential fact for the examination of the case until after the Court’s registry had requested information about the mother from the attorney; and he had offered no plausible explanation for his failure to do so. The applicant’s conduct, which was likely to mislead the Court with regard to an essential element for the examination of the application, was contrary to the purpose of the right of individual petition. That being so, this part of the application was to be declared inadmissible because it was abusive. (b)     Request for striking out rejected in respect of the owner’s daughter: The daughter’s conduct could not be considered to amount to abuse of the right of individual petition, as she had not intervened in the proceedings before the Court, expressing her wish to take over and continue the proceedings in her capacity as her mother’s heir, until 2008. In other, similar cases the Court had found that inability to enjoy the benefits of part of a building, the nationalisation of which the courts had found to be illegal, because the State had sold that part of it to third parties, constituted a continuing situation. The Government had offered no proof that any compensation had actually been paid for the flat concerned or at least that it would be paid in the near future. That being so, the application concerned a still continuing situation and a complaint under Article 1 of Protocol No. 1, which the owner’s above-mentioned heir could consider affected her personally. The Government, however, alleged that she could not take over an application that had been lodged incorrectly. Nevertheless, it would be rather excessive and artificial to punish Maria Predescu’s heir by striking the application out of the list because of the manner in which the attorney had initially lodged it with the Court. The Court accordingly concluded that there was no reason for it to find that the examination of the application was no longer justified within the meaning of Article 37 § 1 c) of the Convention. Article 1 of Protocol No. 1 – The Court had examined numerous cases that raised issues similar to those raised in this case and found that there had been a violation of Article 1 of Protocol No. 1. See Străin and Others v. Romania , no. 57001/00, 21 July 2005, Information Note no. 77. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes