CEDH · CASELAW;CLIN;ENG — 3 mars 2005

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Romania and Russia (dec.) - 60861/00 Decision 3.3.2005 [Section III] Article 1 Responsibility of states Positive obligation of the State to ensure the respect of the rights guaranteed by the Convention outside its territory and the principle of State immunity: inadmissible   Article 6 Civil proceedings Article 6-1 Access to court Non execution of a final court decision given the immunity from execution granted to foreign States: inadmissible   Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Non restitution of a building occupied by an embassy given the exemption from execution granted to foreign States: inadmissible   In 1997 an administrative board allowed an application by the first applicant for the return of a building to him in his capacity as heir. That decision was upheld in a 1998 judgment, which became final in the absence of an appeal. The building was used by the Embassy of the Russian Federation in Romania. In view of the immunity enjoyed by embassies under the 1961 Vienna Convention, it was impossible to obtain restitution of the building in the normal manner through bailiffs. The applicants subsequently brought court proceedings against various authorities including the city council. The mayor stated that, according to a diplomatic note, the building was now the property of Russia. The court pointed out that enforcing the decision would amount to breaching the diplomatic immunity enjoyed by the embassy. The applicants were unsuccessful in both sets of court proceedings they had instituted. They made direct approaches to the Russian and Romanian authorities with a view to securing the recovery of the building, but to no avail. Complaints against Romania : Inadmissible under Article   6 § 1: The property in respect of which the applicants’ claim for restitution had been allowed was assigned to officials of the Russian Embassy in Romania and constituted “premises of the mission” within the meaning of Vienna Convention on Diplomatic Relations. The Romanian authorities had been unable to enforce the final decision in the applicants’ favour on account of the principle of a foreign State’s diplomatic immunity on Romanian soil. As public international law – of which the Convention was an integral part – currently stood, the fact that the decision in which the restitution of the building been granted had not been executed because of the rule that foreign States enjoyed immunity from execution with regard to the premises of diplomatic or consular missions did not amount to a disproportionate restriction of the right of “access to a court”: manifestly ill-founded. Inadmissible under Article   1 of Protocol No. 1: The final administrative decision in which the applicants’ title to the building had been recognised amounted to a claim against the Romanian State that could be regarded as sufficiently established to constitute an “asset”. The Romanian authorities’ refusal to take enforcement measures to secure the return of the building had served a “public interest” directly linked to observance of the principle of State immunity, namely the need to avoid disrupting relations between Romania and the Russian Federation and hindering the proper functioning of that foreign State’s diplomatic mission in Romania. The national courts had therefore dismissed the applicants’ application for enforcement measures, pointing out that the Russian Federation owned the building and that its ownership had not been invalidated by any final judicial decision. No domestic court had invalidated the applicants’ title, which furthermore could not have expired with the passing of time, and it was not inconceivable that execution might subsequently take place – for example, if the foreign State enjoying immunity from execution gave its consent to the taking of coercive measures by the Romanian authorities, thereby voluntarily waiving its right to avail itself of the international provisions in its favour – and that possibility was expressly provided for in international law. Lastly, Romanian law entitled the applicants to financial or other forms of compensation. The situation complained of had therefore not upset the requisite balance between the protection of the individual right to the peaceful enjoyment of possessions and the requirements of the general interest: manifestly ill-founded. Complaints against Russia : Article 1 of the Convention: The applicants did not come within the “jurisdiction” of the Russian Federation within the meaning of this Article. The Russian Federation had not exercised any jurisdiction over the applicants: it had not been a respondent party in the civil action which they had brought in the Romanian courts with a view to securing the enforcement of the administrative decision in their favour, nor had it intervened in the proceedings to raise the defence of sovereign immunity, and the proceedings in question had been conducted exclusively in Romanian territory. Only the Romanian courts had exercised sovereign power in respect of the applicants, and the Russian authorities had no powers of review, whether direct or indirect, in respect of decisions and judgments given in Romania. The fact that the applicants had informed the Russian Ambassador that their application for recovery of a building occupied by that foreign State’s embassy had been allowed and that the embassy had made clear that it considered itself to be the owner of several buildings, including the one to be returned to the applicants, was not sufficient to bring them within the jurisdiction of the Russian Federation within the meaning of Article   1. Nor could the Russian Federation’s responsibility be engaged under Article   1 of the Convention by possible breaches of its positive obligation to ensure respect for the rights guaranteed by the Convention and relied on by the applicants. It could not be criticised for not taking positive steps, such as intervening in the court proceedings instituted by the applicants on account of the Romanian administrative authorities’ failure to execute the decision in their favour, or giving its prior consent to any coercive measures. Although it had been in its power to take such measures (cf. Ilaşcu and Others v. Moldova and Russia , ECHR 2004-VII), requiring the Russian Federation to take them would be contrary to existing international public policy as it would mean waiving that State’s entitlement to foreign sovereign immunity, a principle which was universally accepted in international law and pursued the legitimate aim of safeguarding comity and good relations between States: incompatible ratione personae .   © 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