CEDH · PRESS;GENERAL;ENG — 9 juillet 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6D24354 { width:191.48pt; display:inline-block } .sE18268F5 { width:160.83pt; display:inline-block } .s3D53F8B3 { width:223.49pt; display:inline-block } .s6C36EC58 { width:354.91pt; display:inline-block } .s9230358D { width:263.56pt; display:inline-block } .sF6BB9958 { width:326.22pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .sE95176B4 { width:54.81pt; display:inline-block } .sE66965E4 { width:345.57pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s5E2FCEEC { width:22.14pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     361   9.7.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Romania and France   The European Court of Human Rights has today notified in writing the following five Chamber judgments none of which is final [1] :   Section 2   Violation Article 6 § 1 Violation Article 1 of Protocol No. 1 (1)     Cretu v. Romania (application no. 32925/96)   (2)     Falcoianu and Others v. Romania (no. 32943/96)   (3)     Bălănescu v. Romania (no. 35831/97)     Cretu v. Romania   Georgeta and Maricel Cretu are Romanian nationals who were born in 1935 and 1944 respectively and live in Montreal, Canada. They brought proceedings in the Bucharest Court of First Instance for the restitution of a plot of land that had been confiscated by the State in 1989 pursuant to Decree no. 223/1974. By a judgment of 3 November 1993 the Court of First Instance found in their favour and upheld their right of property, on the ground that the provisions of the decree contravened the Universal Declaration of Human Rights, the Constitution and the Romanian Civil Code. The decision became final after an appeal by the city council was dismissed. The applicants took possession of the property on 28 April 1995.   Principal State Counsel for Romania applied for an order setting aside that decision to the Supreme Court of Justice, which in a judgment of 23 February 1996 quashed the judgment of the Court of First Instance, holding that the State was the legitimate owner of the property and that the courts did not have jurisdiction to review how Decree no.   223/1974 was applied.   The applicants lodged a claim with the Administrative Review Board under Law   no.   112/1995 for restitution of the property, but received no reply. In October 1996 the State sold the house to sitting tenants, even though the applicants had informed the latter of their claim for restitution. The applicants then made an application to the Bucharest Court of First Instance for restitution of the property and an order setting aside the sale agreements. On 28 November 2000 the Court of First Instance dismissed their application on the ground that the property had been duly nationalised. The applicants appealed against that decision but say that the proceedings were stayed at the request of the Bucharest City Council.   Falcoianu and Others v. Romania   The applicants are five Romanian nationals who live in Bucharest. Rodica Falcoianu was born in 1942, Anca Gabriela Ionita in 1966, Nora Mihaela Ionita in 1969, Anemarie Alice Ionita in 1967 and Nicoleta Beatrice Ionita in 1970.   The dispute concerns a house in Bucharest that was built by the applicants’ father and grandfather and requisitioned in 1945 for use by Soviet Army Command. In 1950 the State nationalised the property pursuant to Decree no. 92/1950. On an application for restitution of the property, the Bucharest Court of First Instance held on 3 April 1995 that the State’s possession of the property since 1946 had been unlawful and could not operate to transfer title. There was no appeal and the judgment became final on 23 May 1995. The Mayor of Bucharest ordered the restitution of the property to the applicants.   Principal State Counsel for Romania applied for an order setting aside that decision to the Supreme Court of Justice, which in a judgment of 19 January 1996 quashed the judgment of the Court of First Instance. It held that the State was the legitimate owner of the property and that the courts had no jurisdiction to review how the nationalisation decree was applied.   Bălănescu v. Romania   Ivonne Maria Bălănescu is a Romanian national who was born in 1926 and lives in Bucharest. She owned a flat in Bucharest that was requisitioned by the Soviet Army in 1948 and nationalised in 1960 pursuant to Decree no. 218/1960. She brought an action in the Bucharest Court of First Instance for restitution of the property. On 30 May 1994 the Court of First Instance found in her favour holding that the State had not acquired title to the property lawfully. There was no appeal and the judgment became final.   Principal State Counsel for Romania applied for an order setting aside that decision to the Supreme Court of Justice, which quashed the judgment of the Court of First Instance, holding that the courts had no jurisdiction to review how the decree was applied. On 23 December 1996 the State sold the property to a former tenant. The applicant issued a further action in the Bucharest Court of First Instance for restitution of the property and for an order setting aside the sale agreement, but it was dismissed in a decision that was subsequently upheld by the Court of Appeal.   ______   In each of these three cases the applicants complained under Article 6 § 1 (right to a fair trial) of the European Convention of Human Rights of the Supreme Court of Justice’s refusal to recognise that the courts had jurisdiction to hear applications for restitution. They also complained under Article 1 of Protocol No 1 (protection of property) of an infringement of their right to the peaceful enjoyment of their possessions. In the Falcoianu case the applicants further alleged that the proceedings before the Supreme Court of Justice had not been conducted before an independent and impartial tribunal.     As regards the issue of admissibility that was raised in the Cretu case, the Court declared the application admissible, as it was not manifestly ill-founded and there were no other grounds for declaring it inadmissible.   In each of the three cases, the Court found that by setting aside a final judgment the Supreme Court of Justice had contravened the principle of legal certainty and thereby violated the applicants’ right to a fair hearing. It further held that the Supreme Court of Justice’s ruling that the courts had no jurisdiction to hear the applicants’ claim for the restitution of their properties was in itself contrary to the right of access to a court.   The Court consequently held unanimously that there had been a violation of Article 6 § 1 on the ground that the applicants had been denied a fair hearing and access to a court.   As regards the issue of the independence and impartiality of the Supreme Court of Justice raised by the applicants in the Falcoianu case, the Court noted that it was the applicants’ submission that the Supreme Court of Justice had departed from its own case-law after a speech made in 1994 by the Romanian president, Mr Iliescu, in which he had stated that judicial decisions for the restitution of unlawfully nationalised property should not be executed. The Court found that there was nothing to suggest that the judges who had sat in the applicants’ case had been influenced by the President’s remarks and the fact that two of the judges had previously voted in favour of changing the case-law did not infringe the right embodied in Article 6 § 1.   Consequently, the Court held unanimously that there had been no violation of Article 6 § 1 as a result of the change in the case-law of the Supreme Court of Justice.   As regards the complaint of a breach of the applicants’ right to the peaceful enjoyment of their possessions, the Court pointed out that their right of property had been established by final, irreversible judgments and that the effect of the judgments of the Supreme Court of Justice had been to deprive them of their property. It noted in that connection that despite their attempts to secure the return of their property, the deprivation had lasted for more than five years in the Cretu case, more than six years in the Falcoianu case and more than fifty years in the Bălănescu case. It consequently considered that the requisite fair balance had been upset and that the applicants had borne and continued to bear an excessive and individual burden.   The Court therefore held unanimously that there had been a violation of Article 1 of Protocol No. 1.   In the Cretu case, the Court ruled that Romania must return the applicants’ property to them within three months from the date its judgment became final or pay them 117,693 euros (EUR) in default for pecuniary damage. It also awarded them EUR 17,000 for non-pecuniary damage.   In the Falcoianu case, the Court awarded the applicants EUR 703,260 jointly for pecuniary damage and EUR 40,000 for non-pecuniary damage.   In the Bălănescu case, the Court ruled that Romania must return the applicant’s property to her within three months from the date its judgment became final or pay her EUR 12,500 in default for pecuniary damage. It also awarded her EUR 1,250 for non-pecuniary damage. (The judgments are available only in French.)     (4)     Nouhaud and Others v. France (no. 33424/96)   Violation Article 6 § 1   Violation Article 13 The applicants are Gabrielle Nouhaud, her son René Nouhaud, and an association: Asylum Information Group ( Groupe Information Asiles - GIA ). Mrs Nouhaud died while the proceedings before the Court were pending. Her son and her daughter, Marie-Louise Bonnet, stated that they wished to pursue the proceedings on her behalf.   René Nouhaud was compulsorily admitted to the Esquirol Specialised Hospital Centre in Limoges pursuant to a hospital order issued by the prefect on 18 December 1979. He subsequently became a voluntary patient on 16 April 1980 and was discharged on a trial basis on 19 May 1980.   On 3 May 1989 Mr Nouhaud and his mother issued an action in damages in the Paris tribunal de grande instance in respect of the hospital order. The association intervened in the proceedings on the same date. On 2 February 1990 Mr Nouhaud applied to the Limoges Administrative Court for an order quashing the prefect’s orders and the decision to discharge him for a trial period. The association lodged a pleading as a third-party intervener.   The tribunal de grande instance deferred judgment pending the final decision of the administrative court, which on 26 March 1992 gave the association leave to join the proceedings as a third-party intervener and quashed the orders and decision relating to the applicant’s confinement. Following two appeals on 1 and 4 June 1992 the Conseil d’État upheld the administrative court’s judgment on 11 March 1996.   In a judgment of 12 January 1998 the tribunal de grande instance turned down the association’s application to join the proceedings as a third-party intervener on account of procedural irregularities. In the main action it held that there was insufficient evidence to show that the hospital order had been fully justified. On 13 April 1999 the Paris Court of Appeal partially upheld that judgment and awarded Mr Nouhaud 200,000 French francs (FRF) and his mother FRF 30,000.   Relying on Article 6 § 1 (right to a fair trial), the applicants complained of the length of the proceedings (almost ten years for four levels of jurisdiction). They also complained Article   13 that there was no effective remedy in French law for the excessive length of proceedings.   The Court noted, firstly, that the association, GIA , could not claim to be an independent party to the proceedings or the victim of a violation of the Convention and declared its application inadmissible.   The Court noted that the case before it had lasted almost ten years and that the proceedings before the Conseil d’État alone had taken three years and nine months. It consequently held unanimously that there had been a violation of Article 6 § 1 on account of the excessive length of the proceedings.   Turning to the complaint of a lack of an effective remedy, the Court noted that Article 781-1   of the Judicature Code provided a remedy for damage sustained as a result of inordinately lengthy proceedings. It pointed out that it had previously held that by 20 September 1999 that remedy had become sufficiently certain in law for its use to be both possible and necessary as a condition for the exhaustion of domestic remedies. However, it noted that at the time the application was lodged in the case before it the practical and legal effectiveness of the remedy had yet to be demonstrated. Consequently, the Court held unanimously that there had been a violation of Article 13 and awarded Mr Nouhaud EUR 7,500 for non-pecuniary damage and Mrs Nouhaud’s heirs EUR   4,500. It also made a total award of EUR 1,000 for costs and expenses. (The judgment is available only in French.)   (5)     Basacopol v. Romania (no. 34992/97)   Violation Article 1 of Protocol No. 1 Alexandru Basacopol is a Romanian national who was born in 1926 and lives in Bucharest. In 1950 land which his mother had purchased in 1936 was requisitioned by the Communist Party. It was subsequently confiscated by the State in 1963 pursuant to Decree no. 218/1960.   In his capacity as heir, the applicant brought an action in the Bucharest Court of First Instance for restitution of the land. By a judgment of 29 September 1994 the Court of First Instance found in his favour and upheld his right of property, on the ground that the provisions of the decree contravened the Universal Declaration of Human Rights, the European Convention on Human Rights, the Constitution and the Romanian Civil Code. There being no appeal, the decision became final.   Principal State Counsel for Romania applied for an order setting aside that decision to the Supreme Court of Justice, which in a judgment of 10 October 1996 quashed the judgment of the Court of First Instance, holding that the courts had no jurisdiction to review how the decree was applied.   In August 1996 the applicant lodged a claim for restitution with the Administrative Review Board under Law no. 112/1995. On an unspecified date the State sold the property to the sitting tenants. The review board found that no restitution of the property was possible, but awarded the applicant damages. However, according to the information provided by the parties, the applicant has received no payment in respect of his claim. He made a further application for restitution of the property to the Bucharest Court of First Instance which was dismissed on 25   June 1997 on the ground that the issue was res judicata . The applicant’s appeal against that decision was dismissed.   The applicant complained under Article 1 of Protocol No 1 (protection of property) of an infringement of his right to the peaceful enjoyment of his possessions.   The Court pointed out that the applicant’s right of property in the land had been established by a final, irreversible judgment and that the effect of the judgment of the Supreme Court of Justice had been to deprive him of his property. It noted that despite his attempts to secure the return of his property, the deprivation had lasted for more than fifty years, during which period the applicant had not received compensation that reflected the true value of his property. It consequently considered that the requisite fair balance had been upset and that the applicant had borne and continued to bear an excessive and individual burden.   Consequently, the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 and ruled that Romania must return the applicant’s property to him within three months from the date its judgment became final or pay him EUR 148,870 in default for pecuniary damage. The Court also awarded him EUR 6,000 for non-pecuniary damage. (The judgment is available only in French.)     ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.