De urmarit la CEDO (continuare)

Redau mai jos notificarea Registraturii CEDO privitoare la aceste cazuri romanesti….(textul se repeta, dar am incercat sa pastrez tot mesajul)

Cazurile:
A.
Nagy v. Romania (no. 32268/96)

Canciovici and Others v. Romania (no. 32926/96)

Dragnescu v. Romania (no. 32936/96)

Gavruş v. Romania (no. 32977/96)

Moşteanu and Others v. Romania (no. 33176/96)

B.
Smoleanu v. Romania (no. 30324/96)

Lindner and Hammermayer v. Romania (no. 35671/97)

Notificarea:
……

(3) Nagy v. Romania (no. 32268/96)

(4) Canciovici and Others v. Romania (no. 32926/96)

(5) Dragnescu v. Romania (no. 32936/96)

(6) Gavruş v. Romania (no. 32977/96)

(7) Moşteanu and Others v. Romania (no. 33176/96)

The applications were lodged by various Romanian nationals who, in their capacity as heirs, brought actions in the national courts to recover property that had been nationalised under Decree no. 92/1950 on nationalisation. They argued that their ascendants, who had been the owners of the property at the time, had been excluded from the scope of the decree on account of their profession or status. The applicants’ property rights were acknowledged by the lower courts and some of the relevant judgments became final in the absence of an appeal. However, those judgments were quashed by the Supreme Court of Justice on the ground that the lower courts had no jurisdiction to review the application of the decree on nationalisation.

Relying on Article 6 § 1 (right to a fair hearing), the applicants complain of the Supreme Court of Justice’s refusal to recognise the courts’ jurisdiction to determine an action to establish title to property. In the Moşteanu case the applicants also submit that they were denied a hearing by an independent and impartial tribunal, on account of comments by the President of Romania in July 1994 requesting the authorities not to execute decisions by which the courts had declared null and void the nationalisation of property under the communist regime. Furthermore, in all five cases the applicants complain under Article 1 of Protocol No. 1 (protection of property).


Section 4

Press release issued by the Registrar

CHAMBER JUDGMENTS CONCERNING ROMANIA……..

The European Court of Human Rights has today notified in writing the following 12 Chamber judgments, of which only the friendly-settlement judgments are final:[fn]


(The judgments are available only in French.)

(3) Nagy v. Romania (no. 32268/96)
(4) Dragnescu v. Romania (no. 32936/96)
(5) Gavruş v. Romania (no. 32977/96)

Violation Article 6 § 1
Violation Article 1 of Protocol No. 1

The Court considered that in quashing a judgment that had become final, the Supreme Court of Justice had infringed the principle of legal certainty and, in so doing, the applicants’ right to a fair hearing. Furthermore, the Supreme Court’s ruling that the courts did not have jurisdiction to determine the applicants’ actions to establish title was in itself contrary to the right of access to a court. Accordingly, the Court held unanimously that there had been a violation of Article 6 § 1 on account of the lack of a fair hearing (because final judgments had been quashed) and on account of the denial of the right of access to a court.

As regards the alleged violation of the applicants’ right of property, the Court reiterated that their right to the property in question had been recognised by final judgments and had therefore been irrevocable. The judgments of the Supreme Court had had the effect of depriving them of their possessions. They had been deprived of part of their possessions without receiving any compensation or without the award of compensation being adequate. In the Nagy case, the Court also considered that although the applicant’s ownership was entered in the land register, the existence of two titles to the same property made the applicant’s ownership precarious and was comparable to the existence of an expropriation permit. Consequently, the Court concluded that the fair balance between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights had been upset and that the applicants had borne and continued to bear an individual and excessive burden. The Court accordingly held unanimously that there had been a violation of Article 1 of Protocol No. 1 in all three cases.

In the Nagy case, the Court awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 400 for costs and expenses. In the Dragnescu case, it awarded the applicant EUR 4,000 for pecuniary damage and EUR 400 for non-pecuniary damage. In the Gavruş case, the Court ordered the restitution of the property in issue to the applicants within three months of the date on which the judgment became final. Failing that, the State was to pay them jointly EUR 40,000 for pecuniary damage. The Court also awarded them jointly EUR 4,000 for non-pecuniary damage.

(6) Canciovici and Others v. Romania (no. 32926/96) Violation Article 6 § 1 Article 1 of Protocol No. 1: inadmissible

(7) Moşteanu and Others v. Romania (no. 33176/96) Violation Article 6 § 1 No violation Article 1 of Protocol No. 1

In both cases, the Court noted that there had not been a final and irrevocable judgment in the applicants’ favour. However, it held unanimously that the Court of Appeal’s ruling that it did not have jurisdiction to determine the applicants’ action to establish title was in itself contrary to the right of access to a court. The Court accordingly held unanimously that there had been a violation of Article 6 § 1 on that account.

As regards the complaint raised in the Moşteanu case concerning the Supreme Court’s lack of independence, the Court held that the statements by the President of Romania had been addressed to the authorities and that there was nothing to suggest that they had influenced the judges of that court who had heard the applicants’ case. Moreover, merely applying the case-law of an authority such as the Supreme Court did not, in the Court’s view, infringe the rights and duties of the lower courts to carry out a wholly independent examination of cases before them. Accordingly, the Court held unanimously that there had been no violation of Article 6 § 1 as regards the court’s independence and impartiality.

As regards the complaint that the applicants’ right of property had been infringed, the Court noted in both cases that the applicants’ ownership of the property in question had not been recognised by a final and irrevocable decision. It considered that they had not had a "possession" and accordingly declared the complaint inadmissible in the Canciovici case and held that there had been no violation of Article 1 of Protocol No. 1 in the Moşteanu case.

In the Moşteanu case, the Court awarded the four applicants jointly EUR 4,000 for non-pecuniary damage and EUR 710 for costs and expenses. In the Canciovici case, it awarded the three applicants jointly EUR 6,000 for non-pecuniary damage.


Press release issued by the Registrar


(2) Smoleanu v. Romania (no. 30324/96)

Elena Smoleanu is a Romanian national. She was born in 1922 and lives in Ploieşti.

In 1950, under Decree no. 92/1950, the State nationalised a house converted into two flats, a garage and adjoining land which the applicant had received as a dowry from her father in 1944.

The applicant lodged an initial application for recovery of possession, which was granted by Prahova County Court. That court’s judgment was quashed, however, on 13 June 1995 by Ploieşti Court of Appeal on the ground that the courts did not have jurisdiction to examine the application of the decree on nationalisation.

In March 1996 the applicant lodged an application for restitution of property under Law no. 112/1995. The Administrative Board restored title to the applicant of the flat she had occupied as a tenant and awarded her financial compensation for the rest of the house and land, but dismissed her application in respect of the garage. The applicant, who considered that the compensation she had received was less than the value of the property, lodged a complaint with Ploieşti Court of First Instance. The examination of her complaint was adjourned because a second application for recovery of possession had been lodged at the same time. That application was refused on 30 March 1998 by Ploieşti Court of Appeal on the ground that as the applicant had lodged an application for restitution she must have acknowledged that the nationalisation was lawful. The application for restitution resulted in the Administrative Board’s decision being upheld.

Relying on Article 6 § 1 (right of access to a court), the applicant complains of the Court of Appeal’s refusal to recognise that the courts had jurisdiction to determine an action for recovery of possession. She also complains, under Article 1 of Protocol No. 1 (protection of property), that the Court of Appeal’s judgments infringed her right to peaceful enjoyment of her possessions.

(3) Lindner and Hammermayer v. Romania (no. 35671/97)

Alexandru Lindner and Cristina Hammermayer are two Romanian nationals living in Frankfurt (Germany).

In their capacity as beneficiaries of their mother’s estate, they brought an application for recovery of possession of property situated in Bucharest comprising three flats purchased by their mother in 1939 and confiscated by the State in 1975 under Decree no. 223/1974.

Bucharest Court of First Instance granted their application on the ground that the administrative decision confiscating the property was unlawful because it had not been served on their mother. On an appeal by the city, however, Bucharest Court of Appeal dismissed the applicants’ application, holding that the applicants could avail themselves only of the provisions of Law no. 112/1995 on the restitution of certain nationalised property.

Relying on Article 2 of Protocol No. 4 (freedom of movement), the applicants submit that the reason for the confiscation was the fact that their mother had immigrated into Germany in 1975. Further, the applicants complain, under Article 6 § 1 (right of access to a court), of the Court of Appeal’s refusal to recognise that the courts had jurisdiction to determine an action for recovery of possession. The applicants also complain of an interference by the Court of Appeal with their right to peaceful enjoyment of their possessions and rely in that connection on Article 1 of Protocol No. 1 (protection of property).

B.
Press release issued by the Registrar

CHAMBER JUDGMENTS CONCERNING ….ROMANIA

The European Court of Human Rights has today notified in writing the following four Chamber judgments [fn], none of which is final. [fn] (These judgments are in French only.)

Section 2

(1) Smoleanu v. Romania (no. 30324/96) Violation Article 6 § 1 No violation Article 1 of Protocol No. 1

Elena Smoleanu is a Romanian national. She was born in 1922 and lives in Ploieşti.

In 1950, under Decree no. 92/1950, the State nationalised a house converted into two flats, a garage and adjoining land which the applicant had received as a dowry from her father in 1944.

The applicant first lodged an application for recovery of possession, which was granted by Prahova County Court. That court’s judgment was quashed, however, on 13 June 1995 by Ploieşti Court of Appeal on the ground that the courts did not have jurisdiction to examine application of the nationalisation decree.

In March 1996 the applicant lodged an application for restitution of property under Law no. 112/1995. The Administrative Board returned to the applicant the flat she had occupied as a tenant and awarded her compensation for the rest of the house and land, but dismissed her application in respect of the garage. The applicant, who considered that the compensation she had received was less than the value of the property, lodged a complaint with Ploieşti Court of First Instance. Examination of her complaint was adjourned because a second application for recovery of possession had been lodged at the same time. That application was refused on 30 March 1998 by Ploieşti Court of Appeal on the ground that the fact that the applicant had lodged an application for restitution meant that she accepted that the nationalisation had been lawful. The application for restitution resulted in the Administrative Board’s decision being upheld.

Relying on Article 6 § 1 of the European Convention on Human Rights (right of access to a court), the applicant complained of the Court of Appeal’s refusal to recognise that the courts had jurisdiction to determine an action for recovery of possession. She further complained, under Article 1 of Protocol No. 1 (protection of property), that the Court of Appeal’s judgments had infringed her right to peaceful enjoyment of her possessions.

Referring to its case-law on that point, the Court ruled that the dismissal of the applicant’s action for recovery as a result of the Court of Appeal’s judgment of 13 June 1995 had in itself infringed the right of access to a court, guaranteed by Article 6 § 1 of the Convention. In addition, by holding in its judgment of 30 March 1998 that it was not necessary to determine an action for recovery because another appeal about the disputed property was pending, the Court of Appeal had likewise denied the applicant the right of access to a court. Consequently, the Court held unanimously that there had been a violation of Article 6 § 1 in these two respects.

The Court noted that the applicant could claim to be the victim of an infringement of her right of property only in respect of that part of the property which had not been returned to her. It observed in the first place that it did not have jurisdiction to examine the circumstances or continuing effects of nationalisation, which had taken place before the date when the Convention came into force with regard to Romania, namely 20 June 1994. It further noted that the actions brought by the applicant did not relate to a "present possession" and that she had not established that she had a "legitimate expectation" of securing recovery of that part of the property in respect of which her claims had not been upheld by the domestic courts. It accordingly held unanimously that there had been no violation of Article 1 of Protocol No. 1. The Court awarded the applicant 5, 000 euros (EUR) for non-pecuniary damage.

(2) Lindner and Hammermayer v. Romania (no. 35671/97) Violation Article 6 § 1 No violation Article 1 of Protocol No. 1 Article 2 of Protocol No. 4: inadmissible

Alexandru Lindner and Cristina Hammermayer are two Romanian nationals living in Frankfurt (Germany).

In their capacity as beneficiaries of their mother’s estate, they brought an application for recovery of possession of property situated in Bucharest comprising three flats purchased by their mother in 1939 and confiscated by the State in 1975 under Decree no. 223/1974.

The Bucharest Court of First Instance granted their application on the ground that the administrative decision to confiscate the property had been unlawful because it had not been served on their mother. However, on an appeal by Bucharest City Council, the Bucharest Court of Appeal dismissed the applicants’ claim, holding that they could avail themselves only of the provisions of Law no. 112/1995 on the restitution of certain nationalised property.

Relying on Article 2 of Protocol No. 4 (freedom of movement), the applicants submitted that the confiscation had been determined by the fact that their mother had emigrated to Germany in 1975. They further complained, under Article 6 § 1 (right of access to a court), of the Court of Appeal’s refusal to accept that the courts had jurisdiction to determine an action for recovery of possession. They also complained that the Court of Appeal’s judgment had interfered with their right to peaceful enjoyment of their possessions and relied in that connection on Article 1 of Protocol No. 1 (protection of property).

As Romania had ratified the Convention on 20 June 1994, the complaint of a violation of Article 2 of Protocol No. 4 as regards the applicants’ mother’s freedom of movement in 1975 fell outside the jurisdiction of the Court, which accordingly declared it inadmissible.

The Court noted that the Court of Appeal had not examined any of the applicants’ arguments and had asked them to apply to the Administrative Board to determine their restitution claim. The fact that the Court of Appeal had found that the confiscation had been effected "by warrant" did not permit the conclusion that it had reviewed the lawfulness of the confiscation order. It followed that the Court of Appeal had excluded the applicants’ action for recovery of possession from the jurisdiction of the courts, in breach of Article 6 § 1 of the Convention.

As regards the complaint of an infringement of the right of property, the Court observed that on account of the date on which the Convention came into force with regard to Romania it did not have jurisdiction to examine the circumstances or continuing effects of the confiscation. It further noted that the proceedings brought by the applicants did not relate to a "present possession" and that they had not established that they had a "legitimate expectation" of securing recovery of the disputed property. The Court accordingly held unanimously that there had been no violation of Article 1 of Protocol No. 1. It awarded the applicants EUR 5,000 for non-pecuniary damage and EUR 400 for costs and expenses.



[fn] 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.