ALEXA v. ROMANIA

FOURTH SECTION

DECISION

Application no. 41493/19
Alin-Adrian ALEXA and Monica-Nicoleta ALEXA
against Romania

The European Court of Human Rights (Fourth Section), sitting on 26 November 2024 as a Committee composed of:

 Anne Louise Bormann, President,
 Sebastian Răduleţu,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 41493/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 July 2019 by two Romanian nationals, Mr Alin-Adrian Alexa and Ms Monica-Nicoleta Alexa (“the applicants”), born, respectively, in 1976 and 1979 and living in Zalău, who are spouses and were represented successively by Ms M. Popovici and Mr P.L. Ciortea, lawyers practising in Zalău;

the decision to give notice (i) of the complaint under Article 6 of the Convention concerning the alleged violation of the applicants’ right to a fair hearing related to the national courts’ refusal to admit evidence proposed by the applicants and (ii) of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the alleged violation of the applicants’ right to the peaceful enjoyment of their possessions, to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the domestic courts’ refusal to admit evidence proposed by the applicants and to award them compensation related to a temporary seizure of their land in alleged violation of Article 6 and Article 1 of Protocol No. 1 to the Convention.

2.  On an unspecified date in 2008 the applicants bought 21,566 square meters (sq.m.) of land from private parties for 539,150 euros (EUR). The land was located within a future industrial zone, the development of which was approved by the Zalău Local Council on 5 March 2007.

3.  The applicants bought the land in order to construct offices and warehouses intended for lease.

4.  On 28 October 2008 they obtained an urban planning certificate from the Zalău mayor’s office confirming their entitlement to construct the above‑mentioned buildings on the land for which they were clearly instructed to obtain a building permit.

5.  On 30 June 2009 the Motorways and National Roads Agency (MNRA) seized the applicants’ land pending the expropriation of 5,619 sq.m. thereof for the purpose of building a motorway.

6.  On 16 May 2013 the Sălaj County Court allowed the applicants’ appeal and repealed the measure owing to the failure of the authorities to expropriate the relevant part of the applicants’ land due to a lack of funds. The court held that the impugned measure violated the applicants’ right to the peaceful enjoyment of their possessions.

7.  On 25 October 2013 the applicants brought compensation proceedings against the State and the MNRA before the Bucharest County Court (BCC) and claimed 4,900,000 Romanian Leu (RON)_(EUR 1,104,000) in respect of pecuniary and non-pecuniary damages for the alleged loss of future income and the alleged consequences that loss had on their reputation, private and family life. They argued that the seizure of the land had prevented them from constructing the above-mentioned buildings (see paragraph 3) and collecting rent.

8.  On 14 May 2014 the applicants asked the BCC to order an expert report regarding five issues, which they considered to be of relevance, and to hear five witnesses. The BCC commissioned an expert report concerning only two of the points indicated by the applicants. It further heard oral evidence from two witnesses of the applicants’ choice.

9.  With a judgment of 19 October 2016 the BCC dismissed the applicants’ tort law action finding their claim speculative and not supported with evidence. It held that there was nothing to indicate that the applicants had taken any specific steps from October 2008 to June 2009 and from May to October 2013 to construct the above-mentioned buildings or to verify whether their business idea was viable. The applicants’ business intention was insufficient to prove that failure to construct the buildings had been the result of the seizure of the land.

10.  The applicants appealed against the judgment and argued that the BCC had wrongly assessed the evidence and had refused to admit the additional evidence requested by them without providing any relevant reasons (see paragraphs 8-9 above).

11.  With a judgment of 26 February 2018 the Bucharest Court of Appeal dismissed the appeal and confirmed the BCC judgment. It held that, inter alia, the BCC’s decision not to examine all witnesses was lawful and that witnesses’ testimonies were unable to prove the applicants’ claims. The decision to restrict the scope of the expert examination was not detrimental for the applicants because the additional points raised by them could not confirm the alleged pecuniary damage suffered by them, and were therefore irrelevant for the case.

12.  The applicants challenged the manner in which the Court of Appeal had assessed the evidence and the reasoning it had provided.

13.  With a final judgment of 14 February 2019 the High Court of Cassation and Justice dismissed the applicants’ appeal on points of law holding that the complaint pertaining to the assessment of evidence was outside its scope of review and that the reasoning given was relevant and sufficient.

14.  The applicants complained under Article 6 of the Convention of a violation of their right to a fair hearing owing to the domestic courts’ refusal to admit evidence proposed by them without providing adequate and sufficient reasons. They also complained under Article 1 of Protocol No. 1 to the Convention of a violation of their right to the peaceful enjoyment of their possessions owing to the domestic courts’ dismissal of their compensation claim contrary to available evidence and the fact that their land had been seized and they could not use or dispose of it as intended.

THE COURT’S ASSESSMENT

15.  The general principles whether a person has a “possession” or a legitimate expectation within the meaning of Article 1 of Protocol No. 1 were set out in Kopecký v. Slovakia ([GC], no. 44912/98, §§ 35 and 45-53, ECHR 2004-IX) and Anheuser-Busch Inc. v. Portugal ([GC], no. 73049/01, § 64, ECHR 2007-I).

16.  The applicants purchased the land in question with a view of constructing offices and warehouses which they intended to lease. However, prior to any construction works, the authorities seized the applicants’ land from June 2009 to May 2013. The measure was set aside by the courts and the applicants unsuccessfully claimed damages in respect of loss of income and related consequences for their private and family life during the validity of the impugned measure.

17.  By contrast to cases in which the Court has found Article 1 of Protocol No. 1 to the Convention applicable in respect of income generating business activities, the applicants in the present case had not proved that they had been prevented to start with their activity due to the impugned measure. Indeed, the applicants have not contested that in order to implement their business project they had to meet certain conditions, such as drafting building plans, obtaining a building permit (notwithstanding the clear instruction in that respect, paragraph 4 above) and other associated permits and authorisations, verify the viability of their project and conclude leasing contracts with potential renters. The national courts found that the applicants failed to present any evidence that they had complied with these conditions either before or after their land was seized by the authorities (compare and contrast Fredin v. Sweden (no. 1), 18 February 1991, §§ 10, 21 and 27, Series A no. 192; and O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, §§ 5 and 14, 7 June 2018).

18.  The national courts refused to admit to the file some evidence proposed by the applicants which the latter considered relevant for their case (see paragraphs 8-9 and 10 above). However, they provided detailed reasons for their decision that the evidence in question was not capable of proving the applicants’ claims (see paragraph 11 above), which do not appear arbitrary of manifestly unreasonable.

19.  The Court is satisfied that the domestic courts convincingly established that the applicants’ business project had not met the necessary conditions laid down by the domestic law at the material time and could not have been therefore implemented regardless of the impugned measure. Therefore, it sees no reason to depart from their finding that the applicants’ compensation claim concerning the alleged loss sustained due to the temporary seizure of their land was unsubstantiated (see paragraph 9 above). Such claim was not sufficiently established to be regarded as “asset” within the meaning of Article 1 of Protocol No. 1 to the Convention. In this connection it reiterates that future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see Anheuser-Busch Inc., cited above, § 64). The income claimed by the applicants has not actually been earned. Neither can it be argued that it was definitely payable and that its loss affected the applicants’ private and family life.

20.  Accordingly, the Court finds that the applicants did not have legitimate expectation in respect of their compensation claim protected by Article 1 of Protocol No. 1 to the Convention. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

21.  While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. In principle, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The same applies to the probative value of evidence and the burden of proof. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Grosam v. the Czech Republic [GC], no. 19750/13, § 131, 1 June 2023).

22.  Given its findings in paragraph 18 above, the Court cannot accept that the national courts failed to provide adequate and sufficient reasons for dismissing the applicants’ request for additional evidence, or that the manner in which the courts assessed the said evidence was arbitrary or manifestly unreasonable. This complaint is therefore likewise inadmissible.

23.  It follows that this part of the applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2024.

 Simeon Petrovski Anne Louise Bormann
 Deputy Registrar President