FOURTH SECTION
DECISION
Application no. 32230/04
Maria BANTEA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 24 January 2017 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Iulia Motoc,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 16 July 2004,
Having regard to the declaration submitted by the respondent Government on 4 March 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms Maria Bantea, is a Romanian national, who was born in 1936 and lives in Bucharest. She was represented before the Court by Sir G.-L. Tudor, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. The part of the application concerning the quashing on 23 January 2004 of a final decision given in the applicant’s favour on 11 September 2002 had been communicated to the Government.
THE LAW
4. The applicant complained about the quashing of the final decision of 11 September 2002 given by the Ploieşti Court of Appeal in her favour; in this judgment, the appeal court had imposed on the defendant, namely the Mayor of Pucioasa, the obligation to pay to the applicant coercive damages for each day of delay in the enforcement of an outstanding judgment of 12 September 2000 concerning the granting of possession of a plot of land to the applicant. The applicant relied on Article 6 of the Convention and on Article 1 of Protocol No. 1 to the Convention.
5. After the failure of attempts to reach a friendly settlement, by a letter of 4 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised in the present application by Article 6 § 1 of the Convention. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
6. The declaration provided as follows:
“The Government declare, by way of this unilateral declaration, their acknowledgement of the existence of a violation of Article 6 § 1 of the Convention on account of a breach of the legal certainty principle.
The Government are prepared to pay to the applicant as just satisfaction the sum of EUR 2,700, amount which they consider reasonable in the light of the Court’s case‑law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable in Romanian lei at the rate applicable at the date of payment to the personal account indicated by the applicant within three months from the date of the notification of the decision pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Therefore, the Government respectfully invite the Court rule that the examination of the present application is no longer justified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention.”
7. By a letter of 15 April 2014, the applicant indicated that she was not satisfied with the terms of the unilateral declaration.
8. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
9. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
10. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
11. The Court has established in a number of cases, including those brought against Romania, its practice concerning complaints about the violation of Article 6 § 1 of the Convention in connection with the breach of the legal certainty principle as a consequence of the quashing of a final judgment given in the applicant’s favour following an extraordinary appeal initiated by the Procurator General of Romania (see for instance Brumărescu v. Romania [GC], no. 28342/95, §§ 60-65, ECHR 1999‑VII and Sfrijan v. Romania, no. 20366/04, §§ 29-34, 22 November 2007).
12. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
13. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
14. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
15. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint.
16. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant also complained that the quashing of the final decision of 11 September 2002 (see paragraph 4 above) infringed her right to the peaceful enjoyment of her possessions, in so far as she was no longer able to receive the coercive damages she was entitled to according to the quashed judgment.
17. The Government argued that this complaint was incompatible rationae materiae, in so far as the coercive damages did not constitute a possession within the meaning of Article 1 of Protocol No. 1 to the Convention.
18. The Court notes that in connection with the coercive damages, as prescribed by the domestic law in force at the time, it has already held that they had a provisional nature and were to be regarded as a sanction imposed on the debtor who was delaying the enforcement of a previous outstanding judgment. The judgment granting coercive damages was therefore not enforceable, in so far as the exact amount of the damages was not determined; the determination of the exact amount, if any, was to be done in the course of another set of proceedings, in which the courts were to estimate whether a concrete harm was substantiated by the creditor in connection with the delayed enforcement (see for instance Gavrileanu v. Romania, no. 18037/02, § 23, 22 February 2007 and Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania, nos. 2699/03 and 43597/07, §§ 72-74 and 90, 7 January 2014, judgments in which the Court has found a violation of Article 1 of Protocol No. 1 exclusively in connection with the non-enforcement of the principal obligation, and not in respect of the part of the outstanding judgment granting the respective coercive damages).
19. In a whole series of cases, the Court has found that the applicants did not have a “legitimate expectation” where it could not be said that they had a currently enforceable claim that was reasonably established (see Maurice v. France [GC], no. 11810/03, § 66, ECHR 2005‑IX). Similarly, in the present case, the Court considers that the applicant has not proved that her claim concerning the payment of coercive damages is sufficiently established in order to attract the guarantees of Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, §§ 42 and 58, ECHR 2004‑IX). It therefore allows the Government’s objection and dismisses this complaint as inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
20. The applicant further raised a complaint under Article 14 of the Convention, alleging that the timely enforcement of final domestic judgments by the Mayor of Pucioasa depended on the political affiliation of the creditor.
21. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine these allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
22. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 16 February 2017.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy