THIRD SECTION
CASE OF FORNA v. ROMANIA
(Application no. 34999/03)
JUDGMENT
(just satisfaction)
STRASBOURG
15 June 2010
FINAL
15/09/2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Forna v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 25 May 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34999/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mrs Norina Consuela Forna (“the applicant”), on 18 September 2003.
2. In a judgment delivered on 5 May 2009 (“the principal judgment”), the Court held that there has been a violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 as a result of the
non-enforcement of a final judgment in the applicant's favour (see Forna v. Romania, no. 34999/03, 5 May 2009).
3. Under Article 41 of the Convention the applicant sought just satisfaction of pecuniary and non-pecuniary damages sustained as a result of the above violations and reimbursement of costs and expenses.
4. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., paragraph 36, and point 3 of the operative provisions).
5. The applicant and the Government each filed observations.
THE LAW
6. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
7. In her updated claims for just satisfaction the applicant sought to recover possession of 16 ha of land and submitted to the Court an official record of 10 February 2010 in which the local administrative authorities of the Miroslava village had delimited an area of 16 ha of land for allocation to the applicant, which was under the administration of the Agromixt company (see paragraph 12 in the principal judgment). Failing enforcement of the judgment in her favour, which would involve taking effective possession of that land and also acquiring an ownership title, the applicant claimed 1,208,000 euros (EUR) for the updated value of 16 ha of land, on the basis of information provided by the Chamber of Notaries Public and submitted by the Government to the Court.
In any event, she claimed EUR 371,295 for the loss of profit or benefit, representing the value of the bank interest for the above amount, and EUR 14,360 as the equivalent of the pecuniary penalty fixed by the judgment of the Iaşi Court of First Instance of 3 February 2003 (see paragraph 8 in the principal judgment). The applicant also claimed
non-pecuniary damage, asking the Court to determine the amount.
8. The Government considered, in line with the information provided by the Chamber of Notaries Public and depending whether the land was situated in intra muros or in extra muros, that the price of the entire land varies between EUR 67,938 and EUR 1,114. Afterwards they pointed out that the land was situated in extra muros.
The Government submitted that the coercive fine had the nature of a civil penalty, with the purpose of guaranteeing the execution of an obligation and not of granting compensation; the applicant had the opportunity to request the court to convert it into damages for delayed enforcement. Further, they sought dismissal of the claim for non-pecuniary damage on the basis that the applicant had not specified an amount.
9. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).
10. The Court considers, in the circumstances of the case, that the enforcement of the judgment of 3 February 2003 of the Iaşi Court of First Instance would place the applicant as far as possible in a situation equivalent to the one in which she would have been if there had not been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. In this connection, the Court observes the steps taken by the administrative authorities on 10 February 2010 with a view to delimit the applicant's land and also the fact that she has accepted this allocation. Therefore it holds that the respondent State is to enable the applicant to take effective possession of that land and to provide her with title in respect of that land.
11. As regards the amount of money alleged by the applicant for the loss of profit or benefit from her possession, the Court notes that the applicant did not submit any supporting documents to substantiate her claim. In the absence of any evidence, the Court will not speculate as to the loss of profit or any benefit and, therefore, will not make an award under this head (see Dragne and Others v. Romania (just satisfaction), no. 78047/01, § 18,
16 November 2006).
12. As regards the amount alleged by the applicant as the equivalent of the periodic pecuniary penalty, the Court reiterates that under Romanian law a coercive fine is of a provisional nature and therefore cannot be enforced in the absence of a new court decision establishing the actual level of damage caused by the delay in enforcement (see Gavrileanu v. Romania, no. 18037/02, § 66, 22 February 2007; and Hîrgău and Arsinte v. Romania, no. 252/04, § 45, 20 January 2009). In the present case, as the applicant has not made full use of the judicial mechanism of the coercive fine, the Court will not speculate as to its amount and, therefore, will not make an award under this head.
13. The Court considers that the serious interference with the applicant's right of access to a court and with the peaceful enjoyment of her possession caused moral prejudice to the applicant. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 4,800 in respect of non‑pecuniary damage.
B. Costs and expenses
14. The applicant claimed EUR 11,000 for the fee for her lawyer on the basis of a contract of legal assistance and, without specifying an amount or submitting invoices, the equivalent of the costs and expenses incurred before the domestic courts and before this Court, representing postal service, translations, photocopies and transport.
15. The Government contested the claim on the ground that it was partly unsubstantiated, that no causal link between the payment of some fees and the present case could be found, that the contract of judicial assistance was not accompanied by a “time sheet”, that the stipulated amount, as the applicant admitted, had not already been paid by her, and that the fee for the lawyer was excessive, having regard to the low degree of complexity of the case, which follows the well-established jurisprudence of the Court.
16. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession, to the above criteria and to the fact that the present case is of a repetitive nature which does not raise any complex issues, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.
C. Default interest
17. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds
(a) that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the enforcement of the judgment of 3 February 2003 of the Iaşi Court of First Instance, as proposed by the administrative authorities on 10 February 2010, by enabling the applicant to take effective possession of that land and also by providing her with a document of title to her land;
(b) that the respondent State is to pay the applicant, within the same three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
2. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 15 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy