FOURTH SECTION
DECISION
Application no. 22826/05
Mihail HERDA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 17 November 2020 as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 6 May 2005,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Mihail Herda, is a Romanian national who was born in 1944 and lives in Bucharest. He was represented before the Court by Mr M.I. Igreț, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agents, most recently, Ms O. Ezer, of the Ministry of Foreign Affairs.
3. The application concerns mainly the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention relating to his inability to recover full possession of his immovable property, namely a building with three apartments located at no. 5 Eufrosin Potecă street in the second district of Bucharest, in spite of a final court judgment acknowledging his property rights, following sales contracts concluded by the State with the tenants living in the aforementioned apartments. By a final judgment of 17 November 2004, the Ploieşti Court of Appeal dismissed the applicant’s action for annulment of the sales contracts concerning two of the apartments and allowed it in so far as the sales contract for the third apartment was concerned. On 4 June 2007 the Bucharest mayor’s office delivered an administrative decision concerning the enforcement of the above-mentioned judgment in so far as the third apartment was concerned, giving the applicant possession of that apartment.
4. In addition to the above-mentioned complaint the applicant raised a complaint about an alleged breach of his rights guaranteed by Article 1 of Protocol No. 1 to the Convention because of his inability to recover full possession of an immovable property located at no. 8 Spătar Nicolae Miclescu street in the second district of Bucharest, which had been nationalised by the communist regime. The applicant also raised complaints under Article 6 of the Convention about the alleged unfairness and outcome of the two separate sets of proceedings initiated by him for the recovery of both of the above-mentioned properties and the annulment of sales contracts concerning these properties concluded by the State with private parties.
5. On 9 February 2007, the complaint under Article 1 of Protocol No. 1 to the Convention concerning the building located at no. 5 Eufrosin Potecă street was communicated to the Government.
6. In their subsequent correspondence with the Court over the years, the parties informed the Court that the apartment concerned by the administrative decision of 4 June 2007 (see paragraph 3 above) was returned in kind to the applicant and that on 26 January 2018 the National Commission for Compensation of Immovable Property delivered decision no. 18630 acknowledging the applicant’s right to compensation in the amount of 88,852 Euros (EUR) for the remaining two apartments. That sum was to be paid in yearly instalments within the next five years.
7. The parties informed the Court further that the authorities had paid the applicant EUR 34,460 in two instalments in 2018 and 2019 and that a third payment order of EUR 17,230 was issued by the authorities in May 2020.
8. The applicant did not withdraw his just satisfaction claims, namely EUR 326,993 in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage and EUR 3,481 in respect of costs and expenses incurred during the domestic and Court proceedings.
THE LAWComplaint under Article 1 of Protocol nO. 1 to the Convention RELATING TO THE BUILDING ON EUFROSIN POTECĂ STREET
9. The Court notes that, according to the information presented by both parties, following the steps the applicant has taken at national level, he has recovered possession of one of the three apartments in the building located at no. 5 Eufrosin Potecă street in the second district of Bucharest that form the object of part of his application under Article 1 of Protocol No. 1 to the Convention and is in the process being compensated for the remaining two.
10. The Court reiterates that it may at any stage of the proceedings decide to strike an application out of its list of cases in accordance with Article 37 of the Convention.
11. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention (see, the relevant principles set out, among others, in Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I; see also Ana Ionescu and Others v. Romania, nos. 19788/03 and 18 others, §§ 15-16, 26 February 2019) and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine.
12. In any event, the Court’s finding is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases, should the authorities of the respondent State fail to comply with the terms of their decision to compensate the applicant for the two above-mentioned apartments (see, mutatis mutandis, Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006).
13. In view of the above, the case should be struck out of the list in so far as the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention regarding the building located at no. 5 Eufrosin Potecă street in the second district of Bucharest is concerned.remaining Complaints under Articles 6 of the Convention and 1 of protocol no. 1 to the convention
14. The Court has examined the remaining complaints submitted by the applicant under Articles 6 of the Convention and 1 of Protocol No. 1 to the Convention (see paragraph 4 above). However, having regard to all the material in its possession, and in so far as these complaints falls within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.the Applicant’s claims for just satisfaction
15. As regards the applicant’s claim in respect of pecuniary and non-pecuniary damage, the Court notes that one part of the application has been resolved and is to be struck out of the list and the other has been declared inadmissible. It follows that there is no ground on which to grant compensation for pecuniary or non-pecuniary damage and the Court therefore rejects this claim (see, mutatis mutandis, Danca v. Romania (dec.) [Committee], no. 44328/04, 14 November 2019).
16. However, as regards the applicant’s claim in respect of costs and expenses, the Court notes that it has discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). The general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention. In other words, an award can be made to an applicant in respect of costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Union of Jehovah’s Witnesses and Others v. Greece (dec.), no. 72874/01, § 33, 21 April 2015, with further references).
17. In the present case, taking into account the relatively straightforward nature of the issues involved, the documents submitted by the applicant, the domestic proceedings the applicant was involved in and the amount of work carried out by the applicant’s lawyer before the Court, it decides to award the applicant EUR 1,500 covering costs under all heads.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases as regards the complaint under Article 1 of the Protocol No. 1 to the Convention concerning the building located at no. 5 Eufrosin Potecă street in the second district of Bucharest;
Declares the remainder of the application inadmissible;
Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into the national currency at the rate applicable on the date of settlement;
(b) 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.
Done in English and notified in writing on 10 December 2020.
Ilse FreiwirthTim Eicke
Deputy RegistrarPresident
Full & Egal Universal Law Academy