Information Note on the Court’s case-law No. 99
July 2007
Hirschhorn v. Romania - 29294/02
Judgment 26.7.2007 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Impartial tribunal
Independent tribunal
Failure to comply with a final judgment requiring administrative authorities to deliver up possession of a building occupied by a governmental organisation that enjoyed diplomatic immunity: violation
President of a court of appeal’s intervention in order to influence proceedings in line with the report of a judicial inspector who was answerable to both the Minister of Justice and the presidents of the courts of appeal: violation
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Inability to comply with a final court order to deliver up possession of a building registered as private property of the State: violation
Facts: The applicant lodged an action against the State to recover property. The Court of First Instance ordered the restitution of the building, of which the State had taken possession in the 1950s, without any valid title, as part of a nationalisation process. When subsequent appeals failed, the mayor ordered the building’s restitution. Since 2000, however, it had been occupied by the United States Peace Corps organisation under a lease concluded with a State company. The applicant took action against the State company and the organisation. The Court of First Instance rejected the claim, considering that the company had proper authority to manage the building and that the disputed lease was valid. The County Court set aside the judgment and allowed the applicant’s claim, holding that the State had had no valid right to expropriate the building in the first place. The court declared the lease void and ordered the eviction of the tenant organisation. The company informed the bailiff in charge of the eviction that the building was the property of the State and the tenant organisation had diplomatic immunity and could not be evicted. The bailiff informed the court in a letter of the difficulties encountered and the president of the Court of Appeal informed him that his concerns had been looked into by a judge who had confirmed that the property of diplomatic missions was inviolable. He concluded that the applicant could not repossess his building and asked the bailiff to advise him to apply for compensation corresponding to the value of the building, as it was impossible to enforce the judgment. In a final judgment the Court of Appeal confirmed the validity of the lease, holding that it had been entered into in good faith in so far as, although the company was not the legitimate owner at the time of signature of the lease, it had appeared to be. The applicant took various steps to have the building returned, but to no avail.
Law: Article 6 § 1 (right to a court) – The final judgment had remained unenforced because of the opposition of the company managing the building, which had relied on the diplomatic immunity of the tenant organisation. The organisation had merely been the tenant, and its latest lease had expired. That being so, if the existence of the lease had justified the delay in the restitution of the building to the applicant, the Court failed to see what justification there could be for the authorities’ refusal to give back the building once the lease had expired. The applicant had been, and continued to be, deprived of his property, the authorities continuing to consider the building as State property. The argument that the organisation enjoyed diplomatic immunity was not an obstacle to the transfer of ownership rights over the building to the applicant. This would not necessarily have meant the tenant organisation having to leave the building. In the event of any dispute over its occupancy, it could have defended its rights, even availing itself of its diplomatic immunity. The steps taken after the final judgment had merely been attempts by the applicant to make the authorities comply. That being so, they could not be considered to affect his ownership rights in any way.
Conclusion: violation (unanimously).
Article 6 § 1 (independent and impartial tribunal) – In concluding in his report that the applicant could not take possession of his building, the inspecting judge had supported the position of the defending parties, i.e. the company and the organisation. In forwarding to the bailiff the report of that judge, who was acting at the behest and under the responsibility of the president of the Court of Appeal, the latter had endorsed the report’s findings. In view of the vast judicial and administrative ground inspecting judges were expected to cover, and the fact that they answered both to the Minister of Justice and to the presidents of the courts of appeal, the question arose whether the members of the trial bench were not subject to undue influence. To avert that risk the law prohibited judges from voicing opinions in public about trials in progress and formally prohibited any interference by inspecting judges in the proceedings. However, the inspecting judge had infringed that principle when, in examining the appeal filed by the company, he had declared that the organisation could not be evicted, whereas the disputed County Court judgment had ordered its eviction. The inspecting judge and, implicitly, the president of the Court of Appeal had pleaded in favour of rejecting the applicant’s claim.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1 – The applicant had been deprived of every attribute of his ownership rights to the building when the building had been placed on the State-owned property list. This had amounted to a de facto expropriation. The principle of the immunity of State bodies was not sufficient in itself to legitimise the authorities’ failure to transfer ownership rights over the building to the applicant.
Conclusion: violation (unanimously).
Article 41 – The respondent State must return the building to the applicant, in keeping with the judgment of the Court of First Instance; failing that, EUR 1,900,000 in respect of pecuniary damage. In any event, the Court awarded EUR 200,000 in respect of pecuniary damage (loss of income) and EUR 10,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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