THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9332/02
by Mihail LĂZĂRESCU
against Romania
The European Court of Human Rights (Third Section), sitting on
19 January 2010 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 5 March 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mihail Lăzărescu, has both Romanian and Canadian nationality, was born in 1937 and lives in Montreal. He was represented before the Court by Ms Anca-Angelica Andrei, a lawyer practising in Constanţa. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 27 January 1975 the applicant, together with G.V., bought a building situated in Bucharest at 9, 1 Mai Boulevard. The sale was made on the basis of an authorisation previously obtained by the then seller in respect of that building and 217.47 sq. m of appurtenant land. However, the sale contract mentioned that the building (construcţia) which was sold to the
two buyers was situated on a 217.47 sq. m plot of land which was entering de jure into the State's ownership, in accordance with section 30 paragraph 2 of Law no. 58/1974.
4. On 19 July 1975 the authorities certified that the plot of 217.47 sq. m had entered into the State's ownership at the moment of the sale and granted jointly the two buyers a right to use 100 sq. m of that land as long as the building existed.
5. On 19 July 1979 the Bucharest Court of First Instance severed the joint ownership of the building.
6. On 23 April 1981 the applicant's property was seized by the State under Decree no. 223/1974, following his decision to leave the country. That decision mentioned that the applicant was the owner of Apartment 1 and had the right to use 50 sq. m of land appurtenant to it while the building existed. The State took possession of that apartment without paying any compensation and revoked the right of use.
7. In 1983 G.V. sold Apartment 2 to M.A. and Z.D. In 1988 the whole building was demolished.
8. On 17 May 1990 the Government issued Decision no. 556 regarding the payment of compensation following demolition of some properties in Bucharest. M.A. and Z.D. were mentioned in the annex to that decision with reference to an area of 232.61 sq. m of buildings but no land.
9. On 3 June 1992 the applicant sought to recover from the Bucharest Town Council the plot of 217.47 sq. m of land. On the same date the town council replied that, following publication of the Real Property Act, he should have lodged his request with the commission set up to that end within the town council.
On 16 June 1992 and 28 July 1993 the applicant again claimed that land from the town council.
10. On 4 October 1994 the Bucharest Court of First Instance, by an enforceable decision, allowed an action by the applicant and annulled the 1981 seizure as unlawful. The court held in its reasoning that according to the sale contract and to the 1979 judgment the applicant had acquired ownership of Apartment 1, as well as half of an area of 160 sq. m of land, as provided by the 1975 decision.
11. On 11 March 1996 M.A. and Z.D. brought proceedings against the Bucharest Local Council to recover possession of 232.61 sq. m of land situated at 9, 1 Mai Boulevard, and allegedly seized by Government Decision no. 556/1990 (see paragraph 8 above).
On 26 June 1996 the Bucharest County Court, by an enforceable decision, authorised them to recover possession of 292.61 sq. m of land situated at that address, considering the seizure abusive.
12. On 25 March 1997 the town council enforced the judgment of 26 June 1996 and authorised M.A. and Z.D. to take possession of 292.61 sq. m of land. However by a decision of 14 April 1997 the town council reduced that area to 232.61 sq. m.
13. On 14 April 1997 the town council, upon a request by the applicant to recover possession of a joint share of 50 sq. m out of the total area of 100 sq. m of land situated at 9, 1 Mai Boulevard, and considering the judgment of 4 October 1994, authorised him to recover possession of the 50 sq. m portion and annulled the decision of 23 April 1981.
14. On 12 June 1997 the town council's department for immovable patrimony (D.G.A.F.I.) informed the applicant, M.A. and Z.D. that the land allocated to them by the two administrative decisions exceeded the total area of 232.61 sq. m which existed at 9, 1 Mai Boulevard and invited them to lodge court proceedings to terminate the co-ownership.
15. The applicant brought administrative proceedings against the town council and against M.A. and Z.D., seeking annulment of the administrative decisions of 25 March and 14 April 1997, since the land allocated to them included his own land. He also claimed recognition of his right to recover possession of 167.47 sq. m of the land situated at 9, 1 Mai Boulevard and reconstruction of his apartment.
An expert report produced in the proceedings concluded that a “serious judicial error” had occurred in Government Decision no. 556 (see paragraph 8 above), since at that moment the State could have seized only 50 sq. m from M.A. and Z.D.
On 10 December 2002 the Supreme Court of Justice, by a final decision, upheld those decisions, since the town council had merely been enforcing court judgments. The court also held that the applicant had the opportunity to lodge a new action under the general law to enjoy his right of property and to claim both recognition of his right and removal of any alleged interference.
16. On 21 May 2001 the applicant claimed damages for his property under Law no. 10/2001 governing immovable property wrongfully seized by the State. He sought compensation for the building or to be allocated another building, as well as another plot of 167 sq. m of land of equivalent value. On 15 May 2002 the commission for the application of
Law no. 10/2001 considered that the applicant was not entitled under
Law no. 10/2001 to recover or receive damages for that land, since the land had not been in his ownership at the moment of the seizure.
17. The applicant contested that administrative decision before the court. Two expert reports were produced in the proceedings.
18. On 3 November 2003 the Bucharest County Court ordered restitution in natura of 135 sq. m of land situated at 9, Ion Mihalache Boulevard (the former 9, 1 Mai Boulevard), in accordance with
Article 10 § 1 of Law 10/2001, and also awarded damages for the demolished building in the amount of 24,333 euros (EUR).
19. On 21 June 2004 the Bucharest Court of Appeal allowed an appeal by the authorities, varied the previous judgment and dismissed the applicant's request to recover the land. It found that the land had entered
de jure into the State's ownership before the seizure of the building in 1981. Therefore the annulment of the seizure by the judgment of 4 October 1994 had the consequence of restoring the parties to the status quo ante that existed prior to the seizure of the construction, but not also restoring a right of property over the land into the applicant's patrimony, since that right had not existed before. The fact that the reasoning of that judgment mentioned that the applicant had also a right of property over a half-share of that land cannot justify the solution of the first instance to restore that land in natura.
That judgment became final.
20. On 3 April 2007 the Bucharest sub-commission for the application of property laws dismissed a new request by the applicant to recover the land situated at 9, Ion Mihalache Boulevard, considering that he had no right over that land since he had been the owner only of the building, and therefore his request did not fall under the Real Property Act.
21. An expert report of 13 February 2007 updated the value of the demolished Apartment 1 at EUR 128,300.
22. On 18 May 2007 the bailiff C.B. ordered the town council to pay the amount established by the judgment of 3 November 2003 and informed it that this represented partial compensation, since the value of that construction had been brought up to date. On 30 August 2007 the applicant received EUR 28,125.32.
23. On 20 May 2007 the bailiff D.G. ordered the town council to execute the administrative decision of 14 April 1997 in respect of the 50 sq. m plot of land and to allow the applicant to take effective possession of that land. On 3 August 2007 the same bailiff seized that plot by a writ of sequestration. However, on 30 August 2007 the Bucharest Court of
First Instance annulled that seizure.
Each of the two documents issued by the bailiff D.G. bears an official stamp with her name, a judicial stamp (timbru judiciar) and a signature.
The applicant submitted to the Court an extract of the judgment of
30 August 2007 representing the operative part of that decision. That document also contains references to the file and the judgment number, to the judge who delivered it, to the registrar and to the date when it was drafted, as well as two official stamps of the court, one of them with the name of the President of the Bucharest First District Court of First Instance.
24. By a decision of 27 February 2008 the town council, in response to a request by the applicant of 21 May 2001 (see paragraph 16 above), proposed compensation for the demolished construction, without mentioning an amount. According to the applicant, it referred to the difference between the amount updated to 2008 and the amount already paid.
That decision further dismissed the applicant's claim for
compensation for the 167 sq. m plot of land, considering that the whole
area of 217.47 sq. m had passed into the State's ownership under
Law no. 58/1974 and that the administrative decision of 1997 (see paragraph 13 above) had already awarded him the 50 sq. m allocated to him by the 1975 decision (see paragraph 4 above).
B. Relevant domestic law
25. The relevant domestic law is summarised in the judgments in Todorescu v. Romania (no. 40670/98, §§ 25-26, 30 September 2003); Drăculeţ v. Romania (no. 20294/02, § 29, 6 December 2007); and Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004).
COMPLAINTS
26. The applicant relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, complaining of an unfair trial and of non-enforcement of the judgment of 4 October 1994 of the Bucharest Court of First Instance and of the administrative decision of 14 April 1997 of the Bucharest town council.
27. Reiterating that the execution of a judgment is an integral part of the “trial”, the applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the proceedings was excessive and that there was no remedy in Romanian law against excessive length.
28. The applicant also relied on Articles 2 and 3 of Protocol No. 4 and Article 3 of Protocol No. 7.
THE LAW
A. The procedure before the Court
29. With one of his letters to the Court the applicant submitted a copy of the letter addressed to him by the town council on 3 June 1992 (see paragraph 9 above). The Court notes that the mention by the town council that the applicant should have lodged his request with a special commission (see the same paragraph above) had been removed from that copy, most probably by covering that paragraph when the document was photocopied. Nevertheless, the Court notes that the applicant has submitted, on several occasions, a copy of the entire document.
30. In his observations of 1 April 2008 the applicant referred to the
two documents issued by the bailiff D.G. as well as the judgment of
30 August 2007, submitting copies of them (see paragraph 23 above).
31. By letters of 16 March and 15 May 2009 the Registry requested the Government to submit a complete copy of the judgment of 30 August 2007. The Government replied that that judgment was not in the official records of the Bucharest Court of First Instance.
32. By a letter of 23 June 2009 addressed to the applicant's legal counsel the Registry requested, inter alia, an integral copy of that judgment. In his response, the applicant made no reference to that request. Therefore, by a letter of 2 September 2009 the Registry specifically asked the applicant's legal counsel to provide an integral copy of that judgment.
33. By a fax dated 4 September 2009 the applicant's legal counsel informed the Court that a complete judgment does not exist, that that statement was false and that when the extract of that judgment was submitted by the applicant he believed it was real.
34. By a letter of 9 September 2009 the Registry requested the Government to confirm the authenticity of the two documents issued by the bailiff D.G. (see paragraph 23 above).
35. By a fax dated 21 September 2009 the applicant's legal counsel informed the Court that they had checked “all documents coming from the same source”, that the applicant had sent documents to the Court without verifying their authenticity and that those two documents were also “not authentic”.
B. The Court's assessment
36. The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untruths (see Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova, no. 74153/01, § 48, 18 January 2005; Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004, and Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or if incomplete and therefore misleading information is submitted to the Court (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006). Moreover, falsification of documents submitted to the Court constitutes the most serious example (see the case law quoted in Miroļubovs and Others v. Latvia, no. 798/05, § 63, 15 September 2009).
37. In the present case the Court notes that following a first attempt in the proceedings before this Court to submit incomplete and therefore misleading information (see paragraph 29 above), the applicant, who was represented by legal counsel, made use of three falsified documents in his observations (see paragraphs 30-35 above). Although it is unclear who falsified those documents, the Court was nonetheless deceived by them.
38. The Court further notes that, unlike the first attempt by the applicant, those three documents bear no visible signs of falsification (see paragraph 23 above). It is only when the Registry requested particular information from the parties that the applicant revealed that those documents were inaccurate and/or did not exist. Moreover, those documents concerned precisely the applicant, not other persons. In the absence of further explanation from the applicant, the Court sees no reason to assume that neither the applicant nor his lawyer had, at the moment of submission, any knowledge in respect of the authenticity of those documents.
39. In the circumstances of the case the Court considers that the applicant, who was represented by legal counsel in the proceedings before the Court, did not furnish any plausible explanation for bringing these documents before the Court. Moreover, the Court deplores the fact that those falsified documents were used while the applicant was represented by legal counsel (see, per a contrario, Jian v. Romania (dec.), no. 46640/99, 30 March 2004).
40. The Court finds that the applicant's conduct was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention. The application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy