ITEMID: 001-57434
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF BELILOS v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (validity of declaration);Violation of Art. 6-1;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings;Lack of jurisdiction (cancellation and refund of fine);Lack of jurisdiction (legislative amendment)
JUDGES: C. Russo;N. Valticos
TEXT: 9. Mrs. Marlène Belilos, who is a Swiss citizen, lives in Lausanne and was a student there at the material time.
10. In a report of 16 April 1981, the Lausanne police laid an information against her for having contravened the municipality’s General Police Regulations by having taken part in a demonstration in the streets of the city on 4 April for which permission had not been sought in advance. The march had been organised by the "Lausanne bouge" ("Lausanne on the move") movement, which on the preceding days had distributed leaflets calling on people to join the demonstration, and some 60 or 70 people had taken part; they were requesting that the municipality should provide an autonomous youth centre.
At a sitting held on 29 May, the municipal Police Board, in the applicant’s absence, imposed on her a fine of 200 Swiss francs (CHF).
11. Mrs. Belilos lodged an application under sections 36 et seq. of the Vaud Municipal Decisions Act of 17 November 1969 to have that decision set aside, and the Police Board held an initial hearing on 14 July. After reading out the police report, it heard the defendant and then the policemen who had laid the information. In view of the applicant’s explanations, the Board adjourned its investigation of the case to a later date in order to be able to hear a witness. On 26 August, it gave Mrs. Belilos a further hearing, and also heard evidence from her former husband as a witness. He stated that at the material time he was with his ex-wife in a Lausanne café, where he had handed over to her the maintenance payment for their child.
12. The Police Board gave its decision on 4 September "without the interested parties being present". In the "As to the facts" part of its decision, it described the convening, the course and the consequences of the relevant demonstration; it went on to list the allegations made by Mrs. Belilos, who inter alia challenged the legitimacy of the body giving judgment and denied that she had taken part in the demonstration; thirdly, it mentioned the evidence given by the defendant’s ex-husband; and, lastly, it noted that the policemen had confirmed their report and categorically denied the applicant’s claim that she had not taken part.
In the "As to the law" part of its decision the Police Board noted that its jurisdiction could not be disputed and it concluded that it had "satisfied itself in the course of its inquiries that the defendant [had] indeed participated in the demonstration on 4 April 1981". Having regard to the fact, on the one hand, that Mrs. Belilos had not played an active role but, on the other hand, that this was not a first offence, the Board reduced the fine to 120 CHF; it also ordered her to pay costs of 22 CHF.
The decision was notified to the applicant by registered letter on 15 September.
13. Mrs. Belilos applied to the Criminal Cassation Division of the Vaud Cantonal Court to have that decision declared null and void. She claimed principally that in view of the requirements of Article 6 (art. 6) of the Convention, the Police Board had no power to make a determination of the disputed offence; and in any event, she asked the court to hear her former husband and to redetermine the facts fully. The Criminal Cassation Division dismissed the appeal on 25 November 1981, holding:
"(...)
The applicant argued that the decision was not compatible with Art. 6 (art. 6) of the European Convention on Human Rights (ECHR), which enshrines the right to a hearing by an independent and impartial tribunal established by law, and that the reservations made when Switzerland acceded to the Convention did not allow an administrative authority, a fortiori where it was an agency of the executive that was judge in its own cause, to determine a criminal charge, the judicial review by the Cassation Division being moreover inadequate.
In a judgment of 9 June 1980, in the case of Marlène Belilos and Others, this court stated that by virtue of the reservations made by Switzerland, proceedings before an administrative authority relating to the determination of a criminal charge were not covered by the obligation to provide a public hearing and to pronounce judgment publicly (see also Cass.: Leonelli, 31 July/16 October 1981; Christinat, 23 May/6 August 1981).
As regards Art. 6 para. 1 (art. 6-1) ECHR, Switzerland made the following declaration (RS [Compendium of Federal Law] O.101, p. 25): ‘The Swiss Federal Council considers that the guarantee of fair trial in Art. 6, paragraph 1 (art. 6-1), of the Convention, in the determination of ... any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to ... the determination of such a charge.’
In its communication of 4 March 1974 concerning the Convention for the Protection of Human Rights and Fundamental Freedoms, the Federal Council stated that where the decision taken by an administrative authority could be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en nullité), the question arose whether that review procedure satisfied the requirements of Art. 6 (art. 6) of the Convention.
It answered this question in the affirmative, as Art. 6 para. 1 (art. 6-1) was intended only to ensure ultimate control by the judiciary, and the judicial element of a fair trial seemed to be sufficiently ensured in Swiss law as the Federal Court had derived from the right to a hearing rules on the administration of justice which corresponded to those listed in Art. 6 (art. 6) of the Convention (FF [Federal Gazette] 1974 I p. 1032, Communication).
The fact that appeal proceedings are in written form without any oral argument or taking of evidence is not contrary to Art. 6 (art. 6) ECHR (Cassation Division of the Federal Court: Risse, 14.9.1981).
The Cassation Division therefore carries out the ultimate control by the judiciary required by the European Convention on Human Rights, subject to the reservations made by Switzerland, even if it cannot hear witnesses.
..."
14. The applicant lodged a public-law appeal against this decision with the Federal Court. In her submission, Switzerland’s interpretative declaration in respect of the Convention (see paragraph 29 below) did not mean that an administrative authority such as the Police Board was empowered to determine the merits of a criminal charge. Such a jurisdiction was conceivable only if judicial review was ultimately available. This was not so in the present case, however, as the Criminal Cassation Division of the Vaud Cantonal Court and the Federal Court had limited powers, which did not normally allow them to review questions of fact (on which the Police Board’s findings were final), for example by examining witnesses. Furthermore, under section 12 of the Vaud Municipal Decisions Act the municipality could delegate its powers to a senior police official, who was an agent of the executive; that being so, the Police Board was acting as judge in its own cause.
15. On 2 November 1982, the Federal Court (1st Public-Law Division) delivered a judgment dismissing the appeal on the following grounds:
"...
2. The guarantee of a fair trial provided for in Article 6 § 1 (art. 6-1) ECHR [European Convention on Human Rights] lays down inter alia that ‘everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...’.
(a) The sole issue raised by the appellant’s complaint is whether Article 6 (art. 6) ECHR precludes proceedings whereby the facts are established by a body such as the Police Board, which is not an independent tribunal. Contrary to that Board’s statement in its ruling of 18 January 1982, the appellant did not claim, even by implication, that the Police Board was in this case an (administrative) body lacking impartiality. In any event, such a complaint was not formulated in terms sufficiently clear with regard to section 90(1)(b) OJ [Federal Judicature Act].
(b) The scope of Article 6 § 1 (art. 6-1) ECHR must be examined in the light of Switzerland’s interpretative declaration, according to which: ‘the Swiss Federal Council considers that the guarantee of fair trial in Article 6 § 1 (art. 6-1) of the Convention, ... is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities ...’. (Article 1 § 1 (a) of the Federal Decree of 3 October 1974 approving the ECHR, RO [Official Collection of Federal Statutes] 1974, 2149.) In its communication of 4 March 1974 to the Federal Assembly, the Federal Council noted that this interpretative declaration was formulated precisely with a view to ‘cases in which the decision taken by an administrative authority may be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en nullité)’, on the basis of the interpretation of Article 6 § 1 (art. 6-1) given by the President of the European Commission of Human Rights (FF 1974 I p. 1032). The Federal Court finds no grounds for departing from that interpretative declaration (ATF [Judgments of the Swiss Federal Court] 107 Ia 167), even though its validity and its scope have been contested by academic writers (D. Brandle, Vorbehalte und auslegende Erklärungen zur europaïschen Menschenrechtskonvention, Zürich thesis 1978, pp. 113-114). Moreover, the European Court of Human Rights has also acknowledged that Article 6 § 1 (art. 6-1) is complied with in so far as a decision of an administrative authority may be subject to ultimate control by the judiciary, since the guarantee of a fair trial must be assessed having regard to the entire procedure (ATF 98 Ia 238; cf. J. Raymond, ‘La Suisse devant les organes de la CEDH’, in RDS [Revue de droit suisse] 98/1979 II p. 67, and the decisions cited therein; D. Poncet, La protection de l’accusé par la Convention européenne des Droits de l’Homme, p. 29, no. 78).
3. The Vaud legislature used the right conferred on cantons by Article 345 § 1(2) CC [Swiss Criminal Code] to allow certain minor offences to be tried by the municipal authority (section 45 of the Local Authorities Act of 28 February 1956; sections 1 et seq. MDA [Municipal Decisions Act]). According to section 41 MDA, judicial review of such municipal decisions is effected by the Cassation Division of the Cantonal Court, which may determine both whether the correct procedure has been followed (in the case of a recours en nullité - section 43 MDA) and whether the law has been properly applied (in the case of a recours en réforme - section 44 MDA). It does not therefore have full competence to re-examine the facts. However, that is not necessary under Article 6 § 1 (art. 6-1) ECHR provided that appeal lies to a judicial authority which not only reviews the correctness of the procedure - including ‘whether there are serious doubts as to the facts found’ (section 43 (e)) - but may also be called upon to consider complaints of ‘incorrect application of the law’ and of ‘misuse of discretion in the application of the law’ (section 44). The Cantonal Court therefore enjoys a much more extensive power of review than the Federal Court in a public-law appeal, where jurisdiction is restricted to ensuring that a decision is not arbitrary (cf. Schubarth, Die Artikel 5 und 6 (art. 5, art. 6) der Konvention, insbesondere im Hinblick auf das schweizerische Strafprozessrecht, RDS 94/1975 I, p. 498, nos. 119-122), since the appeal which lies is not ‘a mere cassation procedure’ (J. Raymond, op. cit., pp. 68-69, no. 81). Moreover, where the Cantonal Cassation Division quashes a decision because there are serious doubts as to the facts found (section 43(e) MDA), it may request the municipal authority, to which it remits the case (section 52 MDA), to carry out additional investigative measures. That in itself is sufficient to show that the ultimate control by the judiciary of municipal decisions in the Canton of Vaud is in conformity with Article 6 § 1 (art. 6-1) ECHR, as interpreted in accordance with the declaration made by Switzerland. The view advanced by P. Bischofberger, who appears to argue that ultimate judicial control should cover both the law and the facts (Die Verfahrensgarantien der Europaïschen Konvention zum Schutze der Menschenrechte und Grundfreiheiten (Art. 5 und 6) (art. 5, art. 6) in ihrer Einwirkung auf das schweizerische Strafprozessrecht, Zürich thesis 1972, pp. 50-51), is not justified in view of the meaning of the Federal Council’s interpretative declaration, although it would be desirable for offences of the kind at issue to be tried by a criminal court.
Moreover, the appellant did not claim that the judicial review of the instant case by the Cassation Division of the Cantonal Court was open to criticism regarding its examination of the lawfulness of the Police Board’s decision of 4 September 1981." (Judgments of the Swiss Federal Court, vol. 108, Ia, pp. 313-316)
16. In the Canton of Vaud, municipalities can delegate responsibility for prosecuting and punishing minor offences to one or three municipal councillors or, where the population is over ten thousand, to a specialist civil servant or a senior police officer (section 12 of the Municipal Decisions Act of 17 November 1969 - "the 1969 Act").
17. In Lausanne the Police Board consists of a single municipal civil servant. He is a sworn official and as such "must discharge his duties in person, diligently, conscientiously and loyally" (Regulation 10 of the Local Government Staff Regulations). He can withdraw from the case of his own accord or be challenged (section 12 of the 1969 Act).
18. The Police Board can only impose fines (section 5 of the 1969 Act), and these cannot exceed 200 CHF for a first offence or 500 CHF for a subsequent offence. It is empowered to order the offender ("dénoncé") to pay expenses (sections 5 and 34) but has no power to award damages or costs against him (section 5).
19. In 1986, the Lausanne Police Board decided 22,761 individual cases. Traffic offences - mainly parking offences - accounted for 91% of these.
20. If the Police Board considers that the facts have been established and that the available information about the personal situation of the offender is sufficient, it may take its decision without summoning the person concerned to appear before it (section 24 of the 1969 Act).
Where a hearing is held, the offender is entitled to consult the file beforehand (section 23). He normally appears in person at the hearing but may send a representative if he is expressly exempted from attending in person (section 29).
21. The procedure for inquiring into the facts is laid down in section 30, which reads as follows:
"The municipal authority shall hear the offender and, where appropriate, the person who has laid the information against him.
Such parts of the police report as concern the offender shall be made known to him or to the person representing or assisting him.
If the facts are disputed, the municipal authority shall carry out the necessary verification, in particular by taking evidence from witnesses it has summoned or sends for or whom the offender brings before it; it may visit the locus.
Where necessary, it shall call upon the services of an interpreter.
For the rest, the municipal authority shall reach its own conclusion as to the accuracy of the facts set out in the report."
22. The Police Board’s decision is delivered immediately; if convicted, the offender is informed of his right of appeal (section 31), and the Board’s decision is subsequently notified to him in writing.
23. A convicted offender may apply to have the conviction set aside (opposition) if, as in the instant case, he was not summoned to appear at a hearing or was tried in absentia (section 36). In such cases the original decision ceases to have validity (section 39) and the Police Board reopens the proceedings by summoning the person concerned to a hearing.
24. Criminal law in the Canton of Vaud does not allow for an ordinary appeal (appel) against Police Board decisions but does make provision for two types of application to the Cassation Division of the Cantonal Court, in addition to the possibility of applying to have the decision set aside.
The first type - of which Mrs. Belilos availed herself (see paragraph 13 above) - is provided for in section 43 of the 1969 Act:
"An application for a declaration of nullity (recours en nullité) may be made on grounds of the following procedural irregularities:
(a) where the municipal authority has made a determination of fact in respect of which it had no statutory competence by reason of territorial jurisdiction or the subject-matter;
(b) where process has not been properly served on the offender;
(c) where some other vital procedural rule has been disregarded in such a way as to affect the impugned decision;
(d) where the decision being challenged discloses omissions or inconsistencies such that the Cassation Division is unable to determine the ground of appeal;
(e) where there are serious doubts as to the facts found."
In cases which come under paragraph (a) and in which prosecution of the offence is mandatory, the Cassation Division refers the case to the public prosecutor’s office (section 51, first paragraph); it declares the impugned decision to be null and void without referring the case "where prosecution of the offence is not mandatory or is clearly time-barred" (section 51, second paragraph). In the other eventualities it "shall remit the case to the municipal authority for a fresh decision" (section 52).
Section 44 provides for a second type of application, not made in the instant case, namely an appeal on points of law (recours en réforme) "on grounds of incorrect application of the law or of misuse of discretionary powers in the application of the law". If it allows the appeal, "the Cassation Division shall substitute its own decision taken on the basis of the facts established at first instance, save for any manifest errors, which it shall rectify of its own motion" (section 53).
25. When such an application or appeal is made, the Police Board forwards it without delay to the Cantonal Court together with the case file. The file must (under section 46) contain: the police report(s); a copy of the summons, together, if necessary, with the acknowledgement of receipt of it; a copy of the decision; the envelope containing the application or appeal, if it was sent by post; possibly the other documents relating to the offence in question; and a copy of the municipal regulations applied or a copy of the administrative decision which has not been complied with. The Board may enclose "determinations" on the applications.
26. In 1986, the Vaud Cantonal Court registered twenty-eight such applications and appeals against decisions of the Lausanne Police Board. By 31 December of that year, it had rejected three of them in limine, dismissed sixteen and allowed one, remitting the case to the Police Board; the other eight were still pending.
27. A public-law appeal lies to the Federal Court against judgments of the Criminal Cassation Division of the Cantonal Court, and on such an appeal the Federal Court’s power of review is restricted to ensuring that there has been no arbitrariness (see paragraph 15 above).
Five such appeals relating to decisions by the Lausanne Police Board were heard in 1986; the Federal Court declared all of them inadmissible.
28. On 28 November 1974, the Head of the Federal Political Department - which has since become the Federal Department of Foreign Affairs - deposited the instrument of ratification of the Convention with the Secretary General of the Council of Europe (pursuant to Article 66 § 1, third sentence) (art. 66-1). The instrument reproduced, mutatis mutandis, the wording traditionally used by Switzerland in such cases:
"The Swiss Federal Council, having seen and considered the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, ... which was approved by the Federal Houses on 3 October 1974, declares that the Convention aforesaid is ratified, with the following reservations and interpretative declarations ...".
The reservations were made in respect of Articles 5 and 6 (art. 5, art. 6) - the first one was withdrawn in 1982 -, while the declarations related to paragraphs 1 and 3 (c) and (e) of Article 6 (art. 6-1, art. 6-3-c, art. 6-3-e).
29. Only the declaration on the interpretation of Article 6 § 1 (art. 6-1) is at issue in the instant case; it reads:
"The Swiss Federal Council considers that the guarantee of fair trial in Article 6, paragraph 1 (art. 6-1) of the Convention, in the determination of civil rights and obligations or any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to such rights or obligations or the determination of such a charge."
30. On 9 December 1968, the Federal Council submitted to the Federal Assembly a detailed report on the Convention (Federal Gazette, 1968, vol. II, pp. 1069-1198). In it the Federal Council stressed the need to make several reservations and also a declaration on the interpretation of Article 6 § 3 (c) and (e) (art. 6-3-c, art. 6-3-e); it did not, however, mention any need for a similar declaration in respect of Article 6 § 1 (art. 6-1).
31. In a supplementary report which it sent to the Federal Assembly on 23 February 1972, the Federal Council returned to the question of reservations and interpretative declarations:
"...
6. In our report of 9 December 1968 we recognised that when ratifying the Convention, Switzerland should make, in addition to the aforementioned five reservations, a declaration on the interpretation of Article 6 § 3 (c) and (e) (art. 6-3-c, art. 6-3-e), which relate to free legal assistance and the free assistance of an interpreter (FF 1868 II 1121)....
7. Since the publication of our previous report, a fresh difficulty has arisen which might lead Switzerland to make an additional reservation when ratifying the Convention. In its judgment of 16 July 1971 in the Ringeisen case, the European Court of Human Rights gave its interpretation of the concept of ‘the determination of ... civil rights and obligations’ in Article 6 § 1 (art. 6-1)....
The Court’s tendency to give a broad meaning to the word ‘civil’ raises tricky problems for Switzerland, where administrative authorities determine civil-law disputes and intervene in private-law relations. In order to ensure that a wide conception of civil disputes (la contestation de caractère civil) does not have repercussions on the organisation of public administration and of the courts in the cantons, it will probably be necessary to make a reservation concerning the scope of Article 6 (art. 6) when ratifying the Convention. The wording of such a reservation will depend partly on the outcome of studies yet to be made of the subject and partly on any developments in the case-law of the Commission or the Court. We shall have an opportunity of determining our attitude to the subject in the communication we shall be sending you in due course concerning ratification of the Convention.
..." (Federal Gazette, 1972, vol. I, pp. 995-996).
The Federal Political Department communicated the supplementary report officially to the Council of Europe’s Directorate of Legal Affairs.
32. The communication foreshadowed in 1972 reached the Assembly on 4 March 1974. In it the Federal Council dealt, among other things, with the "effects on the system of public administration and of the courts in the cantons of the guarantee of a right of access to the courts in Article 6 (art. 6) of the Convention":
"In our supplementary report of 23 February 1972 we noted among other things that when the Convention was being ratified, it would probably be necessary to make a reservation concerning the scope of the first sentence of Article 6 § 1 (art. 6-1), whereby ... We reserved the right to study this problem in greater detail, however, and to determine our attitude to the matter in this communication.
In its judgment of 16 July 1971 in the Ringeisen case the European Court of Human Rights stated that for Article 6 § 1 (art. 6-1) of the Convention to be applicable to a case it was not necessary that both parties to the proceedings should be private persons. The wording of Article 6 § 1 (art. 6-1) was far wider. The French expression ‘contestations sur des droits et obligations de caractère civil’ covered all proceedings the outcome of which was decisive for private rights and obligations. The English text, ‘determination of ... civil rights and obligations’, confirmed this interpretation. In the Court’s opinion, the character of the legislation which governed how the matter was to be determined (civil, commercial, administrative law, etc.) or of the authority which was invested with jurisdiction in the matter (ordinary court, administrative body, etc.) was therefore of little consequence.
In order to assess the exact scope of this provision, it has to be asked at what stage of the domestic proceedings the requirements of Article 6 § 1 (art. 6-1) have to be satisfied. Valuable clues are given in the address one of the delegates of the European Commission of Human Rights made to the Court in the Ringeisen case. According to Mr. Fawcett, Article 6 (art. 6) of the Convention is designed only to secure ultimate judicial control of actions or decisions of public authority which affect, in particular, civil rights and obligations. This judicial control is furthermore limited: the relevant provision calls only for a fair hearing and not for a determination of the merits. In other words, it is not necessary that the administrative authorities themselves should comply with the requirements of Article 6 (art. 6). But where their decisions have the effect of confirming, modifying or annulling civil rights or obligations, there must in the whole process be a judicial element of fair hearing.
...
Lastly, in criminal law, Article 345 § 1(2) of the Swiss Criminal Code provides that minor offences can be tried by an administrative authority. Furthermore, Article 369 of the same Code empowers the cantons to appoint an administrative body to try offences committed by children or adolescents. In our report of 9 December 1968 on the Convention we said that, despite these departures from the principle of separation of powers, independence and impartiality are guaranteed in the aforementioned cases in other ways. In several cantons, for instance, the administrative authorities called upon to exercise judicial functions are elected by the people and are independent of the executive. In those circumstances they can be equated with a ‘tribunal’ within the meaning of Article 6 § 1 (art. 6-1) of the European Convention on Human Rights. Moreover, a member of the public who is not satisfied with an administrative decision can very often ask to have his case heard by a court under ordinary procedure. The court then gives judgment on the merits of the charge and acquits or convicts. Where, on the other hand, the decision taken by an administrative authority can be referred to a court not for a ruling on the merits but solely for review of its lawfulness (pourvoi en nullité), the question arises whether this review procedure satisfies the requirements of Article 6 (art. 6) of the Convention.
Following the interpretation given to Article 6 § 1 (art. 6-1) by the current President of the European Commission of Human Rights, we consider that that provision is intended only to ensure ultimate control by the judiciary over the acts or decisions of the public authorities. Moreover, it requires only a fair hearing and not a decision on the merits. ..." (Federal Gazette, 1974, vol. I, pp. 1030-1033).
The Federal Political Department forwarded the communication officially to the Council of Europe’s Directorate of Legal Affairs.
33. The Federal Assembly approved the Convention - and, at the same time, the reservations and interpretative declarations - on 3 October 1974. The Federal Decree recording the fact is worded as follows:
"The Federal Assembly of the Swiss Confederation,
Having regard to Article 8 of the Constitution;
Having regard to the Federal Council’s communication of 4 March 1974,
Hereby decrees:
Article 1
The following are approved:
(a) The Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, as amended by Protocol No. 3 (P3) of 6 May 1963, amending Articles 29, 30 and 34 (art. 29, art. 30, art. 34) of the Convention, and by Protocol No. 5 (P5) of 20 January 1966, amending Articles 22 and 40 (art. 22, art. 40) of the Convention, with the following reservations and declarations:
...
- Declaration on the interpretation of Article 6 § 1 (art. 6-1): [see paragraph 29 above]
..." (Official Collection of Federal Statutes, 1974, pp. 2148-2149).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96428
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LEKHANOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1930 and lives in the town of Voronezh.
5. The applicant was a member of a housing cooperative. Having paid a sum of money, she expected to receive a certain flat from the cooperative in a newly built block of flats. However, the applicant was then expelled from the cooperative. The flat was given to Mr L instead. The latter sold the flat to Mr Ch.
6. On 16 March 1998 the applicant brought proceedings against the housing cooperative in the Kominternovskiy District Court of Voronezh. She sought the annulment of the cooperative's decision to expel her and give the flat to L. She also sought compensation in respect of non-pecuniary damage and recognition of her title to the flat.
7. In the meantime, Mr Ch resold the flat to Ms K. On 7 May 1998 the judge issued a charging order in respect of the flat.
8. In September 1998 the applicant amended her claims, seeking the annulment of the purchase contracts by Ch and K and recognition of her right to live in the flat in question.
9. According to the Government, several hearings between September and November 1998 had to be adjourned in order to take account of the applicant's amended claims and enable the parties to collect evidence in support of their claims.
10. According to the Government, in 1999 one hearing was adjourned because of the defendants; another one was adjourned on account of their and the lay judges' failure to attend; and two further hearings were adjourned to enable the applicant to submit amended claims.
11. By a judgment of 6 September 1999, the District Court rejected her claims. The applicant appealed. After complying with the court's instructions concerning court fees, on 20 April 2000 the Voronezh Regional Court examined her appeal and upheld the above judgment as regards the rejection of the non-pecuniary claim but ordered a fresh hearing in respect of the remaining claims.
12. Upon the applicant's complaint about the length of proceedings before the District Court, a judge of the Regional Court carried out a preliminary inquiry and concluded on 31 January 2001 that a further inquiry would be appropriate. Its outcome remains unclear.
13. In the meantime, having re-examined the remaining claims, on 27 June 2001 the District Court upheld most of the claims against the defendant, including the applicant's claim for title to the flat in question. On 15 August 2001 the District Court issued an additional judgment amending the earlier one and ordering Ms K's eviction. On 11 October 2001 the Regional Court upheld the judgment of 27 June 2001.
14. On an unspecified date the applicant applied for registration of her title to the flat. On 18 January 2002 the State Property Registry refused to issue a title certificate to the applicant because there was a valid charging order in respect of the flat. However, on 29 January 2002 the applicant was provided with the title certificate.
15. On 5 February 2002 the President of the Regional Court lodged a request for supervisory review of the judgment of 15 August 2001. On 11 February 2002 the Presidium of the Regional Court quashed the judgment on the ground that the defendant had not been informed of the hearing.
16. Upon a request of the Acting President of the Regional Court, on 14 October 2002 the Presidium court quashed the judgments of 27 June and 11 October 2001 in part and ordered a re-examination of the relevant claims.
17. It appears that, on an unspecified date, the title registration in respect of the flat at issue was revoked in view of the annulment of the court decisions on which it had been based.
18. In view of her advancing age and declining health, the applicant was represented by her daughter, Ms P, at most hearings throughout the proceedings.
19. According to the Government, in 2004 at least six hearings were listed and adjourned because the parties had failed to appear. One hearing was adjourned because the judge was on sick leave, and another one because the defendants failed to attend. Each adjournment resulted in delays of up to two months.
20. In 2005 at least three hearings were listed but adjourned because the parties failed to attend or sought to adduce evidence or appoint new representatives. On 3 August 2005 the applicant submitted amended claims.
21. By a judgment of 5 October 2005 the District Court ruled on the merits of the applicant's claims as amended. With reference to the judgment of 27 June 2001 in its valid part, the court reconfirmed the unlawfulness of the cooperative's decisions to expel the applicant and give the flat to L. The court accepted that the applicant had honoured her contract with the cooperative and had thus acquired a claim to a particular flat, the one which was given to L. Referring to a 2003 ruling by the Constitutional Court, the court refused to annul the flat purchases by Ch. and then K. because they were protected “purchasers in good faith” within the meaning of Article 167 of the Civil Code; the court indicated, however, that a claim under Article 302 of the Code would be a proper course of action (see paragraphs 29 and 30 below). The court also observed that any of the above claims could be brought by an “owner”. The court reiterated that only an official certificate from the State register could prove ownership title (see paragraph 31 below). Accordingly, the court refused to accept the applicant's membership card as valid proof of her title to the flat at issue (see, however, paragraphs 14 and 17 above). The court also rejected the applicant's eviction claim against Ms K, because only the proven owner could seek eviction. However, the court awarded the applicant 3,000 Russian roubles (RUB) in respect of non-pecuniary damage and RUB 2,000 in litigation costs (lawyer's fees, photocopying fees, compensation for loss of time). The court refused to award the applicant's representative P's travel expenses between her residence town (Moscow) and Voronezh.
22. The applicant appealed, contending that the 2003 ruling of the Constitutional Court could not be applied to events in the 1990s. On 16 February 2006 the Regional Court set aside the judgment in the part concerning compensation in respect of non-pecuniary damage and upheld it in the remaining part. The appeal court held that the Constitutional Court had only determined the constitutional meaning of the relevant provisions of the Civil Code in force at the material time.
23. In May 2006 Ms K obtained an official certificate confirming her title to the flat. It appears that she sold it to another person in the same month.
24. By an order of 6 September 2006, the District Court lifted the charging order in respect of the flat in question. The applicant appealed. On 16 January 2007 the Regional Court upheld this order.
25. On an unspecified date the applicant applied to the Bailiffs' Service for enforcement of the judgment of 5 October 2005. On 19 April 2007 the Bailiffs' Service indicated that the judgment could not be enforced against the housing cooperative because it had ceased its activity in January 2007.
26. On 20 April 2007 the Regional Court refused leave for supervisory review of the judgments of 5 October 2005 and 16 February 2006.
27. In reply to the applicant's complaint concerning the above civil dispute, by a letter of 12 February 2007 the Prosecutor General's Office advised her to sue the housing cooperative for damages in view of their failure to honour their contractual obligations.
28. In separate proceedings, on an unspecified date, the authorities opened a criminal investigation into the applicant's allegations that the private company's acts had deprived her of her flat. In August 2008 the case was discontinued because the statutory time-limit for criminal prosecution had expired.
29. Under Article 167 of the Civil Code 1994, a voided transaction does not give rise to any legal consequences beyond those related to its annulment, and is void ab initio. In a voided transaction the parties should return to each other what was received or, if not practicable, they should pay compensation. Under Article 302 of the Civil Code, the first owner can claim property back from a purchaser in good faith who has acquired it from an unauthorised seller without knowing or being in a position to know that the seller was unauthorised. However, such a claim can only arise if the property was lost, stolen or otherwise taken out of the first owner's control.
30. By a ruling of 21 April 2003, the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a purchaser in good faith unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code.
31. Under Article 219 of the Civil Code, ownership title to a building or other newly built premises requiring State registration, arises from the time of such registration.
VIOLATED_ARTICLES: 6


ITEMID: 001-22021
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: VOGL and VOGL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are father and son, both Austrian nationals, residing in Linz and Gallneukirchen, respectively. They are represented before the Court by Mr H. Blum, a lawyer practising in Linz, Austria.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 September 1987 a banking institution (hereafter “R.”) filed a counterclaim against the first applicant and his wife requesting repayment of a mortgage loan, the validity of which had been contested by the couple in another set of proceedings (“the main proceedings”). On 16 October 1991 the second applicant joined the main proceedings as the first applicant and his wife had meanwhile transferred part of the real estate affected by the mortgage to the second applicant. On 14 October 1987 the first applicant filed a statement of defence (Klagebeantwortung).
On 17 December 1987 the court suspended the counterclaim proceedings until the delivery of a final judgment in the main proceedings. They were terminated by the Supreme Court’s judgment of 26 April 1994.
On 25 May 1994 R. filed a motion with the Linz Regional Court for the continuation of the proceedings. By a written submission of 8 June 1994, the first applicant gave notice of the proceedings (Streitverkündung) to the second applicant.
At the hearing of 13 June 1994 the applicants challenged the judge for bias. They contended that she had made subjective statements about the first applicant’s son and the second applicant’s brother, A., in the judgment given in the main proceedings and had accused the first applicant and his wife of delaying the proceedings. By a decision of 7 June 1994, the Linz Regional Court rejected the motion, finding that the applicants’ allegations did not suffice to bear out a challenge for bias. On 24 August 1994 the Linz Court of Appeal dismissed the first applicant’s appeal.
On 6 September 1994 the Linz Regional Court appointed an expert.
On 27 September 1994 the first applicant requested the reopening of the main proceedings. On 16 January 1996 the Supreme Court dismissed this request after it had been examined at two lower instances.
On 30 January 1996 the court file was transmitted to the expert for the preparation of his opinion. The expert submitted his opinion on 16 April 1996. The court ordered the parties to submit their comments and requests thereto within two weeks. Both parties asked for an extension of the timelimit, which was granted. On 16 September 1996 the applicants submitted their observations.
On 8 October 1996 another hearing took place at which the applicants were present. A further hearing was scheduled for 28 November 1996, to which the first applicant and the applicants’ counsel were summoned. On 20 November 1996 the applicants’ counsel filed a motion for an adjournment. He stated that he was unable to attend the meeting because of a clash with other appointments, that the first applicant had already scheduled a week’s holiday in Switzerland, and the second applicant had planned to take part in a fair in Italy. The request was refused.
The court ordered them to submit certain documents within a period of three days. On 26 November 1996 the applicants requested an extension of this time-limit, which was not granted. Thereupon, the applicants filed another motion challenging the judge for bias. They contended that the refusal of their requests proved that she was not willing to grant them a fair trial. They further complained that the judge had in an emotional manner conducted the hearing of 8 October 1996, which might have been caused by the fact that she had learned about the applicants’ submission of a complaint to the European Commission of Human Rights relating to the main proceedings.
The hearing of 28 November 1996 was held as scheduled in the presence of the applicants’ lawyer, but in the absence of the applicants. At the hearing counsel further amended the motion for bias after the judge had objected to the allegation that she was not willing to grant the applicants a fair trial and after she had mentioned that she had a problem with the applicants’ counsel.
After the expert had given his opinion, the judge closed the hearing and announced the delivery of the written judgment following the final decision on the applicants’ motion for bias.
On 23 January 1997 the Linz Regional Court dismissed the motion challenging the judge for bias. It held that the applicants had raised their argument as regards the alleged emotional conduct of the judge at the hearing of 8 October 1996 too late and that the remainder of the motion did not disclose any indication of bias.
The applicants appealed, arguing in essence that the hearing held on 28 November had been scheduled too late. Therefore, they had not had enough time to prepare their pleadings. Further, the period fixed for the delivery of documents had been too short. The refusal of an adjournment resulted in their exclusion from the proceedings. Finally, they contended that the judge had conducted the hearing in an emotional manner, and that the Regional Court had failed to deal with the respective amendments of 28 November 1996.
On 4 April 1997 the appeal was dismissed by the Linz Court of Appeal (Oberlandesgericht). It noted that the summons had been served early enough to respect the eight-day preparation-time guaranteed by Austrian law. The lower court had lawfully refused the adjournment request as the first applicant was represented by a lawyer and his absence was for reasons of private holidays. As regards the absence of the applicants’ counsel, he had not submitted reasons why he was unable to attend the hearing or why he could not be represented by another lawyer. In any event, the second applicant had not been summoned in person. Therefore, the applicants had not been excluded from the procedure as they had been represented by a lawyer throughout, particularly at the hearing on 28 November 1996. As to the order to submit documents within three days, the Court of Appeal found that, pursuant to the Code of Civil Procedure, documents which were relied upon by a party in order to establish the truth of its allegations had to be submitted by that party if not otherwise provided. No sanction could be imposed in case of non-compliance with that order. As to the applicants’ allegations concerning the judge’s emotional manner of conducting the hearing of 8 October 1996, the Court of Appeal confirmed the lower court’s decision that this complaint should have been raised already at the hearing and was therefore belated. The judge’s objection to the allegation that she had denied the applicants a fair trial did not disclose any lack of impartiality on her part. Her further statement that she had a problem with the applicants’ counsel was not conducive to a constructive atmosphere in respect of the proceedings and might have been taken as a personal statement. However, in the context of counsel’s repeated but unfounded motions for bias, it was understandable that she perceived counsel’s actions to be problematic. This would not justify any fears that the judge would act and decide other than on objective grounds.
In its judgment dated 29 November 1996, the Linz Regional Court granted the R.’s claim, referring to the submissions of the parties, the evidence of witnesses and experts, as well as the documentary evidence and the case-files of the proceedings. The judgment was served on 16 May 1997.
On 13 June 1997 the applicants lodged an appeal against the Regional Court’s judgment of 29 November 1996 claiming in particular that the first instance court had refused to take evidence proposed by them.
On 30 January 1998 the Linz Court of Appeal dismissed the applicants’ appeal on grounds of nullity and confirmed the lower court’s decision, but allowed their complaint as regards part of the sums involved. It held that the Regional Court had correctly refused the applicants’ requests for the further taking of evidence since their numerous requests were aimed at delaying the proceedings. Moreover, at the hearing of 8 October 1996 and for the first time, the applicants stated the opposite of what they had claimed in the main and in the counterclaim proceedings. Their further requests related to issues of law and facts that were already dealt with and finally determined in the main proceedings. On the whole, the Linz Court of Appeal found that the lower court had carefully assessed the evidence submitted to it.
On 16 June 1998 the Supreme Court (Oberster Gerichtshof) dismissed the appeal. The decision was served on 16 July 1998.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."


ITEMID: 001-100989
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MARIA ATANASIU AND OTHERS v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary and non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The first two applicants, Mrs Maria Atanasiu and Mrs Ileana Iuliana Poenaru, were born in 1912 and 1937 respectively and live in Bucharest. The third applicant, Mrs Ileana Florica Solon, was born in 1935 and lives in Bucharest.
7. Following the establishment of the communist regime in Romania in 1947, the State proceeded to nationalise buildings and agricultural land on a large scale.
8. One of the nationalisation decrees applicable in relation to immovable property was Decree no. 92/1950, under which buildings belonging to former industrialists, owners of large estates, bankers and owners of large trading enterprises were nationalised. Although this decree did not cover workers, civil servants, academics or retired persons, numerous properties belonging to those social categories were also nationalised. Between 1949 and 1962 virtually all agricultural land passed into the ownership of the agricultural cooperatives.
9. After the fall of the communist regime the State enacted a series of laws aimed at affording redress for breaches of property rights by the former regime.
10. Laws nos. 112/1995 and 10/2001 established the principle of restitution of nationalised immovable property and compensation in cases where restitution was no longer possible. Law no. 112/1995 introduced a cap on compensation, but this was subsequently abolished by Law no. 10/2001.
11. With regard to agricultural land, Laws nos. 18/1991, 169/1997 and 1/2000 increased successively the surface area of land that could be returned to its owners. The last of these laws established a right to compensation in respect of land which could no longer be returned.
12. Law no. 247/2005 harmonised the administrative procedures for restitution of properties covered by the above-mentioned laws.
13. According to a partial calculation made by the Government, over two million claims under the reparation laws have been registered; the amount needed to pay the corresponding compensation is estimated at twenty-one billion euros (EUR).
14. In 1950, under Decree no. 92, the State nationalised several buildings belonging to Mr Atanasiu, the first applicant's husband and the second applicant's father. One of the buildings was located at 189 Calea Dorobanţilor in Bucharest.
15. On 15 May 1996, relying on the provisions of Law no. 112/1995, Mr Atanasiu applied to the local board established to deal with applications lodged under that Law, seeking the return of the building. He received no response. On 25 October 1996 Mr Atanasiu died and the applicants were recognised as his sole successors in title.
16. Under the terms of contracts entered into in accordance with Law no. 112/1995, the company managing the building sold the nine flats located therein to the tenants.
17. On 15 November 1999 the applicants lodged a claim with the domestic courts for restitution of the building. They relied on the provisions of ordinary law concerning respect for the right of property and alleged that the nationalisation of the property had infringed Mr Atanasiu's legal rights. Subsequently, on the basis of a letter from Bucharest city council stating that three of the flats had not been sold, the applicants restricted their claim to that part of the building.
18. In a judgment of 24 March 2000 the Bucharest Court of First Instance allowed the claim and ordered that the above-mentioned part of the building be returned to the applicants. The court held that the building had been nationalised unlawfully since Mr Atanasiu had not belonged to any of the social categories covered by the nationalisation decree and the State could not therefore claim a valid title to the property. Following an appeal and a further appeal (recurs) by the city council, the judgment was upheld and became final.
19. The applicants lodged claims in separate proceedings seeking the restitution of the other flats. In total, they obtained five final rulings in the form of judgments of the Bucharest Court of Appeal dated 1 June 2001, 19 May 2004, 1 May 2005, 5 May 2005 and 30 October 2007 directing the purchasers and the local authorities to return seven flats to them. In the case of one other flat they obtained a decision of the Bucharest County Court dated 30 November 2009, still open to appeal, ordering the local authorities to pay them compensation. The last remaining flat in the building is the subject of the present application. Each of the abovementioned decisions was based on the finding that the building had been nationalised unlawfully.
20. On 6 April 2001 the applicants brought an action in the Bucharest County Court seeking to recover possession of flat no. 1. The action was directed against the City of Bucharest, the company which managed the building and the purchasers of the flat, Mr and Mrs G. The applicants also sought to have the contract of sale of 19 December 1996 rescinded.
21. In a judgment of 4 June 2002 the County Court granted the action, declared the sale null and void and ordered the defendants to return the flat to the applicants. The court ruled that the nationalisation of the building had been unlawful and that the contract of sale was not valid.
22. In a judgment of 14 November 2002 the Bucharest Court of Appeal allowed the appeals lodged by the City of Bucharest and Mr and Mrs G. It thus dismissed the applicants' action, holding that the nationalisation had been lawful and that the contract of sale was valid since it complied with the conditions laid down by Law no. 112/1995. The applicants lodged a further appeal.
23. In a final judgment of 11 March 2005 the High Court of Cassation and Justice (“the HCCJ”) admitted the appeal for adjudication but dismissed the applicants' arguments and declared their action inadmissible. It considered that the applicants had lodged their action after the date of entry into force of Law no. 10/2001 (see paragraphs 25-27 below) and that after that date they could claim restitution of the flat only in the circumstances and in accordance with the procedure laid down by Law no. 10/2001.
24. As to the application to have the contract of sale rescinded, the HCCJ upheld the reasons given by the Court of Appeal but ruled that, since the applicants' main complaint concerning the restitution of the flat had been dismissed, the application for rescission was likewise inadmissible.
25. On 9 August 2001, relying on the provisions of Law no. 10/2001, the applicants lodged a claim with Bucharest city council for restitution of the whole of the building located on Calea Dorobanţilor.
26. Having received no reply within the statutory sixty-day timelimit, they brought an action against the city council on 26 July 2002. In a judgment of 10 November 2003 the Bucharest Court of Appeal allowed the action and ordered the city council to give a decision on the applicants' claim. Following a further appeal by the city council the HCCJ dismissed the latter's argument to the effect that the delay had been caused by the applicants' failure to submit a complete file. In a final judgment of 18 April 2005 it upheld the order against the city council and ruled that no fault capable of causing the delay could be attributed to the applicants.
27. On 23 March 2010 the city council wrote to the Romanian Government Agent informing him that consideration of the claim had been suspended pending receipt of the missing documents.
28. In 1950 a plot of land in Craiova belonging to the applicant's parents was nationalised. Part of the land was subsequently turned into a botanic garden and allocated to the University of Craiova, a public highereducation establishment.
29. On 28 June 2001, relying on Law no. 10/2001, the applicant requested the University of Craiova to pay her compensation in respect of the nationalised land. She pointed out that the University's botanic garden occupied 1,950 sq. m out of a total area of 2,140 sq. m.
30. By decision no. 600/A/2001 of 10 July 2001 the University of Craiova rejected the applicant's request on the ground that there were no funds in its budget which could be used for compensation of that kind. The University forwarded her request to the Dolj prefect's office.
31. On 18 July 2001 the applicant brought legal proceedings against the University of Craiova, seeking compensation in respect of the 2,140 sq. m of land, the value of which she estimated at seventy United States dollars (USD) per square metre.
32. At the request of the University, the Dolj County Court, in an interlocutory judgment of 5 December 2002, ordered that the State, represented by the Ministry of Finance, be joined to the proceedings as a defendant.
33. In a judgment of 13 February 2003 the County Court dismissed the applicant's claims as premature, finding that she should have awaited a decision from the prefect's office on her request for compensation. However, the court took the view that the applicant had demonstrated her parents' title to the property and the fact that the land had been wrongfully nationalised.
34. The applicant appealed against that judgment.
35. On 21 November 2003 the Craiova Court of Appeal allowed the applicant's appeal, quashed the first-instance judgment and set aside decision no. 600/A/2001. It based its ruling on a letter from the University of Craiova to the Dolj prefect's office dated 13 November 2003, in which the former had agreed to the award of compensation to the applicant. In the operative part of its decision the Court of Appeal assessed the compensation due to the applicant at USD 70 per square metre, in line with the agreement reached between the parties during the proceedings. The court also stated in its reasoning that the compensation should be paid to the applicant once a special law had been enacted on the terms and procedure governing compensation and the amount of compensation awards.
36. The applicant, the University of Craiova and the Ministry of Finance all lodged further appeals against the decision, on the ground that no agreement had been reached between the parties. The applicant also alleged that the impugned decision did not state which of the two defendants – the University or the Romanian State – was liable for payment.
37. In a final judgment of 30 March 2006 the HCCJ dismissed the appeals and upheld the decision of the Craiova Court of Appeal of 21 November 2003. It took the view that, under section 24 of Law no. 10/2001, the University, which had been using the land claimed by the applicant, was obliged, if restitution was not possible, to make an offer of compensation corresponding to the value of the property and to forward its decision to the Dolj prefect's office.
38. The HCCJ went on to observe that, during the proceedings, the University of Craiova had submitted the letter of 13 November 2003 in which it informed the Dolj prefect's office of its consent to the award of compensation to the applicant in the amount claimed by her. The HCCJ took the view that the content of that letter constituted an offer made in accordance with sections 24 and 36 of Law no. 10/2001 and accepted by the applicant. According to the HCCJ, the offer from the University amounted to acceptance on its part of the applicant's claims. Accordingly, the Court of Appeal had simply noted the fact that the University had taken steps in the course of the proceedings to comply with its statutory obligations.
39. The HCCJ further stated that no specific obligation had been established on the part of the Romanian State, which had been a party to the proceedings, as the actual award of compensation in the amount established was to be made in accordance with the special procedure laid down by Law no. 247/2005.
40. In a decision of 27 January 2006 the University of Craiova made a proposal to the Dolj prefect's office for the applicant to be awarded compensation in respect of the 2,140 sq. m plot of land in accordance with the Craiova Court of Appeal decision of 21 November 2003. The University based its decision on Law no. 10/2001.
41. In reply to a letter dated 24 December 2008 from the National Agency for Property Restitution (“the NAPR”) requesting it to take a decision on the basis of Law no. 247/2005, the University of Craiova proposed to the Dolj prefect's office on 24 March 2009 that the applicant be awarded the compensation in question. The University stated that the file would be sent to the Central Compensation Board (Comisia centrală pentru Stabilirea Despăgubirilor – “the Central Board”).
42. The Central Board did not inform the applicant of any action taken in response to that decision. To date, no compensation has been paid to her.
43. At the hearing of 8 June 2010 the Government stated that the applicant's claim would receive priority treatment.
44. The main legislative provisions in force are described in Brumărescu v. Romania [GC], no. 28342/95, §§ 34-35, ECHR 1999VII; Străin and Others v. Romania, no. 57001/00, § 19, ECHR 2005VII; Păduraru v. Romania, no. 63252/00, §§ 23-53, ECHR 2005XII (extracts); Viaşu v. Romania, no. 75951/01, §§ 30-49, 9 December 2008; Faimblat v. Romania, no. 23066/02, §§ 16-17, 13 January 2009; Katz v. Romania, no. 29739/03, § 11, 20 January 2009; Tudor Tudor v. Romania, no. 21911/03, § 21, 24 March 2009; and Matieş v. Romania, no. 13202/03, §§ 13-17, 8 June 2010. They can be summarised as follows.
45. The Real Property Act (Law no. 18 of 19 February 1991) conferred on former owners and their successors in title the right to partial restitution of agricultural land. The most important amendment to that Act was made by Law no. 1 of 11 January 2000, which raised the ceiling for entitlement to fifty hectares per person in the case of arable land and one hundred hectares per person for pasture land. If restitution was not possible, the beneficiaries were entitled to compensation.
46. In the absence of special legislation laying down rules governing nationalised immovable property, the courts initially considered that they had jurisdiction to examine the issue of the lawfulness of nationalisation decisions and to order that properties be returned to their owners if they were found to have been nationalised unlawfully.
47. The entry into force of Law no. 112 of 25 November 1995 on the legal status of certain residential property authorised the sale of such properties to the tenants. Properties could be returned to the former owners or their successors in title only if the persons concerned were living in the properties as tenants or the properties were unoccupied. If restitution was not possible the former owners could claim compensation, which was capped.
48. As to buildings and land which had belonged to national minority organisations and religious institutions, Government Emergency Ordinances no. 83 of 8 June 1999 and no. 94 of 29 June 2000 provided for them to be returned to their owners or, failing that, for compensation to be awarded.
49. Law no. 10 of 8 February 2001 on the rules governing immovable property wrongfully acquired by the State established the principle of restitution of the properties concerned. In cases where restitution was no longer possible the former owners or their successors in title could claim compensation, which was not capped.
50. Law no. 1 of 30 January 2009 provides that immovable property sold under Law no. 112/1995 may no longer be returned to the former owners and that only alternative measures of redress are possible. The choice between an action for recovery of possession and the special restitution procedure under Law no. 10/2001 has been abolished in favour of the latter.
51. In addition to the properties covered by the above-mentioned legislative provisions, the State undertakes to compensate former owners or their successors in title who lost buildings, land or crops abandoned on certain territories following border changes before and during the Second World War. The administrative procedure for obtaining compensation in respect of such property, provided for by Laws nos. 9/1998, 290/2003 and 393/2006 and coordinated by the NAPR, differs from that for nationalised immovable property, and the necessary funds come out of the State budget.
52. Law no. 247/2005 on judicial and property reform, which is still in force, made substantial amendments to the existing compensation laws, in particular by introducing a harmonised administrative procedure for claims concerning properties covered by Laws nos. 1/2000 and 10/2000 and by Government Emergency Ordinances nos. 83/1999 and 94/2000.
53. The law in question provides that, where restitution is not possible, the beneficiaries of reparation measures can opt either for compensation in the form of goods and services or for payment of an amount calculated in accordance with “domestic and international practice and standards on compensation for buildings and houses wrongfully acquired by the State”.
54. The leading role in implementing this law was entrusted to two newly created structures: the Central Compensation Board (Comisia centrală pentru Stabilirea Despăgubirilor – “the Central Board”) and the National Agency for Property Restitution (Autoritatea Naţională pentru Restituirea Proprietăţilor – “the NAPR”).
55. New time-limits were set for lodging claims for restitution or compensation: sixty days for agricultural land and six months for immovable property that had belonged to religious institutions and national minority organisations.
56. The lawfulness of local authority decisions awarding compensation or proposing an award must be reviewed by the prefect, who must then forward the decisions to the Central Board.
57. The provisions governing such review are set out in Government Decree no. 128 of 6 February 2008, according to which, if the prefect considers the decision of the mayor or other local administrative authorities to be unlawful, he may appeal against it in administrative contentious proceedings within one year of the decision.
58. On receipt of the file the Central Board must verify the lawfulness of the decision refusing restitution and subsequently forward the file to “approved assessors” for the purpose of fixing the amount of compensation. On the basis of their report the Central Board either issues a “compensation certificate” or returns the file to the local authorities for fresh examination.
59. Law no. 247/2005 does not lay down time-limits for the processing of files by the Central Board or specify the order in which they should be dealt with. On 28 February 2006 the Central Board decided that files would be processed in random order. On 16 September 2008 it reversed that decision and decided to deal with them in the order in which they were registered.
60. In order to deal with the payment of compensation awarded by the Central Board, an undertaking for collective investment in transferable securities was set up, known as the Proprietatea Fund. Its capital is made up largely of State holdings in various companies.
61. Law no. 247/2005 provided that the Proprietatea Fund was to take the necessary steps, within thirty days from its establishment, with a view to having its shares listed on the stock exchange so that the beneficiaries of compensation decisions taken under the restitution laws could sell their shares and receive the proceeds at any time.
62. Since July 2005, Law no. 247/2005 has been amended several times as regards both the operation and financing of the Proprietatea Fund and the method of calculating compensation and the procedure for making awards.
63. On 28 June 2007 the Government enacted Emergency Ordinance no. 81/2007 amending the organisation and operation of the Proprietatea Fund. Among other measures, the ordinance, which has since been confirmed by Law no. 142 of 12 July 2010, made it possible for beneficiaries from the Fund to receive part of the amount due in cash.
64. Under the terms of Government Decree no. 128 of 6 February 2008 concerning the implementation of Ordinance no. 81/2007, following the issuing of the “compensation certificate” (titlu de despagubire) by the Central Board, the person concerned has a choice between receiving part of the amount in cash (up to a limit of 500,000 Romanian lei (RON)) and the remainder in shares, or receiving the entire amount in shares. The preferred option must be notified to the NAPR, which replaces the “compensation certificate” with a “payment certificate” (titlu de plata) corresponding to the amount to be paid in cash and a “conversion certificate” (titlu de conversie) corresponding to the remainder, to be converted into Proprietatea shares.
65. The persons concerned have to make their choice within three years from the issuing of the “compensation certificate” by the Central Board. The corresponding requests are to be examined in chronological order, but no express timelimit is laid down.
66. Cash sums up to and including RON 250,000 must be paid within one year from the date on which the payment certificate is issued; for sums between RON 250,000 and RON 500,000 the time-limit is two years.
67. Under Government Emergency Ordinance no. 62 of 30 June 2010 the payment of cash sums was suspended for a two-year period in order to balance the budget. During that period “compensation certificates” may only be converted into Proprietatea shares.
68. At the request of some members of Parliament the Constitutional Court reviewed the constitutionality of Laws nos. 112/1995, 1/2000, 10/2001 and 247/2005 prior to their entry into force. In decisions given on 19 July 1995, 27 December 1999, 7 February 2001 and 6 July 2005, it held that the laws in question were compatible with the Constitution, with the exception of the provisions of Law no. 112/1995 which reaffirmed the State's ownership of immovable property which it had acquired without title; these provisions also made the adoption of reparation measures conditional on proof that the claimant had his or her permanent residence in Romania.
69. In the context of the review of the constitutionality of the legislation after its entry into force, the Constitutional Court was called upon to rule again on whether some of the provisions were compatible with the Constitution. It dismissed most of the objections as to constitutionality raised in the domestic courts and reaffirmed that the laws in question were compatible with the Constitution.
70. In decision no. 830 of 8 July 2008 the Constitutional Court held that any person who had lodged a claim under Law no. 10/2001 within the statutory time-limit was entitled to reparation measures and in particular to restitution of the property concerned if it had been nationalised unlawfully.
71. After the entry into force of Law no. 112/1995, the practice of the domestic courts was undermined by the absence of a stable legislative framework. The courts gave several different interpretations of concepts such as State “title”, the purchaser's “good faith” and “appearances in law”, and also of the relationship between actions for recovery of possession and the restitution procedures provided for by the special legislation (see Păduraru, cited above, § 96).
72. As to the position of the HCCJ concerning the jurisdiction of the domestic courts to determine claims for restitution of nationalised properties in cases where the administrative authorities had failed to respond to the notifications issued under Law no. 10/2001, the full court, in judgment no. 20 of 19 March 2007 published in the Official Gazette on 12 November 2007, held following an appeal in the interests of the law that the domestic courts had jurisdiction to determine the merits of claims and, where appropriate, to order the restitution of the property in question or award statutory compensation.
73. In judgments nos. 53 and 33 of 4 June 2007 and 9 June 2008, published in the Official Gazette on 13 November 2007 and 23 February 2009, the HCCJ, sitting as a full court and again ruling on two appeals in the interests of the law, held that following the entry into force of Law no. 10/2001 actions for recovery of possession of properties expropriated or nationalised before 1989 which had been lodged in parallel with the restitution procedure laid down by Law no. 10/2001 were inadmissible. However, as an exception to that rule the HCCJ held that persons who had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention could bring an action for recovery of possession provided it did not infringe ownership rights acquired by third parties in good faith.
74. In judgment no. 52 of 4 June 2007, published in the Official Gazette on 22 February 2008, the HCCJ, sitting as a full court and ruling once more on an appeal in the interests of the law, held that the administrative procedure provided for by Law no. 247/2005 did not apply to claims for restitution or compensation already determined by the local administrative authorities under Law no. 10/2001.
75. With regard to local administrative authority decisions granting claims for restitution or compensation under Law no. 10/2001, the HCCJ held that they gave rise to property rights for the persons concerned and that, accordingly, they could no longer be revoked or set aside by the local administrative authorities or the Central Board (judgments nos. 6723 of 17 October 2007 and 6812 of 10 November 2008 of the Civil Division of the HCCJ).
76. As to claims submitted to the Central Board under Law no. 247/2005 on which no decision had been given, the HCCJ ruled that the courts could not take the place of the Central Board in calculating the compensation (judgments nos. 4894 and 5392 of 27 April and 11 May 2009 of the Civil Division of the HCCJ). However, the HCCJ ruled that although the Central Board was not bound by any statutory time-limit in giving its decision it was required to determine claims for restitution or compensation within a “reasonable time” as construed by the case-law of the European Court of Human Rights (judgments nos. 3857 and 3870 of 4 November 2008 of the Administrative and Taxation Disputes Division of the HCCJ).
77. The statistics issued by the NAPR in May 2010 and provided by the Government are as follows:
– 202,782 claims had been registered with the local authorities under Law no. 10/2001. 119,022 files had been examined and an award of compensation had been proposed in 56,000 cases;
– 46,701 files compiled under Law no. 10/2001 and 375 under Government Emergency Ordinances nos. 83/1999 and 94/2000 had been forwarded to the Central Board, which had issued 10,345 “compensation certificates”. The remaining files were under consideration;
– with regard to Laws nos. 18/1991 and 1/2000 concerning agricultural land, according to a partial calculation relating to eight out of forty-one counties, almost one and a half million claims for restitution or compensation had been lodged with the local authorities. A total of 55,271 files compiled under the laws in question had been forwarded to the Central Board, which had granted 21,279 of the claims and had issued 10,915 “compensation certificates”. The remaining files were under consideration;
– with regard to claims for restitution of land or compensation under Law no. 247/2005, over 800,000 claims had been registered with the local authorities. Approximately 172,000 of these had been granted and compensation had been proposed;
– of the persons who had received “compensation certificates”, 15,059 had opted to receive part of the sum in cash, amounting to a total of about RON 2 billion (approximately EUR 400 million). 3,850 people had received payments totalling about RON 350 million (approximately EUR 80 million).
78. Shares in the Proprietatea Fund, in existence since December 2005, are still not listed on the stock exchange. However, since 2007 the Fund has been paying dividends to its shareholders and since March 2008 its shares may be sold by means of direct transactions under the supervision of the stock exchange regulatory authority. By way of example, 206 sales of shares were registered in May 2010.
79. According to the information published on 4 June 2010 by the Proprietatea Fund, the Ministry of Finance is the majority shareholder, with 56% of the Fund's shares. A further 12% are held by 103 legal entities, while 31.4% are owned by 3,622 individual shareholders.
80. According to Government estimates a total of EUR 21 billion will be needed to pay the compensation provided for by the compensation laws.
81. In Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted on 12 May 2004, the Committee of Ministers stated as follows:
“The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe,
...
Invites the Court:
I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments;
II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.”
82. Committee of Ministers Recommendation Rec(2004)6 on the improvement of domestic remedies, adopted on 12 May 2004, provides:
“The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe,
...
Recommends that member states, taking into account the examples of good practice appearing in the appendix:
I. ascertain, through constant review, in the light of case-law of the Court, that domestic remedies exist for anyone with an arguable complaint of a violation of the Convention, and that these remedies are effective, in that they can result in a decision on the merits of the complaint and adequate redress for any violation found;
II. review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court;
III. pay particular attention, in respect of aforementioned items I and II, to the existence of effective remedies in cases of an arguable complaint concerning the excessive length of judicial proceedings;
...”
83. The relevant part of the Appendix to Committee of Ministers Recommendation Rec(2004)6 reads as follows:
“...
13. When a judgment which points to structural or general deficiencies in national law or practice ('pilot case') has been delivered and a large number of applications to the Court concerning the same problem ('repetitive cases') are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.
14. The introduction of such a domestic remedy could also significantly reduce the Court's workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. The existence of a remedy aimed at providing redress at national level for this category of people might allow the Court to invite them to have recourse to the new remedy and, if appropriate, declare their applications inadmissible.
15. Several options with this objective are possible, depending, among other things, on the nature of the structural problem in question and on whether the person affected by this problem has applied to the Court or not.
16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation.
17. Within the framework of this case-by-case examination, states might envisage, if this is deemed advisable, the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention, with a view to saving the Court from dealing with these cases and where appropriate to providing speedier redress for the person concerned. The criteria laid out in Recommendation Rec(2000)2 of the Committee of Ministers might serve as a source of inspiration in this regard.
18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases.
19. However, it would not be necessary or appropriate to create new remedies, or give existing remedies a certain retroactive effect, following every case in which a Court judgment has identified a structural problem. In certain circumstances, it may be preferable to leave the cases to the examination of the Court, particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies, which, moreover, would not be in place until the adoption of legislative changes.
...”
84. On 2 March 2010, at their 1078th meeting, the Ministers' Deputies responsible for supervising execution of the Court's judgments observed, with reference to the Străin and Viaşu cases and over a hundred other Romanian cases of the same type, that the issues raised therein reflected a major systemic problem linked in particular to the absence of restitution or compensation in respect of properties which had been nationalised and were subsequently sold by the State to third parties. They took note of the action plan presented by the Romanian authorities on 25 February 2010 and invited them to submit a tentative timetable for adoption of the measures envisaged.
85. In the years following the Second World War the communist regimes in numerous central and eastern European countries conducted massive programmes of nationalisation and expropriation of immovable property, industrial, banking and commercial structures and, with the exception of Poland, agricultural structures.
86. In the early 1990s restitution measures were adopted in many of these countries, whose political and legal situations differed. The detailed arrangements and scope of the measures varied and there were wide differences in the forms of compensation adopted by States.
87. Some States (Azerbaijan, Bosnia and Herzegovina and Georgia) have not enacted any legislation concerning restitution or compensation in respect of properties that were nationalised or confiscated.
88. The legislation in Poland does not establish a general right to restitution or compensation in respect of properties that were confiscated or nationalised. The sole exception concerns the Bug River region and is confined to a right to compensation. In practice, the persons entitled can opt either to have the index-linked value of the abandoned properties deducted from the price of a State-owned property acquired by means of a competitive bidding procedure, or to receive money from the compensation fund. The amount of compensation which claimants may receive is subject to a statutory ceiling of 20% of the current value of the property lost in the Bug River region.
89. The Hungarian legislation on partial compensation for damage caused to citizens' property by the State provides for compensation to be paid in monetary form or in the form of coupons. There is also a statutory cap on compensation.
90. The majority of the countries concerned restrict the right to restitution or compensation to certain categories of properties or claimants. In some countries the legislation lays down time-limits, sometimes very short, for lodging claims.
91. Some countries provide for various forms of restitution and/or compensation by means of so-called “restitution” laws: this is the case in Albania, Bulgaria, Lithuania and “the former Yugoslav Republic of Macedonia”. Others have dealt with the issue of restitution under rehabilitation laws (the Czech Republic, Germany, Moldova, Russia, Slovakia and Ukraine). Finally, the issue is also dealt with under property legislation (Bulgaria, the Czech Republic, Estonia, Germany and Slovenia).
92. In all cases, restitution is not an absolute right and may be subject to numerous conditions and restrictions. The same is true of the right to compensation.
93. Either the former owners or their successors in title (lawful heirs in Albania) may be eligible for restitution or compensation in respect of confiscated or nationalised property. In some countries including the Czech Republic, Estonia, Lithuania, Moldova, Slovakia and Slovenia, the legislation requires the claimant to be a citizen either when the property was confiscated or when the claim for restitution is made, or in some cases even both. In addition, the law in Estonia and Slovakia requires claimants to be permanent residents both when the law entered into force and when the claim for restitution or compensation is made. In those systems where there is a rehabilitation procedure, only persons rehabilitated in accordance with the law may claim restitution of their property. This is the case in the Czech Republic, Germany, Moldova, Russia, Slovakia and Ukraine. In these countries entitlement to restitution or compensation is wholly or partially linked to the rehabilitation of victims of political repression.
94. The legislation in some countries excludes several categories of properties from restitution or compensation.
95. In some cases the legislation excludes land and buildings the character of which has been altered (Germany); other countries exclude property which has lost its original character (Estonia) or property which has disappeared or been destroyed, as well as properties which have passed into private ownership (Moldova, Russia and Ukraine).
96. In addition, under Estonian law, military property, cultural and social assets and property under State protection, as well as buildings used by the State or local administrative authorities, are excluded from restitution. Under the legislation in Moldova plots of land, forests, perennial plantations and property confiscated on grounds unrelated to political repression are also ineligible for restitution.
97. In Russia and Ukraine properties which were nationalised in accordance with the legislation in force at the time do not qualify for restitution or compensation.
98. In Lithuania restitution is possible only in the case of residential property. The Serbian legislation provides only for partial restitution of agricultural land. Finally, in the Czech Republic and Bulgaria the restitution laws specify the properties which are covered.
99. Some legislation imposes temporal restrictions on the lodging of claims for restitution or compensation. This is the case in Albania and Estonia, where former owners were given less than a year in which to lodge a claim, and in the Czech Republic, Slovakia and “the former Yugoslav Republic of Macedonia” (one year from the date of entry into force of the law on rehabilitation).
100. Elsewhere, the legislation restricts restitution or compensation to properties nationalised or confiscated during a certain period. By way of example, the German compensation scheme is limited to properties nationalised after 1949 but compensation is awarded for properties nationalised between 1945 and 1949 in the Soviet-occupied zone.
101. A number of countries have opted to provide compensation in the form of another property equivalent to that which was nationalised or confiscated (Albania, Bulgaria, Germany, Montenegro and “the former Yugoslav Republic of Macedonia”).
102. Where no exchange is possible the legislation allows the person concerned to be provided with a property of a different kind, a sum of money, compensation vouchers (Bulgaria and Hungary), State securities or bonds (Slovenia and “the former Yugoslav Republic of Macedonia”) or shares in a public company (Albania and Bulgaria).
103. The amount of compensation is calculated mainly by reference to the market value of the property at the time of the restitution or compensation decision (Albania, Lithuania, Moldova, Montenegro, Poland and Serbia) or at the time the property was confiscated (“the former Yugoslav Republic of Macedonia”), or as otherwise provided by law.
104. Some countries take account of other considerations in addition to the market price. In Albania, when compensation is provided in the form of shares the amount is equal to the value of the property at the time of the decision or the value of the privatised public property.
105. Other factors may also be taken into consideration in determining the amount of compensation. In Germany, for instance, account is taken of the value of the property before expropriation, which is then multiplied by a coefficient laid down by law.
106. In some countries the legislation sets a cap on compensation (Germany, Russia and Ukraine), or provides for payment in instalments (Moldova).
107. The authorities responsible for determining restitution or compensation claims may be judicial or administrative. The most common arrangements include special restitution and compensation boards (Albania, Bulgaria, Moldova and Montenegro), administrative bodies (Lithuania), the Ministry of Finance or Justice, or even the courts (the Czech Republic). In all the countries surveyed an appeal lies to the administrative or civil courts against the decisions of the administrative bodies.
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