CASE OF HIRSCHHORN v. ROMANIA
Violation of Art. 6-1 (access to court - independent and impartial tribunal);Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial reparation in the absence of restitution) - financial award;Pecuniary damage (loss of profits resulting from failure to comply with a final judgment) - claim dismissed;Pecuniary damage - financial award (reimbursement of taxes and duties paid) - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Lucius Caflisch
4. The applicant was born in 1925 in Bucharest and lives in Le Cannet (France). 5. In 1952, under Decree no. 92/1950 on nationalisation, the State took possession of a building located at 16 Negustori Street in Bucharest which belonged to the applicant's parents, Romanian citizens and members of the Jewish faith. 6. On 18 September 1998 the applicant lodged an action to recover possession of the property with the Bucharest District Court. The action was directed against Bucharest local council, the Rental Property Administration Department (Departamentul de administrare a fondului locativ) and the State company Titan, which managed such properties. He alleged that, under Decree no. 92/1950, property belonging to certain social categories had been exempt from nationalisation and that his parents had belonged to one such category. 7. In a judgment of 24 June 1999 the court allowed the action on the ground that the State had taken possession of the property without any valid title. It ordered the defendants to restore the building and the adjoining land to the applicant. 8. Following an appeal by the Bucharest mayor's office acting on behalf of the local council, the Bucharest County Court upheld the decision of the first-instance court in a judgment of 6 December 1999. 9. The mayor's office lodged a further appeal with the Bucharest Court of Appeal, which in a final judgment of 21 June 2000 declared the appeal inadmissible for failure to give reasons. 10. In a decision of 25 September 2000 the mayor of Bucharest ordered the return of the building to the applicant. 11. On 9 November 2000 the applicant, accompanied by a bailiff, went to the building with a view to taking possession and found that it was occupied by the United States Peace Corps under a lease concluded with the State company Locato, which managed the buildings placed at the disposal of diplomatic missions in Romania. 12. On 14 November 2001 the applicant brought an action against Locato and the United States Peace Corps seeking the setting-aside of the lease and an order requiring the Peace Corps to vacate the building. 13. In a judgment of 30 May 2001 the Bucharest District Court dismissed the action. It observed that in 1992, by a government decision, ownership of the building had been transferred from the Bucharest mayor's office to the company managing the buildings used by diplomatic missions in Romania. That company had been letting the building to the United States Peace Corps since 1993. The latest lease, which had been concluded on 12 January 1999 and set the rent at 4,907 United States dollars (USD) per month, was due to expire on 31 March 2002. Taking the view that Locato had proper authority to manage the building, the court held that the disputed lease was valid. 14. In a judgment of 5 November 2001 the Bucharest County Court, on an appeal by Mr Hirschhorn, set aside the impugned decision and allowed the applicant's action. The County Court observed that in its final judgment of 24 June 1999 the Bucharest District Court had held that the State had appropriated the building without any valid title. Taking the view that the State could not dispose of a property which did not belong to it, the court set aside the lease and ordered the eviction of the tenant organisation. Locato appealed on points of law. 15. On 21 December 2001 the bailiff was authorised by the Bucharest District Court to evict the tenant organisation under the decision of 5 November 2001. On 31 January 2002 he directed Locato to comply with the decision. 16. In a letter of 6 February 2002 Locato informed the bailiff that the building was the property of the State and that the tenant organisation had diplomatic immunity. That being so, it considered that enforcing the eviction order would be inappropriate and liable to damage Romania's image internationally. 17. On 11 and 20 February 2002 the bailiff went to the building but was refused entry by a representative of the United States Peace Corps on the ground that the Peace Corps was a United States governmental organisation which had diplomatic immunity and could not therefore be evicted. 18. On 25 February 2002 the bailiff wrote to the President of the Bucharest Court of Appeal informing him of the difficulties encountered in enforcing the judgment of 24 June 1999 and the decision of the mayor of Bucharest, as Locato and the United States Peace Corps were invoking diplomatic immunity. The letter included the following passage: “Given the applicability of certain international law conventions in situations such as this, we would be grateful if you could consider the possibility – and inform us accordingly – of taking specific enforcement measures, in view of the fact that the writ of execution is supposed to take effect and that the appeal by Locato against the Bucharest County Court judgment of 5 November 2001 is pending before your court and has been set down for hearing on 26 February 2002.” 19. On 4 March 2002 the President of the Bucharest Court of Appeal replied to the bailiff's letter and informed him that his concerns had been looked into by an inspecting judge, whose report he forwarded to the bailiff. The report indicated that under the Vienna Convention of 18 April 1961 the property of diplomatic missions was inviolable. As the immunity from jurisdiction extended to enforcement procedures, the inspecting judge concluded that the applicant could not regain possession of his building, and asked the bailiff to advise him to apply for compensation corresponding to the value of the building on the ground that it was not possible to have the judgment of 24 June 1999 enforced. 20. Meanwhile, on 20 February 2002, the applicant, who lives in France, sent a fax to the registry of the Court of Appeal stating that he was dispensing with the services of his lawyer and requesting an adjournment of the hearing scheduled for 26 February so that he could instruct a replacement. 21. At the hearing of 26 February the Court of Appeal refused the request for an adjournment, taking the view that the applicant had had sufficient time to appoint a new lawyer. However, it adjourned delivery of the judgment, first until 5 March and then until 12 March 2002, in order to allow the applicant to submit conclusions in writing. 22. In a final judgment of 12 March 2002 the Civil Division of the Bucharest Court of Appeal, sitting as a bench of three judges, allowed Locato's appeal on points of law and dismissed the applicant's action. It confirmed the validity of the lease, finding that it had been entered into in good faith since, although the company had not in fact been the owner of the building in question at the time of signature of the lease, it had appeared to be. 23. On 21 March 2002 the Bucharest District Court rejected a complaint by the applicant against the bailiff alleging that the latter had failed to take action to enforce the judgment of 24 June 1999. The court observed that the bailiff had gone to the building but had been informed that the United States Peace Corps enjoyed immunity from jurisdiction. Accordingly, the court held that the bailiff could not be said to have failed to enforce the judgment in question. 24. On 9 August 2001, on the basis of Law no. 10/2001 on the rules governing immovable property wrongfully nationalised by the State between 6 March 1945 and 22 December 1989 (“Law no. 10/2001”), the applicant requested that Locato return the property to him. His request was rejected by a decision of 9 October 2001. 25. The applicant appealed against that decision to the Bucharest County Court and requested that Locato be evicted from the building. He argued that the building belonged to him by virtue of the judgment of 24 June 1999. 26. In a judgment of 13 May 2002 the County Court allowed the claim for restitution of the building but rejected the eviction request on the ground that the Peace Corps was not a party to the proceedings. Locato appealed on points of law. 27. By a governmental decision (no. 533) of 30 May 2002, Locato became the State Diplomatic Property Management Agency (Regia autonoma Administratia patrimoniului protocolului de Stat – “the Agency”). The applicant's property continued to appear in the lists attached to that decision as State property managed by the Agency. 28. By judgment of 31 March 2004 the Bucharest Court of Appeal allowed the appeal and dismissed the applicant's claim on the ground that Mr Hirschhorn had not adduced evidence either that title to the building had passed to him as his parents' heir or that he had failed to be compensated contrary to the agreement concluded in 1959 between France and Romania concerning property formerly owned by French citizens and nationalised by the Romanian State. 29. An appeal on points of law by the applicant is currently pending before the High Court of Cassation and Justice. 30. In an action to recover possession lodged with the Bucharest County Court on 15 August 2002, the applicant requested that the Agency return the building, that the lease concluded with the Peace Corps be set aside and the latter evicted, and that the rent received by the Agency under the lease be paid to him. 31. By judgment of 17 February 2003 the County Court declared the action inadmissible on the ground that the applicant could not lodge an ordinary action to recover possession while the action based on Law no. 10/2001 was still pending. 32. The applicant appealed to the Bucharest Court of Appeal, which upheld the judgment on 29 October 2003. The applicant then lodged an appeal on points of law with the High Court of Cassation and Justice. The latter, in a judgment of 7 July 2005, allowed the appeal and remitted the case to the Bucharest Court of Appeal. The proceedings are still pending. 33. The Agency was reorganised by Government Decision no. 60 of 21 January 2005. The applicant's building is still on the list of State-owned properties managed by the Agency. 34. Although the lease concluded with the United States Peace Corps expired on 31 March 2002, that organisation continues to occupy the building. The Government have not provided any details as to the legal basis for the occupancy. 35. The documents supplied by the applicant show that he has paid all the taxes and duties due on the building. However, in 2004 and 2005 the Agency also paid taxes and duties into the local budget in respect of the building. 36. Under the Administration of Justice Act (Law no. 92/1992) in force at the material time, the president of the court of appeal performed mainly administrative, organisational and supervisory duties. The relevant provisions of the Act read as follows: “The president [of the court of appeal] and, where appropriate, the presidents of the divisions [of that court] shall decide on the composition of the benches...” “Where the president, the vice-president or the division president is a member of the bench, he or she shall preside. In all other cases the president or division president shall appoint the presiding judge of the bench.” “The Minister of Justice shall be responsible for the proper organisation and operation of the justice system as a public service. The inspecting judges of the courts of appeal shall keep the Minister of Justice informed of the functioning of the courts and of any irregularities liable to compromise the standard of judicial activity and the application of the laws and regulations coming within the jurisdiction of the courts of appeal. The presidents and vice-presidents of the courts shall monitor the organisation and quality of the service and compliance with the laws and regulations... The presidents of the courts of appeal may exercise this prerogative through the intermediary of the inspecting judges of the court of appeal. In no circumstances may the monitoring activities entail interference in the conduct of proceedings in progress or call into question a decision already given...” “Promotion for judges shall be on the basis of merit, as attested by the appraisals carried out by their superiors. Appraisals shall be conducted annually and shall reflect the performance of the persons concerned, their conduct in the workplace and in society, their professional qualities and their career prospects.” “Judges shall be prohibited from providing advice, orally or in writing, concerning ongoing cases, even if the case in question is being heard by a court other than the one in which they sit. They may not express opinions in public concerning ongoing cases.” “Judges' disciplinary liability shall be incurred in the event of irregularities in the performance of their duties or conduct liable to damage the interests of the service or the reputation of the justice system.” “Disciplinary proceedings ... shall be initiated by the Minister of Justice...” “In order to initiate disciplinary proceedings..., a preliminary investigation ordered by the Minister of Justice shall be compulsory. The investigation shall be carried out either by judges of at least the same ranking as the judge under investigation, by general inspectors or by other Ministry officials assimilated to judges.” “On receiving the findings of the investigation, the Minister may refer the matter to the Supreme Council of the Judiciary. The Supreme Council shall give a decision accompanied by a statement of reasons...” 37. The position of inspecting judge at the court of appeal was abolished by Law no. 247 of 19 July 2005. However, the possibility for the president or vice-presidents of the court of appeal to appoint judges to carry out inspections was maintained. Nevertheless, these inspections must respect judges' independence and comply with final court decisions. 38. Article 66 of Law no. 92/1992 was repealed by the Status of Judges Act (Law no. 303/2004), which stipulates that judges' performance shall be assessed every three years by a committee under the authority of the Supreme Council of the Judiciary. 39. The method for designating the judges to sit on the benches of the courts of appeal was amended by the Administration of Justice Act (Law no. 304/2004), which states that the composition of the benches shall be decided by a panel within each court of appeal, made up of the president and six members elected by the general assembly of judges. 40. Under Law no. 317/2004 on the Supreme Council of the Judiciary, disciplinary proceedings are a matter exclusively for a disciplinary committee within the Supreme Council, to which any interested party may apply. 41. The relevant international provisions are as follows: “For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: ... (i) The 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.” “1.The functions of a diplomatic mission consist, inter alia, in: (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State; (d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. ...” “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” “A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to: a. its rights or interests in, or its use or possession of, immovable property; or b. its obligations arising out of its rights or interests in, or use or possession of, immovable property and the property is situated in the territory of the State of the forum.” “No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.” 42. The relevant provisions of this Convention read as follows: “1. For the purposes of the present Convention: ... (b) “State” means: (i) the State and its various organs of government; ... (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; ...” “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” “1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.” “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum...” “The Peace Corps representative and his/her staff members will be granted the same treatment as personnel of comparable rank in the United States Embassy in Romania, except that they will not have diplomatic status and immunity.”