THIRD SECTION

CASE OF BIRZESCU AND OTHERS v. ROMANIA

(Application no. 9304/05 )

JUDGMENT

STRASBOURG

25 September 2012

This judgment is final . It may be subject to editorial revision.

In the case of Birzescu and Others v. Romania ,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alvina Gyulumyan , President, Ineta Ziemele , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated in private on 4 September 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 9304/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Romanian nation als, Ms Maria I. Birzescu , M s Maria Birzescu , Ms Anca Birzescu , Ms Maria Mihaela Birzescu Ilie and Mr Dumitru Birzescu (“the applicants”), on 1 6 February 2005.

2 . The applicants were represented by Mrs Olimpia Popescu , a lawyer practising in R âmnicu Vâ lcea . The Romanian Government (“the Government”) were represented by their Agent, Mrs Irina Cambrea , from the Ministry of Foreign Affairs .

3 . On 9 October 2006 the application was communicated to the Government.

4 . Third-pa rty comments were received from Maria Gavrilescu and Niculina Popescu-Gavrilescu , which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court ). The parties were given the possibility to reply to those comments (Rule 44 § 6 of the Rules of Court ).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5 . The applicants were born in 1946 , 1945, 1978, 1976 and 1941 respectively and live in Bucharest .

6 . The applicants lodged proceedings against third parties seeking to order the latter to respect their property and to demolish a building that had been allegedly illegally erected.

By the final decision of 28 January 2003 the Pitesti Court of Appeal allowed the applicants ’ action and acknowledged that they were the lawful owners of the immovable property at issue.

7 . At an unknown date the Prosecutor General of Romania lodged a request for supervisory review against the final decision of 28 January 2003 of the Pitesti Court of Appeal.

By the final decision of 9 November 2004 the High Court of Cassation and Justice admitted the application for supervisory review lodged by the Prosecutor General, quashed the final decision of 28 January 2003 of the Pitesti Court of Appeal and rejected the applicants ’ action.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 OF THE CONVENTION AND 1 OF PROTOCOL N o . 1 TO THE CONVENTION

8 . The applicants complained that the quashing of their final decisions by means of an application for supervisory review lodged by the Prosecutor General of Romania breached Article 6 of the Convention and 1 of Protocol No. 1 to the Convention which read as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

9 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

10 . The applicants argued that the quashing of their final decision by means of an application for supervisory review lodged by the Prosecutor General – who was not a party to the proceedings – breached the principle of legal certain ty and the right to property.

11 . Referring to the Brum ă rescu case, t he Government argued that according to the Court ’ s case-law quashing of final judgements by means of an extraordinary appeal is to be deemed as a breach of the legal certainty principle ( Brumărescu v. Romania [GC], no. 28342/95, § 62 , ECHR 1999 ‑ VII ). However, the Government highlighted that, following the Brum ă rescu case, the Romanian Civil Procedure Code has been modified. As a result, the current Romanian legislative framework does not allow for an application for supervisory review to be lodged with the Supreme Court, which is now called the High Court of Cassation and Justice.

12 . The third party interveners argued that the application for supervisory review has been lawfully lo dged by the Prosecutor General.

13 . The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu , cited above, § 61).

14 . Legal certainty presupposes respect for the principle of res judicata (ibid., § 62), that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts ’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination ( Ryabykh v. Russia , no. 52854/99, § 52 , ECHR 2003 ‑ IX ) .

15 . The Court considers that, on the basis of the documents in its possession, the present case does not differ from the above mentioned case ‑ law as to the complaint concerni ng Article 6 of the Convention.

16 . As to the complaint raised under Article 1 of Protocol No. 1 to the Convention , the Court notes that the applicants had their property right acknowledged by a final judgement issued by the Romanian domestic courts. The Court considers thus that the applicants had a “possession” for the purposes of Article 1 of Protocol No. 1 ( Savu v. Romania , no. 19982/04, § 22, 4 November 2008 ).

The Court has on numerous occasions dealt with similar issues and has found a violation of Article 1 of Protocol No. 1 in cases where the applicants ’ property right had been reconsidered following applications for supervisory review (see Brumărescu , cited above, § § 61, 77 and 80; SC Maşinexportimport Industrial Group SA v. Romania , no. 22687/03, § § 32 and 46-47 , 1 December 2005 ; Piaţa Bazar Dorobanţi SRL v. Romania , no. 37513/03, § § 23 and 33 , 4 October 2007 ).

17 . Having considered the present application, the Court holds the view that the Government failed to submit any argument justifying a departure from the approach described above. Despite the margin of appreciation enjoyed by the State in this field, the Court considers that supervisory review proceedings cannot justify the applicants ’ deprivation of possessions acquired by means of a final and enforceable decision (see Blidaru v. Romania , no. 8695/02, § 55 , 8 November 2007 ; SC Maşinexportimport Industrial Group SA , cited above, § 46).

18 . The foregoing considerations are sufficient to en able the Court to conclude that t here has been a violation of Article s 6 of the Convention and 1 of Protocol No. 1 to the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

19 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

20 . The applicants submitted their claims for just satisfaction out of the time-limit fixed for this purpose. T he refore the Court will make no award .

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

3. Dismisses the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 25 September 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Alvina Gyulumyan Deputy Registrar President