Resolution CM/ ResDH (2012) 207 [1] Hirschhorn against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 29294/02, judgment of 26 July 2007, final on 26 October 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern: the failure to enforce a final judgment ordering the restitution of a building, on account of the diplomatic immunity of the tenant organisation ; the lack of independence and impartiality of a tribunal due to an opinion expressed by an inspecting judge in favour of the rejection of the applicant ’ s claims; the failure of the authorities to transfer the ownership rights over the building in question to the applicant (violations of articles 6, paragraph 1 of the Convention and 1 of Protocol no. 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent State paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 207

Information about the measures to comply with the judgment in the case of

Hirschhorn against Romania

Introductory case summary

The case concerns the failure to enforce a final court decision of 24/06/1999 ordering the restitution of a building to the applicant, on the basis of the diplomatic immunity of the tenant organisation (violation of Article 6§1). The European Court noted that, given the circumstances, even if the existence of the lease might justify the delay in giving the building back to the applicant, no such justification existed after its expiry (§56 of the judgment). Furthermore, the tenant ’ s possible immunity did not justify the opposition to the transfer of ownership rights to the applicant since such transfer would not in itself imply the eviction of the tenant (§60 of the judgment).

The case also concerns the lack of independence and impartiality of the Bucharest Court of Appeal due to the fact that, during the proceedings, its President disclosed to the Bailiff the opinion of the inspecting judge to the effect that the tenant organisation could not be evicted because of its diplomatic immunity (violation of Article 6§1). The European Court considered that by presenting his opinion, the inspecting judge and, implicitly, the President of the court of appeal had tended to favour the dismissal of the applicant ’ s claim.

Finally, the European Court considered that the applicant was deprived of every attribute of his right of ownership of the building due to government decisions of 2002 and 2005, placing it on the State-owned property list (violation of Article 1 of Protocol No. 1). In these circumstances, the principle of immunity of State bodies was not sufficient in itself to legitimise the authorities ’ failure to transfer ownership rights over the building to the applicant (§§92, 98 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

200 000 EUR

10 000 EUR

-

210 000 EUR

Paid on 10/03/2008 (in conditions not contested by the applicant)

b) Individual measures

The European Court ordered the restitution of the property in question within three months or payment of just satisfaction in respect of pecuniary damage. It also awarded the applicant just satisfaction in respect of non-pecuniary damage and the pecuniary damage for loss of income. The property in question has been returned to the applicant.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The Romanian authorities consider that t his case does not reveal a structural problem and, consequently, should be seen as an isolated case. The violations found by the European Court in this case resulted from the wrongful application of principles related to State immunity in the enforcement proceedings.

Furthermore, in the context of the lack of independence and impartiality of a domestic court, the European Court noted that judges were prohibited by law from voicing opinions in public about trials in progress and inspecting judges were formally prohibited from interfering in proceedings (§§78, 79 of the judgment).

In view of the direct effect of the European Convention in Romania , the requi rements of Art. 6§1 and Article 1 of Protocol No.1 as well as the European Court ’ s case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court.

In this context it should be noted that the judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice ( http://www.scj . ro/d e c izii_strasbourg.asp ). The present judgment was also sent to the Superior Council of Magistracy, with a view to bring it to the attention of all the domestic courts.

Finally, it should be noted that various problems related to the restitution of property nationalized under the Communist regime are being examined in the context of the Străin and others group of cases (57001/00).

III. Conclusions of the respondent State

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Romania have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .