CIOBANU proti Rumunsku

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52414/99
by Vasila and Petre Constantin in the name of Mihai CIOBANU
against Romania

The European Court of Human Rights (Second Section), sitting on 16 December 2003 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs W. Thomassen,
Mrs A. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 16 December 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mihai Ciobanu, is a Romanian national who was born in 1910 and lived in Romania. He died on 31 December 1996. He is represented before the Court by Vasila and Petre Constantin, respectively his daughter and her husband. They both live in Bucharest. The respondent Government are represented by their Agent, Mr Bogdan Aurescu.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Actions of the applicant with a view to the allocation of a plot of land

In November 1994, the applicant, a war veteran, lodged with the Bucharest Court of Appeal an action against the Local Council of Bucharest (hereinafter “the Local Council”) and the Local Council of the 3rd district of Bucharest seeking the allocation of 0,05 ha of land. The action was brought pursuant to Law no. 44/1994 on war veterans.

By a judgment of 6 June 1996 the Court of Appeal ordered the Local Council to assess the availability of plots of land located within the city area and to allocate one to the applicant pursuant to Article 13 of Law no.44/1994. The appeal lodged by the Local Council was rejected on 6 February 1998 by a final decision of the Supreme Court.

In March 1998 the representatives of the applicant lodged in his name with the Bucharest Court of Appeal an action against the Local Council and the mayor of Bucharest, seeking damages on account of the delay in enforcing the judgment. On 23 April 1998 the Court of Appeal imposed on the mayor a fine of ROL 500 per day of delay from 6 March 1998 until the enforcement of the judgment. This judgment was upheld by the Supreme Court in a final decision of 23 November 1998.

On 15 August 2001, the representatives of the applicant informed the Court, in his name, that the judgment of 6 June 1996 had still not been enforced.

2. Representation of the applicant

On 9 September 1994, the applicant appointed as his representatives Vasila and Petre Constantin, his daughter and her husband. The applicant granted them the power to file applications with the Romanian courts and to pursue the enforcement of any court decisions adopted as a consequence of any such actions.

Thereafter, the applicant was represented before the national courts by his daughter and her husband.

According to the death certificate submitted by the Government and uncontested by Vasila and Petre Constantin, the applicant died on 31 December 1996.

The application lodged with the Court on 16 December 1998, on behalf of the applicant, was signed on his behalf by his daughter, Vasila Constantin. The representatives did not inform the Registry at any time in the course of the proceedings before the Court of the death of the applicant.

By letter of 10 November 2000, following a request by the Registry, Mrs Vasila Constantin submitted the power of attorney designating her and her husband as the applicant’s representatives in the Convention proceedings. This document was signed by Vasila and Petre Constantin on behalf of the applicant.

They reminded the Court, among other things, that the letter of authority of 9 September 1994, which was valid according to Romanian legislation, remained valid until the death of the representatives. As a consequence, they considered the Court’s request redundant.

B. Relevant domestic law

1. Romanian Civil Code

The relevant provisions of the Romanian Civil Code read as follows in their part concerning the power of a person to represent the interests of another person.

Article 1552

“The power of representation is extinguished when: (...)

3. the representative or the principal dies...”

2. Romanian Code of Civil Procedure

The relevant provisions of the Romanian Code of Civil Procedure read as follows in their parts concerning the power to represent another person in legal proceedings:

Article 71

“The authority to act in legal proceedings does not cease to exist upon the death of the principal... It continues to be valid until the heirs withdraw it...”

COMPLAINT

Vasila and Petre Constantin complain, on behalf of the applicant, that because of the non-enforcement of the judgment of 6 June 1996, he has been unable to enjoy his possessions, in violation of his right to property under Article 1 of Protocol No. 1 to the Convention.

THE LAW

The representatives of the applicant allege a violation of the applicant’s right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 to the Convention as a consequence of the non-execution of the final judgment by which he was allocated a plot of land. Article 1 of Protocol No. 1 reads as follows:

“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.”

The Government submit that, in accordance with Romanian law, the power of attorney signed on 9 September 1994 lost its validity on the death of the applicant. Thus, from 31 December 1996 Vasila and Petre Constantin no longer had any legal right to represent the applicant. The representatives failed to inform the Romanian courts of the applicant’s death and introduced with the Court the present complaint in his name using a power of attorney that had not been signed by the applicant and who was already deceased on the date on which the complaint was lodged.

The Government conclude therefore that the application is an abuse of the right of individual petition, (mutatis mutandis X. v. Federal Republic of Germany, no. 2364/64, 2584/65, 2662/65 and 2748/66, Commission decision of 4 April 1967, Decisions and Reports 22, p 103) and that the two representatives have acted in bad faith. They consider that the underlying reason for their conduct was the fact that the rights sought by the applicant before the Romanian courts ceased at the moment of his death.

Furthermore, the Government raise an objection based on the lack of victim status of the applicant and his daughter. As for the applicant, they submit that the meaning of the word “person” according to Article 34 of the Convention is a physical person, i.e. a person who is alive at the moment when the application is introduced. The Government state that the applicant was not a “person”, within the Convention meaning of the term, at the date of introduction of the application, having regard to his death on 31 December 1996. Thus, he had no locus standi before the Court.

The Government recall that Vasila Constantin had not made any claim in her own name either before the national courts or before the Court. They further assert that she could not be considered an indirect victim as long as the rights sought by the applicant were not, according to Romanian law, transmissible to the heirs.

In reply, Mrs Vasila Constantin considers the Government’s observations “dishonest, untrue and tendentious” and expresses her dissatisfaction with the transmission by the Registry of the Government’s observations in English and French, which forced her and her husband to spend money on having them translated.

Regarding the substance of the Government’s objections, Mrs Vasila Constantin recalls that the Romanian Code of Civil Procedure departs from the general regulation of the power of representation and recognises the validity of such a power after the death of the principal and until its withdrawal by the heirs.

The Court notes that the applicants’ representatives failed to submit to the Court all information of relevance to the case under the Convention by introducing a complaint in the name of a deceased person, by signing the power of attorney on behalf of the deceased applicant and by omitting to inform the Court of the applicant’s death.

The Court further notes that the applicant died on 31 December 1996, i.e. before the submission of his complaint to the Court. Therefore, the applicant had not expressed any intention to lodge such a complaint, nor claimed to be a victim, as required by Article 34 of the Convention, on the date of the application. Accordingly, it finds that the case was not legally brought before it as regards the applicant who, as consequence, lacks locus standi.

Moreover, it recalls that the representatives did not lodge any complaint to the Court in their own name, nor did they manifest their intention to continue the case of the deceased in their own capacity. It follows from this that the representatives also lack locus standi for the purpose of the proceedings before the Court.

Accordingly, the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected under Article 35 § 4 thereof.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa
Registrar President