CEDH · CASELAW;CLIN;ENG — 24 mars 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009 Niţescu v. Romania - 26004/03 Judgment 24.3.2009 [Section III] Article 41 Just satisfaction Obligation to execute final judicial order quashing administrative decisions.   Facts : The municipal council authorised a company to convert an apartment in the residential building where the applicant lived into a shop. Subsequently the company obtained planning permission for structural alterations inside the apartment. The court of first instance and the court of appeal allowed an urgent application to have the work stopped. The bailiff sent to the site found that no structural alterations had been made and drew up a report stating that the judgment would continue to be enforced at the claimant’s request. The applicant applied to have the municipal decisions and the planning permission set aside, but the court of first instance rejected the application. By a judgment of 2002 the court of appeal allowed the applicant’s appeal in part, quashed the judgment of the district court and set aside the decision of the local council and the mayor’s order. It held that under Romanian law the applicant’s agreement was an essential condition for the conversion of the apartment, as the law expressly required the agreement of the owner of the apartment above. Furthermore, the business being conducted in the flat below was affecting the applicant’s enjoyment of his place of residence. The planning permission, however, did not affect him, as it simply authorised certain changes to the premises and not their actual conversion. An application to have that judgment set aside was rejected and the judgment became enforceable. A bailiff from the court of appeal sought authorisation to enforce the judgment and close the shop. In 2003 the court of first instance rejected the request on the grounds that the judgment concerned made no mention of closing the shop. The applicant appealed unsuccessfully to the district court. He further took various steps to have the shop closed down, but to no avail. Law : Article 6 § 1 – Although the applicant had obtained a final judgment in 2002 setting aside municipal administrative decisions on the grounds that they violated his right to oppose the conversion of the apartment, that judgment had not been enforced or set aside or amended by any appeal procedure provided for by law. In 2003 the court of first instance had rejected the applicant’s request for authorisation to have the judgment enforced and the shop closed, on the grounds that the judgment concerned made no mention of an obligation for the shop to close. While it was true that the operative part of the judgment did not expressly order the authorities to close the shop, it did clearly indicate its reasons for setting aside the administrative decisions, so that the authorities should have considered their position in the light of the court of appeal’s finding of a breach of the law. The Court could but note that the quashing of the administrative decisions in question had had no effect on the operation of the shop, in spite of the obligation on the authorities to comply with the judgment. Quashing the administrative decisions had been a necessary step prior to putting a stop to the shop’s activities, and only the local authorities had had the power to take the necessary action. Furthermore, although the court of appeal had quashed the administrative decisions, finding against the company and in favour of the applicant, all further action by the applicant against the company had been frustrated by the authorities’ failure to comply with the judgment. By failing, for six years, to cancel the impugned decisions, the authorities had deprived the applicant of effective access to a court. Conclusion : violation (unanimously). Article 41 – A judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. In this case the Court had found a violation of Article 6 § 1 because of failure to enforce the judgment of 2002. It considered, accordingly, that full enforcement of the judgment in question would place the applicant as far as possible in the situation he would have been in had there been no violation of Article 6 § 1. EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes