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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
13636/02
by Romulus Nicolae COSTESCU and Alice COSTESCU
against
Romania
The
European Court of Human Rights (Third Section), sitting on
3
March 2009 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
regard to the above application lodged on 16 March 2002,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Romulus Nicolae Costescu and Mrs Alice Costescu, are
Romanian nationals who were born in 1932 and 1933 respectively and
live in Bucharest. They were represented before the Court by Mr Malik
Nekaa, a lawyer practising in Lyon. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- From
1984 the applicants lived in an apartment rented from the State in a
nationalised building. On 4 November 1996, under Law no. 112/1995 on
the legal status of certain residential property, the applicants
bought their apartment from the State, represented by the mayor of
Bucharest.
1. The action for recovery of possession (acţiunea
în revendicare)
- On
22 June 1998 C.S., the former owner's heir, took action against the
State and the applicants for recovery of possession of the flat,
seeking also to have the 1996 sale declared null and void.
- In
a judgment of 6 October 2000 the Bucharest District Court found in
favour of C.S. and ordered the applicants to surrender possession of
the apartment. It considered that the State's initial title deed had
been null and void and therefore gave preference to C.S.'s title,
which had come from the apartment's real owner.
The
court refused however to declare the sale contract null and void, as
no cause of nullity was identified and the applicants had acted in
good faith.
- In
a final decision of 18 September 2001 the Bucharest Court of Appeal
upheld that judgment.
- On
11 July 2007, in the presence of a bailiff, C.S. took possession of
the apartment.
2. Responsibility for eviction (garanţia
pentru evicţiune)
- On
22 May 2000 the applicants asked for the mayor of Bucharest to be
joined to the proceedings for restitution of property lodged against
them (see paragraph 4 above). Under the Civil Code guarantee
concerning responsibility for eviction, the applicants sought to
recover the apartment's market value from the authorities.
- On
26 May 2000 the District Court considered that the applicants'
request had been made out of time and decided to separate it from the
main file.
- Several
hearings took place before the Bucharest District Court. On
8 December 2000, at C.S.'s request, the case was suspended
pending the outcome of the action for recovery of possession.
- A
new hearing was scheduled for 20 July 2001, but none of the parties
attended. On that date the District Court noted the parties'
unjustified absence and suspended the proceedings once again.
- The
District Court summonsed the parties to a hearing on
2 September 2002.
- On
14 August 2002 the applicants requested that the case be postponed
until after 10 November 2002, as they were going to be absent from
the country from 22 August to 30 October 2002.
- On
2 September 2002 the District Court noted the parties' absence and
set a new hearing date for 30 September.
- In
a judgment of 30 September 2002 the District Court noted that the
case had been suspended since 20 July 2001 and that the parties had
not manifested any interest in it since then. It therefore concluded
that the action had become extinct (perimată).
- The
applicants did not appeal against that judgment, which became final.
B. Relevant domestic law and practice
1. Action for recovery of possession
(acţiunea în
revendicare)
- Under
Romanian law, an action for recovery of possession is one of the
principal remedies for the protection of a right of property. Such
action is not governed by statute per se but has emerged from
case-law. An action for recovery of possession can be defined as the
bringing of proceedings to enforce a right in rem in which a
dispossessed owner claims back his or her property from the person
currently in possession of it. When both the plaintiff and the
defendant have a title deed, the court must compare the two deeds
and decide which one is preferred. The main outcome of such an
action, if successful, is the acknowledgment by the court of the
claimant's title to the property, with retrospective effect, thus
obliging the defendant to return the property. If physical
restitution is no longer possible, that obligation is replaced by an
obligation to pay compensation on the basis of an equivalent sum (see
Străin and Others v. Romania, no. 57001/00, § 26,
ECHR 2005 VII).
2. Responsibility for eviction (garanţia
pentru evicţiune)
- Articles
1337-1351 of the Civil Code institute the seller's responsibility for
eviction. They provide for the evicted buyer to claim reimbursement
of the price and also the payment of costs and damages, regardless of
the seller's good or bad faith. The buyer can either join the seller
to the proceedings instituted against him by the third party or lodge
a new action against the seller after having been evicted. In the
latter case, if the seller proves that he could have won the case
against the third party had he been joined to the proceedings, he
will be exempted from compensating the buyer (Article 1351 of
the Civil Code).
A
bona fide buyer continues to enjoy the benefits of the
property until he is no longer considered bona fide, that is
at the latest when the action for eviction is lodged against him, at
which time enjoyment of the property reverts to the rightful owner.
However, the buyer may still claim compensation for his loss from the
seller.
3. Case-law on compensation
- The
constant practice of the domestic courts between 2005 and 2008, as
available to the Court, indicates that the Civil Code guarantee in
the event of eviction is applied in cases similar to the one at hand,
and the interested parties are awarded the indexed purchase price
and, in most cases, damages and any costs reasonably incurred for the
upkeep of the house. Most of the domestic courts consider that Law
no. 10/2001 on the rules governing immovable property wrongfully
seized by the State between 6 March 1945 and 22 December 1989 (“Law
no. 10/2001”) is not applicable to actions for recovery of
possession when the sale contract is not declared null and void in
such proceedings.
- If
the sale contract is cancelled, however, the courts consistently
apply Law no. 10/2001 and only award the buyer the indexed purchase
price.
4. Recent developments favourable to tenants
- In
decision no. 520/C of 3 December 2007 the Constanţa Court of
Appeal found in favour of the buyer in an action for recovery of
possession lodged by the former owner of a nationalised apartment
against the person who in good faith had bought the apartment from
the State in 2000. The court decided that the restitution of the
apartment to the former owner was no longer possible and, based on
the Court's case-law on Article 1 of Protocol No. 1 (in
particular: Pincová and Pinc v. the Czech Republic,
no. 36548/97, ECHR 2002 VIII, Raicu v. Romania,
no. 28104/03, 19 October 2006, and Păduraru v.
Romania, no. 63252/00, ECHR 2005 XII (extracts)), it
compelled the State to pay the market value of the apartment in
compensation to the former owner. In the court's view, although the
plaintiff had not asked for compensation, in the circumstances of the
case the monetary award was the only solution to the action for
recovery of possession.
- In
a similar decision of 12 December 2007 the High Court of Cassation
and Justice found in favour of the buyer in an action for recovery of
possession lodged by the former owner. The High Court took account of
the fact that the buyer's title had been confirmed by the courts in
an action in nullity of the sale contract lodged against him by the
former owner whereas the former owner's title had not been upheld by
a court. It further considered that dispossessing the buyer
regardless of the circumstances, in order to restore the property to
the former owner, would create disproportionate new wrongs in the
attempt to attenuate old injuries. It also considered, in a general
statement, that reimbursement of the indexed purchase price under Law
no. 10/2001 could not compensate the buyer as it did not reflect the
property's market value.
- In
decision no. 1055 of 9 October 2008 the Constitutional Court declared
Article 47 of Law no. 10/2001 unconstitutional in so far as it
breached the buyer's property title. Under the provision concerned,
persons whose actions based on the Civil Code had been dismissed
before the entry into force of Law no. 10/2001 could use this Law in
order once again to seek the restitution of their property. The
Constitutional Court considered that persons whose title to property
had been confirmed by a court decision could not be compelled to
surrender that property where there was no serious justification for
such a measure, based on public order, under Article 44 § 3
of the Constitution.
COMPLAINTS
- The
applicants complained under Article 6 § 1 of the Convention that
the proceedings against them had not been fair, in particular that
the courts had not correctly applied the relevant law.
- They
also complained that the final decision of 18 September 2001 had
infringed their property right and that no compensation had been
awarded to them for this interference.
THE LAW
- The
applicants' first complaint relates to the alleged unfairness of the
civil proceedings.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that there is no appearance of any violation of the rights and
freedoms set out in the Convention or its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicants' second complaint relates to the alleged interference with
their property rights.
- The
Government contended that the applicants had not exhausted the
domestic remedies, in so far as they had not continued the action for
eviction lodged against the State authorities under the Civil Code.
Had they been diligent in those proceedings, the action would have
allowed them to recover from the State the indexed purchase price
plus damages.
- The
applicants contested that position. In their view, the action in
responsibility for eviction was not an effective remedy in their case
in so far as it could not secure the return of their apartment. They
also considered that they had not been responsible for the lapse of
the action. Despite the fact that they had duly informed the court of
their absence, the hearing had been scheduled for a date when they
were out of country and therefore unable to attend. For the same
reason they had also missed the deadline for appeal against the 30
September 2002 decision, which had thus become final against their
will.
- The
Court recalls that under Article 35 normal recourse should be had by
an applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports of Judgments and Decisions
1996 IV).
- In
the present case the domestic courts compared the title deeds
presented by the applicants and the former owner and decided to give
preference to the former owner's deed. In so doing the courts did not
set aside or declare null and void the applicants' title deed nor did
they award them any compensation for their loss.
However,
the applicants, who could no longer validly use their title deed,
sought compensation for eviction from the seller under the Civil
Code. The domestic case law available to the Court indicates a
consistent practice of awarding damages in cases similar to the
present one. The remedy is therefore available both in theory and in
practice.
- It
remains to be determined whether the amount of compensation that can
be awarded by the national courts is sufficient to afford redress in
respect of the breaches alleged. In this context, the Court notes
that the case at hand stems from the application of the laws on the
restitution of nationalised properties. While acknowledging the
particularly difficult context of compensation for property
nationalised during the communist regime, the Court has expressed the
view that it is necessary to ensure that the attenuation of those old
injuries does not create disproportionate new wrongs (see Pincová
and Pinc, cited above, § 58, and Velikovi and Others
v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99,
51362/99, 53367/99, 60036/00, 73465/01 and 194/02, §§ 178 179,
15 March 2007).
- The
domestic case-law available to the Court indicates that persons in
the applicants' situation would have been awarded at least the
indexed purchase price, and possibly damages up to the property's
current market value, as well as the reimbursement of any costs
reasonably incurred for the upkeep of the house.
- Although
the Court cannot speculate in this case what the outcome of the
proceedings for compensation would have been should the applicants
have continued the proceedings, it notes that the awards made by the
domestic courts in similar situations are significantly higher than
those in the case of Pincová and Pinc, where the Court
found a violation of Article 1 of Protocol No. 1 in so far as the
applicants, who were in a similar situation to that of the applicants
in the instant case, were only granted the purchase price as
compensation for the lost property (see Pincová and Pinc,
cited above, §§ 61-64; see also Velikovi and Others,
cited above, §§ 140-141, and Kalinova v. Bulgaria,
no. 45116/98, § 76, 8 November 2007).
- Lastly,
although the restitution law does not provide for a specific action
against the State for persons in the applicants' situation (see,
mutatis mutandis, Velikovi and Others, § 127, and
Kalinova, § 77, cited above), the Court is satisfied that
this remedy afforded by the Civil Code is sufficient to provide
redress in the applicants' situation.
- The
applicants should thus have exhausted this remedy before lodging
their complaint with the Court.
- As
for the applicants' allegations that they were not responsible for
the lapse of the action, because they had been given dates and
time limits impossible to observe both for the last hearing and
for lodging the appeal, the Court notes that nothing in the case
indicates that the applicants did not have the means to hire counsel
to represent them in the proceedings or at least during the period
when they were out of the country. Likewise, the Court notes that the
applicants did not ask for an extension of the time-limit for lodging
an appeal.
- For
all these reasons the Court considers that responsibility for failing
to pursue the existing effective remedy in the case lies exclusively
with the applicants.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President
