CASE OF BRUMARESCU v. ROMANIA
Violation of Art. 6-1 by reason of lack of fair hearing;Violation of Art. 6-1 by reason of refusal of right of access to court;Violation of P1-1;Just satisfaction reserved
L. Mihai;Luzius Wildhaber;Nicolas Bratza
11. In 1930 the applicant’s parents had a house built in Bucharest. From 1939 onwards they let the ground floor to the Mirescu brothers, the uncles of the third party intervening in the case, Mr Mircea Dan Mirescu. 12. In 1950 the State took possession of the applicant’s parents’ house in Bucharest, allegedly under Decree no. 92/1950 on nationalisation. The applicant’s parents were never informed of the grounds or legal basis for that deprivation of property. They were, however, allowed to continue to live in one of the flats in the house as tenants of the State. 13. In 1973, pursuant to Law no. 4/1973, the State sold the Mirescu brothers the flat which they had hitherto occupied as tenants. The intervener, Mr Mircea Dan Mirescu, and his sister, A.M.M., inherited the flat in 1988. After his sister’s death in 1997 the intervener was left as the sole successor in title to the flat. 14. In 1993 the applicant, as the beneficiary of his parents’ estate, brought an action in the Bucharest Court of First Instance (“the Court of First Instance”) seeking a declaration that the nationalisation was null and void on the ground that Decree no. 92/1950 provided that the property of employees could not be nationalised and his parents had been employed at the time of the nationalisation of their house. It is not clear from the documents before the Court whether the applicant informed the Court of First Instance of the sale by the State to the Mirescu brothers in 1973. 15. In a judgment of 9 December 1993 the Court of First Instance held that the nationalisation of the applicant’s parents’ house under Decree no. 92/1950 had been a mistake, as his parents had belonged to a category of persons whose property the decree exempted from nationalisation. The court went on to hold that the State had obtained possession by duress and so could not rely on prescription to establish title. It also ruled that the State could not have acquired title to the house under Decree no. 218/1960 or Decree no. 712/1966 since those instruments had been contrary to the Constitutions of 1952 and 1965 respectively. The court therefore ordered the administrative authorities – namely the mayor of Bucharest and a State-owned company, C., which managed State-owned housing – to return the house to the applicant. 16. No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by way of an ordinary appeal. 17. On 31 March 1994 the mayor of Bucharest ordered the house to be returned to the applicant and on 27 May 1994 the C. company complied. 18. As of that date the applicant ceased to pay rent on the flat he was occupying in the house. 19. The applicant began paying land tax on the house on 14 April 1994 and continued doing so until a date in 1996 (see paragraph 25 below). 20. On an unknown date the Procurator-General of Romania, acting at the instance of Mr Mircea Dan Mirescu, lodged an application (recurs în anulare) with the Supreme Court of Justice to have the judgment of 9 December 1993 quashed on the grounds that the Court of First Instance had exceeded its jurisdiction in examining the lawfulness of the application of Decree no. 92/1950. 21. The hearing before the Supreme Court of Justice was set down for 22 February 1995. Mr Mircea Dan Mirescu was not invited to take part in the proceedings. On the day of the hearing, the applicant requested an adjournment as his lawyer was absent through illness. 22. The Supreme Court of Justice refused that request and proceeded to hear oral argument, after which it reserved judgment until 1 March 1995, the applicant being ordered to file written submissions before that date. 23. In those submissions, the applicant requested the Supreme Court of Justice to dismiss the Procurator-General’s application. He argued, first, that Decree no. 92/1950 had been incompatible with the 1948 Constitution, both in that it had been published only in part and in that it had breached the principle that no expropriation should be effected save in the public interest and after payment of fair compensation. Secondly, he submitted that, since his parents had been employees at the time of the nationalisation, the decision to nationalise their house had contravened the terms of the decree, which provided that dwellings belonging to employees could not be nationalised. Lastly, the applicant relied on Article 21 of the Romanian Constitution of 1991, which guarantees unrestricted access to the courts. 24. On 1 March 1995 the Supreme Court of Justice quashed the judgment of 9 December 1993 and dismissed the applicant’s claim. It held that property could be acquired by way of legislation, noted that the State had taken the house on the very day on which Decree no. 92/1950 on nationalisation had come into force and reiterated that the manner in which that decree had been applied could not be reviewed by the courts. Accordingly, the Bucharest Court of First Instance could not have found that the applicant was the rightful owner of the house without distorting the provisions of the decree, thus exceeding its powers and encroaching on those of the legislature. The Supreme Court of Justice confirmed that former owners were entitled to bring actions for recovery of possession but held that the applicant in the case before it had not established his title, whereas the State had demonstrated title under the nationalisation decree. In any event, provision as to redress for any wrongful seizure of property by the State would have to be made in new legislation. 25. Thereupon, the tax authorities informed the applicant that the house would be reclassified as State property with effect from 2 April 1996. 26. On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged in Bucharest pursuant to Law no. 112/1995 (“the Administrative Board”). He submitted that he had been dispossessed of his house in 1950 in breach of Decree no. 92/1950 on nationalisation; that the Bucharest Court of First Instance had held that that deprivation of property had been unlawful in a final judgment of 9 December 1993; and that he was therefore entitled to be reinstated as the owner of the whole house. 27. In a report drawn up in November 1997 the valuation board established under Law no. 112/1995 valued the applicant’s house at 274,621,286 Romanian lei (ROL), of which the flat occupied by the applicant accounted for ROL 98,221,701. 28. On 24 March 1998 the Administrative Board vested ownership of the flat rented by the applicant in him and awarded him financial compensation for the rest of the house. Having regard to section 12 of Law no. 112/1995, which put a ceiling on compensation, and to the ceiling applicable in November 1997 – ROL 225,718,800 – the Board awarded him ROL 147,497,099. 29. On 14 May 1998 the applicant challenged that decision in the Bucharest Court of First Instance, attacking the Board’s refusal to return the whole house to him and pointing out that no grounds for that refusal had been given. He argued that in his case, where there had been an unlawful deprivation of property, Law no. 112/1995 – which concerned lawful expropriations – did not apply. Accordingly, his only means of protecting his right of property was an action for recovery of possession. However, since he had already brought such an action, and since the Court of First Instance, in a final judgment of 9 December 1993, had held him to be the owner of the house, he believed himself to be debarred from bringing a fresh action for recovery of possession. Consequently, he sought a declaration that he was the owner of the whole house and stated that he was not seeking compensation under Law no. 112/1995. 30. That application was dismissed on 21 April 1999. The applicant appealed and the proceedings are currently pending in the Bucharest County Court. 31. Article 21 of the Romanian Constitution provides: “Everyone shall be entitled to apply to the courts for protection of his rights, freedoms or legitimate interests. The exercise of this right shall not be restricted by any statute. ...” 32. The relevant provisions of this Act read: “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds: 1. that the court in question has exceeded its jurisdiction; 2. ...” “An application for a judicial decision to be quashed may be made at any time.” 33. Article 3301 was amended as follows: “Article 3302: An application under Article 330 § 1 for a judicial decision to be quashed may be made within six months of the date on which the judicial decision in question becomes final ...” 34. The relevant provisions of this decree read: “... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage; [and] In order to deprive exploiters of an important means of exploitation; The immovable property appearing in the schedules ... annexed to and forming part of this decree shall be nationalised. The listed property comprises: 1. immovable property belonging to former industrialists, owners of large estates, bankers, owners of large trading enterprises and other representatives of the wealthy capitalist class; 2. immovable property belonging to real-estate exploiters ...” “The immovable property of workers, civil servants, small artisans, persons working in intellectual professions and retired persons shall be excluded from the scope of this decree and shall not be nationalised.” 35. The relevant provisions of this decree read: “Subject to its obligation to apply the criteria laid down ... in Article II [of Decree no. 92/1950], the Cabinet may amend the annexes [containing the schedule of immovable property to be nationalised] to [that] decree. The Cabinet may also decide not to apply the nationalisation provisions to any flat or [other] immovable property.” 36. In a number of cases the Civil Division of the Supreme Court of Justice upheld judgments of lower courts asserting their jurisdiction to deal with claims concerning immovable property that had been nationalised, including property nationalised under Decree no. 92/1950. In a judgment of 9 March 1993 (no. 518), for instance, it held, on the issue whether the courts had power to deal with cases concerning the application of Decree no. 92/1950: “... in ruling on the applicant’s claim for recovery of possession, and in allowing it, the courts, which have general jurisdiction under the law to determine civil disputes, merely applied the terms of the decree. To be more precise, they applied those of its provisions that forbid the nationalisation of certain immovable property and those which require such property to be returned in the event of an erroneous or improper application of the decree.” 37. On 2 February 1995 the full Supreme Court of Justice decided by a majority of twenty-five to twenty to depart from the Civil Division’s previous decisions, holding: “[T]he courts do not have jurisdiction to impugn Decree no. 92/1950 or to order that property nationalised under its provisions be returned ...; legislation alone can bring the nationalisations carried out under Decree no. 92/1950 into accord with the provisions of the present Constitution concerning the right of property ...” 38. On 28 September 1998 the full Supreme Court of Justice unanimously decided to depart from its ruling of 2 February 1995 that the courts did not have jurisdiction in matters concerning infringements of the right of property committed between 1944 and 1989. It held: “[T]he courts have jurisdiction to entertain any action concerning an alleged infringement of the right of property or other rights in rem where such an infringement occurred between 1944 and 1989.” 39. On 19 July 1995 the Constitutional Court ruled on the constitutionality of a bill to regulate the legal status of residential property which had passed into State ownership. As to whether the owners of immovable property which the State had vested in itself improperly or without legal authority could sue for return of their property or obtain compensation, it held: “... The situation is different in relation to dwellings which became State property through an unlawful administrative act or simply de facto – that is to say without any legal authority, the State’s ownership having no basis in law. In such cases the individual’s legal right to the property has never been extinguished, with the result that, since the State is not the owner, such property cannot be covered by a statute whose object is to regulate the legal status of dwellings which have passed into State ownership. In other words, ... the measures which the bill before us seeks to introduce are not applicable to dwellings not legally vested in the State. If the bill were to treat the State as owning immovable property which it had taken without legal authority, it would be conferring ownership on the State retrospectively, or else introducing a mechanism not envisaged by the 1991 Constitution for transforming individual ownership into State ownership, and that cannot be accepted. It follows that this Court must allow the objection that this part of the bill, in so far as it deals with immovable property taken without legal authority by the State or other artificial persons, is incompatible with the Constitution ... It is for Parliament to decide, when amending the bill, whether to make provision for persons who have been deprived of their dwellings by the State without legal authority, or for the successors in title of such persons, to be able to benefit from the Act if they choose not to embark on the slow, uncertain and costly course of bringing an action for recovery of possession ...” 40. The relevant provisions of this Act read: “Individuals who formerly owned residential property which passed lawfully into the ownership of the State or of another artificial person after 6 March 1945 and which was still in the possession of the State or another artificial person on 22 December 1989 shall be entitled to benefit, by way of reparation, from the measures in this Act. The provisions of this Act shall apply equally to the successors in title of such former owners, subject to existing statutory provisions.” “The persons referred to in section 1 shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant. In respect of other flats, those persons shall receive compensation as provided in section 12 ...” “The amount of compensation to be awarded to former owners or their successors in title in respect of flats which have not been returned to them, or the sale price of such flats, as the case may be, shall be determined in accordance with Decree no. 93/1977, legislative Decree no. 61/1990 and Law no. 85/1992. The value of the appurtenant land shall be determined according to the criteria (Document 2665 of 28 February 1992) for identifying and valuing land held by State-owned commercial companies ... The values so determined shall be converted to present-day levels by means of multipliers which may not be lower than the rate of increase in the national average salary over the relevant period. Neither the total value of a flat which is returned nor the total amount of compensation due for a flat which is not returned and for the appurtenant land may exceed the cumulative total of the national average salary for each year over the period of twenty years expiring on the date on which the compensation is assessed. Where a flat whose value, calculated according to the rules laid down in the first paragraph of this section, exceeds the total referred to in the second paragraph is returned, pursuant to section 2, to its former owner, his heirs or living relatives to the second degree of consanguinity, those persons cannot be obliged to pay the difference. The amount of compensation due at present-day levels under the above provisions shall be calculated on the day of payment, on the basis of the national average salary for the last month of the previous quarter. For the purpose of implementing this Act, an extrabudgetary fund shall be established, on which the Ministry of Finance may draw and into which shall be paid: (a) the proceeds of the sale of non-returned flats, including payments in full, deposits, monthly instalments and interest (less commission of 1% of the value of each flat); and (b) the proceeds of government bonds issued for the purpose of financing the fund, as provided in Law no. 91/1993 on public borrowing. The above fund may be drawn on for the following purposes, in order of priority: (a) to pay the compensation due under the provisions of this Act to owners or their successors in title; (b) to redeem the bonds issued and cover the expenses entailed by their issue; and (c) to build housing to be allocated in the first instance to tenants in the situation referred to in section 5(3).” 41. On 23 January 1996 the government adopted decision no. 20/1996 implementing Law no. 112/1995. The decision provided that immovable property which had passed into State ownership under a legislative provision was to be regarded as property legally vested in the State. It also specified that Law no. 112/1995 did not apply to immovable property held by the State where its title was not based on any legislative provision. 42. On 18 February 1997 the government adopted decision no. 11/1997 to supplement decision no. 20/1996. Section 1(3) of decision no. 11/1997 provided that, in order for property to be defined as having been acquired by the State under Decree no. 92/1950, it had to have been acquired in accordance with Articles I §§ 1-5 and II of the decree and the person referred to in the lists drawn up under the decree as the owner of the property had to have been the true owner at the date of the nationalisation. 43. Following government decision no. 11 of 18 February 1997, former owners who had succeeded in obtaining final court judgments ordering their property to be returned, only to see those judgments quashed by the Supreme Court of Justice on an extraordinary application by the ProcuratorGeneral, brought fresh actions for recovery of possession. The plea of res judicata raised in those new actions was not treated in the same way by all courts, as appears from the following. “... the property sought to be recovered has already been the subject matter of proceedings between the same parties, resulting in judgment no. 212 of 12 January 1994 (now final and enforceable), in which this Court found for I.P. and declared him to be the owner of the property ... The Procurator-General applied for that judgment to be quashed and on 28 September 1995 the Supreme Court of Justice did quash it and substituted its own judgment dismissing I.P.’s claim ... ... in accordance with Article 1201 of the Civil Code, which provides that ‘the principle of res judicata applies where a fresh action concerning the same subject matter, based on the same cause of action, is commenced between the same parties acting in the same capacities’, this Court finds that there have already been proceedings between these same parties in respect of the same property and that those proceedings have been determined by the Supreme Court of Justice ... … that being so, this Court accepts the plea of res judicata and holds that it cannot entertain the plaintiff’s claim.” “... this Court finds that Decree no. 92/1950 was unlawfully applied to the building owned by the plaintiff ..., orders that it be returned to her and dismisses the plea of res judicata ...” 44. The relevant provisions of this Act read: “1. Property acquired by the State between 6 March 1945 and 22 December 1989, provided that it passed into State ownership lawfully, that is to say in a manner not contrary to the Constitution, to international treaties to which Romania was a party or to any legislation in force at the time at which it passed into State ownership, shall likewise form part of the public or private property of the State or other public authorities. 2. Save where it is governed by special reparation laws, property held by the State without valid legal authority, including property acquired by way of a transaction voidable for lack of true consent, may be claimed by former owners or their successors in title. 3. The courts have jurisdiction to determine whether or not the legal authority is valid.”