CASE OF DICKMANN AND GION v. ROMANIA
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. Following the establishment of the communist regime in Romania in 1947, the State proceeded to nationalise buildings and agricultural land on a large scale. After the fall of the communist regime, the State enacted a series of laws aimed at affording redress for breaches of property rights by the former regime (see paragraphs 43-51 below). 6. Laws nos. 112/1995 and 10/2001 established the principle of restitution of nationalised residential property and compensation in cases where restitution was no longer possible. Law no. 112/1995 introduced a cap on compensation, but this was subsequently abolished by Law no. 10/2001. 7. Law no. 247/2005 attempted to harmonise the administrative procedures for restitution of properties covered by the above-mentioned laws and by the special legislation concerning restitution of agricultural land. 8. On 12 October 2010, the Court adopted a pilot judgment in the case of Maria Atanasiu and Others v. Romania (nos. 30767/05 and 33800/06, 12 October 2010), in which it singled out the deficiencies of the restitution mechanism, indicating to the respondent State under Article 46 of the Convention that new steps needed to be taken in order to process the restitution claims with more efficiency. 9. On 15 May 2013 Law no. 165/2013 came into force, setting out various procedures available to petitioners seeking settlement of their restitution claims. 10. Based on the parties’ observations and comments regarding the new remedies set out by Law no. 165/2013, on 29 April 2014 the Court found in its judgment in the case of Preda and Others v. Romania (nos. 9584/02 and 7 others, §§ 134-40, 29 April 2014), that the mechanism established by the new law offered a range of effective remedies that needed to be exhausted by those claimants whose complaints referred to one of the following situations: the existence of concurrent titles to property with respect to the same plot of agricultural land; the annulment of such title to property without any compensation; the delivery of a final judgment confirming the right to compensation in respect of the unlawful seizure by the State of any type of immovable property, without fixing the amount; the failure to pay such compensation awarded in a final judgment; and the prolonged failure to give a decision on a restitution claim. 11. However, the Court also held that Law no. 165/2013 did not contain any provisions of a procedural or substantive nature capable of affording redress on the matter of the existence of final judgments validating concurrent titles to property with respect to the same residential property. Furthermore, no procedure was available to former owners who, in the absence of restitution, would have been entitled to compensation but who did not to have access to it because the circumstances rendering restitution impossible had become known after the expiry of the time-limit for lodging compensation claims (ibid., § 124). 12. The complaints set out in the present applications reflect the circumstances described above (see paragraph 11). In particular, the applicants have alleged that their title to the property (building and appurtenant land) had been acknowledged by the domestic courts; however, owing to the sale of the property by the State, the applicants were prevented from enjoying their respective right. They claimed that this deprivation, together with the total lack of compensation for it, had imposed on them an excessive and disproportionate burden. 13. In 1950, under Decree no. 92, the State nationalised the building and its appurtenant land located at 22 Şoseaua Giurgiului in Bucharest, which belonged to the applicant’s predecessors. 14. In 1997 the applicant lodged a claim with the domestic courts for restitution of the above-mentioned property, alleging that its nationalisation had been unlawful and that therefore the property right had left her predecessors’ rightful ownership only when it had been transferred to her as heritage. The claim was formulated against Bucharest City Council and B., a State-owned company responsible for the management of property belonging to the State. 15. In its judgment of 6 June 1997 the Bucharest Fourth District Court allowed the claims and ordered that the property be returned to the applicant, in her capacity as sole heiress of its rightful owners. The court held that the immovable property had been nationalised unlawfully, since the applicant’s predecessors had not belonged to any of the social categories covered by the nationalisation decree and thus their right of property had been valid and continuous, being transferred as heritage to the applicant; the State could not therefore claim a valid title to the property. 16. The judgment was not appealed against and thus became final. 17. On 12 May 1998 the Mayor of Bucharest issued a restitution decision in respect of the immovable property located on Şoseaua Giurgiului, in compliance with the operative part of the judgment of 6 June 1997. 18. Under the terms of contracts entered into in accordance with Law no. 112/1995, company B., managing the building (see paragraph 14 above), had sold the flats located therein to the tenants. 19. The sale contract in respect of the first-floor flat was concluded on 5 November 1996 between B., representing the State, and the tenants, S.N. and S.P. 20. The sale contract in respect of the ground-floor flat was concluded on 23 June 1997 between B. on behalf of the State, and the tenant, S. A.-L. 21. On an unspecified date in 2000 the applicant lodged before the domestic courts two civil actions seeking the rescission of the sale contracts of 5 November 1996 and 23 June 1997 respectively, in so far as the State had sold property which it had not owned. 22. The final judgment of 7 February 2002 given by the Bucharest Court of Appeal dismissed the claim in respect of the first-floor flat, holding that the applicant did not have legal standing to ask for the rescission of the sale contract, in so far as she had not been a party thereto. 23. In its final judgment of 14 October 2003, the Bucharest Court of Appeal dismissed the applicant’s claim in respect of the ground-floor flat, holding that the buyer had acted in good faith and had thus acquired a valid title to the property, in accordance with the provisions of Law no. 10/2001, which had entered into force in the meantime. The court also held that the applicant was eligible for compensatory measures pursuant to the notice of claim (notificare) lodged with the administrative authorities under Law no. 10/2001 (see paragraph 25 below). 24. On 12 August 2002 the applicant lodged another action before the domestic courts, seeking again the rescission of the sale contract concerning the first-floor flat. This time, however, she based her claim on the provisions of Law no. 10/2001. In its final judgment of 1 February 2006 the Bucharest Court of Appeal dismissed the applicant’s claim, holding that in so far as the sale contract had been concluded by the buyers in good faith, it was in compliance with the law. 25. On 12 October 2001 the applicant lodged a notice of claim with the Bucharest City Hall under Law no. 10/2001, seeking reparatory measures in respect of the two flats. Several documents were appended to the application, including a copy of the judgment of 6 June 1997 and a copy of the inheritance certificate attesting to the fact that the applicant was the sole heiress of her predecessors. 26. On 23 and 24 April 2015 the Bucharest City Hall requested the applicant to complete her administrative file with documents related to her claim. However, the request did not reach the applicant, as the contact information mentioned in the 2001 application was no longer valid. 27. As far as the Court is aware, no decision has been taken in respect of this claim. 28. On 6 May 1977 flat no. 30, located in building A/4, Victoria Street, Piteşti – the applicants’ property – was seized by the State under Decree no. 223/1974, following the applicants’ decision to leave the country. They were not notified of the administrative decision to confiscate the property. 29. Between 1991 and 1995, the applicants wrote several letters to various domestic authorities, including the Piteşti City Council, the Piteşti Prefect’s Office and the director of company R., which managed the building on behalf of the State, seeking to obtain possession of the flat. The replies stated that the applicants’ claims could not be granted, as no relevant legislation had yet been enacted concerning reparatory measures in respect of previously nationalised property. In one of the replies sent by the Piteşti City Council on 1 May 1995, the applicants were informed that flats which had been nationalised under Decree 223/1974 could not be purchased by their current tenants from the local authorities. 30. On 9 July 1996 the applicants lodged a claim with the administrative authorities, seeking reparatory measures in respect of flat no. 30, in accordance with the provisions of Law no. 112/1995. 31. On 17 January 1997 company R. sold the flat to the tenants, S.C. and S.M. 32. On 16 May 1997 the administrative authorities dismissed the applicants’ claims lodged under Law no. 112/1995, in view of the fact that the flat had already been sold to its tenants. 33. On 30 August 1999 the applicants lodged before the Argeş County Court an action against Piteşti City Council, aiming to recover possession of flat no. 30. They claimed that the confiscation of the property had been unlawful, as on the one hand it had been in breach of the Constitution in force at the time, and on the other hand, they had not been notified of the administrative decision to confiscate it. 34. On 22 May 2000 the County Court allowed the applicants’ claims. The defendant appealed. On 23 March 2001 the Piteşti Court of Appeal dismissed the appeal because no statement of appeal had been submitted. The decision thus became final. 35. On 19 September 2002 the applicants, assisted by a bailiff, recovered possession of flat no. 30; the relevant minutes mentioned that the flat was empty and unfurnished. 36. On 1 October 2002 S.C. and S.M. challenged the enforcement of the judgment of 22 May 2000 (see paragraph 34 above). They claimed to be the rightful owners of flat no. 30, having bought it in good faith in 1997; furthermore, in so far as they had not been parties to the proceedings terminated by the outstanding judgment of 22 May 2000, they were not bound by it (inopozabilă). 37. By a final judgment of 25 June 2003, the Piteşti Court of Appeal allowed the claims of S.C. and S.M. In its reasoning, the court essentially held that the sale contract had been validly and lawfully concluded by the tenants, who had acted in good faith at the time of the sale. Moreover, the judgment of 22 May 2000 awarding the applicants title to the property was unenforceable (inopozabilă) against the buyers, because they had not been parties to the respective proceedings. 38. On 22 November 2006 the applicants lodged an action against S.C. and S.M. seeking to recover possession of flat no. 30 and urging the courts to find the sale contract unlawful. Their claims were allowed by the Piteşti District Court on 23 January 2008. 39. An appeal lodged by the defendants was allowed by the Argeş County Court on 16 June 2008. The court considered that the sale of the flat had been lawful. At the same time, it held that the applicants were entitled to compensation for the flat, equivalent to its market value at the date of payment. 40. The applicants have not lodged any claims under Law no. 10/2001.