COSTESCU v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
1. 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. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. 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. 4. 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. 5. 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. 6. In a final decision of 18 September 2001 the Bucharest Court of Appeal upheld that judgment. 7. On 11 July 2007, in the presence of a bailiff, C.S. took possession of the apartment. 8. 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. 9. 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. 10. 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. 11. 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. 12. The District Court summonsed the parties to a hearing on 2 September 2002. 13. 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. 14. On 2 September 2002 the District Court noted the parties' absence and set a new hearing date for 30 September. 15. 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). 16. The applicants did not appeal against that judgment, which became final. 17. 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 2005VII). 18. 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. 19. 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. 20. If the sale contract is cancelled, however, the courts consistently apply Law no. 10/2001 and only award the buyer the indexed purchase price. 21. 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 2002VIII, Raicu v. Romania, no. 28104/03, 19 October 2006, and Păduraru v. Romania, no. 63252/00, ECHR 2005XII (extracts)), it compelled the State to pay the market value of the apartment in compensation to the former owner. In the court'tary award was the only solution to the action for recovery of possession. 22. 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. 23. 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.