CASE OF TUDOR TUDOR v. ROMANIA
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1944 and lives in Bucharest. 6. From 1973 he lived in an apartment rented from the State in a nationalised building. On 13 January 1997, under Law no. 112/1995 on the legal status of certain residential property, the applicant bought that apartment from the State. 7. In a final decision of 23 May 1997 the Bucharest District Court allowed an action (acţiunea în revendicare) brought by the former owner against the State for recovery of possession of the building where the applicant’s apartment was situated. 8. Based on that decision, the former owner lodged several actions for recovery of possession against the persons who had bought apartments in the building in similar conditions, including the applicant. 9. In a final decision of 28 January 2003 the Bucharest Court of Appeal ordered the applicant to surrender possession of the apartment to the plaintiff. The court found that the former owner’s property title deed, as it had been confirmed by the final decision of 23 May 1997, prevailed over the applicant’s purchase contract. It also considered that the applicant’s bona fides in concluding the 13 January 1997 contract was relevant only in the event that the applicant lodged an action for compensation against the State. 10. Meanwhile, the same Court of Appeal did take into account the buyers’ good faith in dismissing actions lodged by the former owner against other persons who had bought apartments in the same building. Thus, on 28 November 2002 the Court of Appeal dismissed the action against T.I. and T.A., who had bought their apartment on 12 December 1996; on 7 February 2003 it dismissed the action against I.E. and M.S. and on 20 June 2003 it dismissed the action against C.D., who had bought his apartment on 27 March 1997. 11. On 6 April 2006 the High Court of Cassation and Justice, acting on an application by the Procurator General (recurs în anulare), quashed the final decision of 28 November 2002 and sent the case back to the firstinstance court. According to the information available to the Court, the proceedings are still pending with the domestic courts. On 9 February 2006 the High Court allowed a similar application by the Procurator General and set aside the 20 June 2003 decision, thereby allowing the former owner’s action against C.D. A similar action by the Procurator General, lodged against the 7 February 2003 decision mentioned above, was allowed by the High Court on 14 February 2007. The case was sent back to the Bucharest County Court for re-examination of the appeal. The proceedings are still pending with that court. 12. As to the applicant, eviction proceedings lodged by the former owner against him are currently pending with the domestic courts. 13. 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). 14. 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. 15. At the date of the facts of the present case, Article 51 of Law no. 10/2001 on the rules governing immovable property wrongfully seized by the State between 6 March 1945 and 22 December 1989, as amended by the Government’s Emergency Ordinance no. 184 of 12 December 2002 (“Law no. 10/2001”), prescribed that an action for recovery of the purchase price, indexed to take account of inflation, brought against the State by a buyer whose contract had been declared null and void, was not subject to court fees. It also provided that the indexed price was to be paid by the Ministry of Finance from a special fund. 16. At the Court’s request, the Government submitted case-law on the different actions for compensation when property is lost in conditions similar to those of the case at hand. 17. Of the seventeen relevant decisions adopted between 2005 and 2008 by courts all over the country, nine concerned actions lodged against the State authorities by persons who lost their property in actions for recovery of possession. The courts applied the Civil Code and awarded them the indexed purchase price and, in most of the cases, damages and the costs reasonably incurred for the upkeep of the house. Most of the courts considered that Law no. 10/2001 was not applicable to actions for recovery of possession when the sale contract was not declared null and void in such proceedings. 18. When such contracts are cancelled, however, the decisions submitted to the Court indicate that the courts consistently apply Law no. 10/2001 and award the buyer the indexed purchase price. 19. In a 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’the monetary award was the only solution to the action for recovery of possession. 20. 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 surrender 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 the 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. 21. In a 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.