CASE OF RADOVICI AND STANESCU v. ROMANIA [Extracts]
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - financial award (global);Costs and expenses partial award - domestic proceedings
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Vladimiro Zagrebelsky
8. The applicants were born in 1930 and 1933 respectively and live in Bucharest. 9. The facts of the case specific to each application, as submitted by the parties, may be summarised as follows. 10. In 1996 the applicants brought before the Bucharest District Court an action for recovery of possession in respect of property that had been nationalised by Decree no. 92/1950. Situated in Bucharest, at 184-B Calea Griviţei, the property consisted of a house divided into flats and the land on which it was built. At the time, one of the flats was occupied by E.D. under a tenancy agreement entered into with the State in 1986 and extended until 8 April 1999 pursuant to Law no. 17/1994 of 18 April 1994. 11. In a final judgment of 2 April 1997, the court allowed the applicants’ action on the ground that the nationalisation of the property had been illegal and ordered the competent administrative authorities to return the property to them. On that date the applicants began to pay the rates and land taxes levied on their property. 12. On 26 August 1998 the applicants notified E.D. of the judgment of 2 April 1997 through the intermediary of a bailiff and by registered letter with return receipt, in accordance with Law no. 114/1996 of 11 October 1996. In their notice, the applicants requested E.D. to enter into a tenancy agreement with them, as the new owners of the flat that E.D. occupied, and informed her, for the payment of the rent, of the details of a bank account in their names with the Savings Bank. 13. In May 1999, after the entry into force of Government Emergency Ordinance no. 40/1999 of 8 April 1999, the applicants visited E.D., who had declined to respond to their request, with a view to entering into a tenancy agreement with her; they were faced with a categorical refusal on the part of E.D. 14. On 25 August 1999 the applicants brought proceedings for the eviction of E.D. in the Bucharest District Court. They claimed that E.D. was occupying their property without any right of tenancy and had refused to enter into a tenancy agreement with them or to pay them rent in that connection. They further complained that E.D. had been breeding pigs in the basement of the house, thus damaging it and rendering it insalubrious. 15. In a judgment of 9 January 2000, the District Court granted their application and ordered the eviction of E.D. from the disputed property. It found that E.D. had not requested an extension of her tenancy of the flat occupied by her and her family, which she had been entitled to do under Article 2 of Government Emergency Ordinance no. 40/1999 and which would have enabled her to enter into an agreement with the new landlords. The court further observed that the applicants had not complied with the obligation under Article 10 § 1 of the Ordinance to notify the tenant, within a period of thirty days from the entry into force of the Ordinance, through the intermediary of a bailiff and by registered letter with return receipt, of the date and place fixed for the signing of a tenancy agreement. 16. Whilst the court observed that, under Article 11 § 1 of the Ordinance, failure by a landlord to comply with those formalities resulted in the extension of the previous tenancy until the signing of a new agreement, it nevertheless considered that this provision was not applicable in the present case in view of the exception provided for by Article 13 (d) of the Ordinance whereby there was no extension in the event of a dispute arising from a tenant’s refusal to enter into a tenancy agreement with the new landlord. The court thus considered that the applicants had adduced evidence of the refusal by E.D. to enter into such an agreement. Accordingly, it held that that existing tenancy agreement had not been extended and that E.D. was occupying the applicants’ property without any right of tenancy. 17. In a judgment of 11 May 2000, the Bucharest County Court upheld the merits of that judgment on appeal. It considered that the court below had correctly applied Article 13 (d) of the Ordinance, finding that the existing tenancy agreement had not been extended in view of the refusal by E.D., as proven by the applicants, to enter into a new agreement with them as the new landlords. 18. In a final judgment of 26 September 2000, the Bucharest Court of Appeal granted an appeal by the defendant and dismissed the applicants’ action. It found that the applicants had failed to comply, when serving their notice on E.D. requesting her to enter into a tenancy agreement, with the conditions and formalities laid down in Article 10 § 1 of the Ordinance, and accordingly held that the existing tenancy agreement between E.D. and the State had been automatically extended pursuant to Article 11 § 1 of the Ordinance. The reasoning in the judgment made no mention of the applicability in the present case of Article 13 (d) of the Ordinance. 19. On 9 August 2001 the applicants brought proceedings against E.D. seeking from her the payment of compensation for having deprived them of the enjoyment of the flat in their house that the defendant had occupied since 1998 without paying them any rent. 20. In a judgment of 30 November 2001, the Bucharest District Court dismissed their application on the ground that the defendant had a tenancy agreement with the State, which had been extended automatically as the applicants had failed to comply with the formalities provided for in Article 10 § 1 of the Ordinance. That judgment became final on an undetermined date, after being upheld by the Bucharest County Court on an appeal by the applicants. 21. On 8 August 2001 the applicants brought eviction proceedings against E.D. in the Bucharest District Court on the ground that she had been occupying a flat, of which they were the owners, without paying them any rent, and that her conduct was such that her cohabitation with the other occupants of the building had become impossible. The applicants indicated that, after they had been granted the return of their property by the final judgment of 2 April 1997, they had made a number of attempts to enter into a tenancy agreement with the defendant, who had constantly behaved aggressively towards them, but had been unsuccessful. They referred to a number of complaints that they had filed against E.D. with law-enforcement agencies. They relied on section 24(b) of Law no. 114/1996 taken in conjunction with Article 13 (i) of the Ordinance. 22. In a judgment of 14 September 2001, the Bucharest District Court dismissed their action as manifestly ill-founded. It considered that, as it concerned the termination of a tenancy agreement, they should have proved that they had entered into such an agreement with the defendant and that there were circumstances which rendered her cohabitation with the other occupants of the building impossible, but that they had failed to adduce such evidence. The reasoning in this judgment made no reference to the applicants’ complaint concerning E.D.’s failure to pay rent. 23. The applicants appealed against that judgment. In a final judgment of 15 February 2002, the Bucharest County Court granted their application. It held that E.D. had been occupying their property without any right of tenancy, taking into account the fact that the defendant had prevented the connection of the flat to the town gas network and had impeded the use by the other tenants of the common parts of the building, as a result of which her tenancy agreement was not being automatically extended. The court consequently ordered her eviction from the flat that she had been occupying in the applicants’ building. 24. On 13 September 2002 the applicants lodged an action for eviction against the members of E.D.’s family who had been living with her in the flat. Their application was granted by a final judgment of 11 November 2002, which ordered the eviction from the flat of the members of E.D.’s family. 25. On 23 September 2003 a bailiff from the Bucharest District Court’s service for the execution of judgments went to the applicants’ flat and restored possession of the premises to them after breaking the locks on the front door to gain access. The bailiff noted in the record drawn up that day that serious damage had been done to the flat, in which several window panes were missing or broken. 26. The applicants never received any rent for the flat which E.D. had occupied in their building between 2 April 1997 and 23 September 2003. ... 53. The relevant provisions of domestic law read as follows at the material time. 54. Section 24 of Law no. 5/1973 provided: “The tenant shall lose the right to occupy the leased accommodation and shall be evicted in the following cases: ... (d) If, in bad faith, he or she has failed for a period of three consecutive months to pay the rent or the service charges. The tenant’s eviction, in the cases provided for in this section, shall be ordered by a decision of the courts.” 55. Section 1 of Law no. 17/1994 read as follows: “Regardless of the type of landlord, any residential tenancy agreement concerning housing of which the lease is governed by Law no. 5/1973 ... , and which is in progress at the time of the entry into force of the present Law, shall automatically be extended for a period of five years under the same conditions [as those laid down in Law no. 5/1973].” 56. The relevant sections of Law no. 114/1996 read as follows: “The lease of residential premises shall be granted under an agreement between landlord and tenant recorded in writing and registered with the local tax authorities ...” “Should the parties fail to agree on the renewal of the tenancy agreement, the tenant shall be required to vacate the premises on the expiry of his or her tenancy.” “Tenancy agreements shall be terminated prior to their expiry date in the following cases: ... (b) at the request of the landlord, should the tenant fail to pay the rent for three consecutive months; ... (i) when the tenant’s conduct renders impossible his or her cohabitation with the other occupants of the building or prevents the normal use of the premises; ...” 57. The relevant Articles of the Ordinance read as follows: “The term of a residential tenancy agreement ... concerning premises that have been returned to their former owner shall be extended at the request of the tenant for a maximum period of three years from the date on which the present Ordinance comes into force.” “A new tenancy agreement shall be entered into between the landlord and the tenant at the tenant’s request. The private landlord shall register the new tenancy agreement with the local tax authorities. The legal entity that previously possessed or administered the property shall inform the tenant under the existing tenancy agreement, by letter with return receipt, within a period of fifteen days after the return of the property, that he or she may from that date onwards enter into a new tenancy agreement with the landlord to whom the property has been returned.” “The landlord shall notify the tenant, within a period of thirty days following the entry into force of the present Ordinance and through the intermediary of a bailiff, of the date and place fixed for the signing of a new tenancy agreement. The notice shall be served by registered letter with return receipt. ...” “Failure by the landlord to comply with the provisions of Article 10 § 1 shall lead to the automatic extension of the existing tenancy agreement until the parties have entered into a new agreement. Failure by the tenant to pay rent until the signing of the new agreement may not be relied upon by the landlord as a ground for eviction. In the event that, within a period of sixty days following the date of receipt of the notice, the tenant fails to reply in writing or refuses without justification to enter into a new tenancy agreement, the landlord shall be entitled to seek the unconditional eviction of the tenant ... by presidential decree.” “The tenancy agreement shall not be extended: ... (d) in the event of a dispute resulting from the refusal of the tenant, after being notified pursuant to Law nos. 17/1994, 112/1995 or 114/1996, to enter into a new tenancy agreement with the landlord; ... (i) where the tenant renders cohabitation impossible or impedes the normal use of the dwelling; ...” “The amount of the rent shall be fixed by negotiation between the tenant and the landlord at the time they enter into the new tenancy agreement. The rent shall not exceed 25% of the monthly net income of the household if this income does not exceed the average monthly net salary nationwide.” 58. Law no. 241/2001 of 16 May 2001 approved Government Emergency Ordinance no. 40/1999 and amended its Article 2, raising to five years the term of the tenancy agreement extended at the request of the tenant where the property had been returned to its former owner. The Law also amended Article 32 of that Ordinance by providing that the rent to be paid by the tenant could not exceed 15% of the monthly net income of his household. 59. Government Emergency Ordinance no. 40/1999 ceased to be in effect on 8 April 2004. Under Government Emergency Ordinance no. 8/2004, only tenancy agreements concerning premises belonging to the State could be extended by five years, at the request of the tenant.