PĂTRÎNJEI v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Ioan Pătrînjei, is a Romanian national, who was born in 1947 and lives in Timişoara. He was represented before the Court by Mr S. Secoban, a lawyer practising in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 26 November 1990 the applicant, a Timişoara Post Office employee, signed a lease with the Timişoara Radiocommunications Agency, an organisation attached to the Timişoara Post Office, for one of the accommodation units located in a building owned by the said Radiocommunications Agency. 5. On 29 July 1992 Law no. 85/1992 on the sale of dwellings and spaces for other purposes built by the State and State-owned companies entered into force. 6. On an unspecified date the Timişoara Post Office and the Timişoara Radiocommunications Agency split into two distinct organisations. While the applicant remained a post office employee, the Agency remained the owner of the building in which the applicant was a tenant. 7. By a decision of 28 December 1993 the board of the Timişoara Radiocommunications Agency decided that for the purposes of Law no. 85/1992 the apartments located in the building the applicant was living in constituted standby personnel accommodation (locuințe de intervenție), that they were intended exclusively for employees of the Agency, and that they could not be sold. 8. On an unspecified date, the tenants’ association of the building in which the applicant lived asked the Timişoara Radiocommunications Agency’s board to allow its members to purchase the apartments they were leasing. The request addressed to the Agency’s board was personally signed by the applicant and twelve other tenants and bore the seal of the association. 9. On 8 March 2004 the Timişoara Radiocommunications Agency notified the applicant that his lease would be terminated and asked him to vacate the apartment he was leasing because – amongst other things – he was not an employee of the Agency and the apartment in question was classified as standby personnel accommodation. 10. On 22 April 2004 the applicant dismissed the Timişoara Radiocommunications Agency’s request of 8 March 2004 on the grounds that the lease was still valid. 11. On 29 July 2004 the Timişoara Radiocommunications Agency brought proceedings against the applicant seeking the termination of his lease and his eviction. It argued, inter alia, that the applicant was not an employee of the organisation which owned the building, and the apartment in question was classified as standby personnel accommodation. 12. On the same date, the applicant lodged a counterclaim against the Timişoara Radiocommunications Agency before the domestic courts seeking – on the basis of Law no. 85/1992 – an injunction ordering the company to sell to him the apartment he was leasing. He argued that the apartment in question could not be classified as standby personnel accommodation and that, although over the years he had repeatedly asked the Agency to sell him the apartment, he had received contradictory and evasive verbal answers. 13. By a judgment of 20 September 2005 the Timişoara District Court dismissed the Timişoara Radiocommunications Agency’s action and allowed the applicant’s counterclaim and ordered the Agency to sell him the apartment he was leasing. It held that the applicant held a valid lease which he had signed before the Agency’s board decided to change the main purpose of the building in which the apartment was located. 14. On 6 April 2006 a bailiff notified the Timişoara Radiocommunications Agency on the applicant’s behalf that, according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. In addition, it asked the Agency to inform the applicant in writing – within five days of the date on which it received the notification – of the date and place where the contract of sale would be signed. 15. The Timişoara Radiocommunications Agency appealed against the aforementioned judgment. It argued that although the applicant contended that he had repeatedly asked to purchase the apartment, he had failed to submit any written documents to support his claim. 16. By an interlocutory judgment of 19 May 2006 the Timiş County Court granted the Timişoara Radiocommunications Agency’s application and asked the applicant to submit evidence that he had asked the Agency to sell him the apartment. 17. By a judgment of 10 November 2006 the Timiş County Court dismissed the Timişoara Radiocommunications Agency’s appeal on the basis of the available evidence. It held that the applicant fulfilled the conditions laid down in Law no. 85/1992 for purchasing the apartment. Moreover, the applicant’s right to purchase the apartment could not be considered time-barred because Law no. 85/1992 did not lay down a timelimit for the applicant to exercise his right to purchase the apartment. Furthermore, the lease could not be considered terminated as long as the applicant had exercised his right of purchase. 18. The Timişoara Radiocommunications Agency appealed on points of law (recurs) against the judgment. It argued that the applicant had not submitted any evidence in support of his claim that he had asked to purchase the apartment prior to the notification sent to him by the Agency that his lease had been terminated. 19. On 29 November 2006 a bailiff notified the Timişoara Radiocommunications Agency for the second time on the applicant’s behalf that according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. 20. By a final judgment of 21 May 2007 the Timişoara Court of Appeal allowed in part the Timişoara Radiocommunications Agency’s appeal on points of law in so far as it concerned the applicant’s counterclaim. It held that the building containing the apartment leased by the applicant had been constructed during the communist regime using Agency funds. According to the expert report available on file, the apartment leased by the applicant was not standby personnel accommodation because some of the tenants leasing apartments in the building were not employees of the Agency. The applicant remained an employee of the Post Office and the leased apartment was owned by the Agency. At the time, the Agency did not wish to sell the apartment leased by the applicant and wanted to keep it in its possession. The court took the view that it could not usurp the will of the owner by its judgment and order the sale of the apartment in circumstances other than those desired by the owner. If the applicant asked the board of the Agency to sell him the apartment and his request was approved, a consensus between the wishes of the parties could be achieved and the contract desired by the parties concluded. However, in the present case the lower courts had misapplied the provisions of Article 7(1) of Law no. 85/1992. In so far as the Agency’s application seeking the termination of the applicant’s lease and his eviction was concerned, the court considered that it had been correctly rejected by the lower courts, that the validity of the applicant’s lease had been extended, and that he occupied the apartment on the basis of valid title. 21. The applicant lodged an extraordinary appeal seeking a review of the judgment (revizuire). 22. On 10 October 2007 the Timişoara Court of Appeal dismissed the applicant’s extraordinary appeal as being time-barred. 23. Section 7(1), (6) and (7) provides that apartments other than standby personnel accommodation built by State-owned companies before the date on which the law entered into force are to be sold to the lease-holders at their request. The provisions of subsection 1 apply also to tenants who are not employees of the companies that own the properties. 24. Section 2 (e) provides that standby personnel accommodation denotes apartments designated as housing for employees of the companies who under the terms of their employment contracts perform activities and functions which require their constant or urgent presence on company premises. 25. The parties submitted eight court judgments delivered between 9 March 2005 and 11 November 2009 concerning the interpretation of the provisions of Law no. 85/1992. These court judgments had been delivered by various domestic courts ranging from the Hunedoara County Court to the Court of Cassation, and were final. They included a judgment on an extraordinary appeal in the interests of the law (recurs ȋn interesul legii) delivered by the Grand Chamber of the Court of Cassation on 21 January 2008 with a view to harmonising the domestic courts’ practice in interpreting the aforementioned legal provisions with regard to leases concluded after the entry into force of Law no. 85/1992. According to those judgments, Sections 1 and 7 of Law no. 85/1992 impose a legal obligation on the companies owning the apartments to sell them. The creation of the legal relationship (raport juridic) is left to the discretion of the lease-holder who has the right to purchase the apartment. A legal obligation to sell exists only when three cumulative conditions are met: the apartment was built by State-owned companies before the date the law entered into force; the person asking to purchase it was the holder of the lease, regardless of whether or not he was an employee of the company which owned the apartment; and the apartment was not classified as standby personnel accommodation within the meaning of the law. 26. According to the judgment on extraordinary appeal in the interests of the law, delivered by the Grand Chamber of the Court of Cassation on 3 April 2013 with a view to harmonising the domestic courts’ practice in interpreting the provisions of Sections 1 and 7 of Law no. 85/1995 concerning the sale of apartments by privately owned companies which had become owners of the apartments as a result of the privatisation process, the legal obligation to sell also applies in respect of the aforementioned privately owned companies.