BOICESCU AND OTHERS v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
The applicants, Ms Marie-Jeanne Boicescu, Mr Vlad Boicescu and Mr Şerban Ion Boicescu are Romanian nationals who were born in 1937, 1945 and 1953, respectively, in Craiova and live in Bucharest. They were represented before the Court by Mr Dan Mihai, a lawyer practising in Bucharest. On unspecified dates the applicants filed two administrative applications with the Dolj County Commission for the Implementation of Law No. 112 of 1995 (the Commission) seeking the restitution in natura of the immovable property located at no. 82 Unirii St. in Craiova and nationalised by the State on the basis of the provisions of Law-Decree No. 92 of 1950. By two decisions of 20 March and 8 May 1997 the Commission rejected the applicants' claim seeking the restitution in natura of the immovable property, on the ground that it was occupied by tenants, and acknowledged their right to compensation under the procedure provided for by Law No. 112 of 1995. On 29 July 1997 the applicants brought an action against the Commission seeking the recovery of possession of the claimed immovable property. On 8 January 1998 the Commission valued the immovable property to be worth 412,041,096 lei (ROL), capped the amount in accordance with Article 13 § 2 of Law No. 112 of 1995 and awarded the applicants the total sum of ROL 170,458,080 in compensation. By a decision of 28 October 1998 the Craiova District Court rejected the applicants' action seeking the recovery of possession of the claimed immovable property. It held that by pursuing the procedure provided for by Law No. 112 of 1995 the applicants had acknowledged that the immovable property had been nationalised legally by the State. Therefore, they could no longer bring court proceedings seeking the recovery of possession of their property, as the legal bases of the two sets of proceedings were different and irreconcilable. The applicants appealed the decision. By a decision of 20 April 2000 the Dolj County Court allowed the applicants' appeal and quashed the decision of 28 October 1998 on the ground that the claimed immovable property had been nationalised illegally by the State. The court also ordered the restitution in natura of the immovable property to the applicants. The Commission appealed the decision. By a final decision of 10 November 2000 the Craiova Court of Appeal allowed the Commission's appeal (recurs) and upheld the decision of 28 October 1998 on the ground that the administrative decisions acknowledging the lawfulness of the nationalisation had not been contested by the applicants, the said administrative decisions remained final and therefore the applicants could no longer institute proceedings seeking the recovery of possession of the claimed immovable property. In a letter of 12 September 2001 the applicants informed the Court that they refused to collect the compensation awarded to them on the basis of Law No. 112 of 1995 on the ground that the compensation awarded did not reflect the market value of the property. There is no evidence in the file that the applicants filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws (Laws Nos. 10 of 2001, 247 of 2005 and 1 of 2009) seeking restitution in natura or compensation equivalent to the market value of the claimed immovable property. In a letter of 10 February 2010, delivered to the applicants on 15 February 2010, they were asked to inform the Court if they had filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws. The letter remains unanswered to date. a) The relevant domestic legal provisions concerning excerpts from Law Decree No. 92/1950 regulating the nationalisation of immovable property and excerpts from Law No. 112/1995 regulating the legal status of immovable property nationalised for apartment building use are summarised in Constantinescu v. Romania ((dec.), no. 61767/00, 14 September 2004). b) The relevant provisions of Law No. 10/2001 of 14 February 2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, as it was amended by Law No. 247/2005, are summarised in Halmagiu and Belu v. Romania (no. 10012/03, §§ 18-20, 3 June 2008). c) The relevant provisions of Law No. 1/2009 of 30 January 2009 amending Law No. 10/2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, which entered force on 6 February 2009, read as follows: “(1). Individuals who were compensated under the procedure provided for by the provisions of Law No. 112 of 1995, (...), could claim the restitution in natura of the claimed immovable property insofar as the property had not been sold by the time of the entry into force of the law and insofar as they had returned the amount received as compensation, (...). (2). Where the immovable property was sold in compliance with the provisions of Law No. 112 of 1995, (...), the entitled individuals have a right to equivalent compensatory measures which reflect the market value of the immovable property (...). Where the entitled individuals were awarded compensation on the basis of the procedure provided for by Law No. 112 of 1995, (...), they have a right to be awarded the difference in value between the sums they had cashed in and the market value of the immovable property (...).”