BÂRZĂ AND OTHERS v. ROMANIA
Inadmissible
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicants – Mr Mircea Bârză, Mr Ştefan Necşuleu, Ms Marcela Felicia Necşuleu, Mr Ioan Voicu, Ms Maria Voicu, Mr Viorel Zudor, Ms Livia Zudor, Mr Cornel Oprița, Mr Ioan Muntean, Ms Ana Muntean, Mr Ioan Şeican, Ms Victoria Şeican, Ms Maria Voic, Ms Mariana Voic and Ms Ioana Voic – are Romanian nationals who were born in 1950, 1951, 1954, 1930, 1937, 1952, 1954, 1949, 1928, 1928, 1949, 1951, 1928, 1953 and 1953, respectively, and live in Alba-Iulia. They were represented before the Court by Mr E.A. Popescu, a lawyer practising in Alba-Iulia. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants had lived on the same street for over thirty years. The street they lived on had been built – in order to afford them easy access to their homes – on their own private land. 5. By Government Decision no. 974/2002 confirming the inventory of the public property owned by Alba County, the street on which the applicants’ houses were located was transferred, as public property, to Alba County. 6. On an unspecified date the applicants lodged a preliminary complaint (procedura prealabilă) with the Government, seeking to have Government Decision no. 974/2002 cancelled on the ground that they were the owners of the land on which the street their houses were located on was built. 7. On 11 April 2007 the Romanian Government dismissed the preliminary complaint on the grounds that the impugned decision had been lawful and that the complaint was time-barred. 8. On 8 May 2007 the applicants instituted court proceedings against the Romanian Government and Alba-Iulia Local Council seeking the annulment, inter alia, of part of attachment no. 12 to Government Decision no. 974/2002. They argued that the domestic authorities had unlawfully transferred to public ownership the street, which had been built on their private land. Moreover, they argued that Government Decision no. 974/2002 had been issued on the basis of Article 108 of the Romanian Constitution and Article 21(3) of Law no. 213/1998 on public property. Consequently, it had been of a normative character and had therefore – under Article 11(4) of Law no. 554/2004 – not been subject to statutory limitation. Furthermore, the applicants supported their claim that the impugned decision had been of a normative character by relying on, inter alia, the Court of Cassation’s judgment no. 1511 of 2 May 2006. 9. The domestic authorities argued that the applicants’ action was timebarred. 10. On 13 July 2007 the Alba-Iulia Court of Appeal dismissed the applicants’ action. It noted that in 2003 the applicants had instituted court proceedings against Alba-Iulia Local Council and a third party, seeking an injunction against Alba-Iulia Local Council and that third party to acknowledge the applicants’ ownership of the land on which the street their houses were located on was built. During those proceedings, on 19 March 2004 the Alba-Iulia Mayor’s Office had expressly informed the applicants that the street their houses were located on had been transferred to public ownership and had been mentioned in attachment no. 12 to Government Decision no. 974/2002. The court held that the attachment was undoubtedly a unilateral administrative act of an individual character because it contained an inventory of the properties transferred to public ownership and was published in the Official Gazette (no. 701(bis.) of 25 September 2002). Moreover, the applicants had expressly been made aware of the transfer by the information note of 19 March 2004 sent to them by the Alba-Iulia Mayor’s Office. The applicants had initiated the proceedings before the court on 8 May 2007. The proceedings were therefore time-barred, given the statutory time-limit provided by Article 11(2) of Law no. 554/2004 on actions before administrative courts. 11. The applicants appealed on points of law (recurs) against the judgment and reiterated the arguments they had raised before the firstinstance court. Moreover, they contended that the Court of Cassation’s judgment no. 1511 of 2 May 2006 had already established (in proceedings initiated by another third party) that Government Decision no. 974/2002 was an administrative act of a normative character and that it could therefore be challenged at any time. 12. By a final judgment of 7 March 2008 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the firstinstance court had correctly established that under Article 11 of Law no. 554/2004 the proceedings initiated by the applicants were timebarred. Moreover, the applicants’ argument, unsupported by reasons, that the impugned decision was a unilateral administrative act of a normative character could not be accepted. The aforementioned decision was in fact a unilateral administrative act of an individual character because it attested that the property in question was in the public ownership of Alba County and it concerned specific legal entities operating in the county, as well as the individual properties mentioned in the annexes. 13. On 14 April 2010 the Court of Cassation allowed a third party’s action against the Romanian Government and Alba-Iulia Local Council seeking the annulment of part of attachment no. 12 to Government Decision no. 974/2002. It held, inter alia, that the third party had been made aware of the impugned decision in December 2007 and had initiated the court proceedings within the statutory time-limit. 14. On 26 November 2013 the Court of Cassation informed the Government that it had developed a rich case-law which had classified government decisions similar to the one challenged by the applicants as unilateral administrative acts of an individual character. It supported its submission by referring to thirty-four judgments delivered by it between January 2009 and November 2011 that had been published either on the Court of Cassation’s website or had been referred to in legal articles. 15. Article 11(2), (4) and (5) of Law no. 554/2004 on actions before administrative courts provides that normative administrative acts may be challenged at any time, whereas individual administrative acts may be challenged no later than a year from the date on which they were issued. 16. Article 108 of the Romanian Constitution provides, inter alia, that the Government may issue decisions or ordinances. Such decisions may be issued in order to implement laws. The Government’s decisions shall be signed by the Prime Minister and the ministers responsible for their implementation and shall be published in the Official Gazette. Failure to publish such decision renders it ineffective. 17. Article 21(3) of Law no. 213/1998 on public property and rules governing it provides that inventories of property under public ownership shall be drawn up by the county councils or the Bucharest General Council and sent to the Government in order for the latter to attest by a decision that the property has been included in the public ownership of the county. 18. By a final judgment of 2 May 2006 (no. 1511) the Court of Cassation allowed the proceedings brought by a third party against, among others, the Romanian Government, seeking the annulment of part of attachment 12 to Government Decision no. 974/2002. It held that the impugned decision was a normative administrative act issued on the basis of Article 108 of the Romanian Constitution and of Article 21(3) of Law no. 213/1998 on public property during the final stages of the special procedure establishing an inventory of Alba Country’s public property. On that legal basis it appeared that irrespective of whether Government Decision no. 974/2002 was a normative or individual, it was an act that determined property falling under public ownership and established the rules that would apply to such property. Therefore, the proceedings seeking the partial annulment of the aforementioned decision had not been subject to the time-limits stipulated by Article 11 (2) of Law no. 544/2004 and the decision to dismiss those proceedings as time-barred had amounted to a misinterpretation of the law. The conclusion reached by the first-instance court had been incorrect, even if it could have been accepted that the impugned decision had not been an administrative act of a normative character, given that the proceedings had been initiated within one year of the time when the victim the third party had been made aware of that decision.