CASE OF NICOLESCU v. ROMANIA
Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1926 and lives in Bîra. 5. On 21 November 1990 the applicant brought an action against the Bîra agricultural cooperative for the recovery of possession of 5,000 sq. m of land. 6. On 16 July 1991 the Roman Court of First Instance authorised the applicant to recover possession of a 5,000 sq. m plot of land situated in Bîra village at a place called “Cimitir” (“the cemetery”). The land had boundaries with the cemetery (to the north), a road (to the south), pastureland (to the east) and land belonging to B.A., a third party (to the west). The court ordered the agricultural cooperative to enable the applicant to take possession of the land. That judgment became final. On 5 December 1991 the bailiff certified in an official record that the applicant had been able to take possession of the land and that some constructions built by the former agricultural cooperative, including a stable and part of a shed, were situated on it. 7. On 9 August 1991 the county commission in Neamţ for the application of Law no. 18/1991 (“the county commission”) authorised the applicant to recover possession of 52,600 sq. m of land. 8. On 5 October 1992 the applicant contested the administrative decision before the court on the ground that he was also entitled to recover possession of a further 11,200 sq. m approximately of land. 9. On 15 December 1992 the Court of First Instance allowed the applicant’s action, taking the view that he was entitled to recover possession of a total surface area of 63,800 sq. m of land, and ordered the administrative authorities to issue him with a document of title for that land, situated in Bîra village. That judgment became final. 10. On 17 January 1994 the local commission in Bîra for the application of Law no. 18/1991 (“the local commission”) certified in an official record that the applicant had been able to take possession of a 6,152 sq. m plot of land at Cimitir. The applicant signed the official record. 11. On 18 September 1997 the applicant brought an administrative action against the local commission seeking to have it perform the procedure for enabling him to take possession of the land and to prepare the documentation pertaining to the issuance of a document of title for the 63,800 sq. m of land. 12. On 26 January 1998 the Neamţ Regional Court upheld the applicant’s action and ordered the local commission to implement the procedure for enabling him to take possession of the 63,800 sq. m of land situated in Bîra village, to issue the official record and to provide him with a title document, in accordance with the judgment of 15 December 1992. That judgment became final. 13. On 3 April 2000 the applicant brought an administrative action against the local commission seeking a daily pecuniary penalty for the refusal to enable him to take possession of the entire surface area of 63,800 sq. m of land in Bîra village, and to prepare the documentation pertaining to the acquisition of title, as ordered by the judgment of 26 January 1998. 14. On 27 November 2000 the Regional Court, by an enforceable decision, upheld the applicant’s action and ordered the local commission to pay a daily pecuniary penalty of 100,000 Romanian lei (ROL). The court noted that the applicant had taken possession of 59,400 sq. m of land and that the local commission had refused to enable him to take possession of the plot of 5,000 sq. m of land situated at Cimitir, thus preventing the preparation of the necessary documentation for the acquisition of title. The court also noted that the plot of 5,000 sq. m of land had been leased by Bîra town council to a private company. The expert report produced during the proceedings mentioned the plot of 5,000 sq. m of land at Cimitir, which was expressly referred to in the judgment of 16 July 1991, as part of the total of 63,800 sq. m of land for which the authorities were supposed to prepare the documentation pertaining to the acquisition of title. It also mentioned that on 5 December 1991 the applicant had been able to take possession of the land in question at Cimitir, in a location situated in the yard of the former agricultural cooperative, but that subsequently the local commission had allocated to him a 5,000 sq. m plot of land next to the yard. 15. On 28 December 2000 the town council invited the applicant to take possession of a plot of 5,000 sq. m of land as provided for by the judgment of 27 November 2000, in one of three locations proposed by the authorities, none of them at Cimitir. 16. On 10 January 2001 the local commission certified in an official record that the applicant had been able to take possession of a 5,000 sq. m plot of land in a place called “Arie”, which was not one of the three abovementioned locations. The applicant refused to sign the official record, as it did not relate to the original location. 17. On 11 and 22 January 2001 the town council invited the applicant to sign the official record and the forms for the issuance of the document of title. The applicant refused, claiming the land in the original location. 18. On 28 July 2005 the Neamţ prefecture, in a written note following an interview with the applicant, acknowledged that the latter’s right of ownership over the plot of 5,000 sq. m had been certified by the judgment of 16 July 1991 and that the bailiff had enabled him to take possession in 1991. The prefecture further admitted that the applicant could not enjoy possession, as the local authorities had refused several times to take that judgment into account. Hence, the buildings on the land had been systematically leased out, without the question of ownership of the land being examined, and were currently leased to a third party, with the town council receiving a lease tax for the land. Finally, the note mentioned that the prefecture had informed the mayor that according to the law it was the applicant who should have entered into the lease contract as the owner of the land and of the buildings on it. Therefore, the applicant was directed to lodge either an application for determination of ownership or an application concerning the obligation to take action. 19. On 7 November 2002 the bailiff, at the applicant’s request, directed the local commission to execute the judgment of 27 November 2000 and to pay the daily pecuniary penalty with effect from 1 January 2001. 20. On 19 November 2002 the local commission lodged an objection to execution, alleging that the failure to enable the applicant to take possession of 63,800 sq. m of land and to issue him with a document of title was due to his own refusal. 21. On 3 December 2002 the Court of First Instance dismissed the objection as groundless, stating that the acts performed by the local commission were not in conformity with the judgments given in the applicant’s favour and that his claim to take possession of the 5,000 sq. m plot of land in the original location at Cimitir was justified. 22. On 6 March 2003 the Regional Court, by a final decision, upheld an appeal by the local commission and annulled the bailiff’s injunction. The court noted that the establishment of the location of plots of land fell within the exclusive competence of the local commission and that the authorities had made several proposals to the applicant with a view to providing him with equivalent land in compensation. It also considered that the evidence proved that the applicant was already in possession of a 5,400 sq. m plot of land at Cimitir, in accordance with the judgment of 16 July 1991. 23. On 12 April 2005 the applicant brought proceedings against the local authorities seeking to obtain a document of title for the 5,000 sq. m plot of land at Cimitir as granted by the judgment of 16 July 1991, with the following boundaries: the road (to the north and south), pastureland (to the east) and buildings belonging to the town council (to the west). He submitted that he was the owner of that land according to the judgment of 16 July 1991 and that he had been granted possession by the bailiff on 5 December 1991, but that the authorities were planning to prepare documentation for the acquisition of title for land in other locations. 24. On 30 November 2005 the Court of First Instance, taking into consideration an expert report produced in the proceedings and refusing a request by the applicant for a new expert report, dismissed the action on the ground that the land claimed by the applicant within those boundaries included the stables of the former agricultural cooperative and had no connection with the plot of land awarded by the judgment of 16 July 1991, being adjoining to it. The court acknowledged the applicant’s interest in claiming that land, as it had the stables of the former agricultural cooperative on it. 25. On 26 June 2006 the Regional Court, by a final decision, dismissed as groundless an appeal by the applicant in which he had contested the location on which the expert report produced before the first-instance court was based and the dismissal of his request for a new expert report. 26. On 12 April 2007 the town council informed the Agent of the Government that the applicant was in possession of a plot of land at Cimitir, certified by the official record of 17 January 1994 and, according to an expert report of 16 November 2005, with a surface area of 6,002 sq. m. That land was the land mentioned by the judgment of 16 July 1991. 27. So far the applicant has not received a document of title. 28. The relevant domestic law is summarised in the judgments in Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004) and Drăculeţ v. Romania (no. 20294/02, § 29, 6 December 2007).