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Cite as: [2009] ECHR 494

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13636/02
by Romulus Nicolae COSTESCU and Alice COSTESCU
against Romania

The European Court of Human Rights (Third Section), sitting on
3 March 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 16 March 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Romulus Nicolae Costescu and Mrs Alice Costescu, are Romanian nationals who were born in 1932 and 1933 respectively and live in Bucharest. They were represented before the Court by Mr Malik Nekaa, a lawyer practising in Lyon. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

From 1984 the applicants lived in an apartment rented from the State in a nationalised building. On 4 November 1996, under Law no. 112/1995 on the legal status of certain residential property, the applicants bought their apartment from the State, represented by the mayor of Bucharest.

1. The action for recovery of possession (acţiunea în revendicare)

On 22 June 1998 C.S., the former owner's heir, took action against the State and the applicants for recovery of possession of the flat, seeking also to have the 1996 sale declared null and void.

In a judgment of 6 October 2000 the Bucharest District Court found in favour of C.S. and ordered the applicants to surrender possession of the apartment. It considered that the State's initial title deed had been null and void and therefore gave preference to C.S.'s title, which had come from the apartment's real owner.

The court refused however to declare the sale contract null and void, as no cause of nullity was identified and the applicants had acted in good faith.

In a final decision of 18 September 2001 the Bucharest Court of Appeal upheld that judgment.

On 11 July 2007, in the presence of a bailiff, C.S. took possession of the apartment.

2. Responsibility for eviction (garanţia pentru evicţiune)

On 22 May 2000 the applicants asked for the mayor of Bucharest to be joined to the proceedings for restitution of property lodged against them (see paragraph 4 above). Under the Civil Code guarantee concerning responsibility for eviction, the applicants sought to recover the apartment's market value from the authorities.

On 26 May 2000 the District Court considered that the applicants' request had been made out of time and decided to separate it from the main file.

Several hearings took place before the Bucharest District Court. On 8 December 2000, at C.S.'s request, the case was suspended pending the outcome of the action for recovery of possession.

A new hearing was scheduled for 20 July 2001, but none of the parties attended. On that date the District Court noted the parties' unjustified absence and suspended the proceedings once again.

The District Court summonsed the parties to a hearing on 2 September 2002.

On 14 August 2002 the applicants requested that the case be postponed until after 10 November 2002, as they were going to be absent from the country from 22 August to 30 October 2002.

On 2 September 2002 the District Court noted the parties' absence and set a new hearing date for 30 September.

In a judgment of 30 September 2002 the District Court noted that the case had been suspended since 20 July 2001 and that the parties had not manifested any interest in it since then. It therefore concluded that the action had become extinct (perimată).

The applicants did not appeal against that judgment, which became final.

B. Relevant domestic law and practice

1. Action for recovery of possession (acţiunea în revendicare)

Under Romanian law, an action for recovery of possession is one of the principal remedies for the protection of a right of property. Such action is not governed by statute per se but has emerged from case-law. An action for recovery of possession can be defined as the bringing of proceedings to enforce a right in rem in which a dispossessed owner claims back his or her property from the person currently in possession of it. When both the plaintiff and the defendant have a title deed, the court must compare the two deeds and decide which one is preferred. The main outcome of such an action, if successful, is the acknowledgment by the court of the claimant's title to the property, with retrospective effect, thus obliging the defendant to return the property. If physical restitution is no longer possible, that obligation is replaced by an obligation to pay compensation on the basis of an equivalent sum (see Străin and Others v. Romania, no. 57001/00, § 26, ECHR 2005 VII).

2. Responsibility for eviction (garanţia pentru evicţiune)

Articles 1337-1351 of the Civil Code institute the seller's responsibility for eviction. They provide for the evicted buyer to claim reimbursement of the price and also the payment of costs and damages, regardless of the seller's good or bad faith. The buyer can either join the seller to the proceedings instituted against him by the third party or lodge a new action against the seller after having been evicted. In the latter case, if the seller proves that he could have won the case against the third party had he been joined to the proceedings, he will be exempted from compensating the buyer (Article 1351 of the Civil Code).

A bona fide buyer continues to enjoy the benefits of the property until he is no longer considered bona fide, that is at the latest when the action for eviction is lodged against him, at which time enjoyment of the property reverts to the rightful owner. However, the buyer may still claim compensation for his loss from the seller.

3. Case-law on compensation

The constant practice of the domestic courts between 2005 and 2008, as available to the Court, indicates that the Civil Code guarantee in the event of eviction is applied in cases similar to the one at hand, and the interested parties are awarded the indexed purchase price and, in most cases, damages and any costs reasonably incurred for the upkeep of the house. Most of the domestic courts consider that Law no. 10/2001 on the rules governing immovable property wrongfully seized by the State between 6 March 1945 and 22 December 1989 (“Law no. 10/2001”) is not applicable to actions for recovery of possession when the sale contract is not declared null and void in such proceedings.

If the sale contract is cancelled, however, the courts consistently apply Law no. 10/2001 and only award the buyer the indexed purchase price.

4. Recent developments favourable to tenants

In decision no. 520/C of 3 December 2007 the Constanţa Court of Appeal found in favour of the buyer in an action for recovery of possession lodged by the former owner of a nationalised apartment against the person who in good faith had bought the apartment from the State in 2000. The court decided that the restitution of the apartment to the former owner was no longer possible and, based on the Court's case-law on Article 1 of Protocol No. 1 (in particular: Pincová and Pinc v. the Czech Republic, no. 36548/97, ECHR 2002 VIII, Raicu v. Romania, no. 28104/03, 19 October 2006, and Păduraru v. Romania, no. 63252/00, ECHR 2005 XII (extracts)), it compelled the State to pay the market value of the apartment in compensation to the former owner. In the court's view, although the plaintiff had not asked for compensation, in the circumstances of the case the monetary award was the only solution to the action for recovery of possession.

In decision no. 1055 of 9 October 2008 the Constitutional Court declared Article 47 of Law no. 10/2001 unconstitutional in so far as it breached the buyer's property title. Under the provision concerned, persons whose actions based on the Civil Code had been dismissed before the entry into force of Law no. 10/2001 could use this Law in order once again to seek the restitution of their property. The Constitutional Court considered that persons whose title to property had been confirmed by a court decision could not be compelled to surrender that property where there was no serious justification for such a measure, based on public order, under Article 44 § 3 of the Constitution.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the proceedings against them had not been fair, in particular that the courts had not correctly applied the relevant law.

They also complained that the final decision of 18 September 2001 had infringed their property right and that no compensation had been awarded to them for this interference.

THE LAW

The applicants' first complaint relates to the alleged unfairness of the civil proceedings.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that there is no appearance of any violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicants' second complaint relates to the alleged interference with their property rights.

The Government contended that the applicants had not exhausted the domestic remedies, in so far as they had not continued the action for eviction lodged against the State authorities under the Civil Code. Had they been diligent in those proceedings, the action would have allowed them to recover from the State the indexed purchase price plus damages.

The applicants contested that position. In their view, the action in responsibility for eviction was not an effective remedy in their case in so far as it could not secure the return of their apartment. They also considered that they had not been responsible for the lapse of the action. Despite the fact that they had duly informed the court of their absence, the hearing had been scheduled for a date when they were out of country and therefore unable to attend. For the same reason they had also missed the deadline for appeal against the 30 September 2002 decision, which had thus become final against their will.

The Court recalls that under Article 35 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).

In the present case the domestic courts compared the title deeds presented by the applicants and the former owner and decided to give preference to the former owner's deed. In so doing the courts did not set aside or declare null and void the applicants' title deed nor did they award them any compensation for their loss.

However, the applicants, who could no longer validly use their title deed, sought compensation for eviction from the seller under the Civil Code. The domestic case law available to the Court indicates a consistent practice of awarding damages in cases similar to the present one. The remedy is therefore available both in theory and in practice.

It remains to be determined whether the amount of compensation that can be awarded by the national courts is sufficient to afford redress in respect of the breaches alleged. In this context, the Court notes that the case at hand stems from the application of the laws on the restitution of nationalised properties. While acknowledging the particularly difficult context of compensation for property nationalised during the communist regime, the Court has expressed the view that it is necessary to ensure that the attenuation of those old injuries does not create disproportionate new wrongs (see Pincová and Pinc, cited above, § 58, and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, §§ 178 179, 15 March 2007).

The domestic case-law available to the Court indicates that persons in the applicants' situation would have been awarded at least the indexed purchase price, and possibly damages up to the property's current market value, as well as the reimbursement of any costs reasonably incurred for the upkeep of the house.

Although the Court cannot speculate in this case what the outcome of the proceedings for compensation would have been should the applicants have continued the proceedings, it notes that the awards made by the domestic courts in similar situations are significantly higher than those in the case of Pincová and Pinc, where the Court found a violation of Article 1 of Protocol No. 1 in so far as the applicants, who were in a similar situation to that of the applicants in the instant case, were only granted the purchase price as compensation for the lost property (see Pincová and Pinc, cited above, §§ 61-64; see also Velikovi and Others, cited above, §§ 140-141, and Kalinova v. Bulgaria, no. 45116/98, § 76, 8 November 2007).

Lastly, although the restitution law does not provide for a specific action against the State for persons in the applicants' situation (see, mutatis mutandis, Velikovi and Others, § 127, and Kalinova, § 77, cited above), the Court is satisfied that this remedy afforded by the Civil Code is sufficient to provide redress in the applicants' situation.

The applicants should thus have exhausted this remedy before lodging their complaint with the Court.

As for the applicants' allegations that they were not responsible for the lapse of the action, because they had been given dates and time limits impossible to observe both for the last hearing and for lodging the appeal, the Court notes that nothing in the case indicates that the applicants did not have the means to hire counsel to represent them in the proceedings or at least during the period when they were out of the country. Likewise, the Court notes that the applicants did not ask for an extension of the time-limit for lodging an appeal.

For all these reasons the Court considers that responsibility for failing to pursue the existing effective remedy in the case lies exclusively with the applicants.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Josep Casadevall
Deputy Registrar President