ÎCCJ, decizie (scj.ro #86264)

ÎCCJ, decizie (scj.ro #86264) (Înalta Curte de Casație și Justiție)

THIRD

SECTION

CASE OF MARIA ATANASIU

AND

OTHERS v.

ROMANIA

(Applications nos. 30767/05 and 33800/06)

JUDGMENT

STRASBOURG

12

October 2010

This judgment will become

final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

In the case of Maria Atanasiu and Others v. Romania,

The

European Court of Human Rights (Third Section), sitting as a Chamber composed

of:

Josep Casadevall,

President,

Elisabet Fura,

Corneliu Bîrsan,

Alvina Gyulumyan,

Egbert Myjer,

Ineta Ziemele,

Ann Power,

judges,

and

Santiago Quesada

,

Section

Registrar,

Having

deliberated in private on 8 June and 21 September 2010,

Delivers

the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

case originated in two applications (nos. 30767/05 and 33800/06) against

Romania lodged with the Court under Article 34 of the Convention for the

Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three

Romanian nationals, Mrs Maria Atanasiu and Mrs Ileana Iuliana Poenaru

(application no. 30767/05) and Mrs Ileana Florica Solon (application no.

33800/06) (“the applicants”), on 11 August 2005 and 4 August 2006 respectively.

Atanasiu and Mrs Poenaru were represented by Mr C.-L. Popescu and Mr C.-R.

Popescu, lawyers practising in Bucharest. Mrs Solon was represented by Ms R.-A.

Niculescu-Gorpin and Ms M. Niculescu-Gorpin, lawyers practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Mr

Răzvan-Horațiu Radu, of the Ministry of Foreign Affairs.

applications were communicated to the Government on 26 May 2006 (application

no. 30767/05) and on 27 November 2008 (application no. 33800/06). The

applicants and the Government each filed written observations (Rule 59 § 1).

The parties replied in writing to each other's observations. In addition,

third-party comments were received from the associations

Asociația

pentru Proprietatea Privată

and

ResRo

Interessenvertretung Restitution in Rumänien

, which had been given

leave by the President to intervene in the written procedure (Article 36 § 2 of

the Convention and Rule 44 § 3).

hearing took place in public in the Human Rights Building, Strasbourg, on 8

June 2010 (Rule 59 § 3).

There

appeared before the Court:

(a)

for the

Government

Mr

R.-H. Radu

,

Agent

,

Ms

I. Cambrea

,

Ms

A.-M. Valica

,

Mr

D. Dumitrache

,

Advisers

;

(b)

for the

applicants

Mr

C.-L. Popescu

,

Mr

C.-R. Popescu

,

Ms

R.-A. Niculescu-Gorpin

,

Ms

M. Niculescu-Gorpin,

Counsel

.

Popescu, Ms R.-A. Niculescu-Gorpin and Ms M. Niculescu-Gorpin for the

applicants and Mr R.-H. Radu for the Government. The applicant Ileana Iuliana

Poenaru also attended the hearing.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

first two applicants, Mrs Maria Atanasiu and Mrs Ileana Iuliana Poenaru, were

born in 1912 and 1937 respectively and live in Bucharest. The third applicant,

Mrs Ileana Florica Solon, was born in 1935 and lives in Bucharest.

A.  The overall background

the establishment of the communist regime in Romania in 1947, the State

proceeded to nationalise buildings and agricultural land on a large scale.

of the nationalisation decrees applicable in relation to immovable property was

Decree no. 92/1950, under which buildings belonging to former industrialists,

owners of large estates, bankers and owners of large trading enterprises were

nationalised. Although this decree did not cover workers, civil servants,

academics or retired persons, numerous properties belonging to those social

categories were also nationalised. Between 1949 and 1962 virtually all

agricultural land passed into the ownership of the agricultural cooperatives.

the fall of the communist regime the State enacted a series of laws aimed at

affording redress for breaches of property rights by the former regime.

nos. 112/1995 and 10/2001 established the principle of restitution of

nationalised immovable property and compensation in cases where restitution was

no longer possible. Law no. 112/1995 introduced a cap on compensation, but this

was subsequently abolished by Law no. 10/2001.

regard to agricultural land, Laws nos. 18/1991, 169/1997 and 1/2000 increased

successively the surface area of land that could be returned to its owners. The

last of these laws established a right to compensation in respect of land which

could no longer be returned.

no. 247/2005 harmonised the administrative procedures for restitution of

properties covered by the above-mentioned laws.

to a partial calculation made by the Government, over two million claims under

the reparation laws have been registered; the amount needed to pay the

corresponding compensation is estimated at twenty-one billion euros (EUR).

B.  Particular circumstances of the present

case

30767/05, lodged by Mrs Maria Atanasiu and Mrs Ileana Iuliana Poenaru

1950, under Decree no. 92, the State nationalised several buildings belonging

to Mr Atanasiu, the first applicant's husband and the second applicant's

father. One of the buildings was located at 189 Calea Dorobanților in

Bucharest.

(a)  Attempts to obtain restitution of the

building on Calea Dorobanților

15 May 1996, relying on the provisions of Law no. 112/1995, Mr Atanasiu

applied to the local board established to deal with applications lodged under

that Law, seeking the return of the building. He received no response. On 25

October 1996 Mr Atanasiu died and the applicants were recognised as his sole

successors in title.

the terms of contracts entered into in accordance with Law no. 112/1995,

the company managing the building sold the nine flats located therein to the

tenants.

15 November 1999 the applicants lodged a claim with the domestic courts for

restitution of the building. They relied on the provisions of ordinary law

concerning respect for the right of property and alleged that the

nationalisation of the property had infringed Mr Atanasiu's legal rights.

Subsequently, on the basis of a letter from Bucharest city council stating that

three of the flats had not been sold, the applicants restricted their claim to

that part of the building.

a judgment of 24 March 2000 the Bucharest Court of First Instance allowed the

claim and ordered that the above-mentioned part of the building be returned to

the applicants. The court held that the building had been nationalised

unlawfully since Mr Atanasiu had not belonged to any of the social categories

covered by the nationalisation decree and the State could not therefore claim a

valid title to the property. Following an appeal and a further appeal (

recurs

)

by the city council, the judgment was upheld and became final.

applicants lodged claims in separate proceedings seeking the restitution of the

other flats. In total, they obtained five final rulings in the form of

judgments of the Bucharest Court of Appeal dated 1 June 2001, 19 May

2004, 1 May 2005, 5 May 2005 and 30 October 2007 directing the purchasers and

the local authorities to return seven flats to them. In the case of one other

flat they obtained a decision of the Bucharest County Court dated 30 November

2009, still open to appeal, ordering the local authorities to pay them

compensation. The last remaining flat in the building is the subject of the

present application. Each of the above-mentioned decisions was based on the

finding that the building had been nationalised unlawfully.

(b)  Steps taken under ordinary law to obtain

restitution of flat no. 1

6 April 2001 the applicants brought an action in the Bucharest County Court

seeking to recover possession of flat no. 1. The action was directed against

the City of Bucharest, the company which managed the building and the

purchasers of the flat, Mr and Mrs G. The applicants also sought to have the

contract of sale of 19 December 1996 rescinded.

a judgment of 4 June 2002 the County Court granted the action, declared the

sale null and void and ordered the defendants to return the flat to the

applicants. The court ruled that the nationalisation of the building had been

unlawful and that the contract of sale was not valid.

a judgment of 14 November 2002 the Bucharest Court of Appeal allowed the

appeals lodged by the City of Bucharest and Mr and Mrs G. It thus dismissed the

applicants' action, holding that the nationalisation had been lawful and that

the contract of sale was valid since it complied with the conditions laid down

by Law no. 112/1995. The applicants lodged a further appeal.

a final judgment of 11 March 2005 the High Court of Cassation and Justice (“the

HCCJ”) admitted the appeal for adjudication but dismissed the applicants'

arguments and declared their action inadmissible. It considered that the

applicants had lodged their action after the date of entry into force of Law

no. 10/2001 (see paragraphs 25-27 below) and that after that date they could

claim restitution of the flat only in the circumstances and in accordance with the

procedure laid down by Law no. 10/2001.

to the application to have the contract of sale rescinded, the HCCJ upheld the

reasons given by the Court of Appeal but ruled that, since the applicants' main

complaint concerning the restitution of the flat had been dismissed, the

application for rescission was likewise inadmissible.

(c)  Steps taken under Law no. 10/2001 to

obtain restitution of flat no. 1

9 August 2001, relying on the provisions of Law no. 10/2001, the applicants

lodged a claim with Bucharest city council for restitution of the whole of the

building located on Calea Dorobanților.

received no reply within the statutory sixty-day time-limit, they brought an

action against the city council on 26 July 2002. In a judgment of 10 November

2003 the Bucharest Court of Appeal allowed the action and ordered the city

council to give a decision on the applicants' claim. Following a further appeal

by the city council the HCCJ dismissed the latter's argument to the effect that

the delay had been caused by the applicants' failure to submit a complete file.

In a final judgment of 18 April 2005 it upheld the order against the city

council and ruled that no fault capable of causing the delay could be

attributed to the applicants.

23 March 2010 the city council wrote to the Romanian Government Agent informing

him that consideration of the claim had been suspended pending receipt of the

missing documents.

33800/06, lodged by Mrs Ileana Florica Solon

1950 a plot of land in Craiova belonging to the applicant's parents was

nationalised. Part of the land was subsequently turned into a botanic garden

and allocated to the University of Craiova, a public higher-education

establishment.

28 June 2001, relying on Law no. 10/2001, the applicant requested the

University of Craiova to pay her compensation in respect of the nationalised

land. She pointed out that the University's botanic garden occupied 1,950 sq. m

out of a total area of 2,140 sq. m.

decision no. 600/A/2001 of 10 July 2001 the University of Craiova rejected the

applicant's request on the ground that there were no funds in its budget which

could be used for compensation of that kind. The University forwarded her request

to the Dolj prefect's office.

(a)  Legal proceedings brought by the

applicant

18 July 2001 the applicant brought legal proceedings against the University of

Craiova, seeking compensation in respect of the 2,140 sq. m of land, the

value of which she estimated at seventy United States dollars (USD) per square

metre.

the request of the University, the Dolj County Court, in an interlocutory

judgment of 5 December 2002, ordered that the State, represented by the

Ministry of Finance, be joined to the proceedings as a defendant.

a judgment of 13 February 2003 the County Court dismissed the applicant's

claims as premature, finding that she should have awaited a decision from the

prefect's office on her request for compensation. However, the court took the

view that the applicant had demonstrated her parents' title to the property and

the fact that the land had been wrongfully nationalised.

applicant appealed against that judgment.

21 November 2003 the Craiova Court of Appeal allowed the applicant's appeal,

quashed the first-instance judgment and set aside decision no. 600/A/2001. It

based its ruling on a letter from the University of Craiova to the Dolj

prefect's office dated 13 November 2003, in which the former had agreed to the award

of compensation to the applicant. In the operative part of its decision the

Court of Appeal assessed the compensation due to the applicant at USD 70 per

square metre, in line with the agreement reached between the parties during the

proceedings. The court also stated in its reasoning that the compensation

should be paid to the applicant once a special law had been enacted on the

terms and procedure governing compensation and the amount of compensation

awards.

applicant, the University of Craiova and the Ministry of Finance all lodged

further appeals against the decision, on the ground that no agreement had been

reached between the parties. The applicant also alleged that the impugned

decision did not state which of the two defendants – the University or the

Romanian State – was liable for payment.

a final judgment of 30 March 2006 the HCCJ dismissed the appeals and upheld the

decision of the Craiova Court of Appeal of 21 November 2003. It took the

view that, under section 24 of Law no. 10/2001, the University, which had

been using the land claimed by the applicant, was obliged, if restitution was

not possible, to make an offer of compensation corresponding to the value of

the property and to forward its decision to the Dolj prefect's office.

HCCJ went on to observe that, during the proceedings, the University of Craiova

had submitted the letter of 13 November 2003 in which it informed the Dolj

prefect's office of its consent to the award of compensation to the applicant

in the amount claimed by her. The HCCJ took the view that the content of that

letter constituted an offer made in accordance with sections 24 and 36 of Law

no. 10/2001 and accepted by the applicant. According to the HCCJ, the offer

from the University amounted to acceptance on its part of the applicant's

claims. Accordingly, the Court of Appeal had simply noted the fact that the

University had taken steps in the course of the proceedings to comply with its

statutory obligations.

HCCJ further stated that no specific obligation had been established on the

part of the Romanian State, which had been a party to the proceedings, as the

actual award of compensation in the amount established was to be made in

accordance with the special procedure laid down by Law no. 247/2005.

(b)  Administrative follow-up to the judicial

proceedings

a decision of 27 January 2006 the University of Craiova made a proposal to the

Dolj prefect's office for the applicant to be awarded compensation in respect

of the 2,140 sq. m plot of land in accordance with the Craiova Court of Appeal

decision of 21 November 2003. The University based its decision on Law no.

10/2001.

reply to a letter dated 24 December 2008 from the National Agency for Property

Restitution (“the NAPR”) requesting it to take a decision on the basis of Law

no. 247/2005, the University of Craiova proposed to the Dolj prefect's office

on 24 March 2009 that the applicant be awarded the compensation in

question. The University stated that the file would be sent to the Central

Compensation Board (

Comisia

centrală pentru Stabilirea Despăgubirilor

– “the Central Board”).

Central Board did not inform the applicant of any action taken in response to

that decision. To date, no compensation has been paid to her.

the hearing of 8 June 2010 the Government stated that the applicant's claim

would receive priority treatment.

II.  RELEVANT DOMESTIC LAW AND

PRACTICE

A.  Overview of the main legislative

provisions concerning the restitution of properties nationalised before 1989

or, failing restitution, the compensation payable

main legislative provisions in force are described in

Brumărescu

v. Romania

[GC], no. 28342/95, §§ 34-35, ECHR 1999-VII;

Străin and Others v. Romania

, no. 57001/00, § 19, ECHR 2005-VII;

Păduraru v. Romania

, no. 63252/00, §§ 23-53, ECHR 2005-XII

(extracts);

Viașu v. Romania

, no. 75951/01, §§ 30-49, 9 December 2008;

Faimblat v. Romania

, no. 23066/02, §§ 16-17, 13 January 2009;

Katz v. Romania

, no. 29739/03, § 11, 20 January 2009;

Tudor Tudor v. Romania

, no. 21911/03, § 21, 24 March 2009; and

Matieș

v. Romania

, no. 13202/03, §§ 13-17, 8 June 2010. They can

be summarised as follows.

Real Property Act (Law no. 18 of 19 February 1991) conferred on former owners

and their successors in title the right to partial restitution of agricultural

land. The most important amendment to that Act was made by Law no. 1 of 11

January 2000, which raised the ceiling for entitlement to fifty hectares per

person in the case of arable land and one hundred hectares per person for

pasture land. If restitution was not possible, the beneficiaries were entitled

to compensation.

the absence of special legislation laying down rules governing nationalised

immovable property, the courts initially considered that they had jurisdiction

to examine the issue of the lawfulness of nationalisation decisions and to order

that properties be returned to their owners if they were found to have been

nationalised unlawfully.

entry into force of Law no. 112 of 25 November 1995 on the legal status of

certain residential property authorised the sale of such properties to the

tenants. Properties could be returned to the former owners or their successors

in title only if the persons concerned were living in the properties as tenants

or the properties were unoccupied. If restitution was not possible the former

owners could claim compensation, which was capped.

to buildings and land which had belonged to national minority organisations and

religious institutions, Government Emergency Ordinances no. 83 of 8 June 1999

and no. 94 of 29 June 2000 provided for them to be returned to their owners or,

failing that, for compensation to be awarded.

no. 10 of 8 February 2001 on the rules governing immovable property wrongfully

acquired by the State established the principle of restitution of the

properties concerned. In cases where restitution was no longer possible the

former owners or their successors in title could claim compensation, which was

not capped.

no. 1 of 30 January 2009 provides that immovable property sold under Law no.

112/1995 may no longer be returned to the former owners and that only

alternative measures of redress are possible. The choice between an action for

recovery of possession and the special restitution procedure under Law no.

10/2001 has been abolished in favour of the latter.

addition to the properties covered by the above-mentioned legislative

provisions, the State undertakes to compensate former owners or their

successors in title who lost buildings, land or crops abandoned on certain

territories following border changes before and during the Second World War.

The administrative procedure for obtaining compensation in respect of such

property, provided for by Laws nos. 9/1998, 290/2003 and 393/2006 and

coordinated by the NAPR, differs from that for nationalised immovable property,

and the necessary funds come out of the State budget.

247/2005 for fixing compensation amounts

no. 247/2005 on judicial and property reform, which is still in force, made

substantial amendments to the existing compensation laws, in particular by

introducing a harmonised administrative procedure for claims concerning

properties covered by Laws nos. 1/2000 and 10/2000 and by Government Emergency

Ordinances nos. 83/1999 and 94/2000.

law in question provides that, where restitution is not possible, the

beneficiaries of reparation measures can opt either for compensation in the

form of goods and services or for payment of an amount calculated in accordance

with “domestic and international practice and standards on compensation for

buildings and houses wrongfully acquired by the State”.

leading role in implementing this law was entrusted to two newly created

structures: the Central Compensation Board (

Comisia

centrală pentru Stabilirea Despăgubirilor

– “the Central Board”) and

the National Agency for Property Restitution (

Autoritatea

Națională pentru Restituirea Proprietăților

– “the NAPR”).

time-limits were set for lodging claims for restitution or compensation: sixty

days for agricultural land and six months for immovable property that had

belonged to religious institutions and national minority organisations.

lawfulness of local authority decisions awarding compensation or proposing an

award must be reviewed by the prefect, who must then forward the decisions to

the Central Board.

provisions governing such review are set out in Government Decree no. 128 of 6

February 2008, according to which, if the prefect considers the decision of the

mayor or other local administrative authorities to be unlawful, he may appeal

against it in administrative contentious proceedings within one year of the

decision.

receipt of the file the Central Board must verify the lawfulness of the

decision refusing restitution and subsequently forward the file to “approved

assessors” for the purpose of fixing the amount of compensation. On the basis

of their report the Central Board either issues a “compensation certificate” or

returns the file to the local authorities for fresh examination.

no. 247/2005 does not lay down time-limits for the processing of files by the

Central Board or specify the order in which they should be dealt with. On 28

February 2006 the Central Board decided that files would be processed in random

order. On 16 September 2008 it reversed that decision and decided to deal with

them in the order in which they were registered.

247/2005 for the payment of compensation

order to deal with the payment of compensation awarded by the Central Board, an

undertaking for collective investment in transferable securities was set up,

known as the

Proprietatea

Fund. Its capital is made up largely of State holdings in various companies.

no. 247/2005 provided that the

Proprietatea

Fund was to take the necessary steps, within thirty days from its

establishment, with a view to having its shares listed on the stock exchange so

that the beneficiaries of compensation decisions taken under the restitution

laws could sell their shares and receive the proceeds at any time.

July 2005, Law no. 247/2005 has been amended several times as regards both the

operation and financing of the

Proprietatea

Fund and the method of calculating compensation and the procedure

for making awards.

28 June 2007 the Government enacted Emergency Ordinance no. 81/2007

amending the organisation and operation of the

Proprietatea

Fund. Among other measures, the ordinance, which has since been confirmed by

Law no. 142 of 12 July 2010, made it possible for beneficiaries from the Fund

to receive part of the amount due in cash.

the terms of Government Decree no. 128 of 6 February 2008 concerning the

implementation of Ordinance no. 81/2007, following the issuing of the

“compensation certificate” (

titlu

de despagubire

) by the Central Board, the person concerned has a

choice between receiving part of the amount in cash (up to a limit of 500,000

Romanian lei (RON)) and the remainder in shares, or receiving the entire amount

in shares. The preferred option must be notified to the NAPR, which replaces

the “compensation certificate” with a “payment certificate” (

titlu

de plata

) corresponding to the amount to be paid in cash and a

“conversion certificate” (

titlu

de conversie

) corresponding to the remainder, to be converted into

Proprietatea

shares.

persons concerned have to make their choice within three years from the issuing

of the “compensation certificate” by the Central Board. The corresponding

requests are to be examined in chronological order, but no express time-limit

is laid down.

sums up to and including RON 250,000 must be paid within one year from the date

on which the payment certificate is issued; for sums between RON 250,000 and

RON 500,000 the time-limit is two years.

Government Emergency Ordinance no. 62 of 30 June 2010 the payment of cash sums

was suspended for a two-year period in order to balance the budget. During that

period “compensation certificates” may only be converted into

Proprietatea

shares.

B.  Overview of relevant domestic judicial

practice

the request of some members of Parliament the Constitutional Court reviewed the

constitutionality of Laws nos. 112/1995, 1/2000, 10/2001 and 247/2005 prior to

their entry into force. In decisions given on 19 July 1995, 27 December 1999, 7

February 2001 and 6 July 2005, it held that the laws in question were

compatible with the Constitution, with the exception of the provisions of Law

no. 112/1995 which reaffirmed the State's ownership of immovable property which

it had acquired without title; these provisions also made the adoption of

reparation measures conditional on proof that the claimant had his or her

permanent residence in Romania.

the context of the review of the constitutionality of the legislation after its

entry into force, the Constitutional Court was called upon to rule again on

whether some of the provisions were compatible with the Constitution. It

dismissed most of the objections as to constitutionality raised in the domestic

courts and reaffirmed that the laws in question were compatible with the

Constitution.

decision no. 830 of 8 July 2008 the Constitutional Court held that any person

who had lodged a claim under Law no. 10/2001 within the statutory time-limit

was entitled to reparation measures and in particular to restitution of the

property concerned if it had been nationalised unlawfully.

HCCJ

the entry into force of Law no. 112/1995, the practice of the domestic courts

was undermined by the absence of a stable legislative framework. The courts

gave several different interpretations of concepts such as State “title”, the

purchaser's “good faith” and “appearances in law”, and also of the relationship

between actions for recovery of possession and the restitution procedures

provided for by the special legislation (see

Păduraru

,

cited above, § 96).

to the position of the HCCJ concerning the jurisdiction of the domestic courts

to determine claims for restitution of nationalised properties in cases where

the administrative authorities had failed to respond to the notifications

issued under Law no. 10/2001, the full court, in judgment no. 20 of 19

March 2007 published in the Official Gazette on 12 November 2007, held

following an appeal in the interests of the law that the domestic courts had

jurisdiction to determine the merits of claims and, where appropriate, to order

the restitution of the property in question or award statutory compensation.

judgments nos. 53 and 33 of 4 June 2007 and 9 June 2008, published in the

Official Gazette on 13 November 2007 and 23 February 2009, the HCCJ, sitting as

a full court and again ruling on two appeals in the interests of the law, held

that following the entry into force of Law no. 10/2001 actions for

recovery of possession of properties expropriated or nationalised before 1989

which had been lodged in parallel with the restitution procedure laid down by

Law no. 10/2001 were inadmissible. However, as an exception to that rule the

HCCJ held that persons who had a “possession” within the meaning of Article 1

of Protocol No. 1 to the Convention could bring an action for recovery of

possession provided it did not infringe ownership rights acquired by third

parties in good faith.

judgment no. 52 of 4 June 2007, published in the Official Gazette on 22

February 2008, the HCCJ, sitting as a full court and ruling once more on an

appeal in the interests of the law, held that the administrative procedure

provided for by Law no. 247/2005 did not apply to claims for restitution or

compensation already determined by the local administrative authorities under

Law no. 10/2001.

regard to local administrative authority decisions granting claims for

restitution or compensation under Law no. 10/2001, the HCCJ held that they gave

rise to property rights for the persons concerned and that, accordingly, they

could no longer be revoked or set aside by the local administrative authorities

or the Central Board (judgments nos. 6723 of 17 October 2007 and 6812 of

10 November 2008 of the Civil Division of the HCCJ).

to claims submitted to the Central Board under Law no. 247/2005 on which

no decision had been given, the HCCJ ruled that the courts could not take the

place of the Central Board in calculating the compensation (judgments nos. 4894

and 5392 of 27 April and 11 May 2009 of the Civil Division of the HCCJ).

However, the HCCJ ruled that although the Central Board was not bound by any

statutory time-limit in giving its decision it was required to determine claims

for restitution or compensation within a “reasonable time” as construed by the

case-law of the European Court of Human Rights (judgments nos. 3857 and 3870 of

4 November 2008 of the Administrative and Taxation Disputes Division of the

HCCJ).

C.  Statistics concerning the

Proprietatea

Fund and the payment of

compensation

statistics issued by the NAPR in May 2010 and provided by the Government are as

follows:

–  202,782

claims had been registered with the local authorities under Law no. 10/2001.

119,022 files had been examined and an award of compensation had been proposed

in 56,000 cases;

–  46,701

files compiled under Law no. 10/2001 and 375 under Government Emergency

Ordinances nos. 83/1999 and 94/2000 had been forwarded to the Central Board,

which had issued 10,345 “compensation certificates”. The remaining files were

under consideration;

–

with regard to Laws nos. 18/1991 and 1/2000 concerning agricultural land,

according to a partial calculation relating to eight out of forty-one counties,

almost one and a half million claims for restitution or compensation had been

lodged with the local authorities. A total of 55,271 files compiled under the

laws in question had been forwarded to the Central Board, which had granted

21,279 of the claims and had issued 10,915 “compensation certificates”. The

remaining files were under consideration;

– with

regard to claims for restitution of land or compensation under Law no.

247/2005, over 800,000 claims had been registered with the local authorities.

Approximately 172,000 of these had been granted and compensation had been proposed;

–  of

the persons who had received “compensation certificates”, 15,059 had opted to

receive part of the sum in cash, amounting to a total of about RON 2 billion

(approximately EUR 400 million). 3,850 people had received payments totalling

about RON 350 million (approximately EUR 80 million).

in the

Proprietatea

Fund, in existence since December 2005, are still not listed on the

stock exchange. However, since 2007 the Fund has been paying dividends to its

shareholders and since March 2008 its shares may be sold by means of direct

transactions under the supervision of the stock exchange regulatory authority.

By way of example, 206 sales of shares were registered in May 2010.

to the information published on 4 June 2010 by the

Proprietatea

Fund, the Ministry of Finance is the majority shareholder, with 56%

of the Fund's shares. A further 12% are held by 103 legal entities, while 31.4%

are owned by 3,622 individual shareholders.

to Government estimates a total of EUR 21 billion will be needed to pay the

compensation provided for by the compensation laws.

D.  Council of Europe materials

Resolution Res(2004)3 on judgments revealing an underlying systemic problem,

adopted on 12 May 2004, the Committee of Ministers stated as follows:

“The Committee of Ministers, in accordance with Article

15.b of the Statute of the Council of Europe,

...

Invites the Court:

I. as far as possible, to identify, in its judgments

finding a violation of the Convention, what it considers to be an underlying

systemic problem and the source of this problem, in particular when it is

likely to give rise to numerous applications, so as to assist states in finding

the appropriate solution and the Committee of Ministers in supervising the execution

of judgments;

II. to specially notify any judgment containing

indications of the existence of a systemic problem and of the source of this

problem not only to the state concerned and to the Committee of Ministers, but

also to the Parliamentary Assembly, to the Secretary General of the Council of

Europe and to the Council of Europe Commissioner for Human Rights, and to

highlight such judgments in an appropriate manner in the database of the

Court.”

of Ministers Recommendation Rec(2004)6 on the improvement of domestic remedies,

adopted on 12 May 2004, provides:

“The Committee of Ministers, in accordance with Article

15.b of the Statute of the Council of Europe,

...

Recommends that member states, taking into account the

examples of good practice appearing in the appendix:

I. ascertain, through constant review, in the light of

case-law of the Court, that domestic remedies exist for anyone with an arguable

complaint of a violation of the Convention, and that these remedies are

effective, in that they can result in a decision on the merits of the complaint

and adequate redress for any violation found;

II. review, following Court judgments which point to

structural or general deficiencies in national law or practice, the

effectiveness of the existing domestic remedies and, where necessary, set up

effective remedies, in order to avoid repetitive cases being brought before the

Court;

III. pay particular attention, in respect of

aforementioned items I and II, to the existence of effective remedies in cases

of an arguable complaint concerning the excessive length of judicial

proceedings;

...”

relevant part of the Appendix to Committee of Ministers Recommendation

Rec(2004)6 reads as follows:

“...

deficiencies in national law or practice ('pilot case') has been delivered and

a large number of applications to the Court concerning the same problem

('repetitive cases') are pending or likely to be lodged, the respondent state

should ensure that potential applicants have, where appropriate, an effective

remedy allowing them to apply to a competent national authority, which may also

apply to current applicants. Such a rapid and effective remedy would enable

them to obtain redress at national level, in line with the principle of

subsidiarity of the Convention system.

significantly reduce the Court's workload. While prompt execution of the pilot

judgment remains essential for solving the structural problem and thus for

preventing future applications on the same matter, there may exist a category

of people who have already been affected by this problem prior to its

resolution. The existence of a remedy aimed at providing redress at national level

for this category of people might allow the Court to invite them to have

recourse to the new remedy and, if appropriate, declare their applications

inadmissible.

depending, among other things, on the nature of the structural problem in

question and on whether the person affected by this problem has applied to the

Court or not.

specific structural problem has been found, one alternative might be to adopt

an ad hoc approach, whereby the state concerned would assess the

appropriateness of introducing a specific remedy or widening an existing remedy

by legislation or by judicial interpretation.

states might envisage, if this is deemed advisable, the possibility of

reopening proceedings similar to those of a pilot case which has established a

violation of the Convention, with a view to saving the Court from dealing with

these cases and where appropriate to providing speedier redress for the person

concerned. The criteria laid out in Recommendation Rec(2000)2 of the Committee

of Ministers might serve as a source of inspiration in this regard.

case, governments should speedily inform the Court so that it can take them

into account in its treatment of subsequent repetitive cases.

create new remedies, or give existing remedies a certain retroactive effect,

following every case in which a Court judgment has identified a structural

problem. In certain circumstances, it may be preferable to leave the cases to

the examination of the Court, particularly to avoid compelling the applicant to

bear the further burden of having once again to exhaust domestic remedies,

which, moreover, would not be in place until the adoption of legislative

changes.

...”

2 March 2010, at their 1078th meeting, the Ministers' Deputies responsible for

supervising execution of the Court's judgments observed, with reference to the

Străin

and

Viașu

cases and over a hundred other Romanian cases of the same type, that

the issues raised therein reflected a major systemic problem linked in

particular to the absence of restitution or compensation in respect of

properties which had been nationalised and were subsequently sold by the State

to third parties. They took note of the action plan presented by the Romanian

authorities on 25 February 2010 and invited them to submit a tentative

timetable for adoption of the measures envisaged.

E.  Comparative law: restitution and

compensation in respect of properties nationalised before 1989 in central and

eastern Europe

the years following the Second World War the communist regimes in numerous

central and eastern European countries conducted massive programmes of

nationalisation and expropriation of immovable property, industrial, banking

and commercial structures and, with the exception of Poland, agricultural

structures.

the early 1990s restitution measures were adopted in many of these countries,

whose political and legal situations differed. The detailed arrangements and

scope of the measures varied and there were wide differences in the forms of

compensation adopted by States.

States (Azerbaijan, Bosnia and Herzegovina and Georgia) have not enacted any

legislation concerning restitution or compensation in respect of properties

that were nationalised or confiscated.

legislation in Poland does not establish a general right to restitution or

compensation in respect of properties that were confiscated or nationalised.

The sole exception concerns the Bug River region and is confined to a right to

compensation. In practice, the persons entitled can opt either to have the

index-linked value of the abandoned properties deducted from the price of a

State-owned property acquired by means of a competitive bidding procedure, or

to receive money from the compensation fund. The amount of compensation which

claimants may receive is subject to a statutory ceiling of 20% of the current

value of the property lost in the Bug River region.

Hungarian legislation on partial compensation for damage caused to citizens'

property by the State provides for compensation to be paid in monetary form or

in the form of coupons. There is also a statutory cap on compensation.

majority of the countries concerned restrict the right to restitution or

compensation to certain categories of properties or claimants. In some countries

the legislation lays down time-limits, sometimes very short, for lodging

claims.

countries provide for various forms of restitution and/or compensation by means

of so-called “restitution” laws: this is the case in Albania, Bulgaria, Lithuania

and “the former Yugoslav Republic of Macedonia”. Others have dealt with the

issue of restitution under rehabilitation laws (the Czech Republic, Germany,

Moldova, Russia, Slovakia and Ukraine). Finally, the issue is also dealt with

under property legislation (Bulgaria, the Czech Republic, Estonia, Germany and

Slovenia).

all cases, restitution is not an absolute right and may be subject to numerous

conditions and restrictions. The same is true of the right to compensation.

ratione personae

the former owners or their successors in title (lawful heirs in Albania) may be

eligible for restitution or compensation in respect of confiscated or

nationalised property. In some countries including the Czech Republic, Estonia,

Lithuania, Moldova, Slovakia and Slovenia, the legislation requires the

claimant to be a citizen either when the property was confiscated or when the

claim for restitution is made, or in some cases even both. In addition, the law

in Estonia and Slovakia requires claimants to be permanent residents both when

the law entered into force and when the claim for restitution or compensation

is made. In those systems where there is a rehabilitation procedure, only

persons rehabilitated in accordance with the law may claim restitution of their

property. This is the case in the Czech Republic, Germany, Moldova, Russia,

Slovakia and Ukraine. In these countries entitlement to restitution or

compensation is wholly or partially linked to the rehabilitation of victims of

political repression.

from restitution

legislation in some countries excludes several categories of properties from

restitution or compensation.

some cases the legislation excludes land and buildings the character of which

has been altered (Germany); other countries exclude property which has lost its

original character (Estonia) or property which has disappeared or been

destroyed, as well as properties which have passed into private ownership

(Moldova, Russia and Ukraine).

addition, under Estonian law, military property, cultural and social assets and

property under State protection, as well as buildings used by the State or

local administrative authorities, are excluded from restitution. Under the legislation

in Moldova plots of land, forests, perennial plantations and property

confiscated on grounds unrelated to political repression are also ineligible

for restitution.

Russia and Ukraine properties which were nationalised in accordance with the

legislation in force at the time do not qualify for restitution or

compensation.

Lithuania restitution is possible only in the case of residential property. The

Serbian legislation provides only for partial restitution of agricultural land.

Finally, in the Czech Republic and Bulgaria the restitution laws specify the

properties which are covered.

legislation imposes temporal restrictions on the lodging of claims for

restitution or compensation. This is the case in Albania and Estonia, where

former owners were given less than a year in which to lodge a claim, and in the

Czech Republic, Slovakia and “the former Yugoslav Republic of Macedonia” (one

year from the date of entry into force of the law on rehabilitation).

the legislation restricts restitution or compensation to properties

nationalised or confiscated during a certain period. By way of example, the

German compensation scheme is limited to properties nationalised after 1949 but

compensation is awarded for properties nationalised between 1945 and 1949 in

the Soviet-occupied zone.

restrictions thereon

101.  A

number of countries have opted to provide compensation in the form of another

property equivalent to that which was nationalised or confiscated (Albania,

Bulgaria, Germany, Montenegro and “the former Yugoslav Republic of Macedonia”).

no exchange is possible the legislation allows the person concerned to be

provided with a property of a different kind, a sum of money, compensation

vouchers (Bulgaria and Hungary), State securities or bonds (Slovenia and “the

former Yugoslav Republic of Macedonia”) or shares in a public company (Albania

and Bulgaria).

amount of compensation is calculated mainly by reference to the market value of

the property at the time of the restitution or compensation decision (Albania,

Lithuania, Moldova, Montenegro, Poland and Serbia) or at the time the property

was confiscated (“the former Yugoslav Republic of Macedonia”), or as otherwise

provided by law.

countries take account of other considerations in addition to the market price.

In Albania, when compensation is provided in the form of shares the amount is

equal to the value of the property at the time of the decision or the value of

the privatised public property.

factors may also be taken into consideration in determining the amount of

compensation. In Germany, for instance, account is taken of the value of the

property before expropriation, which is then multiplied by a coefficient laid

down by law.

some countries the legislation sets a cap on compensation (Germany, Russia and

Ukraine), or provides for payment in instalments (Moldova).

restitution or compensation claims

authorities responsible for determining restitution or compensation claims may

be judicial or administrative. The most common arrangements include special

restitution and compensation boards (Albania, Bulgaria, Moldova and

Montenegro), administrative bodies (Lithuania), the Ministry of Finance or

Justice, or even the courts (the Czech Republic). In all the countries surveyed

an appeal lies to the administrative or civil courts against the decisions of

the administrative bodies.

THE LAW

I.  JOINDER OF THE APPLICATIONS

Court considers at the outset that, in the interests of the proper

administration of justice, the applications registered under the numbers

30767/05 and 33800/06 should be joined in accordance with Rule 42 § 1 of the

Rules of Court, as there is common ground between the facts giving rise to the

two cases. As the legislative framework and the administrative practices are

similar, the Court is of the view that they can best be analysed by joining the

two applications.

II.  ALLEGED VIOLATION OF ARTICLE 6

§ 1 OF THE CONVENTION

first two applicants, Mrs Atanasiu and Mrs Poenaru, alleged that the dismissal

of their action to recover possession of flat no. 1 and of their application to

have the contract of sale rescinded had infringed their right of access to a

court. The third applicant, Mrs Solon, contended that the length of the

restitution proceedings had been excessive. All three applicants relied on

Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing within a reasonable time

by [a] ... tribunal ...”

110

.  The Court notes at the

outset that Mrs Solon's main complaint concerns the lack of an effective

compensation mechanism; in her submission, this also contributed to the length

of the compensation proceedings. As the issue of the length of the proceedings

is inherent in that of the effectiveness of the compensation mechanism, the

Court will consider this complaint from the standpoint of the right to the

peaceful enjoyment of possessions (see paragraphs 150-194 below).

A.  Admissibility

Court notes that the complaint raised by Mrs Atanasiu and Mrs Poenaru

under Article 6 § 1 of the Convention concerning their alleged lack of access

to a court is not manifestly ill-founded within the meaning of Article 35 § 3

of the Convention. It further notes that it is not inadmissible on any other

grounds. It must therefore be declared admissible.

B.  Merits

(a)  The applicants

Atanasiu and Mrs Poenaru submitted that, in refusing to examine on the merits

their action for recovery of possession of the flat in question, on the ground

that they should first have made use of the administrative procedure under Law

no. 10/2001, the domestic courts had infringed their right of access to a

court. They added that, in seeking restitution of the flat, they had made use

of all the remedies available under domestic law, namely an action for recovery

of possession and the administrative procedures established by Laws nos.

112/1995 and 10/2001, without ever obtaining a decision on the merits.

(b)  The Government

the Government's submission, the dismissal of the action brought by Mrs

Atanasiu and Mrs Poenaru had not infringed their right of access to a court but

had been prompted by the concern of the domestic courts to maintain consistency

in the restitution procedures established by Law no. 10/2001. In any event, the

applicants had had full access to a court in the context of the remedies

available