CEDH · CASELAW;CLIN;ENG — 20 janvier 2009

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Romania - 29739/03 Judgment 20.1.2009 [Section III] Article 46 Article 46-2 Execution of judgment Measures of a general character Indication of measures to remedy systemic defects in legislation on the restitution of land and in the application of that legislation [This summary also covers the judgment in the case of Faimblat v. Romania , no. 23066/02, 13 January 2009] Facts ( Faimblat ): A property belonging to the applicants’ father was confiscated by the State and subsequently nationalised. The applicants brought administrative proceedings before the town council, in accordance with the provisions of Law no. 10/2001 on the legal rules applicable to real property wrongfully nationalised between 1945 and 1989, with a view to recovering possession of the property. Concurrently, they applied to the court of first instance for a declaration that the nationalisation had been illegal. Their action was declared inadmissible on the ground that they were required to follow the administrative procedure provided for by Law no. 10/2001. That judgment was upheld on appeal. The town council also said that the property could not be returned, as it had been demolished, and that the applicants were entitled to compensation of equivalent value. The applicants then brought an action for compensation, but after staying the proceedings to await the outcome of the administrative proceedings, the court ruled that the action was time-barred. Facts ( Katz ): The applicant’s parents owned immovable property which they handed over to the State in December 1966. The State then sold the property to S.M., who had been occupying it as a tenant since its donation to the State. The applicant lodged a request with the municipal authority for restitution of the property under Law no. 10/2001. The request had not been examined by the authorities by the date of the Court’s judgment. The applicant subsequently brought an action before a court of first instance seeking to have the 1966 donation declared null and void for lack of consent. He also sought to establish his title to the property and to have the contract of sale rescinded. The court declared the donation of the property null and void, but rejected the other two requests on the ground that S.M. had acted in good faith in signing the contract of sale. The applicant appealed unsuccessfully against the court’s decision. Law ( Faimblat ): Article 6 § 1 – The applicants’ access to the procedure made available by Law no.   10/2001 remained theoretical since no compensation had been obtained seven years after the action was brought. Conclusion : violation (unanimously). Law ( Katz ): Article 1 of Protocol No. 1 – In the context of the Romanian legislation governing actions brought in relation to property nationalised under the communist regime, the sale by the State of another’s property to a third party purchasing in good faith amounted to a deprivation of property. The Proprietatea fund, which was in charge of payment of compensation on the basis of Law no. 10/2001, did not operate effectively. Lastly, the legislation, including the amending legislation, did not take into account the damage resulting from individuals’ inability to make use of property returned to them by a final decision and from the failure to obtain compensation over a long period. Accordingly, the frustration of the applicant’s right of ownership, combined with the complete absence of compensation for over six years, had infringed his right to the peaceful enjoyment of his possessions. Conclusion : violation (unanimously). Article 46 ( Faimblat ) – The finding of a violation of Article 6 § 1 revealed a systemic problem resulting from shortcomings in the legislation governing the restitution of nationalised properties and the application of that legislation by the administrative authorities. The Court was satisfied that the problem of the differing interpretations of Law no. 10/2001 had been resolved; however, it could not disregard the fact that the many legislative amendments that had been made had not thus far resulted in any improvement in the situation to which that statute had given rise. It noted with concern that some 50   similar cases were already pending before it. This appeared to indicate a widespread practice among the administrative authorities of not responding within the statutory time-limit or, at least, within a reasonable time, as that expression had been interpreted by the Court, to requests for restitution of nationalised properties. The shortcomings that had been identified in these cases might, furthermore, result in many well-founded applications being made to the Court in the future. The Court considered that the failure by the Romanian State to put its legislative system in order had not only aggravated the State’s responsibility under the Convention in respect of past and present situations, but also constituted a threat to the future effectiveness of the machinery that had been put in place by the Convention. First and foremost, the State had to take the necessary legislative measures to ensure that persons requesting the restitution of property received definitive answers from the administrative authorities within a reasonable time. The State was also required to remove any legal obstacles to the rapid execution of final decisions of the administrative authorities and of the courts concerning nationalised property to enable former owners to obtain either restitution of their property or adequate compensation without delay for their losses. The aforementioned measures were to be taken at the earliest opportunity. Article 46 ( Katz ) – The finding of a violation of Article 1 of Protocol No.   1   revealed the existence of a widespread problem with regard to the Romanian legislation on restitution of nationalised immovable property sold by the State to third parties purchasing in good faith (see, among the other cases, Străin v.   Romania ,57001/00, 21 July 2005, Information Note no. 77). In view of that structural problem, general measures at the national level were required. Thus, first and foremost the State had to take the necessary legislative measures to prevent situations arising in which two titles to the same property coexisted. This had occurred in the applicant’s case as a result of the implied recognition of the applicant’s right of property without any corresponding cancellation of the third party’s title.   The State was also required to remove any legal obstacles preventing former owners from obtaining adequate compensation without delay for their losses. In particular, the State needed to amend the procedure that had been put in place by the laws on reparation to ensure that it became genuinely coherent, accessible, rapid and foreseeable both generally and as regards the method for choosing which files would be dealt with by the central committee. The new system had to enable those concerned to receive compensation and/or, if they preferred, shares in Proprietatea , within a reasonable time. Despite the three years that had elapsed since the Străin judgment and the repeated amendments that had been made to Law no. 10/2001, the restitution procedure was still not effective. The Government were therefore required to make visible improvements to the system at the earliest opportunity. Article 41 ( Faimblat ) – EUR 6,000 in respect of non-pecuniary damage to be paid within three months from the date the judgment became final. Article 41 ( Katz ) – Respondent State to return the property in issue to the applicant within three months from the date the judgment became final or, in default, to pay EUR 50,000 in respect of pecuniary damage.     © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes