CEDH · CASELAW;CLIN;ENG — 1 décembre 2005

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Romania - 63252/00 Judgment 1.12.2005 [Section III] Article 1 of Protocol No. 1 Positive obligations Legal uncertainty concerning a possession of the applicant   whose return he requested after it had been nationalised and sold to a third party by the State: violation   Article 1 para. 1 of Protocol No. 1 Deprivation of property Nationalised property the title to which was restored retrospectively to the applicant, sold by the State to third parties: violation   Facts : The applicant’s father owned a property in Bucharest divided into two buildings, A and B, containing three and two flats respectively, which was nationalised by the State in 1950. In February 1996 the applicant applied for the return of the property under Law no. 112/1995 on the legal rules governing nationalised residential property. In October 1996 the commission responsible for the implementation of the Law decided that properties nationalised before 1989 whose former owners had made an application for the return of property under that Law, or had brought an action for recovery of possession in the courts, were only to be sold to the tenants after the legal status of the property had been clarified. In early 1997 the city council sold the two flats in block B and the adjoining land to the tenants. In March 1997 the applicant brought an action for recovery of possession of the property. In a final judgment of April 1997 the court found that the whole of the property claimed by the applicant had been nationalised in breach of the legislation then in force, held that the applicant had remained the rightful owner and ordered the building to be returned to the applicant, including the flats previously sold by the State. A few days later the city council sold one of the three flats in block A and the adjoining land to the former tenants. In execution of the April 1997 judgment, the city council ordered the return of the entire property. However, the transfer of possession of the parts that had been sold to former tenants required the prior annulment of the deeds of conveyance. In March 1999 a court held that the flats had been validly sold, since there was no evidence of any bad faith on the part of the purchasers, and any bad faith on the part of the city council had no bearing on the matter. The appeals lodged by the applicant against that judgment were dismissed. The applicant was then no longer legally entitled to recover the building but could only claim damages. The applicant complained that he had not received any compensation for the sale of his flats to third parties, which had been upheld by a judicial decision. Law : Article 1 of Protocol No. 1 – As to the flat that had been sold after the judicial decision ordering the return of the building: whilst the judgment of 10 April 1997 had retroactively recognised the applicant’s right of property and had ordered the State to return the building to him, the State had sold the flat. It was not therefore merely a sale of someone else’s property, but a sale that had taken place in flagrant breach of a judicial decision in the applicant’s favour. It had not been established with certainty whether or not the judgment of 10 April 1997 had become final by the date of the sale, but the State, in its capacity as guarantor of public policy, had a moral obligation to set an example and should have ensured that the authorities responsible for the protection of public policy complied with that obligation. By selling the disputed flat that it had been ordered to return to the applicant, without expressing the slightest opposition to the judgment, for example by lodging an appeal, the State had shown disregard for judicial decisions. Moreover, under the law as it stood, the applicant no longer had any remedies whereby he could recover possession of the flat. In short, there had been interference with the applicant’s peaceful enjoyment of his possession. Following the sale of the property, the applicant had no longer been able to take possession of it or to sell, bequeath, donate or otherwise alienate the property. The situation had thus resulted in a deprivation of the applicant’s property. The interference moreover had no basis in law, as when the sale took place the State had no document of title to the flat, whereas property could only legally be sold on the basis of a document proving title. As to the flats sold before the applicant had brought his action for recovery of possession of the property, the applicant had a pecuniary interest sufficiently established in domestic law to secure the return of the flats, which were a “possession”. The State had failed to fulfil its positive obligation to take timely and consistent action to address the question of general interest raised by the restitution or sale of property that had been transferred to State ownership under nationalisation decrees. The lack of consistency in the legislation and the discrepancies in the case-law of the Supreme Court, particularly concerning nationalised real property, were capable of creating a general lack of legal certainty and security. The general legal uncertainty thus created had had repercussions in the specific case of the applicant, who had been unable to recover possession of the whole of his property, even though the State had been ordered in a final judgment to return it to him. Consequently, the State had not fulfilled its obligation to uphold the applicant’s right to the effective enjoyment of his possessions, and had thus failed to strike a “fair balance” between the requirements of the public interest and the need to protect the applicant’s right to the peaceful enjoyment of his possessions. Conclusion : violation (unanimously). Article 41 – The Court considered that the question of the application of Article 41 was not ready for decision and should accordingly be reserved in its entirety.   © 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