CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 mai 2013

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The Romanian Government (“the Government”) were represented by their Agent, Mrs Catrinel Brumar, from the Ministry of Foreign Affairs. The circumstances of the case The facts and legal situation of the present case are similar, if not identical, to those presented in the leading case of Radovici and Stănescu v.   Romania , nos. 68479/01, 71351/01 and 71352/01, ECHR 2006 ‑ ...XIII (extracts). However, there are some particularities which, as submitted by the parties, may be summarised as follows. The applicant is the owner of real estate (a building and its appurtenant land) located in Bucharest, 30 Dimitrie Racoviţă Street, which was nationalised pursuant to the Decree no. 92/1950. With respect to this property, the applicant firstly lodged an application with the Court in 1997. On 1 June 2004 the Court rendered its judgment on the merits. It found, inter alia , that there had been a violation of Article 1 of Protocol No. 1 as the former Supreme Court had quashed in 1996 (without any justification or compensation) a final court decision of 1994 acknowledging the unlawfulness of the nationalisation and the validity of   the applicant’s property title (see Buzatu v. Romania , no. 34642/97, §§   48-54, 1 June 2004). The Court further judged that the best possible compensation would be the in-kind restitution of the property in question. It thus reserved the question of the just satisfaction claim as the applicant had brought in 1998 a second restitution action, pending at that time before the domestic courts (see Buzatu , cited above, § 58). On 27 January 2005 the Court gave its judgment on the just satisfaction claim and decided that the Government had to return the disputed real estate, and only if restitution was not possible, to pay the property’s current market value (see Buzatu v. Romania (just satisfaction), no. 34642/97, §§   15-17, 27 January 2005). The execution of the judgment was put on hold pending the finalisation of the restitution litigation before the national courts. On 20 December 2005 the High Court of Cassation and Justice allowed the action for recovery of possession. It ruled that the applicant was the lawful owner of the disputed real estate, which had to be returned to her. It also invalidated the subsequent purchase agreements concluded between the State and the former tenants on the applicant’s property. The judgment was final. The applicant thus initiated enforcement proceedings by bailiff. On 24   May 2007, subsequent to a contestation upon execution filed by the tenants occupying the building, the Bucharest County Court dismissed the action. It ruled that the enforcement could not be carried out as long as the applicant did not file a separate eviction claim against the tenants. However, on 6 October 2006 a decision issued by the Mayor’s Office in Bucharest ordered for the restitution of the real estate to the applicant in full compliance with the final court decision of 2005. On 5 November 2007 the Real Estate Funds’ Administration (“AFI”) proceeded to handing over the property to the applicant. The official report was signed by the official representatives as well as by the applicant, who refrained from making any comments or objections. On 17 September 2012 the Government informed the Department for the Execution of Judgments of the Court that the judgment of 27 January 2005 had been enforced. The applicant did not bring an eviction claim before the domestic courts in respect of the tenants occupying her property to date. COMPLAINT The applicant complained under Article 1 of Protocol No. 1 to the Convention of the inability to fully exercise property rights over real estate that had been returned to her. Relying on Article 6 § 1 of the Convention, the applicant further complained about the overall fairness of the proceedings, alleging that the domestic courts had failed to conduct a proper examination of the evidence submitted to them. THE LAW A.     Alleged violation of Article 1 of Protocol No. 1 to the Convention on account of the prolonged inability to exercise property rights The applicant complained about the inability to dispose of her property under Article 1 of Protocol No. 1 to the Convention. This provision provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 1.     The parties’ submissions The Government submitted that the present application was based on the same facts and raised the same legal issues as application no. 36642/97 in respect of which the Court had already given its judgment on 1 June 2004 and 27 January 2005 respectively. Moreover, the Government argued that the Court did not have jurisdiction to examine complaints concerning the failure by a State to execute its judgments, as raised in the present case. They recalled the Court’s case-law whereby such complaints had been dismissed as incompatible ratione materiae . Lastly, they pointed out to the fact that the Romanian authorities had fully complied with their obligations under the Court judgment of 27 January 2005 as well as the final court decision of 20 December 2005 by handing over the property to the applicant. They concluded that she had ceased to be a victim under the meaning of the Convention. The applicant disputed the Government’s arguments. She submitted that the handover report was pure formality and that she was still unable to use her property. 2.     The Court’s assessment From the outset, the Court notes that the present application concerns facts and legal issues which have arisen subsequent to its judgments in the first Buzatu case. Thus, the present application cannot be considered as being essentially the same with the application no. 36642/97. Accordingly, the Government’s objection must be rejected. The Court has already examined complaints concerning the inability of real estate owners to exercise their property rights due to legal measures prolonging pre-existing lease agreements in the leading case of Radovici and Stănescu (cited above). There, it found that such measures had amounted to a breach of the applicants’ right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol no. 1 (see Radovici and Stănescu , cited above, §§ 73-90). The Court notes that the facts and the legal issues of the present application are similar to those presented in the Radovici case. However, it observes that, contrary to these cases, the applicant did not try to have the tenants unlawfully occupying her property evicted by lodging a respective claim with the domestic courts, as is typical of all Radovici -type cases (see Radovici and Stănescu , cited above, §§ 14-18, 21-26). The Court further notes that by virtue of the official AFI report of 5   November 2007 the property was handed over to the applicant. She duly signed the report and refrained from making any comments to it. What is more, according to an information note of 19 July 2012 issued by AFI on the Government’s request and submitted to the Court, the applicant’s estate is no longer listed in their register of properties under lease agreements. In regard of the above, the Court concludes that the authorities had fully complied with their obligation to return the property to the applicant. She can no longer claim to be a victim under the meaning of the Convention. In any event, she did not even challenge the handover report as wrongful and did not even file a court action to have the tenants unlawfully occupying the building evicted. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention. B.     Other complaints Relying on Article 6 § 1 of the Convention, the applicant complained about the overall fairness of the proceedings, alleging that the domestic courts had failed to conduct a proper examination of the evidence submitted to them. Having considered the applicant’s submissions in 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 they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Marialena Tsirli   Alvina Gyulumyan   Deputy Registrar   President