CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 novembre 2015

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De Gaetano,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Iulia Antoanella Motoc,   Gabriele Kucsko-Stadlmayer, judges, and Françoise Elens-Passos, Section Registrar, Having regard to the above application lodged on 4 September 2008, 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 1.     The applicants – Mr Mircea Bârză, Mr Ştefan Necşuleu, Ms Marcela Felicia Necşuleu, Mr Ioan Voicu, Ms Maria Voicu, Mr Viorel Zudor, Ms   Livia Zudor, Mr Cornel Oprița, Mr Ioan Muntean, Ms Ana Muntean, Mr   Ioan Şeican, Ms Victoria Şeican, Ms Maria Voic, Ms Mariana Voic and Ms Ioana Voic – are Romanian nationals who were born in 1950, 1951, 1954, 1930, 1937, 1952, 1954, 1949, 1928, 1928, 1949, 1951, 1928, 1953 and 1953, respectively, and live in Alba-Iulia. They were represented before the Court by Mr E.A. Popescu, a lawyer practising in Alba-Iulia. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background to the case 4.     The applicants had lived on the same street for over thirty years. The street they lived on had been built – in order to afford them easy access to their homes – on their own private land. 5.     By Government Decision no. 974/2002 confirming the inventory of the public property owned by Alba County, the street on which the applicants’ houses were located was transferred, as public property, to Alba County. 2.     Proceedings initiated by the applicants contesting Government Decision no. 974/2002 6.     On an unspecified date the applicants lodged a preliminary complaint ( procedura prealabilă ) with the Government, seeking to have Government Decision no. 974/2002 cancelled on the ground that they were the owners of the land on which the street their houses were located on was built. 7.     On 11 April 2007 the Romanian Government dismissed the preliminary complaint on the grounds that the impugned decision had been lawful and that the complaint was time-barred. 8.     On 8 May 2007 the applicants instituted court proceedings against the Romanian Government and Alba-Iulia Local Council seeking the annulment, inter alia , of part of attachment no. 12 to Government Decision no. 974/2002. They argued that the domestic authorities had unlawfully transferred to public ownership the street, which had been built on their private land. Moreover, they argued that Government Decision no.   974/2002 had been issued on the basis of Article 108 of the Romanian Constitution and Article 21(3) of Law no. 213/1998 on public property. Consequently, it had been of a normative character and had therefore – under Article 11(4) of Law no. 554/2004 – not been subject to statutory limitation. Furthermore, the applicants supported their claim that the impugned decision had been of a normative character by relying on, inter   alia , the Court of Cassation’s judgment no. 1511 of 2 May 2006. 9.     The domestic authorities argued that the applicants’ action was time ‑ barred. 10.     On 13 July 2007 the Alba-Iulia Court of Appeal dismissed the applicants’ action. It noted that in 2003 the applicants had instituted court proceedings against Alba-Iulia Local Council and a third party, seeking an injunction against Alba-Iulia Local Council and that third party to acknowledge the applicants’ ownership of the land on which the street their houses were located on was built. During those proceedings, on 19   March   2004 the Alba-Iulia Mayor’s Office had expressly informed the applicants that the street their houses were located on had been transferred to public ownership and had been mentioned in attachment no. 12 to Government Decision no. 974/2002. The court held that the attachment was undoubtedly a unilateral administrative act of an individual character because it contained an inventory of the properties transferred to public ownership and was published in the Official Gazette (no. 701(bis.) of 25   September 2002). Moreover, the applicants had expressly been made aware of the transfer by the information note of 19 March 2004 sent to them by the Alba-Iulia Mayor’s Office. The applicants had initiated the proceedings before the court on 8 May 2007. The proceedings were therefore time-barred, given the statutory time-limit provided by Article   11(2) of Law no. 554/2004 on actions before administrative courts. 11.     The applicants appealed on points of law ( recurs ) against the judgment and reiterated the arguments they had raised before the first ‑ instance court. Moreover, they contended that the Court of Cassation’s judgment no. 1511 of 2 May 2006 had already established (in proceedings initiated by another third party) that Government Decision no. 974/2002 was an administrative act of a normative character and that it could therefore be challenged at any time. 12.     By a final judgment of 7 March 2008 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the first ‑ instance court had correctly established that under Article 11 of Law   no. 554/2004 the proceedings initiated by the applicants were time ‑ barred. Moreover, the applicants’ argument, unsupported by reasons, that the impugned decision was a unilateral administrative act of a normative character could not be accepted. The aforementioned decision was in fact a unilateral administrative act of an individual character because it attested that the property in question was in the public ownership of Alba County and it concerned specific legal entities operating in the county, as well as the individual properties mentioned in the annexes. 3.     Other relevant information 13.     On 14 April 2010 the Court of Cassation allowed a third party’s action against the Romanian Government and Alba-Iulia Local Council seeking the annulment of part of attachment no. 12 to Government Decision no. 974/2002. It held, inter alia , that the third party had been made aware of the impugned decision in December 2007 and had initiated the court proceedings within the statutory time-limit. 14.     On 26 November 2013 the Court of Cassation informed the Government that it had developed a rich case-law which had classified government decisions similar to the one challenged by the applicants as unilateral administrative acts of an individual character. It supported its submission by referring to thirty-four judgments delivered by it between January 2009 and November 2011 that had been published either on the Court of Cassation’s website or had been referred to in legal articles. B.     Relevant domestic law and practice 15.     Article 11(2), (4) and (5) of Law no. 554/2004 on actions before administrative courts provides that normative administrative acts may be challenged at any time, whereas individual administrative acts may be challenged no later than a year from the date on which they were issued. 16.     Article 108 of the Romanian Constitution provides, inter alia , that the Government may issue decisions or ordinances. Such decisions may be issued in order to implement laws. The Government’s decisions shall be signed by the Prime Minister and the ministers responsible for their implementation and shall be published in the Official Gazette. Failure to publish such decision renders it ineffective. 17.     Article 21(3) of Law no. 213/1998 on public property and rules governing it provides that inventories of property under public ownership shall be drawn up by the county councils or the Bucharest General Council and sent to the Government in order for the latter to attest by a decision that the property has been included in the public ownership of the county. 18.     By a final judgment of 2 May 2006 (no. 1511) the Court of Cassation allowed the proceedings brought by a third party against, among others, the Romanian Government, seeking the annulment of part of attachment 12 to Government Decision no. 974/2002. It held that the impugned decision was a normative administrative act issued on the basis of Article 108 of the Romanian Constitution and of Article 21(3) of Law no.   213/1998 on public property during the final stages of the special procedure establishing an inventory of Alba Country’s public property. On that legal basis it appeared that irrespective of whether Government Decision no. 974/2002 was a normative or individual, it was an act that determined property falling under public ownership and established the rules that would apply to such property. Therefore, the proceedings seeking the partial annulment of the aforementioned decision had not been subject to the time-limits stipulated by Article 11 (2) of Law no. 544/2004 and the decision to dismiss those proceedings as time-barred had amounted to a misinterpretation of the law. The conclusion reached by the first-instance court had been incorrect, even if it could have been accepted that the impugned decision had not been an administrative act of a normative character, given that the proceedings had been initiated within one year of the time when the victim the third party had been made aware of that decision. COMPLAINTS 19.     The applicants complained under Article 6 of the Convention that the proceedings instituted by them against Government Decision no.   974/2002 had been unfair in so far as the domestic courts had failed to examine the merits of the case and all their arguments and submissions. 20.     The applicants complained under Article 1 of Protocol No. 1 to the Convention that the decision of the domestic courts had breached their property rights in so far as Government Decision no. 974/2002 amounted to a nationalisation of their property. THE LAW A.     Complaint under Article 6 of the Convention 21.     The applicants complained that the proceedings instituted by them against Government Decision no. 974/2002 had been unfair in so far as the domestic courts had failed to examine the merits of the case and all their arguments and submissions. They relied on Article 6 of the Convention, which in so far as relevant reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 1.     The parties’ submissions (a)   The Government 22.     The Government submitted that the applicants’ right to a fair trial had not been breached and that the last-instance court had provided sufficient reasons for dismissing their action. The fact that the proceedings initiated by the applicants had been dismissed as time-barred could not amount to a disproportionate restriction of the applicants’ right to a fair trial, given that time restrictions for initiating court proceedings had been considered acceptable in the Court’s case-law. 23.     The Government argued that the Court of Cassation had addressed the main argument raised by the applicants and had explained why it had considered Government Decision no. 974/2002 to be a unilateral administrative act of an individual character. The applicants had been able to make repeated submissions before the domestic courts and their submissions had been taken into account. Even though they had supported their claim that the impugned decision had been of a normative character by referring to two legal articles and to another judgment delivered by the Court of Cassation in respect of the impugned decision, they had failed to present any legal argument supporting a link between the aforementioned articles and judgment and the decision they had challenged. 24.     The Government contended that in dismissing the applicants’ action, the last-instance court had emphasised the absence of reasoned arguments and had concluded that the impugned decision had been an administrative act of an individual character. 25.     The Government further argued that the right to a fair trial did not guarantee any particular outcome. Moreover, according to the Court’s case ‑ law, the domestic courts had not been under a duty to provide detailed reasons when rejecting every argument raised by the parties. Furthermore, the last-instance court had not simply reiterated the findings of the first ‑ instance court; it had made its own assessment and had provided its own reasons for dismissing the applicants’ appeal on points of law. The fact that the domestic courts had dismissed the applicants’ action as time-barred could not have amounted to a breach of their right of access to a court because the courts had examined the merits of the applicants’ claim – in particular, whether the impugned decision had been of a normative or individual character. Moreover, the preliminary objection examined by the courts had been raised by the parties to the proceedings from a very early stage of the proceedings (rather than by the last-instance court of its own motion). 26.     The Government also submitted that according to the Court’s case ‑ law, the establishment of time-limits for initiating proceedings was not incompatible with the Convention’s requirements. The domestic legislation had stipulated in a clear and foreseeable manner the time-limits for challenging governmental decisions and the appropriate proceedings. Moreover, the potential applicants had been made aware of the aforementioned legal provisions. 27.     The Government argued that the applicants had been assisted by a legal representative and that therefore, they could have been advised on their procedural obligations. In the Government’s opinion the shortcomings in the applicants’ lawyer’s conduct could not be ascribed to the State. 28.     The Government argued that the applicants had relied before the Court and during the domestic proceedings on a single judgment delivered by the Court of Cassation qualifying the impugned governmental decision as an administrative act of a normative character. Moreover, the judgment of 2 May 2006 had been delivered well before the applicants had instituted proceedings before the domestic courts. Consequently, they had not proved that the case-law of the Court of Cassations was either profoundly or persistently divergent and had therefore breached the principle of legal certainty. 29.     The Government submitted that the judgment of 2 May 2006 had remained an isolated decision of the Court of Cassation and had not been part of a series of conflicting judgments. Moreover, the possibility of lodging an appeal in the interests of law constituted an effective mechanism for eliminating any inconsistencies in the domestic case-law. (b)   The applicants 30.     The applicants claimed damages, but did not submit observations on this point. 2.     The Court’s assessment 31.     The Court reiterates that the effect of Article 6 § 1 is, inter alia , to place a “tribunal” under a duty to conduct a proper examination of submissions, arguments and evidence adduced by parties to a case, without prejudice to its assessment of whether they are relevant to its decision, given that the Court is not called upon to examine whether arguments have been adequately met (see Moldovan v. Romania (dec.), no. 1867/06, § 22, 15   October 2013; Buzescu v.   Romania , no. 61302/00, § 63, 24 May 2005; and Perez v.   France [GC], no. 47287/99, § 80, ECHR   2004 ‑ I). Nevertheless, although Article   6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Moldovan v. Romania (dec.), no. 7986/06, § 37, 19   November 2013, and Burg v. France (dec.), no. 34763/02, ECHR   2003 ‑ II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Sivova and Koleva v. Bulgaria , no.   30383/03, § 76, 15 November 2011, and Ruiz Torija v. Spain , 9   December 1994, § 29, Series A no. 303-A). 32.   In the present case, the Court notes that the domestic courts delivered reasoned judgments that touched on the main points raised by the applicants. In particular, the Court of Cassation expressly acknowledged the argument raised by the applicants that Government Decision no. 974/2002 was a unilateral administrative act of a normative character, examined it and dismissed it, providing clear, albeit succinct, reasons which do not appear arbitrary or in breach of the applicable civil procedure rules. 33.     The applicants’ mere disagreement with the judgments delivered by the domestic courts or the fact that the Court of Cassation had reached a different conclusion in a single case similar to the applicants’ and in a judgment delivered prior to the final judgment of 7   March 2008 are not sufficient to conclude that the domestic courts failed to properly examine the applicants’ case (including their arguments and submissions) or that the proceedings in general were unfair (see, mutatis mutandis , Sivova and Koleva , cited above, § 78). 34.     In this connection, the Court also notes that according to the information sent by the Court of Cassation to the Government on 26   November 2013, which was uncontested by the applicants, the aforementioned court had developed a rich case-law which had classified governmental decisions similar to the one challenged by the applicants as unilateral administrative acts of an individual character. 35.     Thus the Court considers it cannot be maintained, given the circumstances of the present case, that the domestic courts failed to properly examine the essence of the applicants’ submissions and evidence. 36.     In respect of the applicants’ claim that the domestic courts failed to examine the merits of their case, the Court notes that by failing to lodge their action before the domestic courts within the statutory limitation period under Law no. 554/2004 (see paragraph 15 above) – which it appears from the available evidence that they had never argued either before the domestic courts or the Court that it was not sufficiently clear and foreseeable – the applicants placed themselves in a situation in which they risked having their request declared time-barred. Therefore, it cannot be said that the statutory limitation period itself, or the manner in which it was applied in this case, impaired the very essence of the applicants’ right of access to a court (see,   mutatis mutandis , Baničević v. Croatia (dec.), no. 44252/10, §§ 36-37, 2   October 2012). 37.     It follows that this part of the application is manifestly ill-founded and must be dismissed, pursuant to Article 35 §§ 3 and 4 of the Convention. B.     Complaint under Article 1 of Protocol No. 1 to the Convention 38.     The applicants complained that the decision of the domestic courts had breached their property rights in so far as Government Decision no.   974/2002 had amounted to the nationalisation of their property. They relied on Article 1 of Protocol No. 1 to the Convention, which reads 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 (a)   The Government 39.     The Government submitted that in April 2011 Mr Mircea Bârză, Mr   Ioan Voicu, Ms Maria Voicu and Mr Cornel Oprița had donated to the city of Alba-Iulia the land on which the public street had been built. Also in April 2011 Mr Ioan Muntean, Ms Ana Muntean, Mr Ştefan Necşuleu and Ms   Marcela Felicia Necşuleu had sold their properties to third parties. Consequently, the aforementioned applicants had lost their victim status. 40.     The Government also contended that Mr Viorel Zudor, Ms   Livia   Zudor, Mr Ioan Şeican, Ms Maria Voic, Ms Mariana Voic and Ms   Ioana Voic had not had a possession within the meaning of Article 1 of Protocol No. 1 to the Convention. They submitted that the aforementioned applicants had failed to prove their property rights in respect of the land on which the street stood or to properly pursue the proceedings they had initiated in 2003 seeking the acknowledgement of their property rights to the land in question. 41.     The Government further argued that the applicants had failed to institute or properly pursue the 2003 proceedings seeking the recovery of their property rights and that therefore, they had failed to exhaust the available domestic remedies. 42.     The Government submitted that the street built on the applicants’ land retained its function as a means of access to their homes and that the applicants had never lost their right to use it. Moreover, the applicants had never been asked to pay tax in respect of the land on which the street was located. Consequently, the alleged interference with the applicants’ property rights had been lawful, had pursued a legitimate aim and had struck a fair balance between the public and the applicants’ interests. (b)   The applicants 43.     The applicants claimed damages, but did not submit observations on this point. 2.     The Court’s assessment 44.     The Court notes that the Government raised several preliminary objections in respect of the applicants’ complaint. However, it finds that it is not necessary to examine the said objections as, even assuming that they would be dismissed, the complaint is in any event inadmissible for the following reasons. 45.     The Court notes that, in so far as the applicants can claim to be the owners of the land in question, they failed to challenge Government Decision no. 974/2002 before the domestic courts within the statutory time ‑ limit stipulated by Law no. 554/2004, which would have provided them with effective redress for their complaint under Article 1 of Protocol No. 1 to the Convention. 46.     It follows that this part of the application must be rejected for non ‑ exhaustion of domestic remedies, pursuant to Article   35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 17 December 2015. Françoise Elens-Passos   András Sajó   Registrar   President