CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s76CF415B { page-break-before:always; clear:both } .s6B505E72 { margin:0pt; padding-left:0pt } .s619FCD1 { font-family:Arial; list-style-position:inside } .s13783063 { width:6.24pt; font:7pt 'Times New Roman'; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 11 May 2016   FOURTH SECTION Application no. 14254/10 Adrian LUPAȘ and others against Romania lodged on 5 June 2009 STATEMENT OF FACTS A list of the applicants is set out in the appendix. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background of the case The applicants are the descendants of two former co-owners of a plot of approximately 50 hectares in Constanța, on the Black Sea Coast. On 1950 the land was expropriated with a view to building a military base. On 5 December 1994 the Constanța Court of Appeal ruled that the expropriation order was unconstitutional and noting that the military base had not been built it ordered the return of the land to the heirs of the former owner. In 1998 and 1999 three actions for recovery of the property were brought by part of the heirs of two former co-owners. All three actions were dismissed as inadmissible at final instance by the Court of Cassation and Justice pursuant to the unanimity rule, which barred joint owners from seeking recovery of an undivided property without the consent of the other joint owners, without an examination on the merits. The final decisions were delivered by the High Court of Cassation and Justice on 24   April 2001, 15   May and 18 September 2002 respectively. 2.     The Court’s judgment The applicants lodged three applications with the Court, complaining about the lack of access to court in the civil proceedings concerning their restitution claims. They also complained about an alleged violation of Article   1 of Protocol   No.   1 to the Convention. The three applications were examined by the Court together. On 14 December 2006 the Court delivered a judgment concerning the three applications, which became final on 14 March 2006 (see Lupaş and Others v.   Romania , nos. 1434/02, 35370/02 and 1385/03, ECHR   2006 ‑ XV (extracts)). The Court held that there had been a violation of Article   6   §   1 of the Convention, on account of a breach of the applicants’ right of access to a court in proceedings related to property nationalised under the communist regime arising from the rigid application of a case-law rule requiring unanimity amongst co-owners in order to bring an action for recovery of a joint property (see Lupaş and Others , cited above, §   77). In particular, the Court noted that: “76.     ... the Court finds that the strict application of the unanimity rule imposed a disproportionate burden on the applicants, depriving them of any clear and practical opportunity to have the courts determine their applications for recovery of the land in issue and thereby impairing the very essence of their right of access to a court.” The applicants’ complaint about a violation of Article   1 of Protocol No. 1 to the Convention was dismissed as inadmissible ratione materiae (see Lupas and Others , cited above, §§   85-90). By the judgment, each applicant was awarded EUR   1,000 in respect of non ‑ pecuniary damage. On 6 December 2012 the Committee of Ministers concluded the supervision of the execution of the judgment under Article 46   §   2 of the Convention. It noted that the sums awarded under Article 41 had been paid to the applicants. It also noted that in order to obtain restitution in integrum Article   322 §   9 of the Code of Civil Procedure (“the CCP”) allowed the applicants to lodge an application for the reopening of the impugned proceedings. 3.     The applicant’s requests for the reopening of the domestic proceedings The applicants lodged three separate extraordinary appeals ( revizuire ) seeking the review of the three final decisions by which their restitution claims had been dismissed as inadmissible on the ground that the rule of unanimity had not been observed and which had been found by the Court to be in violation of their right of access to a court. Relying on the Court’s judgment of 14 December 2006, the applicants asked the competent domestic courts to quash their previous decisions and to adopt new judgments allowing the examination of their restitution claims on the merits. Two of their extraordinary appeals were allowed by final decisions of 25   March 2008 of the Constanța County Court and of 15 July 2009 of the High Court of Cassation and Justice respectively. Both courts noted that Article   322 §   9 of the CCP was applicable and accepted the reopening of the restitution proceedings and the examination of the applicants’ claims on the merits. The third application for the reopening of the civil proceedings was dismissed as inadmissible by a decision delivered by the Galați Court of Appeal on 25 October 2007. The court held that the conditions for the admissibility of their extraordinary appeal were not met as the judgment under review did not refer to the merits of their restitution claims but to the non ‑ compliance with a procedural requirement, namely the unanimity rule. The court concluded by pointing out that the applicants had other remedies to obtain the enforcement of the Court’s decision. The applicants’ appeal against that decision was dismissed by a decision delivered by the High Court of Cassation and Justice on 8   December 2008, which upheld the reasoning of the Galați Court of Appeal. B.     Relevant domestic law and practice Article   322   §   9 of the CCP, as in force at the relevant time, provided for a possibility to reopen civil proceedings in case that the Court has found that a court judgment violates fundamental rights or freedoms and this violation continues to have serious effects that cannot be removed. In decisions 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 High Court of Cassation and Justice, sitting as a full court and 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. COMPLAINT The applicants allege that the unfair manner in which the domestic courts dealt with their third request for the reopening of the domestic proceedings based on the Court’s judgment of 14 December 2006 entail a fresh violation of Article   6 §   1 of the Convention concerning their right of access to a court. QUESTIONS TO THE PARTIES 1.     Does the refusal of the High Court of Cassation and Justice to reopen the domestic proceedings in the light of the Court’s judgment in Lupaş and Others v. Romania (nos. 1434/02, 35370/02 and 1385/03, ECHR 2006 ‑ XV (extracts) constitute a “new issue” under the Convention falling within the Court’s jurisdiction?   2.     In particular, has the Court’s judgment in the applicants’ previous case, cited above, created a basis for a new actionable domestic claim for the purposes of Article 6   §   1 of the Convention?   3.     If so, have the applicants been afforded access to court in respect of such claim, as guaranteed by that provision? Appendix     Adrian LUPAȘ born on 4 October 1935 and lives in München;     Dan-Mihai BANCIU born on 6 November 1947 and lives in Bucharest;     Elena Liana BINDER born on 14 July 1953 and lives in Singen;     Nicolae CHIRESCU born on 13 February 1927 and lives in Bucharest;     Patricia Maria FOARȚĂ born on 22 August 1972 and lives in Bucharest;     Ioana GRECEANU born on 17 September 1955 and lives in Milford;     Teodor GRIGORIU born on 25 July 1925 and lives in Bucharest;     Minerva IONESCU born on 20 November 1928 and lives in Bucharest;     Rodica IONESCU born on 6 February 1928 and lives in Constanța; Nicolae LUPAȘ born on 3 January 1933 and lives in Dietzenbach; Ovidiu LUPAȘ born on 24 May 1934 and lives in Gerestried; Virginiu LUPAȘ born on 15 August 1938 and lives in München; Aurel Vasile MOARCAS born on 24 March 1935 and lives in Brașov; Maria PUSTA born on 25 February 1929 and lives in Bucharest; Mihai Anton RICCI born on 2 February 1946 and lives in La Varenne St. Hilaire; Vanda ROŞCULEŢ born on 7 March 1949 and lives in Brașov; Elisabeta STOICA born on 6 May 1956 and lives in Râmnicu-Vâlcea; Ana TEODOSIU born on 14 April 1937 and lives in München and Dorina VOINESCU born on 8 April 1927 and lives in Călimănești. All the applicants are represented by the same lawyer, Ms. C. Cristea.