CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 2 December 2024   FOURTH SECTION Application no. 5894/20 Nicolae DRĂGUŞIN against Romania lodged on 20 December 2019 communicated on 13 November 2024 SUBJECT MATTER OF THE CASE The application concerns the applicant’s claims that the failure of the domestic authorities to take the lawful measures aimed at the protection of his property, i.e. providing approval and pro quota contribution for the works necessary to upkeep that property, have breached his rights under Article   1 of Protocol No. 1 to the Convention. He also complains about the proceedings before the appellate court, where his claims were denied allegedly in breach of the adversarial principle laid out by Article 6 of the Convention. The applicant owns an apartment in a building where the Bucharest Municipality, in its private capacity, owns two other apartments. Relying on the conclusions of expert reports carried out at his own expense, which proved that the building, dating from the 1920s and subjected to several serious earthquakes, needed significant consolidation interventions, the applicant initiated a written dialogue with the relevant local authorities, including the Municipality, seeking to obtain authorisation for the maintenance works as well as appropriate financing, in line with the property quota of each owner. Such dialogue, extended over two years, remained unsuccessful. The reasons laid out by the administration mainly referred to the fact that the building was not on the list of the most endangered buildings in Bucharest (category I as concerns the seismic risks), but was a “category II” building, for which no funding had yet been provided or indeed been envisaged; and also that the two apartments owned by the Municipality were in the process of being returned to their former owners, hence, no public funding could be allocated; lastly, that in any event, all steps to be taken and works to be carried out had to be made in compliance with the public procurement procedure. In 2016 the applicant lodged a civil action against the Bucharest Municipality; relying on the provisions of the Civil Code relevant for common forced ownership, the applicant petitioned the court to replace the consent of the refusing party (the Municipality) to initiate the administrative proceedings necessary for the consolidation of the building (for instance to obtain the urban planning certificate and the building permit, to obtain the corresponding expert report and all other technical documents required by the law for such works) and to carry out the respective works. By a decision of the Bucharest Second District Court of 21 June 2018 the applicant’s action was allowed. The first instance court found, on the basis of an expert report, that the property was in an advanced state of degradation and revealed a serious risk of collapse, therefore being in real and urgent need of consolidation; it further considered that in its capacity as authority in charge of reducing seismic risks, but also as co-owner of the endangered building, the Municipality should have given its consent and should have initiated, along with the other co-owners, all necessary works for the upkeep of the building. The court considered that the prolonged refusal to do so was abusive; also, the fact that the two apartments belonging to the Municipality continued to be the object of restitution proceedings was by the latter’s own fault, as it was bound, as per the law, to decide on such restitution claims within sixty days as of the day of notice; nevertheless, the restitution proceedings had been pending since 2001 (respectively 2015). In any event, the obligation to maintain the property belonged to the one who was in possession, namely, until further decision on the ownership, to the Municipality. The court also held that the applicant was entitled to carry out, at his own expense as well as at the expense of the co-owner, all the necessary works of consolidation and major repairs as outlined in the expert report. By a final decision of the Bucharest County Court of 17 December 2018 (notified to the applicant on 24 June 2019), the appeal lodged by the Municipality was allowed and the applicant’s action was rejected, on the grounds that the refusal of the Municipality did not amount to an abuse of right. The court found that the necessary consent could not be given until several preliminary steps had been taken. Those steps were enumerated in Government Decision no. 1364/2001 approving the methodology of application of the Government Ordinance no. 20/1994 setting out certain measures to reduce the seismic risk of existing buildings, and they included: the carrying out of an expert report; the approval by the owners to initiate the works; the carrying out of the project for such works and their execution. For each step, the approval by the public procurement authority was needed; the applicant could not circumvent the public procurement procedure by having recourse to the general law (Civil Code). QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In that connection, was there an interference with the applicant’s right to the peaceful enjoyment of his possession in the circumstances of the present case? If so, does such interference consist of the public authority’s refusal to grant consent for the works necessary to maintain the building? Does it consist of the domestic court’s denial to override such lack of consent? Does it consist of any other action or failure to act of the domestic authorities involved in dealing with the applicant’s claims (see, mutatis mutandis , Plechanow v. Poland , no. 22279/04, §§ 99-100, 7 July 2009, and Kurşun v.   Turkey , no. 22677/10, § 114, 30 October 2018)?   Was the interference in question in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No.   1, and   did it strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the applicant’s fundamental rights?   2.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular, was the principle of adversarial proceedings respected as regards the dismissal of the applicant’s appeal on account of legal arguments relied on by the appellate court in its reasoning (in particular Government Decision no. 1364/2001) which had not been discussed in adversarial proceedings (see Vegotex International S.A. v. Belgium [GC], no. 49812/09, §§ 135-36, 3   November 2022)?