THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16173/04
by Stanca AMZUICĂ
against Romania
The European Court of Human Rights (Third Section), sitting on 3 May 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Stanca Amzuică, is a Romanian national who was born in 1918 and lives in Târgu Jiu. She was represented by Ms I. E. Vass and Ms A. A. Teis, lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. In 2002, the applicant lodged a civil action against the Târgu Jiu Town Council, company H. and third parties D., S., C., P., F. and M. (private individuals), who were seeking to become the owners of six sheds constructed by company H. on her land. The sheds were occupied by the above-mentioned individuals on the basis of a lease contract concluded with the Town Council. She based her action on Article 494 of the Civil Code and maintained that the competent authority for the application of Law 18/1991 had issued ownership title to the said land in her favour on 12 January 1998. She underlined that her ownership right to the land had been confirmed by a final and enforceable decision of the Târgu Jiu District Court, rendered on 6 April 2001. She also submitted that taking into account that company H. had acted in good faith when it constructed the sheds on her land, she required the recognition of a property right over the sheds to accompany her obligation to pay compensation to the builder. She based her claim on Articles 492 and 494 of the Civil Code.
2. The Târgu Jiu District Court ordered an expert report which would assess the land and the structures on it and establish their value. The expert concluded that the sheds had been erected on the applicant’s land more than thirty years before, as a temporary annexe to a building site; he revealed that their condition had seriously deteriorated and that the period for which they had been intended to be used had long ago expired, and thus concluded that they were worth no more than the raw material used for their construction.
3. By a judgment of 17 December 2002, the court of first instance allowed the action and held that the applicant had a property right over the land, whose value greatly exceeded the value of the structures erected on it. It also held that on the basis of Article 494 of the Civil Code the applicant had become the owner of the structures in her capacity as owner of the land, and that the builder of the structures had the right to obtain their value from the applicant. Moreover, the court noted that the lease contracts concluded by the Târgu Jiu Town Council with D, S., C., P., F. and M. were not opposable to the applicant, as neither the company H. which had built the structures, nor the Târgu Jiu Town Council which was responsible for them, were owners of the land.
4. The Gorj County Court dismissed the appeal lodged by the Târgu Jiu Town Council and company H. as unfounded. It noted that the structures were in an advanced state of disrepair which made them unfit to be used as dwellings by private individuals.
5. By a final decision of 3 December 2003, the Craiova Court of Appeal allowed an appeal on points of law by the Târgu Jiu Town Council and company H. and dismissed the applicant’s action. Admitting that the applicant was the owner of the land on which the disputed sheds had been built, the court of last resort held that the applicant had not proved her right of property over the sheds. It noted that the sheds had been erected in a period when the owner of the land was the State and company H. had the authorisation of the State to build. It noted that the structures had been transferred to the Târgu Jiu Town Council, becoming part of the private sector of the city of Târgu Jiu by a decision of the local council of 29 July 2002. Therefore, the court reversed the presumption that the owner of the land was the owner of all structures on the land, and recognised the right of the local council over the structures and implicitly the right to use the applicant’s land on which the structures had been built.
B. Relevant domestic law and practice
6. The relevant law and case-law and doctrine regarding the right of superficies and real estate accession are described in Bock and Palade v. Romania, (no. 21740/02, §§ 29-33, 15 February 2007), and Moculescu v. Romania, (no. 15636/04, §§ 16-18, 2 March 2010).
7. The Civil Code does not contain any specific provision concerning enrichment without just cause. However, it is unanimously considered in doctrine and case-law that the provisions that should be indicated when referring to it are Articles 992-997 of the Civil Code. Enrichment without just cause is defined by doctrine as the legal instrument by which a person obtains any property, service or other benefit from another person without legal cause; the beneficiary shall indemnify the person at whose expense he has enriched himself to the extent to which he has benefited from his property or work.
COMPLAINT
8. Relying on Article 1 of Protocol No. 1 of the Convention, the applicant alleges that her absolute and exclusive right of property in respect of the land was infringed by the refusal of the Romanian authorities to recognise her property right over the sheds erected on her land and the recognition of a the right to use her land on the part of the State.
THE LAW
9. The applicant complained that the decision of the domestic court of last resort, which dismissed her action for recognition of a property right over the six sheds built on her land and implicitly recognised a right of use over her land in favour of the local council, infringed her right to the peaceful enjoyment of possessions as protected by 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.”
10. In their observations the Government contended that the applicant had not exhausted the available domestic remedies in respect of the alleged violation of her property right. They also maintained that the situation of the applicant in the instant case is different from the situation mentioned in Moculescu, cited above, where the domestic court recognised in favour of a State company a right of superficies over the applicant’s land without any compensation. In the present case the applicant had the opportunity to lodge an action for compensation against the Târgu Jiu Town Council, an opportunity she did not take up.
11. Moreover, the Government submitted that a civil action brought by the applicant for any alleged damage she might have suffered would have been successful. They maintained that the remedies in question were available to the applicant, were sufficient to afford redress in respect of the breaches alleged, and were sufficiently certain not only in theory but also in practice. In supporting their arguments they referred to a decision of the same domestic court which had rendered the final decision in the present case, namely the Craiova Court of Appeal. Thus, they submitted a copy of the said decision rendered on 15 September 2003, according to which a commercial company which had built structures on land belonging to several individuals was ordered to conclude a lease agreement and pay a monthly rent to the landowners. The owners of the land, who had lodged an action seeking the removal of the structures from their land, in subsidiary, asked the court to order the company to conclude a lease contract and pay rent.
12. The applicant did not agree with the Government’s position in this respect. She maintained that an action in compensation for damages would not have redressed the violation of her property right.
13. The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations made of a violation of a Convention right and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, 28 April 2004, and Kudla v. Poland [GC] no. 30210/96, § 152, ECHR 2000-XI).
14. Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, inter alia, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002‑VIII, and Dalia v. France, no. 26102/95, § 38, ECHR 1998I).
15. In respect of the present case there was a possibility of bringing an action for compensation on the basis of general civil law, namely Article 992 of the Civil Code which institutes a procedure by which the applicant could have complained before the domestic courts. Furthermore, the Court notes that the applicant did not ask for compensation for the use of her land by the Târgu Jiu Town Council in the event that her action was dismissed, even though she could have done so.
16. Moreover, the Court observes that it has already held in Moculescu (cited above, § 29) that the applicant had failed to exhaust domestic remedies for the period starting after the sale of the property to the commercial company Gap International Consulting, as she did not lodge any action for compensation against the commercial company which was using her land on the basis of its right of superficies over the structures erected on the land.
17. Finally, the Court notes that an examination of the applicant’s complaint as it was submitted, including an examination carried out of its own motion, does not disclose any special circumstances which might have absolved the applicant from exhausting the domestic remedies at her disposal.
18. It follows that the complaint raised by the applicant under Article 1 of Protocol No. 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy