Information Note on the Court’s case-law No. 92
December 2006
Lupaş and Others v. Romania - 1434/02
Judgment 14.12.2006 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Lack of access to a court on account of a rule requiring the agreement of all joint owners in order to bring an action for recovery of a property held in common: violation
Facts: The 19 applicants are the descendants of the joint owners of land on the Black Sea coast measuring about 50 hectares in area, which was expropriated in 1950 for the construction of a military base. In 1998 and 1999 three actions for recovery of the property were brought by some of the applicants, without the agreement of the heirs of two former co-owners. All three actions were dismissed at final instance by the Court of Cassation pursuant to the unanimity rule, which barred joint owners from seeking recovery of an undivided property without the consent of the other joint owners.
Law: Article 6(1) – The unanimity rule applied in the present case was adhered to by most of the domestic courts. The Court could therefore accept that it had satisfied the criteria of accessibility and foreseeability. In addition, it had pursued the legitimate aim of protecting the rights of all the heirs of the former joint owners of the property. However, it had prevented the applicants from having their actions determined on the merits by the courts, and also represented an insurmountable obstacle to any future attempts to recover possession of the undivided property. Consequently, regard being had to the fact that any Convention provision had to be construed in a manner that guaranteed rights that were practical and effective, the strict application of the rule had imposed a disproportionate burden on the applicants and had deprived them of any clear and practical possibility of obtaining from the courts a determination of their applications for recovery of the land, in breach of their right of access to a court.
Conclusion: violation (unanimously).
Article 41 – EUR 1,000 to each applicant for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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