Information Note on the Court’s case-law No. 134
October 2010
Maria Atanasiu and Others v. Romania - 30767/05 and 33800/06
Judgment 12.10.2010 [Section III]
Article 46
Pilot judgment
General measures
Respondent State required to take legislative and administrative measures to guarantee property rights in cases where immovable property has been nationalised
Facts – In March 2005 the High Court of Cassation and Justice (“the HCCJ”) declared inadmissible an action to recover possession of a nationalised flat belonging to the first two applicants, on the ground that they should have made use of the restitution or compensation procedure applicable at the time under Law no. 10/2001 on the legal status of nationalised property. As they did not receive any response within the statutory time-limit to their subsequent claim for restitution of the flat under that law, the applicants brought proceedings against the city council, which in April 2005 was ordered by the HCCJ to give a decision. To date, the applicants’ restitution claim has still not been determined by the city council. The third applicant complained of her inability to obtain compensation on the basis of Law no. 10/2001 for the damage sustained on account of the nationalisation of an area of land used by a university, despite a final judgment by the HCCJ in March 2006 establishing her entitlement to compensation. In June 2010 the Romanian Government informed the Court that her claim would receive priority treatment. She has received no compensation to date.
Law – Article 6 § 1: The first two applicants had been subjected to a disproportionate burden which had impaired the very essence of their right of access to a court.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The unjustified absence of compensation, and the applicants’ uncertainty as to when they might receive it, had imposed a disproportionate and excessive burden on them which was incompatible with their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1.
Conclusion: violation (unanimously).
Article 46
(a) Application of the pilot-judgment procedure – The ineffectiveness of the compensation and restitution mechanism was a recurrent and widespread problem which had persisted in spite of the adoption of the Viaşu, Faimblat and Katz judgments*, in which the Court had indicated to the Romanian Government that general measures were required in order to secure the right to restitution in an effective and prompt manner. Hence, the present cases lent themselves to application of the pilot-judgment procedure.
(b) Existence of a practice incompatible with the Convention – The domestic authorities had sought to simplify the legislation by enacting a law establishing a single administrative procedure for all property claims; however, it had not proved sufficiently effective in practice. The HCCJ had ruled that claims must be examined within a reasonable time; however, in the absence of binding statutory time-limits, this requirement was in danger of remaining theoretical and illusory, and the right of access to a court in order to complain of delays in processing claims was liable to be deprived of its substance. In addition, the legislation on nationalised properties represented a very considerable burden on the State budget which was difficult to sustain. The flotation of the Proprietatea Fund on the stock exchange, scheduled to take place in 2005, had still not been completed, although the processing through the stock market of some of the claims from persons in receipt of “compensation certificates” would ease the pressure on the budget.
(c) General measures – The Court drew attention to Resolution Res(2004)3 and Recommendation Rec(2004)6 of the Committee of Ministers, adopted on 12 May 2004. It also suggested that the State should, by means of appropriate legal and administrative measures, ensure respect for the ownership rights of all persons in a similar situation to the applicants, taking into account the principles of the Court’s case-law concerning the application of Article 1 of Protocol No. 1. These aims could be achieved, for instance, by amending the restitution mechanism and establishing simplified and effective procedures as a matter of urgency on the basis of legislation and of coherent judicial and administrative practice, with a view to striking a fair balance between the various interests at stake. While allowing the respondent State the necessary discretion in this exceptionally difficult exercise, the Court noted with interest the proposal put forward by the Government aimed at laying down binding time-limits for each administrative step, provided that the measure was realistic and was subject to review by the courts. The Romanian authorities might also follow the example of other countries by, for instance, overhauling the legislation in order to make the compensation scheme more foreseeable, or by setting a cap on compensation awards and paying them in instalments over a longer period.
(d) Procedure to be followed in similar cases – As the pilot-judgment procedure was aimed at allowing rapid redress to be afforded at national level to all those persons affected by the structural problem identified in the pilot judgment, and in view of the very large number of applications against Romania concerning similar issues, the Court decided to adjourn examination of all applications stemming from the same overall problem for a period of eighteen months from the date on which the present judgment became final, pending the adoption by the Romanian authorities of measures capable of providing adequate redress to all those concerned by the reparation legislation.
Article 41: EUR 65,000 jointly to the first two applicants in respect of pecuniary and non-pecuniary damage; EUR 115,000 to the third applicant in respect of pecuniary and non-pecuniary damage.
* Viaşu v. Romania, no. 75957/01, 9 December 2008, Information Note No. 114; Faimblat v. Romania, no. 23066/02, 13 January 2009; and Katz v. Romania, no. 29739/03, 20 January 2009, Information Note no. 115.
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This summary by the Registry does not bind the Court.
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