MOCAN AND OTHERS v. ROMANIA

FOURTH SECTION

DECISION

Application no. 24294/20
Todor MOCAN and Others
against Romania

The European Court of Human Rights (Fourth Section), sitting on 28 November 2023 as a Committee composed of:

 Tim Eicke, President,
 Branko Lubarda,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 24294/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 May 2020 by four Romanian nationals, relevant details listed in the appended table, (“the applicants”) who were represented by Mr S.M. Militaru, a lawyer practising in Cluj-Napoca;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns the impending demolition of the house built by the applicants on a plot of land they had bought in 2013, on the ground that it was illegal because it was constructed without a building permit. It raises issues under Article 8 of the Convention.

2.  On 2 August 2013 the applicants obtained an urban planning certificate which confirmed in principle their right to build a house on the land they had bought, subject to several formalities they had to observe so as to obtain a building permit. The applicants claim they started to build the house, pending the imminent delivery of the building permit, noting the imminency of a 40% increase in the price of building materials.

3.  At some point in 2014, by which time the building had been finalised, the general urban planning policy changed, establishing public utility easements which partly affected the applicants’ plot of land; this measure impeded the pending procedure for the delivery of the requested building permit.

4.  According to the Government, the applicants could have challenged the 2014 policy in so far as the easements were concerned before the courts, pursuant to Articles 7, 8 and 11 of the Law no. 554/2004 on administrative litigation.

5.  In reply, the applicants submitted that such challenge would have been in vain, because in any event the law did not provide for any possibility to obtain the post factum legalisation of a construction erected without a building permit (see also paragraph 10 below).

6.  On 17 August 2016 the second applicant was fined 10,000 RON (approximately EUR 2,300) for having started to build the house without a building permit. The penalty notice, issued pursuant to Article 26 § 1 b) of the Law no. 50/1991 on authorizing execution of building works, stated that she needed “to comply with the rules governing the issuance of building permits” within 120 days. The notice was not challenged, and the fine was paid.

7.  Subsequently, the second applicant obtained an expert report (memoriu tehnic), which noted that one of the public easements had been complied with, in so far as there had already been a transfer of property from the applicants to the public authorities; also, the second easement, which aimed to serve as part of a public road, did not impact the existing building.

8.  Based on this report, the second applicant addressed a request to the authorities aiming to “legalise the situation of the two apartments already built” and hence to comply with the rules governing the issuance of building permits; in a response received on 18 January 2017, she obtained another “urban planning certificate”, which stated that, according to Article 561 of the Law no. 350/2001 regulating land use and urban planning, in so far as the house had already been built, she was no longer entitled to obtain any further documents capable of legalising the de facto situation.

9.  The Government argued that the said certificate could have been challenged before the courts.

10.  The applicants submitted that such undertaking would have been futile, in so far as the authorities’ response (see paragraph 8 above) was in accordance with Article 561 of the Law no. 350/2001 stating that urban planning documents aiming to legalise constructions built without a building permit or not complying with the building permit could not be initiated or approved.

11.  On 12 June 2018 the Mayor of Cluj lodged civil proceedings against the applicants, seeking, pursuant to Article 32 § 1 a) and b) of Law no. 50/1991, to obtain the demolition of the house which had been constructed unlawfully.

12.  The applicants argued that they had built the house in good faith, being confident that they would obtain the relevant permits; the building as it was did not impact on the structure of the surrounding buildings, and it was not in breach of mandatory rules of urban planning. Relying on the Court’s judgment in the case of Ivanova and Cherkezov v. Bulgaria (no. 46577/15, 21 April 2016) the applicants indicated that the demolition measure was disproportionate in view of their particular circumstances: they were two families, one of which a young family with three children, having no other home, and having invested all their money into the home about to be demolished.

13.  The Municipality’s request was allowed by the first-instance court on 11 December 2018 and upheld on appeal by the Cluj-Napoca County Court on 27 June 2019 (notified to the applicants on 29 November 2019). The courts considered that the applicants had not shown sufficient diligence regarding their obligation to comply with the relevant rules concerning building permits, set out in the Law no. 50/1991 (in particular Articles 28 § 3 and 32) as indicated to the second applicant by the penalty notice of 2016.

14.  Furthermore, the courts dismissed as irrelevant the applicants’ arguments as to the proportionality of the measure. The courts held that it had been the applicants’ free decision to sell the apartment they lived in and to buy a plot of land on which they started to build a house, knowingly without a building permit. They were the only ones to be held responsible for their situation, therefore the measure taken against them was completely reasonable. To preserve a building constructed without a building permit would send the message to the public that complying with the law is an option and having urban planning rules (including for constructing buildings) was useless. However, complying with the law was non-negotiable and therefore the measure taken against the applicants was both necessary and proportionate.

15.  The demolition order was to be enforced within 120 days from the delivery of the final judgment of the County Court.

16.  On 25 November 2020 the Mayor of Cluj asked that the demolition order be enforced. On 10 December 2020 his request was allowed, the applicants being duly notified thereof.

17.  According to the latest relevant information available in the file, on 5 March 2021 the demolition order had not yet been carried out.

THE COURT’S ASSESSMENT

18.  The applicants complained under Article 8 of the Convention that the June 2019 order for the demolition of the building in which they lived as a family had disproportionately interfered with their right to respect for their home.

19.  Having discerned no reason to doubt that the building in question did in fact constitute the applicants’ home for the purposes of Article 8 of the Convention and noting that the applicability of that article has not been disputed, the Court finds no reasons to question it. The applicants’ principal contention may accordingly be seen as being that the order amounted to an interference with their right to respect for their home, by means of ordering the demolition of their dwelling.

20.  That interference was “in accordance with the law” (see Ivanova and Cherkezov, cited above, § 50), as it relied on the relevant urban planning provisions (see paragraphs 6, 13 and 14 above).

21.  The order may also be seen as pursuing a legitimate aim, seeking to implement the statutory requirement that no buildings can be erected without the requisite planning permission thereby seeking to re-establish the rule of law (see paragraph 14 above; see also Ivanova and Cherkezov, cited above, § 51). In the context under examination, this may be seen as falling under the rubric of “prevention of disorder” and as promoting the “economic well-being of the country” (see, mutatis mutandis, Simonova v. Bulgaria, no. 30782/16, § 47, 11 April 2023).

22.  To establish if the interference entailed by the demolition order relating to the applicants’ unlawfully erected house was “necessary in a democratic society”, the Court must evaluate whether the applicants, who stand to lose their only home as a result of its planned demolition, were able to seek and obtain – at some point in the proceedings which lead to the demolition – a proper examination of its proportionality in the light of their individual circumstances, it being presumed that only in exceptional cases people would succeed in raising an arguable claim that demolition would be disproportionate in their specific circumstances (mutatis mutandis, ibid., § 48).

23.  The Court’s well-established practice in cases concerning the loss of one’s home for the promotion of a public interest reveals that the interference cannot normally be regarded as justified simply because the case falls under a rule formulated in general and absolute terms. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough; the person concerned must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances. If in such proceedings the national courts have regard to all relevant factors and weigh the competing interests in line with the above principles – in other words, where there is no reason to doubt the procedure followed in a given case – the margin of appreciation allowed to those courts will be a wide one, in recognition of the fact that they are better placed than an international court to evaluate local needs and conditions, and the Court will be reluctant to gainsay their assessment (see Ivanova and Cherkezov, cited above, § 53 and the references cited therein).

24.  In the present case the Courts considers that there is no need for it to engage in the discussion whether the applicants have indeed made use of all the legal avenues available to alleviate their situation and/or whether there was a possibility to legalise unlawfully constructed buildings ex post facto (see paragraphs 4-5 and 9-10 above), its task being not to review domestic law in abstracto, but to determine whether the manner in which it was applied to, or affected, the applicants gave rise to a violation of the Convention.

25.  In that regard and while being mindful of the difficult situation of the applicants who are subjected to a most extreme form of interference with the right to respect for the home, the Court considers that the interests of the applicants against the general interest were duly weighed by the domestic courts, who crucially established that they had knowingly built the house without a permit and had then failed to act with sufficient diligence regarding their obligation to comply with the relevant rules concerning building permits; also, the applicants’ financial decision to buy land and build a home without having the proper and requisite authorisations had been done voluntarily and in complete autonomy (see paragraphs 13-14 above), all consequences being therefore at their own expense.

26.  Accordingly, the Court is satisfied that the domestic authorities assessed the relevant circumstances and adequately addressed the applicants’ arguments regarding their individual situation (see the principles cited in paragraph 23 above; and contrast Ivanova and Cherkezov, cited above, § 56 and Brežec v. Croatia, no. 7177/10, § 49, 18 July 2013). It is therefore unable to find that the State overstepped the margin of appreciation accorded to it under Article 8 of the Convention (see, mutatis mutandis, Kaminskas v. Lithuania, no. 44817/18, §§ 64-65, 4 August 2020).

27.  In sum, in the light of all the material in its possession, and in so far as domestic remedies have been exhausted, the Court finds that the application must be rejected under Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 January 2024.

 Ilse Freiwirth Tim Eicke
 Deputy Registrar President

Appendix

List of applicants:

Application no. 24294/20

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.

Todor MOCAN

and his wife

(see under 2. below)

1960

Romanian

Cluj Napoca

2.

Rebeca MOCAN

1964

Romanian

Cluj Napoca

3.

Alina-Lidia TĂMAȘ

and her husband

(see under 4. below)

1990

Romanian

Cluj Napoca

4.

Viorel TĂMAȘ

1989

Romanian

Cluj Napoca