Information Note on the Court’s case-law No. 173
April 2014
Preda and Others v. Romania - 9584/02, 33514/02, 38052/02 et al.
Judgment 29.4.2014 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Remedy under Law no. 165/2013 in respect of property that wrongly passed into State ownership during the communist regime: partially effective remedy; admissible
Facts – The complaints submitted in the applications concerned administrative and/or judicial proceedings for compensation or restitution instituted by the applicants as persons entitled, in accordance with laws passed in Romania after the fall of the communist regime in December 1989, to restitution of property confiscated or nationalised by that regime.
Law – Article 35 § 1: In its judgment in the case of Maria Atanasiu and Others v. Romania (30767/05 and 33800/06, 12 October 2010, Information Note 134), the Court had found that the ineffectiveness of the compensation or restitution procedure for property confiscated or nationalised by the State under the communist regime was a recurrent and widespread problem which had persisted despite 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 prompt and effective enforcement of the right to restitution. Thus, applying the pilot-judgment procedure, the Court had called on the respondent State to take legal and administrative measures to ensure respect for ownership rights in cases concerning nationalised immovable property. It had also decided to adjourn consideration of all applications stemming from the same general problem pending the adoption by the Romanian authorities of measures capable of providing adequate redress to everyone covered by the reparation legislation.
On 16 May 2013 Parliament passed Law no. 165/2013 on finalisation of the process of physical restitution or alternative compensation in respect of immovable property that wrongly passed into State ownership under the communist regime in Romania.
As a preliminary observation, the Court noted that the eight applications before it were the first applications it had examined at the pre-admissibility stage since the pilot-judgment procedure conducted in the case of Maria Atanasiu and Others. In the light of the factual complexity of the cases and the observations submitted by the parties, the Court set out to determine whether the various remedies provided by Law no. 165/2013 and its implementing regulations were effective in dealing with the applicants’ situation.
Regard being had to the margin of appreciation enjoyed by the Romanian State and the guarantees afforded by Law no. 165/2013 – namely clear and foreseeable procedural rules, binding time-limits and effective judicial review – the Law in question provided, in principle, an accessible and effective framework of redress for alleged violations of the right to peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1 stemming from the application of restitution legislation, particularly in the following circumstances: competing documents of title for the same plot of land, invalidation of a document of title on account of the failure to challenge an entitlement to restitution or compensation, issuing of a final decision confirming entitlement to compensation of an unspecified amount, non-payment of compensation awarded in a final decision, and protracted failure to give a decision on a claim for restitution.
However, the Law in question did not contain any provisions of a procedural or substantive nature that were capable of affording redress in cases where there were multiple documents of title for the same building. Moreover, on account of the time-limits laid down in Law no. 165/2013 for administrative procedures, which could be compounded by those applicable to judicial proceedings where appropriate, the completion of the process and the final settlement of claims could take many years.
This exceptional state of affairs was inherent in the factual and legal complexity surrounding the status of property which had been nationalised or confiscated more than 60 years previously and which had subsequently undergone many successive changes of owner and/or use. In view of the singular nature of this state of affairs, the applicable time-limits could not in themselves call into question the effectiveness of the revised procedure or, on the face of it, be deemed contrary to any of the rights secured by the Convention, in particular the right under Article 6 to have proceedings conducted within a reasonable time. Since Law no. 165/2013 had been enacted only recently, no judicial or administrative practice had yet emerged as regards its application. However, the Court could see no reason to conclude at this stage that the new remedy was ineffective in the situations described above. Nevertheless, it reserved the right to examine any future allegations that the new legislative mechanism was ineffective on the basis of its practical application. Accordingly, except in situations where there were multiple documents of title for the same building, Law no. 165/2013 in principle offered Romanian litigants an opportunity to obtain redress for their grievances at national level; it was for them to avail themselves of that opportunity.
The present applications had been lodged before Law no. 165/2013 had come into force. However, the circumstances of the case justified a departure from the general rule that the Court’s examination of compliance with the requirement of exhaustion of domestic remedies should relate to the time when the application was lodged. The purpose of the Law was to enable the competent Romanian authorities to redress the breaches observed in the Maria Atanasiu and Others judgment and, consequently, to reduce the number of applications for the Court to consider. This applied both to applications lodged after the Law’s entry into force and to applications that had already been pending before the Court on that date. In that connection, particular importance should be attached to the fact that Article 4 of Law no. 165/2013 referred explicitly to applications already registered by the Court and was designed to include all applications currently pending before the Court within the scope of the procedures outlined therein.
(a) Concerning applications nos. 9584/02, 33514/02, 38052/02, 25821/03, 29652/03, 17750/03 and 28688/04 – All the situations concerned were covered by Law no. 165/2013, which entitled the applicants or their heirs to compensation or restitution, as appropriate, in respect of immovable property that had been confiscated or nationalised. Accordingly, the complaint under Article 1 of Protocol No. 1 in respect of these applications had to be rejected for failure to exhaust domestic remedies.
Conclusion: inadmissible (non-exhaustion of domestic remedies).
(b) Concerning application no. 3736/03 – The applicants did not have any remedy available by which to assert their right of ownership in accordance with a final judicial decision. Moreover, the Government had not cited any other remedy in domestic law that would enable the applicants to secure either the enjoyment of their property or compensation for loss of such enjoyment. Accordingly, they had not failed to comply with the exhaustion rule. The Court thus dismissed the Government’s objection of non-exhaustion of domestic remedies.
Conclusion: admissible (unanimously).
The Court also held, unanimously, that there had been a violation of Article 1 of Protocol No. 1 in respect of application no. 3736/03 in that the applicants had been deprived of their property and had not been paid any compensation at all over a period of many years.
Article 41: EUR 5,000 in respect of non-pecuniary damage; EUR 200,000 in respect of pecuniary damage.
(See Viaşu v. Romania, 75951/01, 9 December 2008, Information Note 114; Faimblat v. Romania, 23066/02, 13 January 2009, Information Note 115; and Katz v. Romania, 29739/03, 20 January 2009, Information Note 115)
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This summary by the Registry does not bind the Court.
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