SOCIETE GACRIDANEM S.R.L. AND GABRIEL CLAUDIU NICHITICI v. ROMANIA

FOURTH SECTION

DECISION

Application no. 39007/06
SOCIETÉ GACRIDANEM S.R.L. and Gabriel Claudiu NICHITICI
against Romania

The European Court of Human Rights (Fourth Section), sitting on 31 May 2016 as a Committee composed of:

Krzysztof Wojtyczek, President,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoș Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 27 September 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Gacridanem S.R.L., is a Romanian limited liability company (“the applicant company”), whose registered office is in Galați. The second applicant, Gabriel Claudiu Nichitici, is a Romanian national, who lives in Galați. The second applicant’s mother was the administrator of the applicant company at the relevant time. They were represented before the Court by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg.

2. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

A. The circumstances of the case

1. Background information

3. On 4 September 2003 the second applicant bought a plot of land measuring 420 sq.m. from P.M. and P.I., located at 191A George Coșbuc Street, Galați. The sale contract, which was signed before a public notary, was registered in the Land Register on 8 September 2003.

4. On 10 and 22 February 2005 respectively C.K. bought two plots of land, both measuring 207.5 sq.m., located at 189A and 189B George Coșbuc Street.

5. Noticing that the plots of land she had acquired were being occupied by the second applicant, on 16 March 2005 C.K. lodged restitution proceedings.

2. Application for a building permit lodged by the applicant company

6. On 6 April 2005 the second applicant concluded a five-year lease with the applicant company, which was signed before a public notary. The second applicant was represented by his mother, N.D., on the basis of a power of attorney.

7. A clause in the lease permitted the applicant company to construct on the leased land.

8. On 24 May 2005 the applicant company lodged an application for a building permit with the mayor of Galați.

9. On 6 June 2005 the mayor of Galați granted the applicant company a permit for the construction of an industrial plant and offices.

10. The applicant company started the construction works immediately. It claimed that the investment in the buildings amounted to EUR 300,000.

3. Administrative proceedings for cancellation of the applicant company’s building permit

11. At the beginning of July 2005 C.K. noticed that the applicant company had erected buildings on the plots of land she had acquired.

12. On 5 July 2005 she informed two employees working for the mayor of irregularities in connection with the issuance of the building permit, but they refused to check her allegations.

13. Accordingly, on 19 July 2005 she brought administrative proceedings against the mayor, seeking cancellation of the building permit and demolition of the buildings erected by the applicant company on the land. She claimed that although the applicant company had been authorised to carry out construction works on the land located at 191A George Coșbuc Street, it had started to construct on her land located at 189A and 189B.

She argued that she was the landowner and that the lease between the second applicant and the applicant company was null and void. She also contended that the applicant company was not entitled to obtain a building permit as it was not the landowner.

14. On 15 August 2005 the applicant company intervened in the administrative proceedings, claiming that it was the recipient of the building permit. It maintained that the permit had been lawfully issued and there was no reason to cancel it. It also submitted that it had been unaware of the pending civil proceedings concerning the plots of land on which it had erected its buildings. The applicant company did not ask to be compensated in the event that C.K.’s action was allowed.

15. The applicant company was represented by a lawyer of its own choosing, who submitted extensive documentary evidence concerning the procedure for obtaining the building permit.

16. By a judgment of 19 December 2005, the Galați County Court dismissed the administrative action lodged by C.K. It held that there was no reason to cancel the building permit, as all the legal requirements had been met.

17. C.K. appealed, insisting that the first-instance court had misinterpreted Articles 1 and 6 of Law no. 50/1991. She claimed that only a landowner was entitled to apply for a building permit and not a lessee, in her case the applicant company. Moreover, she claimed that the plots of land fraudulently bought by the second applicant were the same as the land she had bought. According to a letter sent by the City Hall included in the case file, 191A was not allocated to anyone.

18. In the proceedings before the appellate court, the applicant company was represented by a lawyer of its own choosing, who submitted oral and written observations. He submitted, among other things, that the fact that the land on which the applicant company had erected the buildings had not been allocated a number had no legal relevance to the transfer of a lessee’s right to use the land.

19. By a decision of 28 March 2006, the Galați Court of Appeal allowed the appeal on points of law and quashed the judgment of the lower court. After a fresh examination on the merits, the court allowed C.K.’s action and ordered that the building permit be cancelled. It also ordered that the buildings erected by the applicant company be demolished at its own expense. It dismissed the intervention action lodged by the applicant company. It held that the mayor had issued the building permit without observing the legal provisions of Law no. 50/1991 concerning the persons entitled to apply for a building permit and the documents to be submitted with the application. The court concluded that there were serious doubts about the authenticity of documents submitted by the applicant company to obtain the building permit. Furthermore, the court noted that although the applicant company had been aware that the owner of the land, the second applicant, had been involved in civil proceedings concerning his title to the land, it had not revealed this information when it had lodged its application for the building permit.

20. On 23 June 2006 an extraordinary appeal (contestație în anulare) lodged by the applicant company against that decision was dismissed as unfounded by a final decision of the Galați Court of Appeal.

4. Further relevant information

21. By a judgment of 26 September 2012, the Galați County Court declared the sale contract of the plot of land concluded by the second applicant null and void. The second applicant lodged an appeal. The Court has no further information in this respect.

22. Moreover, based on the information provided by the parties, there were other proceedings pending between the applicant company and C.K. concerning the demolition works. It appears that in 2013 the buildings had still not been demolished.

B. Relevant domestic law

1. Law No. 50/1991

23. At the material time, civil, industrial, agricultural or any other kind of construction could be built after obtaining a building permit issued in accordance with the procedure set out in Law no. 50/1991.

24. The first step in that procedure was obtaining a planning certificate, which provided information about the legal, economic and technical status of the land.

The applicant for a building permit had to submit complex documentation to the authority concerned, including the title to the plot of land authorising construction of the building, an outline of the works to be carried out, the planning certificate and the necessary legal notices and approvals.

2. Relevant provisions of the Romanian Code of Civil Procedure

25. Under Article 49, a third party could voluntarily intervene in proceedings pending between other parties. Voluntary intervention in the person’s own interests was called “principal intervention”, where the intervener asserted his or her own rights. In the event that the principal intervention was allowed, the principal intervener had the same procedural status as the plaintiff.

3. Relevant provisions of the Administrative Proceedings Act (Law no. 554/2004)

26. The relevant provisions are worded as follows:

Article 1

“Anyone who considers that a public authority has harmed his rights or legitimate interests as a result of an administrative measure or a failure to respond within the statutory time-limit to a request he has submitted to it may ask the competent administrative court to set aside the measure, recognise the right or legitimate interest in question and afford redress for the damage he has sustained. The legitimate interest may be either private or public....

Article 8

1. Anyone who considers that an administrative measure has harmed his statutory rights or legitimate interests, who is not satisfied with the action taken on a complaint filed by him [with the competent authorities], or who does not receive a reply to a request within the time-limit specified in Article 2 § 1 (h) [thirty days from the registration of the request unless otherwise specified by law], may apply to the administrative courts to have the measure entirely or partially set aside and to be awarded compensation for any losses and, where appropriate, non-pecuniary damage.”

...

Article 28

“1. The provisions of this law are supplemented by the Code of Civil Procedure, to the extent that the latter is not inconsistent with the specifics of the public law.”

COMPLAINTS

27. The applicants complained under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings instituted by C.K. In particular, they complained that the appellate court had examined arguments other than those put forward by the parties and had failed to give reasons for its conclusions. They also complained that it had erroneously interpreted the relevant statutory provisions of the Civil Code and Law no. 50/1991 and that the applicant company had not been allowed to intervene in the appeal proceedings.

28. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants alleged that cancellation of the building permit on the basis of which the applicant company had erected buildings on a plot of land, as well as the court order to demolish the buildings at its own expense without any compensation had infringed their right to peaceful enjoyment of their possessions.

THE LAW

A. Preliminary objection of the Government

29. The Government’s preliminary objection was that the second applicant could not claim to be a victim within the meaning of Article 34 of the Convention because he had not been a party to the administrative proceedings for cancellation of the building permit, which was the object of the present application.

30. The second applicant submitted that he was a victim of the alleged violation because he was the owner of the land on which the applicant company had erected buildings. Moreover, he had intervened in the proceedings in his capacity as administrator of the applicant company.

31. The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see, among other authorities, Vatan v. Russia, no. 47978/99, § 48, 7 October 2004). It further reiterates that a person cannot complain of a violation of his or her rights in proceedings to which he or she was not a party, even if he or she was a shareholder and/or director of a company which was party to the proceedings (see, among other authorities, F. Santos, Lda. and Fachadas v. Portugal (dec.), no. 49020/99, ECHR 2000-X, and Nosov v. Russia (dec.), no. 30877/02, 20 October 2005).

32. The Court observes that although the second applicant was not party to the domestic proceedings, which are the object of the present case, the present application was lodged with the Court not only by the applicant company but also by the second applicant, personally in his own name.

Moreover, the building permit sought to be cancelled was issued on behalf of the applicant company. Its cancellation did not affect the situation regarding the land belonging to the second applicant.

33. For these reasons, the Court upholds the Government’s preliminary objection and finds that the second applicant cannot claim to be a victim of a violation of his rights under the Convention, within the meaning of Article 34. Accordingly, the complaints made by the second applicant are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

B. Complaint under Article 6 § 1 of the Convention

34. The applicant company complained that the decision of the court of last resort had been arbitrary, in violation of Article 6 § 1 of the Convention. It contended that the court had wrongly interpreted and applied the relevant law and that it had disregarded its arguments and had failed to give reasons for its conclusions. The relevant part of Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

35. The Court reiterates that it is not its task to act as an appellate court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, among many other authorities, Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005).

36. The Court also reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004‑I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005).

37. As regards the question of compliance with the requirements of Article 6 § 1 in the present case, the Court observes that the applicant company’s unfairness complaint was directed specifically against the reasoning the Galați Court of Appeal employed in its decision of 28 March 2006.

38. On the basis of the material in the file, the Court notes that within the framework of the administrative proceedings the applicant company, which was represented by a lawyer at all stages of the proceedings, was able to submit all the documents it considered relevant and to introduce all necessary arguments to defend its interests.

39. The domestic court of last resort examined the applicant company’s submissions and rejected them, while giving sufficient reasons for its decision. Its decision does not therefore appear to be arbitrary or manifestly unreasonable.

40. It follows that this complaint must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint under Article 1 of Protocol No. 1 to the Convention

41. The applicant company complained that it had not received any compensation for the loss it had suffered on account of its building permit being invalidated and the court order to demolish the works at its own expense. It relied on 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.”

1. Non-exhaustion of domestic remedies

42. The Government submitted that the applicant company had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They contended that the applicant company had had the opportunity to seek compensation in respect of the damage it had to incur on account of the building permit being cancelled, but it had not made use of that remedy. According to the Government, it had had the option to seek damages in the administrative proceedings for cancellation of the building permit in which it had intervened, or in the other proceedings instituted by C.K. in connection with the demolition works in which the applicant company and Galați Mayor were parties.

43. The applicant company submitted that it had not considered it necessary to lodge another claim as it had intervened in the administrative proceedings instituted by C.K.

44. The Court reiterates that under Article 35 § 1, it may deal with applications only after domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to rely on the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015).

45. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. 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 (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 222, ECHR 2014 (extracts).

46. The complaint raised by the applicant company in the present case relates mainly to damage it had to incur in connection with the order to demolish the buildings it had already erected on the land.

47. The Court notes that the applicant company intervened in the administrative proceedings as principal intervener. However, although under the Code of Civil Procedure it had the same procedural position as the plaintiff (see paragraph 25 above), and had the opportunity to seek compensation for the damage it might incur in the event that C.K.’s action was allowed and the building permit cancelled (see paragraph 26 above), the applicant company did not lodge any claim for compensation in the course of the administrative proceedings instituted by C.K.

48. The Court notes that in fact, the applicant company never asked any domestic authority for compensation for the damage it had to incur in connection with the demolition of the buildings it had already erected. Moreover, according to the latest information submitted by the parties, it appears that the buildings were still not demolished.

The Court therefore considers that the applicant company has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available to him under Romanian law.

D. Other complaints

49. The applicant company alleged other violations of Article 6 of the Convention.

50. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of the above Article of the Convention. It follows that these complaints are inadmissible and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

Declares the application inadmissible.

Done in English and notified in writing on 23 June 2016.

Fatoş AracıKrzysztof Wojtyczek
              Deputy RegistrarPresident

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