THIRD SECTION
Application no. 39007/06
SOCIÉTÉ GACRIDANEM S.R.L. and Gabriel Claudiu NICHITICI
against Romania
lodged on 27 September 2006
STATEMENT OF FACTS
The first applicant, Societé Gacridanem S.R.L., is a Romanian limited liability company, whose registered office is in Galaţi. The second applicant, Gabriel Claudiu Nichitici is a Romanian national, who lives in Galaţi. They are represented before the Court by Mr L. Hincker, a lawyer practising in Strasbourg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Administrative proceedings for the cancellation of the applicant company’s building permit
On 4 September 2003 N.C.G. bought from P.M. and P.I. a plot of land. The sale contract signed before a public notary was registered in the Real Estate Register on 8 September 2003.
On 6 April 2005 N.C.G. concluded a lease contract with the applicant company for a five year period. The contract was signed before a public notary. N.C.G. was represented by his mother, N.D., on the basis of a power of attorney.
According to a clause of the lease contract the applicant company had the right to erect constructions on the leased land.
On 21 May 2005 the applicant company lodged an application with the Mayor of Galaţi for a building permit.
On 6 June 2005 the Mayor of Galaţi granted the applicant company a building permit concerning the construction of an industrial hall and offices. According to the applicant company, its investment in the constructions amounted to EUR 300,000.
On 22 February 2005 C.K bought the same plot of land from other sellers.
On an unspecified date in 2005 C.K. lodged restitution proceedings in connection with the plot of land.
In parallel, on 19 July 2005 C.K. brought administrative proceedings against the mayor seeking the annulment of the building permit and the demolition of the constructions erected by the applicant company on the land. She alleged that she was the land owner and that the lease contract between N.C.G. and the applicant company was null and void. She also contented that the applicant company was not entitled to obtain a building permit as it was not the land owner.
The applicant company intervened in the administrative proceedings claiming that it was the beneficiary of the building permit. It maintained that the building permit was lawfully issued and there were no reasons for its cancellation.
By a judgment of 19 December 2005 the Galaţi County Court dismissed the administrative action lodged by C.K. It held that both the sale and the lease contracts were valid and there were no reasons for cancelling the building permit.
C.K. appealed invoking that the first-instance court misinterpreted Articles 1 and 6 of Law no. 50/1991. In this respect she claimed that only the land owner was entitled to apply for the building permit and not the applicant company, a lessee of the land.
By a decision of 28 March 2006 the Galaţi Court of Appeal allowed the appeal and quashed the judgment of the lower court. After a fresh examination of the merits the appeal court allowed C.K.’s action and ordered the cancellation of the building permit. It also ordered the demolition of the buildings erected by the applicant company at its own expense and without any compensation. It held that according to the mandatory provisions of Article 1 of Law no. 50/1991 a lessee who signed a lease contract for five years was not entitled to apply for a building permit. It also noted that the owner of the land, N.C.G., was abroad when the lease contract and the power of attorney allowing his mother to conclude the lease contract on his behalf were signed. Therefore, the appeal court concluded that there were “serious doubts about the authenticity of these documents”.
Concluding that C.K. was the land owner and not N.C.G. the appeal court ordered the applicant company to demolish the constructions at its own expense and without any compensation.
2. The criminal complaint lodged by C.K. against N.D.
On 28 July 2005 C.K. lodged a criminal complaint with the prosecutor’s office attached to the Galaţi District Court against N.D. accusing her of giving a false statement before the Galaţi City Hall and of forging the signature of his son, N.C.G., in the lease contract concluded with the applicant company.
On 16 May 2006 the prosecutor’s office decided not to initiate a criminal investigation. According to its findings, C.K had bought a plot of land in February 2005. Noting that the land was occupied by the applicant company she brought restitution proceedings against N.C.G. In parallel, she instituted administrative proceedings for the cancellation of the building permit.
The prosecutor held that according to the evidence in the file, N.C.G. was in Romania on 6 April 2005 when the power of attorney and the lease contract were signed before a public notary. According to a letter sent by the Galaţi Border Police Department, N.C.G. had entered in Romania on 1st April 2005 and left on 12 April 2005.
3. Other relevant information
The applicant company provided the Court with the building permit and all documents, including the application, which it had submitted to the Mayor of Galaţi for obtaining the permit.
The urbanism certificate issued by the Galaţi City Hall on 10 May 2005 indicated as land owner N.C.G. and the sale contract concluded by him. On 9 September 2003 as the ownership title over the land in issue.
According to a fiscal certificate released by the Galaţi City Hall on 19 September 2006, N.C.G. was still paying the real estate tax for the plot of land.
B. Relevant domestic law and practice
1. Law No. 50/1991
At the material time any construction of civil, industrial, agricultural or of any other kind can be built only after obtaining a building permit issued according to the procedure set forth by Law no. 50/1991.
According to Article 1 of Law no. 50/1991, the building permit could be obtained by a person holding a real right over the land and/or over the building, such as ownership right, use, usufruct, surperficies right or servitude.
Obtaining an urbanism certificate was the first step in this procedure. This certificate informed the applicant about the legal, economical and technical status of the land.
The applicant for a building permit had the obligation to submit a complex documentation to the competent authority, including especially: the title over the plot of land authorizing the applicant to erect the building, the project of the construction works to be performed, the urbanism certificate and the necessary legal notices and approvals.
2. The relevant provisions of the Romanian Civil Code
The relevant law and case-law regarding the real estate accession, into force at the material time, are described in Bock and Palade v. Romania (no. 21740/02, §§29-33, 15 February 2007).
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that the appeal court examined other reasons than those invoked by the parties and failed to give reasons for its conclusions. They also complain that the same court had erroneously interpreted the relevant statutory provisions of the Civil Code and Law no. 50/1991.
2. Under the same article of the Convention the applicants complain about the lack of impartiality of one of the judges of the three judge panel which examined the appeal on points of law. They allege that the said judge was the mother of the lawyer who assisted C.K. in the restitution proceedings.
3. Relying on Article 1 of Protocol No. 1 to the Convention the applicants allege that the cancellation of a building permit on the basis of which the applicant company erected buildings on a plot of land, as well as the court’s order to demolish the buildings at its own expense without any compensation infringed the applicants’ right to enjoy their possessions.
QUESTIONS TO THE PARTIES
1. Did the applicant company have a fair hearing in the determination of its civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, did the domestic court of last resort give sufficient and clear reasons for its decision, in accordance with the requirements of Article 6 of the Convention?
2. Has there been an interference with the applicant company’s peaceful enjoyment of its possessions due to the fact that the court of last resort had cancelled its building permit and ordered the demolition of the erected buildings at its own expense and without compensation?
In particular, did that interference impose an excessive burden on the applicant company?
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