Aurelia RADULESCU and Others v Romania - 37506/03 [1990] ECHR 1375 (1 September 2009)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

The European Court of Human Rights (Third Section), sitting on
1 September 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

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

1. The applicants, Mrs Aurelia Rădulescu, Mrs Viorica Holban and
Mrs Zoe-Gloria Dimoiu, are Romanian nationals who were born in 1926, 1934 and 1938 respectively.

2. The second applicant died on 23 June 2005. The other two applicants are her sisters and only heirs. The first applicant also died on 11 April 2006. However, her daughter and only heir, Mrs Teodora Virginia Ureche, expressed her wish to pursue the application. For practical reasons, Mrs Aurelia Rădulescu and Mrs Viorica Holban will continue to be referred to as “applicants” in this judgment, although their heirs are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1,
ECHR 1999 VI).

3. The third applicant lives in Constanţa. After the death of the first
two applicants, their heir was represented by the third applicant. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicants inherited from their parents a house with annexes and 1,083 sq. m of appurtenant land situated at 11-13 Smeurei Street, Piteşti. On that land, at no. 13, the first applicant and her husband built a new house in which they continued to live.

In 1986 the applicants sold the old house with annexes and 702 sq. m of appurtenant land inherited from their parents to N.O. The sale contract stipulated that, according to the applicable law, the land passed into State ownership. The applicants did not receive any compensation. N.O. was authorised to use 100 sq. m of it while the buildings existed.

6. On 8 August 1990 the Piteşti Court of First Instance gave an enforceable decision allowing an action by the applicants for recovery of possession of 980 sq. m of land against Piteşti Town Council. The court acknowledged their right of property over the land situated at 11, Smeurei Street, Piteşti, and ordered the town council to respect the applicants’ right of property.

7. On 13 December 1990 the bailiff certified in an official record that the applicants could take possession of the 980 sq. m of land. According to the documents in the file, that land included the 702 sq. m mentioned in the 1986 sale contract and seized by the State.

8. Although there had been judicial recognition of the applicants’ right of property over the 980 sq. m plot of land, the local commission in Piteşti for the application of Law no. 18/1991 (“the local commission”) authorised them to recover possession of only 402 sq. m of land.

On 21 August 1991 the county commission in Argeş for the application of Law no. 18/1991 (“the county commission”) rejected a complaint brought by the applicants concerning the decision of the local commission. It further authorised N.O. to recover possession of 300 sq. m of land.

9. On 13 December 1991 the Piteşti Court of First Instance gave an enforceable decision upholding the applicants’ complaint concerning the decision of the county commission and authorised them to recover possession of the 980 sq. m of land in Piteşti. The court considered that, as certified by the judgment of 8 August 1990, the applicants had a right of property over that land in their capacity as their parents’ heirs.

10. On 8 January 1992 the Piteşti Court of First Instance gave a final decision allowing a complaint by N.O. in respect of the decision of the county commission and acknowledged her right to acquire title to 702 sq. m of land.

11. On 10 December 1992 the Argeş Prefecture informed N.O. that the local commission was unable to enforce the judgment in her favour as there was another judgment of 13 December 1991 that had certified the right of property of the former owners of N.O.’s house over part of the 702 sq. m of land. Notice of this situation had also been given to the Piteşti Court of
First Instance.

12. On 26 February 1993 the Argeş County Court dismissed as groundless a request by the applicants for revision of contradictory final decisions by which they sought the annulment of the judgment of 8 January 1992. The court noted that the legal requirements for this action had not been met, as those decisions had not been given in respect of the same parties or with regard to the same object or the same procedural capacity.

13. On 7 January 1993 N.O. brought an administrative action against the local commission seeking to take possession of the 702 sq. m plot of land. She also referred to the judgment of 13 December 1991 and eventually agreed to take possession of only 550 sq. m of land, as this was the portion of land the applicants had allegedly allowed her to use when she bought the house.

14. On 21 May 1993 the Argeş County Court allowed the action and ordered the local commission to enable N.O. to take possession of 550 sq. m of land, as provided by the judgment of 8 January 1992. The court also noted that neither the judgment of 13 December 1991 nor the judgment of
8 January 1992 had been modified. A request by the applicants to intervene in the proceedings was dismissed.

That judgment became final. In 1994 N.O. was authorised to take possession of 550 sq. m of land and obtained a property title.

15. On 27 January 1994 the applicants brought an administrative action against the local and county commissions, seeking to take possession of the 980 sq. m plot of land.

16. On 14 November 1994 the Argeş County Court allowed the action in part and ordered the local commission to enable the applicants to take possession of 430 sq. m of land situated at 13 Ion Antonescu Street (formerly 11 Smeurei Street), representing the difference between the land already given to N.O. and the 980 sq. m plot of land in respect of which the applicants had title. That judgment became final.

17. On 23 February 1995 the applicants brought civil proceedings against N.O. seeking to recover possession of 550 sq. m of land.

18. On 16 November 1995 the Piteşti Court of First Instance, after comparing the property titles, dismissed the applicants’ action on the ground that their title derived from civil proceedings and could be asserted only against the parties, whereas N.O. had title under Law no. 18/1991. The court found, inter alia, that N.O. had owned the 702 sq. m plot since 1986 and that the price stipulated in the sale contract would presumably have included the 702 sq. m plot, not merely 100 sq. m, because a seller had regard to what came out of his patrimony rather than to what entered into the buyer’s. It also considered that N.O. had not been a party to the proceedings ending with the judgment of 8 August 1990 and that therefore that judgment was not enforceable against her.

19. On 16 December 1997 the applicants requested the town council to annul the property title issued to N.O. and to award them title to the 980 sq. m of land. The town council considered that there were no legal conditions to justify proceedings for the annulment of N.O.’s title and subsequently dismissed the applicants’ request to authorise them to recover possession of the 980 sq. m plot of land, on the ground that that land was not under the town council’s administration.

20. On 7 August 2001 the applicants made a request under Law no. 10/2001 governing immovable property wrongfully seized by the State, seeking restitution in kind of the 980 sq. m plot of land.

On 3 July 2008 the town council rejected their request on the grounds that, on the one hand, the 550.76 sq. m plot of land had been conveyed to the buyer of the house under Law no. 18/1991 and, on the other hand, the 500.11 sq. m plot of land had not been seized by the State and was in the applicants’ ownership.

The applicants contested that decision before the courts and the proceedings are pending.

21. On 19 September 2005 the third applicant, together with the heir of the first two applicants, made a request under Law no. 247/2005 seeking to recover the 980 sq. m of land.

On 27 June 2006 the county commission dismissed their request on the ground that it had the same object as the request brought under Law
no. 10/2001.

22. On 5 February 2007 the Piteşti Court of First Instance dismissed an action brought by the third applicant, together with the heir of the first
two applicants, complaining about the decision of 27 June 2006 and seeking to recover the land and to have N.O.’s property title declared null and void. The court allowed pleas of inadmissibility raised by the defendant, considering that the principle of res judicata prevailed as the judgment of 16 November 1995 had recognised N.O.’s right of property over the 702 sq. m plot of land referred to in the 1986 sale contract. It held that the disputed land therefore belonged to N.O. The court also mentioned, inter alia, that following that sale the difference of 381 sq. m had remained in the applicants’ ownership. That judgment became final.

On 9 June 2008 the applicants informed the Court that the town council was allowing them to use 500 sq. m of their land and that they were hoping to be provided with a property title accordingly.

On 7 July 1992 and 21 December 1998 the authorities certified that the applicants were paying taxes on the 980 sq. m plot of land.

24. The applicants complained that the non-enforcement of
the judgments in their favour had infringed their rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

25. The applicants complained about the non-enforcement of the judgments in their favour. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:

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

“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.”

26. The Government raised an objection of incompatibility
ratione materiae in respect of the complaint under Article 1 of Protocol
No. 1. They considered that the applicants had neither a “possession” within the meaning of the Convention, nor a legitimate expectation of recovering possession of land. The 702 sq. m plot of land had been the subject of
the 1986 sale contract, so the applicants had manifested their willingness to sell that land as well.

27. The Government also submitted that the 1990 and 1991 judgments in the applicants’ favour certified a right of property which could be asserted only vis-à-vis the State and not the real owner, N.O. The legal situation of that land had been established by the judgment of 16 November 1995 in N.O.’s favour. Accordingly, the applicants did not have the benefit of an irrevocable decision recognising their right of property and were thus “merely claimants” (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, ECHR 2002 VII).

29. The Court does not consider it necessary to examine the objection raised by the Government as the application is in any event inadmissible for the following reasons.

30. The Court reiterates that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to assess the relevance of evidence to the issues in the case and to interpret and apply the rules of substantive and procedural law (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B).

31. In principle, and without prejudice to its power to examine the compatibility of national decisions with the Convention, it is not the Court’s role to assess itself the facts which have led a national court to adopt one decision rather than another. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (see Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296 C).

32. The Court notes that two enforceable judgments of 8 August 1990 and 13 December 1991 acknowledged the applicants’ right of property over 980 sq. m of land situated at 11 Smeurei Street, Piteşti (see paragraphs 6 and 9 above). However, on 8 January 1992, on 21 May 1993 and on
14 November 1994 the courts authorised a third party, N.O., to recover possession of part of that land (see paragraphs 10, 14 and 16 above). Moreover, after comparing the property titles, the courts considered that the disputed land belonged to N.O. (see paragraphs 18 and 22 above).

33. Furthermore, the judgment of 16 November 1995, which had recognised N.O.’s right of property over the land in question, became final and was confirmed in subsequent proceedings. That judgment was given in the course of an adversarial procedure between private individuals, where the domestic courts have examined and decided as to the right of property. Accordingly, in the present case the Court cannot substitute its view for that of the domestic courts’ findings with regard to the ownership of the land in question.

34. In the light of the foregoing, the Court finds that the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Aurelia RADULESCU and Others v Romania - 37506/03 [1990] ECHR 1375 (1 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1375.html Cite as: [1990] ECHR 1375