THIRD SECTION

DECISION

Application no . 54950/07 Ioan PÄ‚TRÃŽNJEI against Romania

The European Court of Human Rights ( Third Section ), sitting on 28 January 2014 as a Chamber composed of:

Josep Casadevall, President,

Alvina Gyulumyan,

Ján Šikuta ,

Luis López Guerra ,

Kristina Pardalos ,

Valeriu Griţco ,

Iulia Antoanella Motoc, judges , and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 21 November 2007 ,

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

Having deliberated, decides as follows:

THE FACTS

1. T he applicant, Mr Ioan Pătrînjei , is a Romanian national, who was born in 1947 and lives in Timi ş oara . He was represented before the Court by Mr S. Secoban , a lawyer practising in Timi ş oara .

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

A. The circumstances of the case

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

4. On 26 November 1990 the applicant, a TimiÅŸoara Post Office employee, signed a lease with the TimiÅŸoara Radiocommunications Agency, an organisation attached to the TimiÅŸoara Post Office, for one of the accommodation units located in a building owned by the said Radiocommunications Agency.

5 . On 29 July 1992 Law no. 85/1992 on the sale of dwellings and spaces for other purposes built by the State and State-owned companies entered into force.

6 . On an unspecified date the TimiÅŸoara Post Office and the TimiÅŸoara Radiocommunications Agency split into two distinct organisations . While the applicant remained a post office employee, the Agency remained the owner of the building in which the applicant was a tenant.

7 . By a decision of 28 December 1993 the board of the Timişoara Radiocommunications Agency decided t hat for the purposes of Law no. 85/1992 the apartments located in the building the applicant was living in constituted standby personnel accommodation ( locuințe de intervenție ), that they were intended exclusively for employees of the Agency, and that they could not be sold.

8 . On an unspecified date, the tenants ’ association of the building in which the applicant lived asked the Timişoara Radiocommunications Agency ’ s board to allow its members to purchase the apartments they were leasing. The request addressed to the Agency ’ s board was personally signed by the applicant and twelve other tenants and bore the seal of the association.

9 . On 8 March 2004 the Timişoara Radiocommunications Agency notified the applicant that his lease would be terminated and asked him to vacate the apartment he was leasing because – amongst other things – he was not an employee of the Agency and the apartment in question was classified as standby personnel accommodation.

10 . On 22 April 2004 the applicant dismissed the Timişoara Radiocommunications Agency ’ s request of 8 March 2004 on the grounds that the lease was still valid.

11 . On 29 July 2004 the TimiÅŸoara Radiocommunications Agency brought proceedings against the applicant seeking the termination of his lease and his eviction. It argued, inter alia , that the applicant was not an employee of the organisation which owned the building, and the apartment in question was classified as standby personnel accommodation.

12 . On the same date, the applicant lodged a counterclaim against the Timişoara Radiocommunications Agency before the domestic courts seeking – on the basis of Law no. 85/1992 – an injunction ordering the company to sell to him the apartment he was leasing. He argued that the apartment in question could not be classified as standby personnel accommodation and that, although over the years he had repeatedly asked the Agency to sell him the apartment, he had received contradictory and evasive verbal answers.

13 . By a judgment of 20 September 2005 the Timişoara District Court dismissed the Timişoara Radiocommunications Agency ’ s action and allowed the applicant ’ s counterclaim and ordered the Agency to sell him the apartment he was leasing. It held that the applicant held a valid lease which he had signed before the Agency ’ s board decided to change the main purpose of the building in w hich the apartment was located.

14 . On 6 April 2006 a bailiff notified the Timişoara Radiocommunications Agency on the applicant ’ s behalf that, according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant. In addition, it asked the Agency to inform the applicant in writing – within five days of the date on which it received the notification – of the date and place where the contract of sale would be signed.

15. The TimiÅŸoara Radiocommunications Agency appealed against the aforementioned judgment. It argued that although the applicant contended that he had repeatedly asked to purchase the apartment, he had failed to submit any written documents to support his claim.

16 . By an interlocutory judgment of 19 May 2006 the Timiş County Court granted the Timişoara Radiocommunications Agency ’ s application and asked the applicant to submit evidence that he had asked the Agency to sell him the apartment.

17 . By a judgment of 10 November 2006 the TimiÅŸ County Court dismissed the TimiÅŸoara Radiocommunications Agency ’ s appeal on the basis of the available evidence. It held that the applicant fulfilled the conditions laid down in Law no. 85/1992 for purchasing the apartment. Moreover, the applicant ’ s right to purchase the apartment could not be considered time-barred because Law no. 85/1992 did not lay down a time ‑ limit for the applicant to exercise his right to purchase the apartment. Furthermore, the lease could not be considered terminated as long as the applicant had exercised his right of purchase.

18. The TimiÅŸoara Radiocommunications Agency appealed on points of law ( recurs ) against the judgment. It argued that the applicant had not submitted any evidence in support of his claim that he had asked to purchase the apartment prior to the notification sent to him by the Agency that his lease had been terminated.

19. On 29 November 2006 a bailiff notified th e Timişoara Radiocommunications Agency for the second time on the applicant ’ s behalf that according to the judgment of 20 September 2005, it had a duty to sell the apartment to the applicant.

20 . By a final judgment of 21 May 2007 the Timişoara Court of Appeal allowed in part the Timişoara Radiocommunications Agency ’ s appeal on points of law in so far as it concerned the applicant ’ s counterclaim. It held that the building containing the apartment leased by the applicant had been constructed during the communist regime using Agency funds. According to the expert report available on file, the apartment leased by the applicant was not standby personnel accommodation because some of the tenants leasing apartments in the building were not employees of the Agency. The applicant remained an employee of the Post Office and the leased apartment was owned by the Agency. At the time, the Agency did not wish to sell the apartment leased by the applicant and wanted to keep it in its possession. The court took the view that it could not usurp the will of the owner by its judgment and order the sale of the apartment in circumstances other than those desired by the owner. If the applicant asked the board of the Agency to sell him the apartment and his request was approved, a consensus between the wishes of the parties could be achieved and the contract desired by the parties concluded. However, in the present case the lower courts had misapplied the provisions of Article 7(1) of Law no. 85/1992. In so far as the Agency ’ s application seeking the termination of the applicant ’ s lease and his eviction was concerned, the court considered that it had been correctly rejected by the lower courts, that the validity of the applicant ’ s lease had been extended, and that he occupied the apartment on the basis of valid title.

21. The applicant lodged an extraordinary appeal seeking a review of the judgment ( revizuire ).

22. On 10 October 2007 the Timişoara Court of Appeal dismissed the applicant ’ s extraordinary appeal as being time-barred.

B. Relevant domestic law and practice

1. Law no. 85/1992 on the sale of lodgings built by State companies

23. Section 7(1), (6) and (7) provides that apartments other than standby personnel accommodation built by State-owned companies before the date on which the law entered into force are to be sold to the lease-holders at their request. The provisions of subsection 1 apply also to tenants who are not employees of the companies that own the properties.

2. The Housing Act (Law no. 114/1996)

24 . Section 2 (e) provides that standby personnel accommodation denotes apartments designated as housing for employees of the companies who under the terms of their employment contracts perform activities and functions which require their constant or urgent presence on company premises.

3. Case-law of the domestic courts

25 . The parties submitted eight cour t judgments delivered between 9 March 2005 and 11 November 2009 concerning the interpretation of the provisions of Law no. 85/1992. These court judgments had been delivered by various domestic courts ranging from the Hunedoara County Court to the Court of Cassation, and were final. They included a judgment on an extraordinary appeal in the interests of the law ( recurs ȋn interesul legii ) delivered by the Grand Chamber of the C ourt of Cassation on 21 January 2008 with a view to harmonising the domestic courts ’ practice in interpreting the aforementioned legal provisions with regard to leases concluded after the entry into force of Law no. 85/1992. According to those judgments, Sections 1 and 7 of Law no. 85/1992 impose a legal obligation on the companies owning the apartments to sell them. The creation of the legal relationship ( raport juridic ) is left to the discretion of the lease-holder who has the right to purchase the apartment. A legal obligation to sell exists only when three cumulative conditions are met: the apartment was built by State-owned companies before the date the law entered into force; the person asking to purchase it was the holder of the lease, regardless of whether or not he was an employee of the company which owned the apartment; and the apartment was not classified as standby personnel accommodation within the meaning of the law.

26 . According to the judgment on extraordinary appeal in the interests of the law, delivered by the Grand Chamber of the Court of Cassation on 3 April 2013 with a view to harmonising the domestic courts ’ practice in interpreting the provisions of Sections 1 and 7 of Law no. 85/1995 concerning the sale of apartments by privately owned companies which had become owners of the apartments as a result of the privatisation process, the legal obligation to sell also applies in respect of the aforementioned privately owned companies.

COMPLAINTS

27. Relying on Article 6 § 1 of the Co nvention the applicant complained of a breach of his right of access to court is so far as the Timişoara Court of Appeal refused to examine the substance of his action concerning the purchase of the apartment.

28. Invoking Article 1 of Protocol No. 1 to the Convention the applicant complained that the decision of the TimiÅŸoara Court of Appeal breached his property rights in so far as it denied his right to buy the apartment he was leasing.

THE LAW

A. Complaint under Article 6 of the Convention

29. The applicant complained of a breach of his right of access to court i n so far as the Timişoara Court of Appeal had refused to examine the substance of his action concerning the purchase of the apartment. He relied on Article 6 § 1 of the Convention, which in so far as relevant, reads:

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

1. Submissions of the parties

30 . The applicant submitted that the final-instance court had arbitrarily dismissed the counterclaim he had lodged against the Timi ÅŸ oara Radiocommunications Agency by neglecting the domestic legal provisions and the relevant practice of the domestic courts.

31. The Government contended that the national courts were under no obligation to treat the applicant ’ s counterclaim as a formal demand within the meaning of Law no. 85/1992 because the law in question established several conditions to be observed by the tenant, including a formal request from the tenant to buy the apartment in dispute. However, the request submitted by the tenants ’ association – which also bore the applicant ’ s signature – was registered with the Agency in 2002, more than ten years after Law no. 85/1992 had entered into force. In addition, the originator of this request was the tenants ’ association, which was not entitled to act on behalf of the tenants in question because its legal existence and the objectives set by its statute had never been proved by the applicant. Consequently, there was no evidence in the file of the applicant ’ s own attempts to purchase the apartment prior to the date on which the Agency had tried to evict him.

32. The Government also submitted that the judgment of the final ‑ instance court had not denied the applicant any of his rights under Article 6 of the Convention. On the contrary, the court had stated that the applicant had a legal right to seek the purchase of the apartment subject to the condition that he fulfilled the requirements set out by the relevant domestic legislation.

2 . The Court ’ s assessment

33. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to court”, which, according to the Court ’ s case-law, includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court (see, for instance, Kutić v. Croatia , no. 48778/99, § 25, ECHR 2002 ‑ II ).

34. The Court also reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretatio n of domestic legislation (see, among many authorities, Brualla Gómez de la Torre v. Spain , 19 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII). That being so, it will not question the interpretation of domestic law by the national courts, save in the event of evident arbitrariness (see, mutatis mutandis , Ä€damsons v. Latvia , no . 3669/03, § 118, 24 June 2008).

35 . Turning to the present case, t he Court observes that the domestic legal provisions governing the sale of apartments built by State-owned companies provide for th os e instances wh ere the companies owning the apartments have to sell them to the tenants . This conclusion is confirmed by the practice of the domestic courts submitted by the parties and by the two judgments on extraordinary appeals delivered by the Court of Cassation.

36. In this context the Court notes that t he first-instance and second ‑ instance court s examined the applicant ’ s counterclaim on the basis of the available evidence. They found that the applicant fulfilled the legal requirements for purchasing the apartment and that he had exercised his right to buy it. Consequently they ordered the Timi ÅŸ oara Radiocommunications Agency to sell him the apartment he was leasing.

37. The Court also notes that in overturning the judgments of the lower courts, the Court of Appeal held that the apartment leased by the applicant had been constructed during the communist regime using Agency funds, that it was not standby personnel accommodation , and that the applicant was the holder of a valid lease. However, it contended that the lower courts had misapplied the provisions of Section 7(1) of Law no. 85/1992 and that the sale of the apartment could be carried out only with the approval of the Radiocommunications Agency ’ s board, which could not be replaced by a court judgment.

38. Consequently, the Court considers that the court of final appeal carried out its own assessment of the facts and made its own interpretation of the domestic legislation. Given the apparent divergence of jurisprudence the domestic courts had been faced with regard to the interpretation of the relevant domestic legislation prior to 2008, the Court considers that the reasons provided by the final appeal court , albeit succinct, do not appear arbitrary or devoid of merit.

39. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B . Complaint under Article 1 of Protoco l No. 1 to the Convention

40. The applicant complained that the decision of the TimiÅŸoara Court of Appeal had breached his property rights in so far as it had denied him the right to buy the apartment he was leasing. He relied on Article 1 of Protocol No. 1 to the Convention , which reads:

“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 by law and by the general principles of international law.

The preceding paragraph 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.”

41. The Government contested that argument. Also, they deemed it unnecessary for the Court to examine the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention if it examined his complaint under Article 6 § 1 of the Convention . In addition, they contended that the Court was not competent ratione materiae to examine the applicant ’ s complaint because he did not have a possession within the meaning of the Convention, nor did he have a legitimate expectation that his right would be realised . Lastly, they argued that the applicant had failed to exhaust the available domestic remedies because there was no evidence in the file that after the final judgment of 21 May 2007 he had repeated his requests to purchase the apartment in order to obtain an answer from the Agency.

42. The Court has already e xamined above the applicant ’ s complain t that he did not have effective access to a court with the power to review the merits of his action and to order the sale of the apartment . The Cou rt notes that the applicant ’ s complaint of an u njustified interference with his property rights under Article 1 of Protocol No. 1 is essentially based on the same alleged lack of procedural protection which has already been found to be compliant with the requirements of Article 6 .

43. It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President