FOURTH SECTION

DECISION

Application no. 51185/06 Mona- Cezarina MARIAN and Ioan MARIAN against Romania

The European Court of Human Rights (Fourth Section), sitting on 20 October 2020 as a Committee composed of:

Branko Lubarda , President, Carlo Ranzoni , Péter Paczolay , judges , and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 12 December 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 applicants, Ms Mona- Cezarina Marian and Mr Ioan Marian, are Romanian nationals who were born in 1971 and 1943 respectively and live in Galați .

2 . The Romanian Government (“the Government”) were represented by their Agent, most recently Ms O.F. Ezer , of the Ministry of Foreign Affairs.

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

4 . On 2 July 2002 the Tecuci mayor ’ s office ordered the restitution to the applicants of a house situated at no. 4 Unirii Street in Tecuci , which had been nationalised by the former communist regime. At the date of the restitution order, several tenants lived in the house.

5 . On 27 August 2002 the applicants recorded their names in the Land Registry and started paying property taxes for the house.

6 . On 10 September 2002 a representative of the mayor ’ s office visited the house, together with the applicants, in order to proceed with the transfer of possession. The applicants refused to sign the minutes of that meeting because the tenants were still in the house. The documents were subsequently sent to the applicants by post.

7 . On 30 January 2003 the applicants brought an action seeking to obtain the tenants ’ eviction from the house. In the proceedings before the Gala ţ i County Court, the tenants argued that they had received new accommodation from the local authorities and were no longer living in the applicants ’ house. In a decision of 24 May 2006, the County Court allowed the applicants ’ application. It found that, although the tenants had received new accommodation from the local authorities, it had not been proven that they had effectively left the applicants ’ house. Consequently, the court ordered their eviction. In the absence of any appeal, on 2 August 2006 the County Court declared the decision final.

8 . In the meantime, the applicants had also brought a separate action against the mayor ’ s office, complaining that they had not been able to take effective possession of the entire house. In a final decision of 11 April 2006, the Gala ţ i Court of Appeal found that the local authorities had complied with their obligation to transfer possession of the house to the applicants, and the mere fact that the latter were unsatisfied with the physical condition of the house was irrelevant to the subject matter of the action brought before the court.

COMPLAINT

9 . The applicants complained that the manner in which the domestic authorities had dealt with their claims for the restitution of their property and the eviction of the tenants had breached their rights guaranteed under Articles 5 and 8 of the Convention, as well as those protected by Article 1 of Protocol No. 1 to the Convention.

THE LAW

10 . The applicants complained about the manner in which the authorities had dealt with their applications for effective recovery of their possession. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), will examine the application from the standpoint of Article 1 of Protocol No. 1, 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.”

11 . The Government pointed out that the applicants had recovered their possessions. As for the alleged damage caused to their property by the tenants, the applicants should have brought a separate civil action to claim damages on that account. The authorities were not responsible for the actions of the tenants. The domestic courts had examined the applicants ’ complaints thoroughly and made their decisions on the basis of all the evidence at their disposal.

Consequently, the Government asked the Court to dismiss the application as being manifestly ill-founded.

12 . The applicants did not comment on those submissions, but reiterated that the authorities had transferred the title to the house to them.

13 . The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted (see Gherghina v. Romania ( dec. ) [GC], no. 42219/07, §§ 84-87, 9 July 2015).

14 . The Court also makes reference to the general principles it has articulated concerning the protection of property from interference by a public authority in the context of the restitution of property confiscated by the communist regime (see, in particular, Maria Atanasiu and Others v. Romania , nos. 30767/05 and 33800/06, §§ 162-68, 12 October 2010), as well as to the general principles concerning the State ’ s positive obligations when the interference is perpetrated by a private individual (see, in particular, Kotov v. Russia [GC], no. 54522/00, §§ 109-15, 3 April 2012).

15 . Turning to the facts of the case under examination, the Court notes that the authorities transferred to the applicants both the title to the property (on 2 July 2002 – see paragraph 4 above), and the possession of the house in question (on 10 September 2002 – see paragraph 6 above). Moreover, at no point was the applicants ’ title deed challenged, either by a State authority or by a private individual (see paragraph 5 above). Consequently, the Court cannot discern any interference with the applicants ’ possessions by a public authority, and the mere fact that the house was occupied by tenants at the time when it was handed over to the applicants cannot change this conclusion (see, mutatis mutandis , L ă z ă rescu v. Romania ( dec. ) [Committee], no. 3014/12, § 36, 3 July 2018).

16 . It remains to be determined whether the authorities complied with their positive obligations to protect the applicants from interference with their property rights by a private individual. In other words, the Court must assess whether the State provided an appropriate legal mechanism allowing the applicants to assert their rights effectively, including, where appropriate, by claiming damages in respect of any loss sustained (see Kotov , cited above, §§ 113-14). In this connection it notes that the applicants successfully made use of the eviction procedure (see paragraph 7 above). The court order thus obtained was final and gave the applicants the possibility of regaining effective possession of their house, if necessary through the offices of a bailiff (see, on the powers and functions of bailiffs, in particular in the context of the enforcement of court decisions imposing obligations between private individuals, Topciov v. Romania ( dec. ), no. 17369/02, 15 June 2006).

17 . The Court further notes that the applicants could have brought an action in tort to obtain compensation for the alleged damage caused by the tenants during their stay in the house. Such an action, provided for by Articles 998 and 999 of the Civil Code as in force at the time of the facts in the present case, constituted an effective remedy capable of offering redress to the parties (see, mutatis mutandis , Cazacliu v. Romania ( dec. ), no. 63945/09, § 129, 4 April 2017). However, it appears from the material in the file that the applicants did not bring such an action against the tenants. The applicants did not offer an explanation for their omission.

18 . The Court is satisfied that the legal framework put in place by the State provided the applicants with a mechanism to have their rights under Article 1 of Protocol No. 1 protected. Consequently, the Court finds that the State complied with its positive obligations under this provision. The applicants, on the other hand, did not make proper use of all the mechanisms at their disposal to protect their rights guaranteed by Article 1 of Protocol No. 1.

19 . In the light of its above findings (see paragraphs 15 and 18 above) and of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

20 . Accordingly the Court considers that the application is 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.

Done in English and notified in writing on 19 November 2020 .

Ilse Freiwirth Branko Lubarda              Deputy Registrar President