FOURTH SECTION

DECISION

Application no . 14254/10 Adrian LUPAȘ and others against Romania

The European Court of Human Rights (Fourth Section), sitting on 23 May 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Iulia Motoc, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 5 June 2009,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. Some of them were represented by Ms C. Cristea, a lawyer practising in Constanţa.

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

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

A. Background to the case

4. The applicants are the descendants of two former co-owners of a plot of approximately 50 hectares in Constan ţ a, on the Black Sea Coast. In 1950 the land was expropriated, with a view to building a military base.

5. On 5 December 1994 the Constan ţ a Court of Appeal ruled that the expropriation order was unconstitutional and, noting that the military base had not been built, it ordered the return of the land to the heirs of the former owner.

6 . In 1998 and 1999 three actions for recovery of the property were lodged by some of the heirs of the two former co-owners. All three actions were dismissed as inadmissible at final instance by the High Court of Cassation and Justice, pursuant to the unanimity rule, which barred joint owners from seeking recovery of an undivided property without the consent of the other joint owners. The final decis ions were delivered by the High Court of Cassation and Justice on 24 Apri l 2001, 15 May and 18 September 2002 respectively.

B. The Court ’ s judgment

7. The applicants lodged three applications with the Court, complaining a bout a lack of access to court in the civil proceedings concerning their restitution claims. They also complained regarding an alleged violation of Article 1 of Protocol No. 1 to the Convention.

8. On 14 December 2006 the Court delivered a judgment concerning these applications, which became final on 14 March 2006 (see Lupaş and Others v. Romania , nos. 1434 /02, 35370/02 and 1385/03, ECHR 2006-XV (extracts) ). The Court decided to join the three applications and held that there had been a violation of Article 6 § 1 of the Convention, holding that the strict application of the unanimity rule had imposed a disproportionate burden on the applicants, depriving them of any clear and practical opportunity to have the courts determine their applications for recovery of the land in issue and thereby impairing the very essence of their right of access to a court (see Lupaş and Others , cited above, §§ 62-77).

9. The applicants ’ complaint regarding a violation of Article 1 of Protocol No. 1 to the Convention was dismissed as inadmissible ratione materiae (see Lupa ş and Others , cited above, §§ 85-90).

C. The applicants ’ applications to reopen the domestic proceedings

10. The applicants lodged three separate extraordinary appeals ( revizuire ), seeking the review of the three final decisions by which their restitution claims had been dismissed as inadmissible (see paragraph 6 above), on the grounds that the rule of unanimity had not been observed and had been found by the Court to be in violation of their right of access to a court. Relying on the Court ’ s judgment of 14 December 2006, the applicants asked the competent domestic courts to quash their previous decisions and adopt new judgments allowing the examination of their restitution claims on the merits.

11. Two of their extraordinary appeals were allowed by final decisions of the Constan ţ a County Court and the High Court of Cassation and Justice on 25 March 2008 and 15 July 2009 respectively. Both courts noted that Article 322 § 9 of the Code of Civil Procedure (“the CCP”) was applicable, and accepted the reopening of the restitution proceedings and the examination of the applicants ’ claims on the merits.

12. The third application to reopen the civil proceedings was dismissed as inadmissible by a decision delivered by the Gala ţ i Court of Appeal on 25 October 2007.

13. An appeal by the applicants against that decision was dismissed by the High Court of Cassation and Justice on 8 December 2008.

D. Further developments

14. Following a refusal by the domestic courts to reopen the proceedings in one of their restitution cases, on an unspecified date the applicants lodged a new extraordinary appeal ( revizuire ), seeking again the reopening of the proceedings and accordingly for the merits of one of their restitution claims to be examined.

15 . According to the information submitted by the Government after the communication of the application, the applicants ’ extraordinary appeal was allowed by a decision delivered by the High Court of Cassation and Justice on 24 September 2011, and their case file was remitted to the Gala ţ i County Court for their restitution claim to be examined on the merits.

16 . After the reopening of the domestic proceed ings, on 19 March 2015 the Gala ţ i County Court dismissed the applicants ’ restitution claim as unfounded. That decision became final on 8 September 2015 when the Gala ţ i Court of Appeal dismissed an appeal by the applicants on points of law.

COMPLAINT

17. The applicants complained under Article 6 § 1 of the Convention that the unfair manner in which the domestic courts had dealt with their third application to reopen the domestic proceedings, based on the Court ’ s judgment of 14 December 2006, had entailed a fresh violation of the Convention concerning their right of access to a court.

THE LAW

18. The applicants considered that by refusing their third application to reopen the domestic proceedings, the authorities have violated their right to access to a court, guaranteed by article 6 § 1 of the Convention.

In so far as relevant, this provision reads as follows:

Article 6 § 1

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

19. The Government raised several pleas of inadmissibility. Firstly, they considered that the application was incompatible ratione personae with the provisions of the Convention, arguing that the applicants had lost their victim status, since they had obtained the reopening of the domestic proceedings by means of a decision of the High Court of Cassation of 24 September 2011 (see paragraph 15 above).

20. Secondly, the Government drew the Court ’ s attention to the fact that the applicants had failed to inform the Court that their case had been examined on the merits by the domestic courts, and that accordingly the Court ’ s judgment of 14 December 2006 had been enforced. In this respect, the Government requested that the Court declare the application inadmissible on the grounds of abuse of the right of petition.

21. Lastly, the Government submitted that the application was incompatible ratione materiae with the provisions of the Convention.

22. The applicants did not submit any comments concerning the objections raised by the Government. The representative of some of the applicants (see appendix) submitted on 7 September 2016 that her clients were no longer interested in pursuing the application, as the domestic courts had reopened their case and examined their claims on the merits. The rest of the applicants, not represented by a lawyer, did not reply to any of the Court ’ s letters.

23. The Court will firstly examine whether the applicants ’ conduct could be considered an abuse of the right of application.

24. The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Vasilevskiy v. Latvia (dec.), no. 73485/01, 10 January 2012). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania , no. 21447/03, §§ 25-26, 2 December 2008). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

25. Turning to the circumstances of the instant case, the Court notes that, according to the documents submitted by the Government, on 24 September 2011 the High Court of Cassation allowed the applicants ’ application for their case to be reopened (see paragraph 15 above). Subsequently, on 19 March 2015, the applicants ’ claims was examined on the merits by the Gala ţ i County Court (see paragraph 16 above). However, the applicants failed to mention this fact to the Court after the lodging of their application and before its communication to the respondent Government on 18 May 2016.

26. The Court further observes that the applicants did not provide any plausible explanation for the failure to submit this information, which, in its opinion, relates to the very core of the subject matter of the present application.

27. Having regard to the importance of the information at issue for the proper determination of the present case, the Court upholds the Government ’ s preliminary objection that the applicants ’ conduct constituted an abuse of the right of application w ithin the meaning of Article 35 § 3 (a) of the Convention.

28. In vie w of the above considerations, the Court considers that it is not necessary to examine the other two objections raised by the Government.

29. Therefore, the application as a whole must be declared inadmissible as an abuse of the right of application, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President

Appendix