THIRD SECTION

DECISION

Application no . 37488/07 Geta STANCIU and others against Romania

T he European Court of Human Rights ( Third Section ), sitting on 16 December 2014 as a Committee composed of:

Ján Šikuta , President, Dragoljub Popović , Iulia Antoanella Motoc , judges, and Marialena Tsirli , Deputy Section Registrar ,

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

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant s , Ms Geta Stanciu and her two sons, Mr Tudor Stanciu and Mr C ă lin Stanciu , are Romanian national s, who were born in 1940, 1969 and 1969, respectively. They all live in Ia ş i .

2. The Romanian Government (“the Government”) were represented by their Agent, Mr R. H. Radu , of the Romanian 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 31 May 2001, by relying on Law no. 10/2001 on immovable property wrongfully acquired by the State, the applicants lodged a request with the Ia ş i Mayor ’ s Office seeking the return in natura of 2,106 sq. m of land and compensations for the destroyed building that used to occupy the land.

5. On an unspecified date in 2003 the Ia şi Local Council delivered a decision appropriating the inventory describing the properties belonging to the town ’ s public domain. According to the aforementioned inventory the area where the land claimed by the applicants was located belonged to the town ’ s public domain.

6. By a decision of 12 October 2004, by relying among other things on Article 24 § 1 of Law no. 10/2001, the Iaşi Mayor ’ s Office allowed the applicants ’ request seeking compensations for the destroyed building. At the same time, it dismissed their request seeking the return in natura of the 2,106 sq. m of land on the ground that it was impossible to return the land because it was part of a park and it was therefore necessary to retain it to the town ’ s public domain. However, it acknowledged the applicants ’ right to compensations for the aforementioned land.

7. On 11 November 2004 the applicants challenged the decision of 12 October 2004 before the domestic courts. They argued that according to the available evidence the land claimed by them was not part of the town ’ s public or private domain and therefore could be returned to them in natura . They further argued amongst other things that in any event the land had been appropriated to the public domain in 2003 by a Local Council ’ s decision which did not concern them given that they had lodged their claim for the land in 2001. In any event Law no. 10/2001 made mandatory the return of property in natura regardless of its status.

8. By a judgment of 28 September 2005 the Ia ş i County Court allowed the applicants ’ challenge, quashed the Iaşi Mayor ’ s Office ’ s decision of 12 October 2004 and ordered the Mayor ’ s Office to return in natura to the applicants the 2,106 sq. m of land and to pay them compensations for the destroyed building that used to occupy the aforementioned land. It held that according to the available evidence although the applicants ’ land was nearby, the area appropriated to the town ’ s public domain did not include the impugned land. In addition, Law no. 10/2001 provided as a guiding rule the return in natura of immovable property wrongfully acquired by the State. The Ia ş i Mayor ’ s Office appealed against the judgment.

9. By a judgment of 10 February 2006 the Iaşi Court of Appeal dismissed the Iaşi Mayor ’ s Of fice ’ s appeal and upheld the judgment of the first-instance court. The Iaşi Mayor ’ s Office appealed on points of law ( recurs ) against the judgment on the ground that the domestic courts had wrongfully assessed the evidence and had misinterpreted the relevant legal provisions.

10. By a final judgment of 23 October 2006 the Court of Cassation allowed the Iaşi Mayor ’ s Office ’ s appeal on points of law, quashed the judgments of the lower courts and upheld the Ia ş i Mayor ’ s Office ’ s decision of 12 October 2004 . It held that according to the available evidence the land claimed by the applicants was part of a park in an area of the town that did not have another amusement area and lacked the required space for another park. Consequently, the return in natura of the land claimed by the applicants was impossible given the negative social implication that the potential suppression of the park might have.

11. In their submissions the parties informed the Court that although the applicants were entitled to compensations for the immovable property claimed they had failed to initiate the administrative proceedings before the Central Commission for the Calculation of Damages in order to receive their compensation. The applicants had informed the aforementioned commission that they did not wish to receive the compensations and that they had lodged an application before the European Court of Human Rights in order to have the land returned to them in natura .

B. Relevant domestic law

12. A detailed general description of the relevant law and practice concerning the restitution of nationalised property in Romania , including of Law no. 165/2013 on the finalisation of the restitution process , can be found in the leading case s of Maria Atanasiu and Others v. Romania (nos. 30767/05 and 33800/06, §§ 44-76, 12 October 2010) and Preda and O thers v. Romania ( nos. 9584/02, 33514/02, 38052/02, 25821/03, 29652/03, 3736/03, 17750/03 and 28688/04, §§ 134 and 138, 29 April 2014 ) .

13. Article 24 § 1 of Law no. 10/2001 provides that if the return in natura of the immovable property is not approved or is not possible the holder of the property must make the entitled person an offer for compensations according to the value of the immovable property.

COMPLAINTS

14. Relying on Article 6 of the Convention the applicants complain ed that after the demand for the return in natura of their land and during the proceedings, the Ia ş i Mayor ’ s Office transferred the land in question to the public domain. Also the transfer was confirmed by the national courts. In addition, they complain ed of the unfairness and of the outcome of the proceedings, in so far as the courts ha d misinterpreted the law concerning restit ution and compensatory measures.

15. Invoking Article 1 of Protocol No. 1 of the Convention, the applicants complain ed that their right to the peaceful enjoyment of their p ossession has been infringed because in spit e of having a judicial and an administrative decision acknowledging their right to compensation in respect of their confiscated property, they cannot receive the compensation in question, although it is guaranteed by law. Therefore, the compensation grante d to them is ineffective. In addition, they complained of the authorities ’ refusal to return to them in natura th e 2,106 sq. m of land.

THE LAW

A. Complaints under Article 6 of the Convention

16. T he applicants complained that after t he demand for the return in natura of their land and during the procee dings , the Iaşi Mayor ’ s Office transferred the land in question to the public domain , a transfer that was subsequently confirmed by the national courts. They relied on Article 6 of the Convention which, in so far as relevant, reads as follows:

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

17. The Government submitted that Article 6 was not applicable to the present case. Neither the administrative nor the court proceedings lodged by the applicants concerned the administrative procedure which resulted in the land being transferred to the town ’ s public domain. The aforementioned administrative procedure was different from the one lodged by the applicants concerning the return of the property. In addition, the Ia ş i Local Council ’ s decision had never been challenged by the applicants before the domestic courts. Consequently, the administrative procedure in question could not be assimilated to a judicial procedure.

18. The Government contended that in any event the proceedings which ended by the final judgment of 23 October 2006 had been fair. The domestic courts had established the status of the land and had examined the applicants ’ claims. In addition, the applicants have failed to claim before the courts examining their challenge against the decision of 12 October 2004 that the Iaşi Local Council ’ s decision which resulted in the land being transferred to the town ’ s public domain had been unlawful. The Court of Cassation had examined the proportionality of the measure and had balanced the applicants ’ interests against those of the community.

19. The Government further submitted that the present case does not concern amendments to the legislation that have interfered with the administration of justice. The measure taken by the local authorities had been an administrative measure which the courts considered only to determine the facts of case. Also the measure had been taken well before any court proceedings had started and had not influenced a judgment that had already been delivered.

20. The applicants contented that the Court of Cassation had wrongfully assessed the evidence and misinterpreted the applicable legal provisions. In addition, under the pressure of court proceedings the domestic local authorities had abusively transferred their land to the public domain.

21. The Court does not consider necessary to examine all the preliminary objections raised by the Government as even if they were dismissed the applicants ’ complaint is inadmissible for the following reasons.

22. The Court notes from the outset that the present case does not concern the adoption by the legislature of provisions amending existing laws applicable to proceedings to which the applicants were already parties to (see a contrario Zielinski and Pradal Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, 28 October 1999) . The Ia ş i Local Council ’ s decision of 2003 was an administrative decision which concerned the legal status of the land claimed by the applicants.

23. The Court reiterates that the right to a fair trial, guaranteed under Article 6 § 1 of the Convention, presumes the observance of the principle of equality of arms, which requires each party to proceedings to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see Ternovskis v. Latvia , no. 33637/02, § 65, 29 April 2014 ) . However, the Convention institutions have never accepted that the equality of arms may be upset by measures “anticipating”, as it were, court proceedings that have yet to begin and it would be going too far to extend the doctrine by some form of analogy ( see Stella and the National Federation of Families of France v. France ( d e c. ), no. 45574/99, 18 June 2002 ).

24. In the present case, the Court notes that the applicants had lodged their claim seeking the return in natura of the 2,106 sq. m of land on 31 May 2001. On an unspecified date in 2003 the Ia ş i Local Council delivered the d ecision appropriating the inventory describing the area where the applicant s ’ land was located as belonging to the town ’ s public domain. On 12 October 2004 the Iaşi Mayor ’ s Office dismissed, on the basis of the public domain nature of the applicants ’ land, their claim of 31 May 2001.

25. The Court notes that the Iaşi Local Council ’ s decision intervened after the date on which the applicants sought the return in natura of their land. However, that request cannot be regarded as the preliminary phase of judicial proceedings to which the applicants were a party, which began only on 11 November 2004 when the applicants lodged an application with the Iaşi County Court. In addition, while the applicants contended before the domestic courts that the Local Council ’ s decision was not applicable to them, they failed to contest the lawfulness of the aforementioned decision. Furthermore, the domestic courts took into account their submissions and dismissed their action following proceedings that do not appear unfair and by providing grounds that do not appear arbitrary.

26 . In conclusion, the enactment of the Iaşi Local Council ’ s decision did not amount to a breach of Article 6 § 1 of the Convention and this part of the application mu st be dismissed as manifestly ill- founded, pursuant to Article 35 §§ 3 and 4 of the Convention (see Phocas v. France ( dec. ), no. 15638/06, 13 September 2007).

B. Complaints under Article 1 of Protocol No. 1 to the Convention

27. T he applicants complained that their right to the peaceful enjoyment of their possession has been infringed because in spite of having a judicial and an administrative decision acknowledging their right to compensation in respect of their confiscated property, they cannot receive the compensation in question, although it is guaranteed by law. Therefore, the compensation granted to them is ineffective. They relied on Article 1 of Protocol No. 1 to the Convention 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.”

28. The Government submitted that the compensatory mechanism set up by the domestic legislation, namely Law no. 247/2005, is an effective one. However, the applicants did not agree with receiving only compensations for the impugned immovable property and have notified the Ia ş i Mayor ’ s Office in respect of their application before the Court.

29. The applicants contended that the compensatory mechanism referred to by the Government is ineffective and therefore they would be in any event unable to receive the compensations they were entitled to.

30. The Court reiterates that it has already established that individuals holding an administrative decision for compensations identical to that of the applicants could enforce their right by following the procedure described in chapters III and IV of Law no. 165/2013. Moreover, they had to exhaust the available remedy even if it had entered force after they had lodged their application before the Court (see Preda and Others , cited above, §§ 134 and 138).

31. In the instant case, the Court notes that the applicants hold a final administrative decision confirming their right to compensations for the claimed immovable property. However, there is no evidence in the file that the applicants have already attempted to enforce their right following the entry into force of Law no. 165/2013.

32. In these circumstances the Court finds no reason to depart from its finding in the case of Preda and O thers , cited above.

33. It follows that this part of the application must be d ismissed for non ‑ exhaustion of domestic remedies , pursuant to Article 35 § 4 of the Convention (see Preda and O thers , cited above, § 142).

C . Remaining complaints

34. Insofar as the applicant s ’ remainin g complaints are concerned (see paragraphs 14 and 15 , above), the Court considers that there is nothing in the file to suggest that the provisions invoked by the applicant s have been violated. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Marialena Tsirli Ján Å ikuta              Deputy Registrar President