THIRD SECTION

DECISION

Application no . 17436/09 Margareta ARIÅžANU against Romania

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

Ján Šikuta , President, Luis López Guerra, Nona Tsotsoria , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 23 March 2009 ,

Having regard to the observations submitted by the Romanian Government and the observations in reply submitted by the appli cant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Margareta Arişanu , is a Romanian national, who was born in 1940 and lives in Bucharest . The applicant was represented by Mr G. Arișanu .

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

A. The circumstances of the case

The applicant used to live in an apartment rented from the State in a nationalised building. In 1996, under Law no. 112/1995, she bought the apartment from the State.

Subsequently, the former owners of the nationalised building lodged an action seeking recovery of the possession of the apartment.

In a final judgment of 29 September 2008 the Bucharest Court of Appeal upheld the first instance court ’ s decision by which the plaintiffs ’ action was allowed. Therefore, it ordered the applicant to surrender possession of the apartment to the plaintiffs. The court held that the nationalised building had been acquired by the State without title and gave precedence to the previous owner.

B. Relevant domestic law and practice

The relevant legal provisions, regarding different aspects related to nationalised buildings purchased by tenants under Law 112/1995, are described in the case of Tudor Tudor v. Romania (no. 21911/03, §§ 13-21, 24 March 2009).

In a judgment of 18 October 2010, the Bucharest Court of Appeal dismissed the action for recovery of possession of the apartment, lodged by the former owners against the applicant ’ s neighbour , who had bought an apartment in the same nationalised building.

COMPLAINT S

The applicant complained, under Article 6 § 1 of the Convention, that the proceedings giving rise to the final decision had been unfair, in particular because the same court of appeal had adopted a conflicting decision in an identical case brought against another buyer of an apartment in the same nationalised building.

She further complained, under Article 1 of Protocol No. 1 to the Convention , of the loss of her property rights, as the domestic courts had ordered her to surrender possession of the apartment to the plaintiffs. The applicant also complained of discrimination, under Article 14 taken together with Article 6 § 1 of the Convention, in so far as the same court of appeal adopted a contrasting decision in an identical case brought against a buyer of an apartment in the same nationalised building.

THE LAW

A. Article 6 § 1 of the Convention

The applicant complained, under Article 6 § 1 of the Convention, that the proceedings giving rise to the final decision of 29 September 2008 had been unfair, in particular because the same court of appeal had adopted a conflicting decision in an identical case brought against other buyer of an apartment in the same nationalised building.

Article 6 § 1 of the Convention reads as follows in so far as relevant:

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

The Government submitted that the proceedings had been fair. In their view, the court applied the provision of the law to cases in which different circumstances arose. Therefore, the decisions cannot be similar. Also, they contended that the applicant had not properly argued or documented her complaint of inconsistent case-law; except form a copy of one conflicting decision, submitted together with her initial application she had not submitted any other evidence in this respect.

The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court role is to verify whether the effects of such interpretation are compatible with the Convention, save in the event of evident arbitrariness, when the Court may question the interpretation of the domestic law by the national courts (see Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05, §§ 49-50, 20 October 2011).

Inconsistences in approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. Such inconsistencies may also arise within the same court. That, in itself, cannot be considered contrary to the Convention .

In order to assess the conditions in which conflicting decisions of domestic last-instance courts are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention, the Court will first of all examine whether “profound and long-standing differences” exist in the case ‑ law of the domestic courts (see, for instance, Albu and Others v. Romania , nos. 34796/09 and 63 other applications, § 34, 10 May 2012).

Turning to the present case, the Court notes that the applicant had submitted only one copy of an alleged conflicting decision of the same court of appeal regarding the recovery of possession.

In such circumstances, it cannot be said that there were “profound and long ‑ standing differences” in the relevant case-law (see, Albu and Others v. Romania , cited above, § 34). Considering this aspect, the Court finds no reason to further examine whether the domestic law contained provisions for overcoming those inconsistencies, whether those provisions were applied and to what effect.

In addition, the Court notes that this case should be distinguished from the case of Tudor Tudor v. Romania (cited above, § § 28-29), in which it observed that the same court of appeal had given conflicting interpretation of the relevance of the buyers ’ good faith in concluding sale contracts with the State, as in the instant case there is no evidence of contradictory decisions. Also, in the case of Tudor Tudor , the Court found that the principle of the legal certainty had been breached, due to Prosecutor General ’ s intervention in the case. This had only been possible by means of an extraordinary appeal, which in itself contradicted the principle of the legal certainty.

Lastly, the Court notes that the applicant in the present case had the benefit of adversarial proceedings, in which she was able to adduce evidence as she estimated necessary and have her arguments properly examined by the courts. At the same time, the courts ’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.

Having regard to all the above-mentioned considerations, the Court considers that the applicants ’ complaint is manifestly ill-founded and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Other complaints

The applicant complained that the domestic courts had ordered her to surrender possession of the apartment to the plaintiffs which led to loss of her property rights, in violation of Article 1 of Protocol No. 1 to the Convention. She also complained of discrimination, under Article 14 taken together with Article 6 § 1 of the Convention, in so far as the same court of appeal had adopted a contrasting decision in an identical case brought against the buyer of an apartment situated in the same nationalised building.

However, in the light 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.

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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Ján Šikuta Deputy Registrar President