Resolution CM/ ResDH (2012) 208 [1] LupaÅŸ and others (No. 1) against Romania

Execution of the judgment of the European Court of Human Rights

(Applications Nos. 1434/02, 35370/02 and 1385/03, judgment of 14 December 2006, final on 14 March 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the applicants ’ right of access to a court in proceedings related to property nationalised under the communist regime arising from the rigid application of a case-law rule requiring unanimity amongst co-owners in order to bring an action for recovery of a joint property (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent State paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 208

Information about the measures to comply with the judgment in the case of LupaÅŸ and others (No. 1) against Romania

Introductory case summary

The case concerns the breach of the applicants ’ right of access to a court due to the rigid application by the domestic courts of an admissibility rule requiring unanimity amongst co-owners in order to bring an action for recovery of a property held in common (violation of Article 6, paragraph 1).

The nineteen applicants are the descendants of some of the co-owners of a 50-hectare plot of land, which was expropriated in 1950 for the construction of a military base. In 1998 and 1999 the applicants brought actions for recovery of the possession of the land, without the agreement of the heirs of two of the former co-owners. Between 2001 and 2002 these actions were dismissed as inadmissible in last instance by the Supreme Court of Justice in application of the above mentioned unanimity rule. In the cases at hand, one of the heirs had refused to join the proceedings whereas some others could not be identified by the applicants.

The European Court noted that the unanimity rule satisfied the requirements of accessibility and foreseeability and it pursued the legitimate aim of protecting the rights of all the heirs of the former co-owners of a property. However, in the specific case of the applicants, the domestic courts had failed to draw any consequences from the refusal of one heir to join the proceedings and the impossibility to identify some other heirs. Construed in a rigid manner, the unanimity rule resulted in an insurmountable obstacle to any attempt to establish the applicants ’ title of the property at issue. This imposed a disproportionate burden on the applicants who were thus denied any clear and practical opportunity to have their courts determine their actions, in violation of their right of access to a court.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

19 000 EUR

6 000 EUR

25 000 EUR

Paid on 18/07/2007 (the applicants waived interests)

b) Individual measures

The European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage and costs and expenses. Furthermore, in order to obtain restitutio in integrum Article 322, paragraph 9 of the Code of Civil Procedure allows the applicants to lodge an application for the reopening of the impugned proceedings.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

a) Awareness-raising measures

The European Court ’ s judgment in the instant case made the object of widespread dissemination. Its translation into Romanian was published in Official Journal No. 464 of 10 July 2007 and on the website of the High Court of cassation and justice ( http://www.scj.ro/d e cizii_strasbourg.asp ). The judgment was also sent to the Supreme Council of Magistracy for dissemination to all domestic courts. Moreover, a summary of the judgment was presented in the Reports of the European Court ’ s case-law between 1994-2009 , accompanied by an analysis of its consequences and an identification of the authorities which are responsible for the violation found. Lastly, the judgment is presented and discussed during the initial and continuing training of the magistrates.

b) Case-law developments

The Government provided examples of court decisions dating from 2009 – 2010 which indicate a change in the domestic courts ’ approach of the unanimity rule. It appears thus that this rule is no longer applied automatically: the domestic courts now assess all the relevant circumstances of a given case to determine whether the unanimity rule places an excessive burden on the claimant and, if this is the case, they move to examine the merits of the claimant ’ s action.

c) Assessment of the impact of the general measures

The government recalls that the European Court did not challenge the unanimity rule, but only the rigid manner in which the domestic courts applied it in the applicants ’ case. In any event, the unanimity rule was abandoned with the entry into force of the Civil Code on 1st October 2011. Indeed, section 643 of the new Civil Code provides that the co-owners have standing individually in any civil proceedings related to the joint property.

Even before the entry into force of the new Civil Code, the case-law developments subsequent to the European Court ’ s judgment show that the domestic courts now construe the unanimity rule in a manner that is compatible with the Article 6 requirements set out therein. This proves that the awareness-raising measures taken in the instant case were effective.

III. Conclusions of the respondent State

The government considers that no further individual measure is requested in this case, apart from the payment of the just satisfaction. It equally considers that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .