Resolution CM/ ResDH (2008) 79 [1]

Execution of the judgments of the European Court of Human Rights

Canciovici and others against Romania

MoÅŸteanu and others against Romania

(Application No. 32926/96 , judgment of 26 November 2002, final on 24 September 2003 and

Application No. 33176/96, judgment of 26 November 2002, rectified on 4 February 2003, final on 26 February 2003 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the lack of access to a court in order to claim the restitution of nationalised buildings (Article 6§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 Romania ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

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, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2008)79

Information about the measures taken to comply with the judgments in the cases of Canciovici and others against Romania and MoÅŸteanu and others against Romania

Introductory case summary

These cases concern infringements of the applicants ’ right of access to a court in that, in 1995 and 1996, the Bucharest Court of Appeal concluded that it was not competent to deal with the applicants ’ claimsconcerning the restitution of buildings which had been nationalised in 1950 (violation of Article 6§1).

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Canciovici and others - 32926/96

-

6 000 EUR

-

6 000 EUR

P aid on 15/12/2003

MoÅŸteanu and others - 33176/96

-

4 000 EUR

710 EUR

4 710 EUR

P aid on 07/05/2003

b) Individual measures

1) Canciovici case: The building in question was returned to the applicants by an administrative decision under Law 10/2001.

2) Moşteanu case: The Court indicated (§61) that the applicants have in the meantime recovered their right of property over the building at issue.

The Court also awarded both applicants just satisfaction in respect of non-pecuniary damage.

II. General measures

Changes made to the legislation and case-law (especially Article 6 of Law No. 213/1998 and the judgment of 28/09/1998 of the Supreme Court in plenary session) recognised the right of access to a court for former owners of nationalised property.

Furthermore, after the adoption of Law No. 10/2001 of 14 February 2001 on the rules governing immovable property wrongfully seized by the state between 6 March 1945 and 22 December 1989, domestic courts have continued to examine actions for restitution on the merits, not rejecting restitution claims as inadmissible on the ground of lack of competence. Thus, in pending cases, Law No. 10/2001 provides the possibility either to continue judicial proceedings for restitution of property or to apply a special administrative procedure. In the latter case, the judicial proceedings may be renounced or suspended. Law No. 10/2001 also provides the possibility to contest administrative decisions rejecting claims for restitution or lack of restitution in kind before civil courts.

Both judgments were published in the Official Journal and on the Internet site of the High Court of Cassation and Justice ( http://www.scj.ro/decizii_strasbourg.asp ).

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the Court in these cases, that these measures will prevent new, 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies