Communicated on 10 November 2020 Published on 30 November 2020

FOURTH SECTION

Application no. 24294/20 Todor MOCAN and Others against Romania lodged on 29 May 2020

SUBJECT MATTER OF THE CASE

The application concerns the impending demolition of the house built by the applicants on a plot of land they had bought in 2013, on the ground that it was illegal because it was constructed without a building permit.

On 2 August 2013 the applicants obtained an urban planning certificate which confirmed in principle their right to build a house on the land they had bought, subject to several formalities they had to observe so as to obtain a building permit. The applicants claim they started to build the house, pending the imminent delivery of the building permit. In 2014 the general urban planning policy changed, which allegedly impeded the pending procedure for the delivery of the requested building permit.

On 17 August 2016 the second applicant was fined 1 0,000 RON (approximately EUR 2,300) for having started to build the house without a building permit. The sanctioning report mentioned that within 120 days she needed “to comply with the rules governing the issuance of building permits”. The report was not challenged and the fine was paid.

In response to the second applicant ’ s request addressed to the authorities aiming to “comply with the rules governing the issuance of building permits”, on 18 January 2017 she obtained another “urban planning certificate”, which mentioned that, in so far as the house had already been built, she was no longer entitled to obtain any further documents capable of legalising the de facto situation.

On 12 June 2018 the Mayor lodged civil proceedings against the applicants, seeking to obtain the demolition of the house which had been constructed unlawfully. This request was allowed by the first-instance court on 11 December 2018 and upheld on appeal by the Cluj-Napoca County Court on 27 June 2019 (notified to the applicants on 29 November 2019). The courts considered that the applicants had not shown sufficient diligence regarding their obligation to comply with the relevant rules concerning building permits, as indicated to the second applicant by the sanctioning report of 2016. Furthermore, the courts dismissed as irrelevant the applicants ’ arguments relying on the Court ’ s judgment in the case of Ivanova and Cherkezov v. Bulgaria (no. 46577/15, 21 April 2016). The courts held that it had been the applicants ’ free decision to sell the apartment they lived in and to buy a plot of land on which they started to build a house, knowingly without a building permit. They were the only ones to be held responsible for their situation, therefore the measure taken against them was completely reasonable.

The demolition order was to be enforced within 120 days from the delivery of the final judgment of the County Court. Currently there is no information in the file as to whether the demolition order had been carried out.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ right to respect for their home within the meaning of Article 8 § 1 of the Convention, on account of the domestic order for the demolition of their house?

If so, is the impending demolition of the house inhabited by the applicants necessary in terms of Article 8 § 2 of the Convention? In particular, were the applicants able to have the proportionality of the measure reviewed by the courts in the light of the relevan t principles under Article 8 of the Convention (see Ivanova and Cherkezov v. Bulgaria , no. 46577/15, § § 49-62, 21 April 2016; and, mutatis mutandis , Brežec v. Croatia , no. 7177/10, § 45, 18 July 2013 )?

2. Have the applicants exhausted all available potential remedies in respect of their above complaint under Article 8 of the Convention, such as for instance to challenge the urban planning certificate of 18 January 2017 and/or the alleged refusal of the authorities to issue a building permit, as requested by them?

The parties are also invited to inform the Court on the state of the enforcement of the domestic order for the demolition of the applicants ’ home.

Appendix List of applicants

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Todor MOCAN

1960Romanian

Cluj Napoca

2Rebeca MOCAN

1964Romanian

Cluj Napoca

3Alina-Lidia TĂMAȘ

1990Romanian

Cluj Napoca

4Viorel TĂMAȘ

1989Romanian

Cluj Napoca