THIRD SECTION

Application no. 32339/05 Gheorghe Mihai FEISAN and Ioana FEISAN against Romania lodged on 31 August 2005

STATEMENT OF FACTS

THE FACTS

The appli cants, Mr Gheorghe Mihai Feisan and Ms Ioana Feisan , are a married couple of Romanian nationals who were born in 1958 and 1962 respectively and live in Sf â ntu Gheorghe .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

T he applicants secured a bank loan taken out by a private company (“company F”) with a mortgage on their apartment. The loan was also secured with a mortgage on real estate belonging to family S.

By a judgment of 13 October 1998 (which became final in 2000) the Covasna County Court allowed an action lodged by the bank against its debtors for reimbursement of the loan granted to company F.

Insolvency proceedings were initiated against company F in 1999 and the bank was registered on the creditors ’ list. However, the bank preferred to initiate enforcement proceedings against the applicants. Thus, on 13 April 2001 the Sfântu Gheorghe District Court allowed the bank ’ s request and ordered the applicants to pay 10,200, 000 Romanian lei (ROL, approximately 400 euros (EUR)) with related interest and the creditor bank ’ s enforcement costs. The amount representing the interest and the enforcement costs was not mentioned in the judgment.

In order to avoid the sale of their apartment the applicants made a deposit of ROL 10,200, 000 with the Savings Bank at the disposal of the creditor bank on 21 March 2002 . On the same day they challenged the decision of the bank ’ s bailiff to sell their apartment at auction while they intended to pay the amount for which they were liable. They also asked for the auction to be suspended.

By a judgment of 9 April 2002 the Sfântu Gheorghe District Court dismissed the applicants ’ challenge, on the ground that they had not paid the interest on the ROL 10,200,000 and the enforcement costs. The applicants appealed, maintaining that they could not pay the interest and the enforcement costs, as that amount had never been calculated or notified to them. Their appe al was dismissed by the Covasna County Court, which upheld the judgment without providing other reasons.

On 30 April 20 02 the bank bailiff set the auction d ate for 21 May 2002.

Due to the lack of buyers for the apartment, the bailiff r educed the minimum price to ROL 116,250,000 (approximately EUR 4 650) and set another auction date for 25 June 2002.

The apartment was bought at the minimum price established by the bailiff, and the deed of adjudication was issued on 29 July 2002.

The bank bailiff issued the final order releasing the sale price ( procesul verbal de eliberare al pre ţ ului ) on 15 October 2002 . The applicants alleged that they had challenged this enforcement act in court in accordance with the applicable law, but that the court had refused to register their complaint. It was sent back on 21 October 2002 with the indication that it should be lodged with the issuing body. They also maintained that although they had lodged their complaint with the creditor bank on 23 October 2002 it had never been examined.

The buyer of the applicants ’ apartment asked for the ev iction of the applicants. By an interlocutory judgment of 27 August 2003, her request was allowe d by the Sfâ ntu Gheorghe District Court. On 1 September 2003 the applicants were ordered to vacate the apartment.

The applicant s contested in court all the enforcement measures taken against them , including their eviction from the apartment . They also asked for the revocation of the deed of adjudicati on and the examination of their complaint against the order releasing the sale price under the deed of adjudication.

On 14 October 2003 the Sf â ntu Gheorghe District Court dismissed their complaint on the ground of res judicata . It held that the applicants ’ complaint against the deed of adjudication of 29 July 2002 had already been examined by the court in its judgment of 9 April 2002 and therefore it could not be examined again.

The applicants appealed, claiming that the deed of adjudication was null and void, as they had paid their debt to the bank before their apartment was sold. They also stated that their complaint against the order releasing the sale price following the auction had never been examined. On 1 March 2005 the Covasna County Court dismissed their appeal on points of law, on the ground that all the execution measures against the applicants were lawful, without referring to all the matters cited by the applicants. It did not make any reference to the complaint against the final order releasing the sale price under the deed of adjudication.

B. Relevant domestic law

A ccording to Article 570 of the Romanian Code of Civil Procedure a complaint can be lodged against an order releasing a sale price or distributing a sum resulting from a forced exec ution, within three days of its drafting. The complaint has the effect of suspending the release of the sum and must be examined immediately, with the parties summoned.

COMPLAINTS

1 . Und er Article 6 § 1 of the Convention, the applicants complain that they were denied access to court because their complaint against the order releasing the auction price was not examined by a court and that their last complaint against the enforcement measures taken against them after the sale of their apartment at auction was dismissed on the ground of res judicata . They also allege that the reasons provided by the domestic courts were unclear and insufficient.

2 . Relying on Article 1 of Protocol No. 1 to the Convention, they complain that the sale of their apartment at auction was unlawful, arbitrary and disproportionate. In particular, they complain that their apartment was sold at auction despite the fact that they intended to pay the debt and made a deposit with the Savings Bank to this end. They also allege that the amount they had to pay to the creditor bank was never indicated, either by the courts or the bank bailiff.

QUESTIONS TO THE PARTIES

1. Did the applicants benefit from the right of access to court within the meaning of Article 6 § 1 of the Convention, in view of the fact that the applicants claim that their complaint against the final order releasing the sale price after the auction was not registered and was sent back, with no reason being given by the Sf ântu Gheorghe District Court?

2. Did the applicant s have a fair h earin g in the determination of their civil rights and obligations, in accordance with Ar ticle 6 § 1 of the Convention? In particular , did the Sfântu G heorghe District Court give sufficient and clear reasons for its decisions of 9 April 2002 and 14 October 2003, in accordance w ith the requirements of Article 6 of the Convention?

3. Has there been an interference with the applicants ’ peaceful enjoyment of possession s within the meaning of Article 1 of Protocol No. 1 due to the fact that their apartment was sold at auction ? If so, did that interference impose an excessive individual burden on the applicants?