DISSENTING OPINION OF JUDGE Å IKUTA

To my regret, I cannot subscribe to the Chamber ’ s finding of a violation of Article 1 of Protocol No. 1 to the Convention.

I lacked several important and relevant facts in order to reach a conclusion, and therefore, from my point of view, the case was not ready for decision.

In 1994 the applicants ’ father entered into a loan agreement with H.M.C., offering a mortgage on his immovable property, a building and the appurtenant land located in Osorhei , by way of guarantee.

On 3 June 1994 the mortgage was registered with the land registry.

As the applicants ’ father did not reimburse the loan on the due date, his property was sold by auction to a family, T.T.T. and T.T.S., on 31 May 1996.

The right of ownership of the successful bidders in respect of the property was entered in the land register.

On 1 July 1996 the applicants ’ father challenged the forced sale, seeking the annulment of the order for the sale of his immovable property. The proceedings were registered at the land registry on 5 January 1998.

Subsequently, on 30 December 1998, despite the pending proceedings regarding the annulment of the sale by auction, the buyers (T.T.T. and T.T.S.) sold the property to a third party, S.R.

On 26 April 2000 the Oradea Court of Appeal allowed the action by the applicants ’ father and consequently annulled the forced sale of the property on the grounds that the loan had been reimbursed and the price was considerably lower than the real value of the property. However, he could not recover possession of the property as, in the mea ntime, it had been sold to S.R.

Invoking the principle quod nullum est , nullum producit effectum , he lodged an action with the Oradea District Court seeking the annulment of the two sale agreements: the agreement by which T.T.T. and T.T.S. had acquired the property at auction and the subsequent agreement between T.T.T. and T.T.S., of the one part, and S.R.

From the facts of the instant case there are a number of points that remain unclear: at what point the right of ownership of the successful bidders was entered in the land register, what reasons were given by the applicant ’ s father to challenge the forced sale, what legal consequences arose from the registration of the property in the land register, why the Oradea Court of Appeal annulled the forced sale on 26 April 2000, to whom the loan had been reimbursed, what the price was, why the price was considerably lower than the real value of the property, what the real value of the property was.

In the light of the above, I am convinced that our Court ’ s finding of a violation of Article 1 of Protocol No. 1 is premature.

[1] The text was: “ CASE OF BUCIAȘ v. ROMANIA ” .

[2] The text was: “ Buciaș v. Romania”.

[3] The text was: “Mr Ioan Buciaș ”.