O problemă de inadmisibilitate a cererilor privind restituirea imobilelor

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În legătură cu cererile adresate Curţii Europene a Drepturilor Omului (Curtea) care au ca obiect restituirea imobilelor preluate abuziv în perioada comunistă, în România, Curtea a adoptat o hotărâre în cazul-pilot Maria Atanasiu şi alţii împotriva României (hotărârea din 12 octombrie 2010, în cauzele nr. 30767/05 şi 33800/06, definitivă la data de 12 ianuarie 2011).

Un caz-pilot se formează la Curte atunci când există un număr foarte mare de cereri/plângeri adresate Curţii care se referă la probleme similare, care se manifestă în mod frecvent, sistematic şi care sunt, de regulă, generate de neconcordanţa dintre legislaţia unui stat şi prevederile Convenţiei Europene a Drepturilor Omului (Convenţia). Prin hotărârea pe care o pronunţă într-un caz-pilot, Curtea obligă statul vizat să ia măsuri cu caracter general, care constau, de regulă, în armonizarea legislaţiei interne cu prevederile Convenţiei.

Prin hotărârea din cazul-pilot Maria Atanasiu şi alţii împotriva României, Curtea a stabilit că statul român are obligaţia ca, într-un anumit termen, stabilit iniţial la 18 luni şi prelungit ulterior până la data de 12 mai 2013, să adopte măsuri cu caracter general pentru a eficientiza mecanismul privind retrocedările sau despăgubirile, în scopul de a asigura o protecţie concretă a dreptului la proprietate şi în aceste cazuri.

Prin aceeaşi hotărâre-pilot, Curtea a stabilit că suspendă soluţionarea oricăror cauze similare privind proprietatea până la expirarea termenului fixat pentru luarea măsurilor generale, respective până la 12 mai 2013.

La data de 16 mai 2013, în îndeplinirea obligaţiilor statului de a lua măsurile cu caracter general stabilite de Curte prin hotărârea din cazul-pilot Maria Atanasiu şi alţii împotriva României, Parlamentul a adoptat Legea nr. 165/2013 privind măsurile pentru finalizarea procesului de restituire, în natură sau prin echivalent, a imobilelor preluate în mod abuziv în perioada regimului comunist în România.

Prin hotărârea pronunţată în cazul Preda şi alţii împotriva României (hotărârea din 29 aprilie 2014, definitivă la 29 iulie 2014, în cauzele nr. 9584/02, 33514/02, 38052/02, 25821/03, 29652/03, 3736/03, 17750/03 şi 28688/04), Curtea a stabilit şi ce consecinţe are adoptarea Legii nr. 165/2013 cu privire cererile adresate Curţii în materia imobilelor preluate abuziv.

Astfel, Curtea a apreciat că, în principiu, Legea nr. 165/2013 a instituit o procedură efectivă şi accesibilă pentru remedierea încălcării dreptului la protecţia proprietăţii, în cazurile care privesc imobilele preluate în mod abuziv în perioada regimului comunist (par. 129 din hotărârea în cazul Preda şi alţii împotriva României).

Curtea a constatat că există şi o excepţie, când Legea 165/2013 nu oferă un remediu efectiv, deoarece nu reglementează o anumită situaţie. Este vorba de situaţia în care există mai multe hotărâri judecătoreşti definitive care stabilesc, pentru titulari diferiţi, dreptul de proprietate asupra aceleiaşi clădiri (par. 124 din hotărârea în cazul Preda şi alţii împotriva României).

De asemenea, Curtea a stabilit că procedura prevăzută de Legea nr. 165/2013 trebuie să fie urmată chiar şi de către reclamanţii care au sesizat Curtea anterior adoptării Legii nr. 165/2013. Adică şi de reclamanţii care aveau cererile pe rolul Curţii, la data adoptării Legii nr. 165/2013 (par. 134 din hotărârea în cazul Preda şi alţii împotriva României face trimitere expresă la art. 4 din Legea nr. 165/2013, care prevede explicit că procedura din Legea nr. 165/2013 se aplică şi pentru cererile aflate deja pe rolul Curţii).

Ca atare, dacă aceşti reclamanţi nu au făcut dovada că, după sesizarea Curţii, au urmat procedura prevăzută de Legea nr. 165/2013, Curtea a considerat că aceştia nu au epuizat căile interne de atac, astfel că plângerea/cererea adresată Curţii a fost respinsă ca vădit inadmisibilă (par. 142 din hotărârea în cazul Preda şi alţii împotriva României).

Dacă o cauză este vădit inadmisibilă, ea se soluţionează de un judecător unic (un complet al Curţii format dintr-un singur judecător), care va pronunţă o decizie de inadmisibilitate. Regulamentul Curţii prevede că decizia de inadmisibilitate pronunţată de judecătorul-unic nu se comunică reclamantului, care va fi doar înştiinţat, printr-o scrisoare, despre declararea ca inadmisibilă a cererii sale (regula 33 pct. 4, regula 52A pct. 1 din Regulament). Decizia de inadmisibilitate este inatacabilă (nu mai poate fi contestată sub nicio formă).

Desigur că, dacă şi după ce a urmat procedura prevăzută de Legea nr. 165/2013, cu respectarea termenelor şi condiţiilor prevăzute de lege, o persoană apreciază şi poate argumenta că modul de aplicare a legii a generat, în cazul său concret, încălcări ale drepturilor prevăzute în Convenţie, nu este exclusă formularea unei cereri/plângeri la Curte cu privire la modul în care funcţionează în concret mecanismele prevăzute de Legea nr. 165/2013.

 

 

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