Communicated on 30 September 2014
THIRD SECTION
Applications nos. 7516/10 and 25561/10
Aurel BODIU against the Republic of Moldova
and Nadejda OLIŞEVSCHI against the Republic of Moldova
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no 7516/10
The applicant had a dispute with H. about ownership to a house. He brought an action against H. seeking the acknowledgement of his property right as his father’s heir and H.’s eviction from the house; H. lodged a counter action seeking the acknowledgement of her property right on the house as the person who had built it.
On 20 December 2007 the Buiucani District Court dismissed H.’s claims and upheld the applicant’s claims in full. On 20 May 2008 the Chișinău Court of Appeal upheld that judgment, dismissing H.’s appeal. H. did not attend appellate proceedings, although summons had been repeatedly sent to the address she had provided in her appeal. The judgment became final after the expiry of the two-month time-limit for lodging an appeal in cassation.
On 11 May 2009 H. lodged an appeal in cassation with the Supreme Court of Justice, stating that she had learned about the judgment of 20 May 2008 only on 23 April 2009; she did not refer to any evidence or explanation to support that statement. According to the applicant, he requested the dismissal of the appeal as lodged outside the legal time-limit.
On 16 October 2009 the Supreme Court of Justice accepted H.’s appeal in cassation, quashed the previous judgments and delivered a new judgment on the merits of the case dividing the disputed house in equal halves between the applicant and H. The court argued that the appeal was not lodged outside the time-limit because H. had not attended the proceedings before the appellate court and there was nothing in the file to confirm that the appellate court had informed her about the availability of the judgment’s full text. The court concluded that without any evidence of the date when H. had learned about the judgment, her appeal was to be considered as submitted on time. This judgment was final.
2. Application no 25561/10
The applicant had a dispute with I.S. and V.S. about ownership to a plot of land. She brought an action against them seeking the annulment of their titles to the disputed land.
On 16 October 2008 the Rîșcani District Court dismissed the applicant’s claims as ill-founded. The applicant appealed. On 10 March 2009 the Chișinău Court of Appeal, in the presence of I.S.’s representative and in the absence of V.S., quashed the previous judgment and adopted a new judgment in the applicant’s favour. The judgment became final after the expiry of the two-month time-limit for lodging an appeal in cassation.
On 6 July 2009 I.S. lodged an appeal in cassation with the Supreme Court of Justice; he did not state any date from which the time-limit for lodging the appeal started running for him.
On 13 July 2009 V.S. lodged an appeal in cassation with the Supreme Court of Justice. He claimed that he had not been properly summoned in appellate proceedings and that he had been unable to learn about the judgment of 10 March 2009 before 5 June 2009 because he had been at a health resort from 8 to 25 May 2009. Relying on these reasons, he asked the court to extend the time-limit for lodging the appeal in cassation.
On 27 January 2010 the Supreme Court of Justice accepted both appeals in cassation and reversed the appellate judgment. The court did not refer in its judgment to V.S.’s request to extend the time-limit for lodging the appeal or to whether I.S.’s appeal had been submitted within the time-limit. This judgment was final.
B. Relevant domestic law
According to Article 433 of the Code of Civil Procedure, as worded at the time of the events, an appeal in cassation shall be considered inadmissible if lodged outside the legal time-limit.
According to Article 434 of the Code of Civil Procedure, as worded at the time of the events, an appeal in cassation may be lodged within two months from the delivery of the appellate judgment and in case the full text of the judgment is provided at a later date, from the date when the parties are informed in written about the signature of the full judgment text. The two-month time-limit is restrictive and cannot be extended.
COMPLAINTS
The applicants complain under Article 6 of the Convention and under Article 1 of Protocol No. 1 to the Convention about the quashing by the Supreme Court of Justice of judgments in their favour without providing any or sufficient reasons for upholding appeals in cassation which had been lodged outside the legal time-limit.
COMMON QUESTION
Was there a breach of the applicants’ rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as a result of the re-opening of the proceedings by the Supreme Court of Justice? In particular, were the appeals in cassation lodged within the legal time-limit and did the Supreme Court of Justice give relevant and sufficient reasons for declaring those appeals admissible (Melnic v. Moldova, no. 6923/03, §§ 39‑44, 14 November 2006, Ceachir v. Moldova, no. 11712/04, §§ 41-48, 15 January 2008)?
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name, nationality,
date of birth,
place of residence
Represented by
7516/10
29/01/2010
Aurel BODIU,
Moldovan national, born on 17/03/1975, living in Chișinău
Roman ZADOINOV and Violeta GĂȘIȚOI, practising in Chișinău
25561/10
22/04/2010
Nadejda OLISEVSCHI,
Moldovan national, born on 09/06/1935, living in Chișinău
Full & Egal Universal Law Academy