CASE OF GLIJINSCHI v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF GLIJINSCHI v. THE REPUBLIC OF MOLDOVA

(Application no. 56795/11)

JUDGMENT
 

STRASBOURG

27 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of Glijinschi v. the Republic of Moldova,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 56795/11) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 September 2011 by a Moldovan national, Ms Angela Glijinschi (“the applicant”), who was born in 1963, lives in Chișinău and was represented by Mr N. Daniliuc, a lawyer practising in Chișinău;

the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr D. Obadă, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 30 January 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns an allegedly disproportionate interference with the applicant’s property rights as a result of the authorities’ authorisation of a wall built by her neighbour, which blocked access to her apartment (Article 1of Protocol No. 1).

2.  The applicant bought an apartment in 2003. On an unknown date, her neighbour, G. rebuilt the communal corridor, erecting a wall and blocking the applicant’s access to her apartment. As a result, she had to use a window to enter her apartment. On 29 November 2007 the Administrative Commission of the Chișinău municipality fined G. for having built the wall, which occupied a part of the communal area, unlawfully and without authorisation. However, the wall was not removed. Also in 2007, following a fire in the building, the applicant’s apartment became uninhabitable and required significant repair.

3.  On 11 June 2008 the applicant signed a notarised statement, giving consent for G. to rebuild his apartment by moving the entry door, in accordance with the applicable construction and health and fire-safety rules. The wall built by G. was not removed.

4.  On 6 May 2010 the applicant withdrew her consent to G.’s rebuilding plan in a further notarised statement and informed the Chișinău Mayor’s office on both 10 and 13 September 2010 of that withdrawal. The applicant made a complaint about the continued existence of the unlawfully built wall. On 2 November 2010 the State Construction Inspectorate replied to the applicant’s complaint, stating that G. had already received a sanction in 2007 and that the law did not allow a second sanction for the same action.

5.  An urban planning certificate dated 20 January 2011 was issued to G. by the relevant authority of the Chișinău municipality, authorising the rebuilding of his apartment. A record of final acceptance of G.’s rebuilt apartment dated 6 September 2011 was issued by the municipal company for the management of the housing fund (ÎMGFL 13).

6.  On 5 October 2011 the applicant lodged an action in court against ÎMGFL 13 and G., seeking the annulment of the urban planning certificate dated 20 January 2011 and of the record of final acceptance dated 6 September 2011. She argued, inter alia, that when issuing the record of final acceptance, the authorities had not taken into account that the wall built by G. blocked the access to her apartment.

7.  By a final decision of 13 February 2013, the Supreme Court of Justice quashed that decision and rejected the applicant’s claims. It found that on 10 June 2008 the applicant had given her consent to G.’s plans, and by 6 May 2010, when she withdrew it, the corridor had already been rebuilt. G. had started the works at a time when the applicant’s consent had not yet been revoked; its subsequent revocation could not affect the lawfulness of the construction.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF Article 1 of Protocol No. 1 to the Convention

8.  The applicant complained of a breach of Article 1 of Protocol No. 1 to the Convention as a result of the decisions confirming G.’s unlawful actions, as a result of which she could not fully enjoy her property right.

9.  The Government argued that the applicant had failed to exhaust the available domestic remedies. In particular, she could have brought proceedings seeking a judicial order that G. desist from interfering with her property rights (acțiune negatorie) and claiming compensation.

10.  The Court notes that, before the relevant documents were issued in 2011, the wall built by G. had been considered to have been erected unlawfully and G. had received a sanction as a result (see paragraph 2 above). While the authorities had failed, for several years, to ensure that G. removed the unauthorised wall, the decisions taken before 2011 had been in the applicant’s favour. However, once the relevant decisions were taken in 2011 and subsequently confirmed by a final court judgment, the wall’s legal status changed from that of being unlawfully built to being authorised. It is therefore apparent that, had the applicant’s court action seeking the annulment of those decisions succeeded, she would have prevented the legal confirmation of the lawfulness of the wall and could have continued to demand its demolition. In this sense, the proceedings brought by the applicant were capable of remedying the violation of her rights caused by changing the legal status of the wall, and thus constituted an effective remedy. In such circumstances, she was not required to pursue any alternative means of defending her rights (see, for instance, Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). The Government’s objection must therefore be dismissed.

11.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12.  The general principles concerning the authorities’ positive obligations under Article 1 of Protocol No. 1 to the Convention have been summarized in Anheuser‑Busch Inc. v. Portugal [GC] (no. 73049/01, § 83, ECHR 2007‑I), while those concerning the need to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights – in Broniowski v. Poland [GC] (no. 31443/96, § 150, ECHR 2004 ‑V).

13.  The applicant clearly had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, as the owner of her apartment. G.’s action in restricting access to the applicant’s apartment, as legitimised by the local authorities and confirmed by the courts, amounted to an interference with her rights as an owner. The Court will assume that the interference was provided by law and aimed at ensuring proper town planning, while taking into account the rights of all inhabitants. It will thus focus on the proportionality of the interference.

14.  The Government argued that the interference had happened in 2007 and that the 2011 proceedings had not been decisive for the applicant’s rights. The Court finds that, from a legal point of view, it was only in the 2011 proceedings that the disputed wall became authorised. Accordingly, the 2011 proceedings were decisive for the applicant’s rights.

15.  The Government also submitted that the applicant had not suffered a particularly serious interference, given that she had not taken any action between 2007, when the wall had been built, and 2011, when she had initiated court proceedings. However, it is apparent that the applicant had complained to the authorities on at least three occasions during that period: in 2007, 2010 and 2011.

16.  Lastly, the Government referred to the applicant’s consent to G.’s actions as evidence that she had not had to bear a disproportionate and excessive burden. The Court notes that the applicant’s consent was for the rebuilding of G.’s apartment in accordance with the applicable construction, health and fire-safety rules. Before the Supreme Court of Justice, the applicant submitted that the wall built by G. blocked the access to her apartment, therefore essentially arguing that that rebuilding was unlawful, as being contrary to those rules. However, that court devoted no analysis to this aspect, even though G.’s previous sanction would suggest that the wall had not been built in accordance with the applicable rules and was thus also contrary to the terms of the applicant’s consent.

17.  In the present case, the applicant not only subjected her agreement to the observance of applicable construction, health and safety rules but had also withdrawn her consent to the rebuilding of G.’s apartment in 2010 and had complained to the authorities. The Supreme Court of Justice held that that withdrawal of consent was irrelevant, since in the meantime the wall had already been built. However, it is obvious that the wall had been built even before the applicant gave her consent in 2008. Moreover, in view of the 2007 decision to impose a sanction on G., from a legal point of view the wall remained unlawfully built. The applicant’s consent did not make that wall lawful, and only the authorities’ decisions in 2011 finally authorised it. By that time, however, the applicant had withdrawn her consent and had informed the authorities of that withdrawal.

18.  The Court considers that when deciding the case neither the local authorities, nor the Supreme Court of Justice balanced the competing rights and interests. In particular, in the context of a dispute between two private individuals, it has not been shown how the general public interest was served by allowing G. to rebuild his apartment in the manner in which he had. On the other hand, the limitation on the applicant’s rights as a result of the rebuilding was quite severe.

19.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed a total of 90,928 euros (EUR) in respect of pecuniary damage, including the value of her apartment, and EUR 57,000 for non-pecuniary damage resulting from her inability to use her apartment for many years. She also claimed EUR 4,500 for the costs and expenses incurred. Her lawyer stated that he had “decided to grant free legal assistance to [the applicant] in [the] national courts and the European Court of Human Rights”, but that he was asking for the Government to pay his legal fees.

21.  The Government submitted that the applicant’s claims were exaggerated and unsubstantiated.

22.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged, taking into account that the applicant did not submit any evidence of a rental contract for an alternative apartment and that, at least for some time, she had in any case been unable to live in the apartment after it had been damaged by fire. It therefore rejects this claim, while noting that it is open to the applicant under applicable domestic law to ask for the re-opening of the domestic proceedings on the basis of its judgment (see, for instance, Covalenco v. the Republic of Moldova, no. 72164/14, § 33, 16 June 2020). Moreover, it awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

23.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes the applicant’s lawyer’s submission that he had waved the legal fees from the applicant. The Court considers that, since the applicant clearly did not incur any legal expenses related to this case and since it was not argued that she might incur such expenses in the future given the above-mentioned legal fee waiver, she cannot claim any sum under this head. It therefore rejects the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), to be converted into Moldovan lei at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 27 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President