CASE OF OUŞ v. THE REPUBLIC OF MOLDOVA

 

 

SECOND SECTION

CASE OF OUŞ v. THE REPUBLIC OF MOLDOVA

(Application no. 1836/16)

 

 

 

 

JUDGMENT
 

STRASBOURG

17 January 2023

 

 

 

 

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

 

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

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

 Jovan Ilievski, President,
 Lorraine Schembri Orland,
 Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 1836/16) 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 28 December 2015 by a Moldovan national, Ms Svetlana Ouş, (“the applicant”) who was born in 1966 and lives in Chișinău, represented by Mr I. Levinte, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;

the parties’ observations;

Having deliberated in private on 13 December 2022,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s complaints that she had been deprived of her property in violation of Article 1 of Protocol No. 1 to the Convention and that the domestic civil proceedings had been conducted in breach of the requirements of Articles 6 of the Convention as the domestic courts had upheld a time‑barred court action in which the applicant was defendant.

2.  In 2002 the applicant’s father bequeathed his house to the applicant by means of a will signed in the presence of a notary public. After his death which occurred shortly thereafter, the applicant accepted the inheritance, registered her title over the house with the cadastre and, subsequently, acquired ownership of the adjacent land from the municipality. She lived in the inherited house for some ten years and paid all the bills and taxes related to the house and land before 2012, when her mother and her brother initiated court proceedings to challenge the property title and the validity of the will. In so doing, they argued that they had learned about the will only in 2012 when they had asked the applicant why all bills were in her name and that the will was invalid because the testator had lacked reason at the time of signing it.

3.  On 3 December 2013 the Botanica District Court dismissed the court action as time-barred. It found that the general limitation period for such actions was three years and that the plaintiffs ought to have learned about the applicant’s title over the disputed house and about the testator’s will within that period of time either from the cadastre or from the bills in the applicant’s name from 2002 onwards.

4.  On 18 February 2015 the Chișinău Court of Appeal upheld the plaintiffs’ appeal against the above judgment and reversed it. It considered that the limitation period started running in 2012 when the plaintiffs had found out about the will. The applicant challenged the above decision with an appeal on points of law.

5.  On 1 July 2015 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the Court of Appeal’s judgment.

6.  As a result of the outcome of the proceedings, the applicant lost her title over the disputed house. In subsequent proceedings, the applicant and her mother were found to have jointly inherited the house and the acquisition of the adjacent land from the municipality was rescinded. In 2021 the applicant’s mother died and inheritance proceedings started.

7.  The applicant complained that the proceedings had been unfair and in breach of Article 6 § 1 of the Convention because the domestic courts had upheld a time‑barred action, contrary to the principle of legal certainty. She also argued that her right to respect for her property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, had been violated as a result of the unfair civil proceedings.

THE COURT’S ASSESSMENT

 ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

8.  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.

9.  The general principles concerning the principle of legal certainty in civil proceedings have been summarized in Baroul Partner-A v. Moldova (no. 39815/07, §§ 36-37, 16 July 2009).

10.  The Government submitted that the plaintiffs’ court action admitted by the domestic courts had not been time-barred, because the plaintiffs only learned about the will in 2012.

11.  The Court notes in the first place that under Article 74 of the Civil Code in force at the material time, the general limitation period for introducing a court action was three years as from the date when the right of action arises. Under Article 79 of the same Code, the right of action arises on the day when a person comes to know or should have come to know that his or her right had been breached (see Baroul Partner-A v. Moldova, cited above, § 28).

12.  The Court notes that both the domestic courts and the Government emphasised the date when the plaintiffs had allegedly learned about the contested acts but, unlike the first instance court, failed to refer to the date when the plaintiffs should have come to know about the alleged breach of their rights. In particular, in domestic proceedings the plaintiffs argued that it had been the applicant’s name on the incoming bills that had incited them to find out more about the legal status of the disputed house in 2012. At the same time the parties did not dispute that the applicant’s name had appeared on the bills as early as 2002 and no explanation was provided why the same fact had triggered the plaintiffs’ action only ten years later.

13.  This element was pertinent for the assessment of whether the plaintiffs’ action had been time-barred and was brought to the knowledge of the domestic courts. However, the Court of Appeal and the Supreme Court of Justice failed to consider it. Moreover, the courts never assessed the plaintiffs’ failure to act diligently after the testator’s demise in 2002, by failing to take any action in view of initiating inheritance proceedings or of clarifying the status of the disputed house.

14.  In the light of the above, the Court cannot discern a connection between the established facts (inaction of the plaintiffs for ten years) and the conclusions of the domestic courts concerning the date when the limitation period started running. For this reason, the Court finds that the judgment of the Chișinău Court of Appeal amounted to a denial of justice in the applicant’s case (see, mutatis mutandis, Anđelković v. Serbia, no. 1401/08, § 27, 9 April 2013) and the proceedings before the Supreme Court of Justice failed to redress the deficiencies in the appellate court’s judgment.

15.  Therefore, the Court concludes that the domestic courts either failed to examine the facts concerning the date on which the plaintiffs should have known about the alleged breach of their rights or reached arbitrary conclusions concerning the expiry of the general limitation period. It therefore finds that there has been a breach of the principle of legal certainty as guaranteed by Article 6 of the Convention (compare also Baroul Partner-A v. Moldova, cited above, § 41).

16.  There has therefore been a violation of Article 6 § 1 of the Convention.

 ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

17.  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.

18.  The Court considers that the applicant had a “possession” for the purposes of Article 1 of Protocol No. 1. It already found that the upholding of the plaintiffs’ action after the expiry of the general time‑limit, and in the absence of any compelling reasons, was incompatible with the principle of legal certainty (see paragraphs 15-16 above). In such circumstances the Court cannot but conclude that the upholding of the plaintiffs’ action constituted an unjustified interference with the applicant’s right to property, because a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (compare also Ipteh SA and Others v. Moldova, no. 35367/08, § 38, 24 November 2009). The domestic courts did not provide any justification whatsoever for such interference.

19.  It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  In so far as pecuniary damage is concerned, the applicant claimed restitutio in integrum of her house and of the adjacent plot of land. In the alternative, she claimed the market value of the house and the adjacent plot of land as assessed by a real estate expert in the amount of 102,931 euros (EUR), including EUR 87,312 for the adjacent land and EUR 15,619 for the house and ancillary constructions. She also claimed EUR 10,000 in respect of non-pecuniary damage and EUR 2,561 in respect of costs and expenses.

21.  The Government disputed the amount claimed by the applicant for pecuniary damage and submitted an alternative expert valuation, according to which the value of the disputed house and adjacent land was EUR 93,000, including EUR 77,190 for the land and EUR 15,810 for the house and ancillary constructions. They also argued that the applicant’s claims for non‑pecuniary damage and for costs and expenses were excessive and invited the Court to dismiss them.

22.  The Court notes that in subsequent legal inheritance proceedings the applicant secured ownership of at least a part of the disputed house and that further inheritance proceedings, which may have a bearing on the applicant’s share, were still pending. Moreover, if the applicant were to restore ownership of the disputed house, it will be open to her to re-acquire from the municipality the adjacent plot of land at a state-regulated price. In these circumstances, the Court considers that, as far as the award in respect of pecuniary damage is concerned, the question of the application of Article 41 is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having regard to any agreement which might be reached between the Government and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).

23.  However, the Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. Furthermore, having regard to the documents in its possession, it considers it reasonable to award EUR 1,500 for costs and expenses, plus any tax that may be chargeable to the applicant.

24.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds that the question of the application of Article 41 of the Convention in respect of pecuniary damage is not ready for decision and accordingly,

(a)  reserves the said question;

(b)  invites the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; and

(c)  reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be;

Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Dorothee von Arnim  Jovan Ilievski
 Deputy Registrar President

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