CASE OF TĂBĂCARU AND BURDEINÎI v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF TĂBĂCARU AND BURDEINÎI

v. THE REPUBLIC OF MOLDOVA

(Application no. 73752/13)

JUDGMENT
 

STRASBOURG

19 June 2025

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

In the case of Tăbăcaru and Burdeinîi 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. 73752/13) 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 21 November 2013 by two Moldovan nationals, Mr Simion Tăbăcaru and Ms Marcelina Burdeinîi (“the applicants”), who were born in 1938 and 1968 respectively, live in Strășeni and were initially represented by Mr V. Gribincea, replaced subsequently by Mr I. Chirtoacă, lawyers practising in Chișinău at the time;

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

the parties’ observations;

Having deliberated in private on 22 May 2025,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicants’ eviction from an apartment in which they had lived for twenty-seven years without being provided alternative accommodation. The applicants relied on Article 8 of the Convention and on Article 1 of Protocol No. 1 to the Convention.

2.  In particular, the applicants are father and daughter. They lived together with other family members in a communal apartment in Chișinău. In 1985 a court ordered their eviction relying on the need to carry out maintenance works to the building. In May 1986 the applicants were provided housing in one apartment (“apartment no. 93”), with the opening of the correspondent housing account no. 082215. The other family members, including the first applicant’s former wife – also the second applicant’s mother – and her husband, were provided housing in another apartment (“apartment no. 44”).

3.  The applicants had continuously occupied apartment no. 93 since 1986, paying rent and utilities. They were not issued an occupancy voucher (bon de repartiție) for this apartment and never managed to formally register it as their residence (viză de reședință).

4.  The occupants of apartment no. 44 were provided with an occupancy voucher in 1986, they succeeded formally registering it as their residence and, subsequently, privatised that apartment.

5.  Unable to formally register their residence in apartment no. 93, the applicants registered their residence in apartment no. 44, at different times. According to the applicants, the formality had been necessary at the time to obtain identity documents, access social security or employment. The first applicant had his residence registered in apartment no. 44 from 10 July 1998 to 27 May 2005, while the second applicant from 8 April 1987 to 25 May 2005. According to the applicants, after 2005 they tried to no avail to obtain the registration of their residence in apartment no. 93.

6.  Meanwhile, on 17 December 1986 and 16 March 1993 new occupancy vouchers for apartment no. 44 were issued, which provided the second applicant and the first applicant respectively with accommodation in that dwelling along with the rest of their family members. According to the applicants, they had learned about these documents only in 2008 in the course of court proceedings described below.

7.  On 8 February 2008 the municipality closed the housing account no. 082215, which implied that the applicants were no longer living in apartment no. 93. On 20 March 2008 the mayor provided apartment no. 93 to the S family. and on 1 April 2008 an occupancy voucher was issued to S.

8.  On 8 July 2008 the municipal council initiated court proceedings against the applicants seeking their eviction from apartment no. 93 without alternative housing, arguing that they had been occupying the apartment unlawfully or temporarily and that, in any event, they lived in apartment no. 44, as confirmed by the occupancy vouchers issued for both of them (see paragraph 6 above).

9.  The applicants lodged a counterclaim, seeking the acknowledgment of their right to occupy apartment no. 93 and the annulment of the municipal decision and of the occupancy voucher for S. They argued that their occupation of that apartment had been lawful and that, for that reason, they could not be evicted without the provision of alternative accommodation. They submitted that they held no entitlement to apartment no. 44 which belonged to the first applicant’s former wife and that no reasons had been provided by the municipal council for lodging their action after their eviction claims had become time barred.

10.  On 5 November 2012 the Chișinău Court of Appeal dismissed the claims of the municipal council and upheld the applicants’ claims. The court found that the applicants had legally occupied apartment no. 93 since 1986, had acquired the right to possess it and that there were no grounds to conclude that they had lost their right to housing in that apartment. They had not been provided with another accommodation and their previous apartment had never been repaired. Apartment no. 44 had been provided to the other family in 1986 with the issuance of an occupancy voucher. The municipal council had failed to prove that the applicants had been provided with accommodation in apartment no. 44. The court concluded that the municipality had illegally provided apartment no. 93 to S. since that apartment had been occupied at the time. Moreover, it was within the remit of the municipal council and not the municipal executive to issue decisions concerning social housing.

11.  The municipal council appealed against that judgment, noting that the applicants had been provided with accommodation in apartment no. 44 where they had their registered address (see paragraph 5 above). In 2008 apartment no. 44 was privatised by the first applicant’s former wife and her daughter. Apartment no. 93 was free at the time of its distribution to S. because, according to the municipal files, the applicants’ account for that apartment had been closed. The municipal council also noted that the first applicant had divorced twice the same person, once in 1997 and then again in 2006, allegedly with the sole purpose of keeping both apartments. S. also appealed against the judgment, repeating the arguments put forward by the municipal council.

12.  In reply, the applicants reiterated their lawful occupancy of apartment no. 93, their impossibility to go back to their original apartment which had never been repaired and the absence of another accommodation. The registered address in apartment no. 44 was not proof that they actually lived in that apartment but a mere formality to overcome the difficulties associated at the time with the absence of a registered address. They submitted that the subsequent occupancy vouchers had been unlawful, as they could not have been issued to supersede the 1986 occupancy voucher to the initial tenants. The applicants noted that the S. family already owned an apartment and therefore was not eligible for social housing. They also argued that the municipality’s claims had been time-barred.

13.  On 22 May 2013 the Supreme Court of Justice upheld the appeal of the municipal council and reversed the 5 November 2012 judgment. The court found that on 8 February 2008 the municipality had closed the applicants’ housing account, which “confirmed that [the applicants] had lost their right to occupy apartment no.93”. The court referred to the occupancy vouchers which provided the applicants with housing in apartment no. 44 (see paragraph 6 above) and the applicants’ registered address in that apartment (see paragraph 5 above) as evidence that they had been provided with permanent accommodation there. The court noted that when the first applicant had been issued the said occupancy voucher, his former wife’s husband had been excluded from the list of persons entitled to occupy apartment no. 44. The court relied on Articles 94 and 103 of the Housing Code, which allowed for the evacuation without alternative accommodation of tenants which occupy a dwelling without authorisation. That judgment was final.

14.  The applicants were evicted from apartment no. 93 on 20 January 2014. The first applicant has been staying at a friend’s place and the second applicant moved in with her mother in apartment no. 44.

15.  The applicants complain that their evacuation from apartment no. 93 amounted to a breach of Article 8 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

THE COURT’S ASSESSMENT

16.  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.

17.  The applicants argued that the annulment of their social tenancy and eviction amounted to an interference with their rights under Article 8 of the Convention, given the continuous links they had established by living in apartment no. 93 for over twenty-seven years. They submitted that the interference had not been lawful because the termination of their housing rights intervened due to the formal registration of their address (viză de reședință) in apartment no. 44 and not due to any breach of their tenancy contract. For this reason, under domestic law, an eviction would have been possible only with the provision of alternative accommodation. When deciding the eviction, the Supreme Court of Justice had not assessed if there existed any competing interests and had not carried out any analysis on the proportionality of the measure.

18.  The Government argued that Article 8 of the Convention was not applicable to the circumstances of the case. In the absence of an occupancy voucher for apartment no. 93 the applicants had no right to occupy it after their housing rights had been withdrawn by the municipality in 2008. The applicants had been provided with accommodation in apartment no. 44 and their subsequent cancellation of their registered address in that apartment pursued the aim of maintaining their abusive occupation of apartment no. 93. In any event, the State had fulfilled their positive obligations in respect of the applicants.

19.  The domestic legal framework and the general principles concerning eviction have been summarized in Nafornița v. the Republic of Moldova (no. 49066/12, §§ 18-19 and 26-28, 16 January 2024).

20.  The Court notes that the Government have not disputed that the applicants had lived in the relevant apartment for over twenty-seven years. Accordingly, apartment no. 93 was their “home” within the meaning of Article 8. Moreover, the applicants were evicted from their home in January 2014 following an enforcement procedure (see paragraph 14 above), which clearly constituted an interference with their right guaranteed under Article 8 (see Nafornița, cited above, § 30).

21.  As to the lawfulness of the interference, the Court reiterates that indeed the applicants had not been issued an occupancy voucher for apartment no. 93, which, at the time, was the only lawful ground for moving into an apartment. At the same time, it is undisputed that the applicants had lawfully moved into that apartment in 1986. The core of the dispute concerns the question of when and in which circumstances their right to occupy that apartment had been terminated. Since the assessment of such circumstances under domestic law is unclear and the Court’s power to review compliance with domestic law is limited (see Nafornița, cited above, § 35), the Court will not take a definitive view in this respect, but will instead take into account these elements in its review of the proportionality of the interference with the applicants’ rights.

22.  The interference in question can be regarded as having pursued the legitimate aim of protecting the rights of others, namely those of persons who had the right to obtain accommodation from the municipality.

23.  Since the administrator of the apartment in the present case, namely the municipality, was a State institution administering the building in the State’s name and since relevant arguments concerning the proportionality of the interference had been raised by the applicants in domestic judicial proceedings, the domestic courts had to examine them in detail and provide adequate reasons (see Nafornița, cited above, § 38; contrast with Vrzić v. Croatia, no. 43777/13, § 67, 12 July 2016).

24.  In this connection, the Court refers to the absence in the judgment of the Supreme Court of Justice of any finding that the applicants had occupied the relevant apartment unlawfully in 1986 or that they acted unlawfully when they had registered their address in apartment no. 44 and subsequently cancelled that registration. While the applicants’ stay in apartment no. 93 may have been temporary, they were never provided back their accommodation in their original apartment and neither the domestic court, nor the Government referred to any evidence that the applicants were ever warned about the issuance of the two occupancy vouchers allegedly providing them with definitive accommodation in apartment no. 44 (see paragraph 6 above). It appears that the first applicant’s marital situation had changed over the years (see paragraph 11 above), which may have been determinant on whether he could share the same apartment with his former wife. However, the domestic court did not engage into any analysis of such important factors.

25.  Having found that the applicants had allegedly been granted occupancy vouchers for apartment no. 44 and that for a certain period of time they had formally registered their address in that apartment, the Supreme Court of Justice established that the applicants had lost their right to occupy apartment no. 93. The court argued that these facts had been confirmed by the closure of their rights by the municipality in 2008 (see paragraph 13 above), but never specified when exactly those rights had been terminated – in 1986 and 1993 when the occupancy vouchers had been issued, in 1987 and 1995 when the applicants registered their address in the other apartment, in 2005 when they annulled that registration, or in 2008 when the municipality formally closed their housing account. This element was equally essential considering the applicants’ argument before the domestic courts that the eviction action had been time-barred.

26.  The Supreme Court of Justice gave no consideration to the fact that the applicants had no other place to live in and would find themselves on the street after more than two decades of living in the apartment undisturbed and without obvious reasons for assuming that their occupancy had been illegal. They paid the rent and utility bills. At the same time, no analysis was made of the competing interests, namely whether family S. had alternative accommodation and whether the municipality had other apartments to offer them.

27.  In other words, the Supreme Court of Justice did not weigh up the competing interests at stake, limiting itself to the finding that the applicants unlawfully occupied the relevant apartment and that they had a temporarily registered address in apartment no. 44. Together with the procedural issues mentioned above (see paragraphs 24-26 above), namely that the applicants were never found to have acted in an unlawful manner when in 1986 they moved into apartment no. 93, that it had not been established exactly when their rights to accommodation in that apartment had been terminated, that the domestic court failed to assess whether they could live together with the residents of apartment no. 44 and whether family S. had another accommodation, the applicants were evicted on the basis of a provision referring to unauthorised occupation of a dwelling without provision of alternative accommodation. These considerations are sufficient to enable the Court to conclude that there has been a breach of Article 8 of the Convention in the present case.

28.  The applicants also raised other complaints under various Convention provisions. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto (see Nafornița, cited above, §§ 48-50).

29.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicants claimed a two-room apartment as housing or 300 euros (EUR) monthly to cover the rent in respect of pecuniary damage, EUR 10,000 for each applicant in respect of non-pecuniary damage and EUR 4,186 in respect of costs and expenses incurred before the Court. The applicants submitted an itemised list of services provided by their representative Mr Gribincea (32.2 hours) and asked for the granted amount to be transferred directly to his account. The itemised list was signed by the second applicant.

31.  The Government submitted that there was no causal link between the claim for pecuniary damage and the alleged violation. They further argued that the applicants’ claim in respect of non-pecuniary damage lacked substantiation and that their claim for costs and expenses was unsubstantiated and excessive. They emphasised that the itemised list bore only the representative’s signature, casting doubt on whether the applicants had been aware of the costs allegedly incurred.

32.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicants jointly EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

33.  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 (see, for instance, L.B. v. Hungary [GC], no. 36345/16, § 149, 9 March 2023). In the present case, the invoice and claim for just satisfaction were made by Mr Gribincea. He was subsequently replaced by Mr Chirtoacă, who did not make any submissions on behalf of the applicants and no document proving that any payment had been made to him was submitted to the Court. In these circumstances, the Court considers reasonable to award the applicants, rather than any specific representative, EUR 1,000 for costs and expenses, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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

(i)  EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, 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;

Done in English, and notified in writing on 19 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President