THIRD SECTION
DECISION
Application no. 25614/06
Valentina CEBOTAR and Irina TANASOGLO
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 17 March 2015 as a Committee composed of:
Dragoljub Popović, President,
Kristina Pardalos,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 31 May 2006,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Valentina Cebotar and Ms Irina Tanasoglo, are Moldovan nationals, who were born in 1965 and 1968 respectively and live in Truşeni and Chisinau.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Between 2003 and 2005 a six storey building was built right next to the applicants’ apartment block at a distance of some 20-30 centimetres from the windows of their balconies.
5. On an unspecified date in 2003 the applicants initiated proceedings against the Municipal Council seeking the annulment of the construction permit issued for the building of the six storey building.
6. On 8 November 2005 the Chişinău Court of Appeal dismissed the first applicant’s action on the ground that the new building had been built according to the plan, that the rules concerning the distance from existing buildings had been respected, that the applicant did not suffer any losses as a result of the building and that she had occupied the balcony obstructed by the new building abusively and without any legal basis. The latter finding was based on the findings of an expert report ordered by the court during the proceedings. It appears from the documents of the case file that initially the applicant did not have access to the balcony which was not attached to her apartment and that she had abusively occupied it, as a result of which she had been sanctioned with an administrative fine. The Court of Appeal also dismissed the action lodged by the second applicant on procedural grounds, namely because she had failed to lodge a preliminary complaint with the Municipal Council as required by law.
7. The first applicant lodged an appeal with the Supreme Court of Justice. However, it does not appear from the documents submitted by her that she had challenged the finding of the first instance court to the effect that she had occupied the balcony obstructed by the new building abusively and without any legal basis. On 28 December 2005 the Supreme Court of Justice dismissed the appeal.
8. On 28 July 2006 the first applicant sold her apartment.
COMPLAINTS
9. The applicants complained under Article 6 § 1 of the Convention that the proceedings had lasted excessively long and that they had been unfair because the judges lacked impartiality.
10. The applicants also complained under Article 8 of the Convention that their right to respect for their homes had been breached.
THE LAW
11. The applicants complained under Article 6 of the Convention that the proceedings were not fair and under Article 8 of the Convention that the right to respect for their homes had been violated. Article 6 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8 of the Convention reads:
“1. Everyone has the right to respect for his ... home...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
12. The Government disputed the applicants’ allegations and argued that their application should be declared inadmissible.
13. In so far as the first applicant is concerned, the Court notes that the main reason for which the domestic courts dismissed her action was that she had occupied the balcony obstructed by the new building abusively and without any legal basis. The Court notes that the documents in its posession do not contain any indication to the effect that the first applicant had challenged this finding of the first instance court before the Supreme Court of Justice.
14. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova, 44746/08, (dec.), 24 January 2012).
15. Since the first applicant failed to challenge the main argument relied upon by the first instance court to dismiss her action, her complaint under Article 8 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
16. As to the first applicant’s complaint about the fairness of the proceedings, the materials in the Court’s possession do not indicate to any problems which could raise an issue of fairness of the proceedings under that Article of the Convention. In so far as the complaint about the excessive length of the proceedings is concerned, the Court notes that the first applicant failed to exhaust domestic remedies available to her under Law No. 87 (see Balan v. Moldova, cited above). Accordingly, the complaints under Article 6 are inadmissible within the meaning of Article 35 §§ 1, 3 and 4 of the Convention.
17. In so far as the second applicant is concerned, the Court notes that she failed to reply to the Court’s letter inviting her to submit observations. She was sent a registered letter on 15 May 2013 in which her attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicant received this letter on 22 May 2013; however, no response has been received.
18. The Court considers that, in such circumstances, the second applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case in respect of the second applicant and considers it appropriate to strike this part of the application out of the list.
For these reasons, the Court, unanimously,
Declares the application inadmissible in so far as it concerns the first applicant;
Decides to strike the application out of its list of cases in so far as it concerns the second applicant;
Done in English and notified in writing on 9 April 2015.
Marialena TsirliDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy