CTȘP ARICIUL AND OTHERS v. THE REPUBLIC OF MOLDOVA

SECOND SECTION

DECISION

Application no. 12429/05
CTȘP ARICIUL and Others
against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 17 November 2020 as a Committee composed of:

Branko Lubarda, President,
Valeriu Griţco,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 23 March 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant company was registered in the Republic of Moldova on 22 March 1990. The other applicants (see details in the appendix) are founders and employees of the applicant company. The applicants were represented before the Court by Mr E. Volcov, a lawyer practising in Chişinău.

2.  The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.The applicant company’s contract and alleged ownership of the disputed building

4.  On 27 October 1966 the Chişinău local authorities allocated 2.86 hectares of land on the city perimeter for construction and use by the State Circus (“the Circus”).

5.  On 1 June 1991 the applicant company signed a contract with the Circus, under which it undertook to carry out design and construction work. In exchange, the Circus undertook “to pay and transfer from the Circus’ accounting books (balanţa) to those of [the applicant company] a one-storey storage building according to its residual price equal to 2,500 [Soviet] roubles”. In addition, the Circus undertook to pay the applicant company 26,305 Soviet roubles.

6.  Following completion of the work in accordance with the contract, on 2 September 1991 the parties signed a certificate confirming the transfer of the building by the Circus to the applicant company “on a mutual payment basis”. The applicant company repaired the building, built a second floor and used it as its office. On 13 November 1991 the applicant company accepted, from the Circus construction, materials with a total value of 13,127 Soviet roubles as part of payment towards the 1991 contract. No further payment is referred to in the documents submitted by the parties.

7.  On 9 November 2000 the Chişinău Municipality gave the Circus the right to manage the plot of land on which it was situated, measuring 2.7988 hectares.The first set of court proceedings (“the 2004 proceedings”)

8.  On 26 January 2004 the Circus initiated court proceedings against the applicant company, claiming that in 1991-1992 it had abusively occupied the building in which it was located and seeking an order that it vacate the building.

9.  Due to the fact that he was ill, confirmed by a medical certificate establishing that he had suffered head trauma, on 18 February 2004 the applicant company’s president asked the Regional Economic Court to adjourn its hearing of the case. The court accepted the request and scheduled a new hearing for 2 March 2004. However, due to his continued inability to appear at the hearing, the applicant company’s president asked for and obtained another court decision adjourning the hearing until 25 March 2004. On 24 March 2004 he informed the court that he was continuing with his treatment, without asking for an adjournment of the hearing. The court adjourned the hearing until 6 April 2004.

10.  On the morning of 6 April 2004 the applicant company lodged with the court’s Registry a letter similar to that dated 24 March 2004, informing the court of the applicant company’s president’s continued treatment and enclosing the relevant medical certificate. On the same day the court adopted a judgment accepting the claims made by the Circus and ordering the applicant company to vacate the disputed building. The court noted that the applicant company had been properly summoned but that its representative had failed to appear. That was not an obstacle to examining the case. It further found that in 1966 the Chişinău authorities had allocated a plot of land for the construction of the Circus and that on 9 November 2000 the Chişinău Municipality had given the Circus the right to use that land, which included the land on which the disputed building was situated. Therefore, as the rightful owner, the Circus had the right to ask the applicant company to vacate the building.

11.  The applicant company lodged an appeal, complaining of a violation of its right to be heard by the first-instance court and relying on the medical certificate proving that its president had been undergoing inpatient medical treatment. It further argued that the claimant did not have any rights to the disputed building, which the applicant company had obtained on the basis of the 1991 contract and the certificate of 2 September 1991. It attached these and other documents as a fourteen-page annex to the file.

12.  On 16 June 2004 the Appeal Chamber of the Economic Court dismissed a further appeal by the applicant company as unfounded. It found that the lower court had “correctly established the owner of the land and building under litigation”.

13.  In an appeal in cassation the applicant company repeated its arguments regarding the alleged violation of its right of access to court and its property rights. It also argued that because of its absence from the first-instance court’s hearing it had not been able to lodge a counterclaim against the Circus for the value of the investment it had made by adding a second floor to the disputed building. The law allowed any counterclaim to be lodged only before the first-instance court. The applicant company further submitted that the appellate court had failed to analyse its arguments and evidence concerning its right of ownership of the disputed building on the basis of the 1991 contract. It also noted that none of the documents attesting to its title to the disputed building had been annulled and that they were still valid. Moreover, the court had failed to address the applicant company’s argument that it had paid land tax for more than ten years and had thus been recognised as the owner by the authorities, or that it had invested in the construction of the second floor of the building. Finally, the courts had not analysed the discrepancy between the total area of land that had been allocated for the use of the Circus in 1966 (2.86 hectares), to which another 0.12 hectares had subsequently been added, and that of the land that had been allocated by the Chişinău Municipality in 2000, which measured only 2.7988 hectares. It argued that the latter smaller plot of land had not included the disputed building and surrounding land.

14.  On 23 September 2004 the Supreme Court of Justice rejected the appeal as inadmissible. After summarising the judgments adopted by the lower courts, the court stated:

“Having reviewed the well-foundedness of the appeal in cassation in view of the provisions of Article 400 §§ 2 and 3 of the Code of Civil Procedure of the Republic of Moldova, [the court] finds that the appeal is unfounded. On the basis of Articles 432 and 433 of the Code of Civil Procedure, [the court] decides to declare the appeal in cassation lodged by [the applicant company] inadmissible. The present decision is final.”

15.  On 17 January 2007 the applicant company asked for the proceedings to be reopened, referring to the same procedural violations as those mentioned in its earlier ordinary appeals. On 28 January 2007 the Supreme Court of Justice rejected that request, finding that none of the relevant documents were new and that they had already been examined by the courts.The second set of court proceedings (“the 2006 proceedings”)

16.  On 16 May 2006 the applicant company initiated court proceedings against the Circus, seeking confirmation of its title to the second floor of the disputed building, which it had built after obtaining the building under the 1991 contract. It also claimed compensation for pecuniary damage caused by it being prevented from using that floor.

17.  On 21 December 2007 the Regional Economic Court (Judecătoria Economică de Circumscripție) found that the decision of 27 October 1966 attributing land to the Circus dealt with a larger area (2.86 hectares) than the one adopted on 9 November 2000 (2.7988 hectares) and did not include the land and building from which the applicant company had been evicted. Accordingly, with reference to the documents relied on by the applicant company (see paragraphs 11 and 13 above), it confirmed the applicant company’s title to the second floor of the relevant building and awarded it 4,231 United States dollars (“USD”), to be paid in Moldovan lei, in compensation for the pecuniary damage suffered.

18.  On 13 May 2008 the Appeal Chamber of the Economic Court quashed the lower court’s judgment in part. It found that the applicant company had fulfilled its obligations under the 1991 contract. However, in view of the judgment of 6 April 2004, which had become final, the applicant company had lost the first floor of the building which it had received as part of the payment for its work. Therefore, it had the right to obtain a compensation payment from the Circus in the amount of USD 4,231 which, considering the effects of inflation up to 2008, was the equivalent of 2,500 Soviet roubles in 1991. The court also found that the applicant company could not claim title to the second floor of the building, which had been built unlawfully since the owner of the building had not given its approval.

19.  On 16 October 2008 the Supreme Court of Justice upheld the judgment of 13 May 2008, finding the reasons given by the lower court valid.

COMPLAINTS

20.  The applicants complained under Article 6 § 1 that they had not been heard in the first-instance court and that the courts had failed to properly reason their decisions.

21.  They also complained under Article 10 of not having received a copy of the decision of the Supreme Court of Justice in time.

22.  They lastly complained under Article 1 of Protocol No. 1 to the Convention that they had been unlawfully deprived of their property without proper compensation.

THE LAW

23.  The applicants complained that there had been a breach of their rights under Article 6 § 1, Article 10 and Article 1 of Protocol No. 1 to the Convention which provide, in so far as relevant, as follows:

Article 6 § 1:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 10

““1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

24.  The Government disputed the applicants’ allegations and argued that the application should be declared inadmissible.

25.  The Court notes at the outset that only the applicant company was a party to the domestic proceedings. Moreover, it was not argued that the company could not lodge an application in its own name. Given the absence of any exceptional reason for “piercing the corporate veil” in favour of the other applicants and since the company was able to lodge the application, the Court considers that none of the other applicants in the present case have separate standing in respect of this application. Therefore, their personal complaints must be rejected for being incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention (see Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 and 7 others, § 52, 17 July 2018).

26.  The Court notes, in respect of the complaint under Article 6 § 1 about access to a court, that in the present case it is not disputed that the applicant company was properly summoned to the hearing of 6 April 2004. Moreover, it obtained three consecutive adjournments of the hearing on the grounds of its representative’s illness (see paragraph 9 above). The applicant company’s representative did not ask the court to adjourn the proceedings in his letter of 6 April 2004, but simply informed it of his continued medical treatment (see paragraph 10 above). The applicant company did not designate another representative, despite having the time and opportunity to do so.

27.  The Court concludes that, in the circumstances of the present case, the national court did not act arbitrarily in deciding to examine the case in the absence of the applicant company’s representative, nor did it deprive the applicant company of the opportunity to defend its interests in court. It was rather the applicant company’s actions which resulted in the examination of the case in the absence of its representative.

28.  Therefore, the complaint under Article 6 § 1 of the Convention in respect of the hearing in the absence of the applicant company’s representative is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

29.  As for the complaint of the courts’ failure to give reasons, notably by failing to address the documents submitted by the applicant company, which in its opinion proved its property rights (see paragraphs 11 and 13 above), it is to be noted that in the 2004 proceedings there was indeed a total absence of any analysis of those documents (see paragraphs 12 and 14 above). However, the applicant company started new court proceedings in which the courts fully examined the documents in question and confirmed that they proved that it had property rights (see paragraphs 17 and 18 above). Since in the meantime a final court judgment had ordered the applicant company to vacate the building concerned in favour of the Circus, the courts awarded the applicant company compensation instead. Accordingly, the Court finds that any deficiency in the manner in which the courts had examined the applicant company’s arguments in the first set of proceedings was fully redressed by the second set of proceedings.

30.  Therefore, the complaint under Article 6 § 1 of the Convention in respect of the insufficient reasons in the courts’ judgments is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

31.  As for the complaint under Article 1 of Protocol No. 1 to the Convention, the Court notes that the applicant company’s title to the building originally obtained by it under the 1991 contract was eventually recognised in the second set of proceedings. Since the building could no longer be returned, the applicant company was awarded compensation instead.

32.  The applicant company claimed that it had not lost its victim status in view of the fact that it still did not have access to its building. Moreover, the compensation awarded had been too little, making the calculations based on the equivalency of Soviet roubles to United States dollars and the fact that under the 1991 contract it must have been paid 26,305 Soviet roubles. However, the Court notes that in 1991 the applicant company agreed to receive, instead of payment, the relevant building and certain construction materials (see paragraph 6 above). Moreover, the object of the domestic proceedings was the rights to the building and not any outstanding debt of the Circus from 1991.

33.  Given the difficulty of determining the real value of the building based on the equivalency of Soviet roubles to any other currency and that it is primarily the role of the domestic courts to determine such issues, as they have direct contact with the documents and parties in the case, and, in the absence of any independent valuation of the relevant building submitted by the applicant company, the Court considers that it has not been established that the level of compensation awarded to the applicant company was manifestly below its market value.

Therefore, the complaint under Article 1 of Protocol No. 1 to the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

34.  Finally, having examined the complaint under Article 10 of the Convention, the Court considers that it is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020.

Hasan BakırcıBranko Lubarda
Deputy RegistrarPresident

APPENDIX

No.

Applicant’s Name

Birth date

Nationality

Place of residence

1

CTȘP ARICIUL

N/A

Moldovan company

Chișinău

2

Valentina MATIEVSCHI

01/09/1950

Moldovan

Fălești

3

Serafim PANZARI

20/10/1950

Moldovan

Chișinău

4

Andrei PUSCO

11/11/1984

Moldovan

Chișinău

5

Daniel PUSCO

19/07/1986

Moldovan

Chișinău

6

Svetlana PUSCO

09/03/1951

Moldovan

Chișinău

 

Full & Egal Universal Law Academy