SECOND SECTION
DECISION
Application no. 75732/12
Andrei GURIȚANU
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 8 November 2022 as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Jovan Ilievski, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 75732/12) 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 16 November 2012 by a Moldovan national, Mr Andrei Gurițanu (“the applicant”), born in 1977 and living in Chișinău, who was represented by Mr D. Josanu, a lawyer practising in Chișinău;
the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr L. Apostol;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns an alleged breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the domestic courts’ disregard of the final judgment recognising the applicant’s title to a flat and conferring the title to the same flat to a third person.
2. In January 2008 the applicant concluded a contract with a construction company according to which the latter was to build and sell him flat no. 21 in a new condominium building.
3. After the company stopped the construction works due to lack of funds, the applicant initiated, on 30 October 2008, a court action against it seeking recognition of his right of ownership over flat no. 21 in the unfinished condominium building. The construction company did not oppose the court action while accepting its failure to finish building the applicant’s flat.
4. On 10 November 2008 the Centru District Court found in favour of the applicant and recognised his right of ownership over flat no. 21 from the unfinished condominium building. The judgment became final in the absence of an appeal.
5. In the meantime, on 30 October 2008, another client of the construction company, M.S., initiated a similar court action against it in another district court of Chișinău, seeking the recognition of her right of ownership over the same flat no. 21, in accordance with the contract concluded between her and the construction company. The construction company did not oppose the court action while accepting its failure to finish building her flat.
6. On 7 November 2008 the Râșcani District Court found in favour of M.S. and recognised her right of ownership over flat no. 21 from the unfinished condominium building. The judgment became final in the absence of an appeal.
7. On unspecified dates the applicant and M.S. learned about each other and about the judgments in each other’s favour. On 20 June 2009, the applicant lodged an extraordinary review appeal against the judgment of the Râșcani District Court of 7 November 2008 seeking its quashing.
8. On 23 February 2010 the Chișinău Court of Appeal allowed the applicant’s appeal, reopened the proceedings initiated by M.S., quashed the judgment of 7 November 2008 and remitted the case to the District Court for fresh examination.
9. During the new first-instance hearing, the applicant, who had been admitted to the proceedings as a third party, sought to have M.S.’s claims rejected because he held ownership over the disputed flat by virtue of the final judgment of 10 November 2008. The first-instance court rejected M.S.’s claims but the appellate court reversed this judgment. The applicant lodged an appeal on points of law, relying on, inter alia, the final and binding judgment in his favour of 10 November 2008, which had established the relevant facts and confirmed his title to the disputed flat.
10. On 16 May 2012 the Supreme Court of Justice rejected the applicant’s appeal on points of law and found in favour of M.S. on account of the fact that her contract with the construction company pre-dated that of the applicant by some three years and that, unlike the applicant, she had paid the price of the flat in full. The court noted that the judgment of 10 November 2008 was not opposable to M.S. because she had not been party to those proceedings.
11. As a result of the above proceedings, M.S. was able to register her right of ownership over the disputed flat with the cadastre and become its lawful owner.
12. In the meantime, on 19 June 2009, M.S. lodged an extraordinary review appeal against the judgment of the Centru District Court of 10 November 2008 seeking its quashing. However, later the construction company promised to give her an equivalent flat in the same unfinished condominium building and she withdrew her review request. On 3 August 2009 the Centru District Court accepted the withdrawal. Eventually, the flat promised to M.S. turned out to be unavailable and she lodged a review request against the decision of 3 August 2009, which was dismissed on procedural grounds. She lodged several other review requests against the same decision but without success.
13. In 2010 insolvency proceedings were initiated in respect of the construction company.
THE COURT’S ASSESSMENT
14. The applicant complained under Article 6 § 1 of the Convention that the proceedings which culminated with the judgment of the Supreme Court of Justice of 16 May 2012 had not been fair because the domestic courts had failed to give weight to his arguments concerning the inviolability of his right of ownership over the disputed flat recognised in the final judicial decision of the Centru District Court of 10 November 2008. He also complained under Article 1 of Protocol No. 1 that his right to protection of his property had been breached.
15. The Government disagreed and argued that the complaints were manifestly ill-founded.
16. The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII; Oferta Plus S.R.L. v. Moldova, no. 14385/04, § 97, 19 December 2006; and Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 61, 12 January 2006).
17. The Court also reiterates that it should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts unless their findings can be regarded as arbitrary or manifestly unreasonable (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, with further references). In particular, a judgment is manifestly unreasonable if it does not contain any connection between the established facts, the applicable law and the outcome of the proceedings (see Anđelković v. Serbia, no. 1401/08, § 27, 9 April 2013).
18. The Court observes that in all legal systems the res judicata effects of judgments have limitations ad personam and as to material scope (see Esertas v. Lithuania, no. 50208/06, § 22, 31 May 2012).
19. Turning to the present case, the Court notes that there are two different court decisions recognising the ownership over the same flat in respect of two different persons, i.e. the judgment of the Centru District Court of 10 November 2008 and that of the Supreme Court of Justice of 16 May 2012. Although both sets of proceedings concerned the same real estate, the impugned judgments were adopted in respect of different parties and examined partially different legal relations (see paragraphs 4 and 8-10 above).
20. In the first set of proceedings, the court adopted a judgment on the basis of arguments submitted solely by the applicant and was never called upon to examine or rule on the validity of anyone else’s claims in respect of the same flat. However, in the second set of proceedings, the domestic courts examined the arguments submitted both by the applicant and M.S. and carried out an analysis of the competing interests at stake, finding that M.S. had preferential rights in respect of the disputed flat compared to the applicant. The reasons advanced by the courts do not appear manifestly unreasonable or arbitrary and had not been contested by the applicant. Moreover, the applicant never argued that M.S.’s claims were ill-founded or that her contract was void.
21. While the Court accepts the importance of the principle of res judicata, also established in domestic law and practice (see paragraph 10 above), it cannot conclude that both civil proceedings concerned exactly the same persons and legal circumstances and hence the same legal relations, which were crucial for deciding the dispute (compare and contrast Esertas, cited above, § 23; Grynenko v. Ukraine [Committee], no. 65890/13, §§ 30-37, 20 September 2022).
22. The fact that the judgment of 10 November 2008 in the applicant’s favour had never been quashed does not seem to be imputable to the courts but rather to the procedural behaviour of the involved parties (see paragraph 12 above).
23. Therefore, the Court is not convinced that the two civil claims were identical and that the proceedings were unfair because the domestic courts failed to give weight to the applicant’s arguments concerning the inviolability of his right of ownership over the disputed flat. In such circumstances, the Court considers this complaint to be manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 and 4 of the Convention.
24. In so far as the applicant’s complaint under Article 1 of Protocol No. 1 is concerned, in view of the above, the Court considers that the applicant could not have legitimately expected the judgment of 10 November 2008 to definitively determine that he was entitled to the flat no. 21 and thus give rise to a right to property or to a legitimate expectation to obtain any property rights falling under the protection of Article 1 of Protocol No. 1 (see, mutatis mutandis, Karaivanova and Mileva v. Bulgaria, no. 37857/05, § 76, 17 June 2014).
25. The Court notes that indeed the applicant may have had a valid claim against the construction company to eventually obtain another flat or a compensation. However, this was not the subject matter of the present case and the applicant has not argued that he could not claim compensation or another flat following the finding that M.S. had preferential rights in respect of flat no. 21.
26. In those circumstances, the Court cannot accept that the applicant has been deprived of his possessions in an unjustified or arbitrary manner.
27. It follows from the considerations above that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 December 2022.
Dorothee von Arnim Egidijus Kūris
Deputy Registrar President