THIRD SECTION
Application no. 48747/09
LISNIC NICOLAE & CO
against the Republic of Moldova
lodged on 4 June 2009
STATEMENT OF FACTS
1. The applicant, Lisnic Nicolae & Co, is an individual enterprise (întreprindere individuală) registered in Moldova and located in Sîngera, Moldova. It is represented before the Court by Mr A. Postica, a lawyer practising in Chișinău.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Under the 27 March 2003 decision of the Chișinău City Council and under the 22 April 2003 contract the applicant acquired tenancy of a commercial space owned by the municipality.
4. Under the 19 June 2003 decision of the National Privatisation Commission and under the 21 July 2003 contract with the Privatisation Department the applicant purchased the same commercial space in private property. On 25 August 2003 the applicant obtained the registration of its ownership with the public real estate register.
5. On 20 October 2006 a private company, P., initiated proceedings seeking the annulment of the 2003 tenancy decision and contract and of the 2003 privatisation decision and contract. P. claimed that since 2001 it was the owner of the commercial space rented out and sold illegally to the applicant.
6. In the course of proceedings, the applicant argued, inter alia, that P.’s action was time-barred and that P.’s claims concerned another space.
The Chișinău City Council and the Privatisation Department upheld the applicant’s position and requested the court to dismiss P.’s claims. The cadastre authority declared in court that according to the real estate registry the space registered to the applicant and the one registered to P. were overlapping.
7. On 23 May 2008 the Chișinău Court of Appeals granted P.’s claims in full. The court concluded that P. indeed became owner of the disputed space in 2001 following the privatisation of another company G. and found inter alia:
“[...] Based on the above, the court finds that [all lease and privatisation acts] have been concluded with serious violation of law and should be annulled.
[...] the right to property is perpetual. [This] implies that the right exists as long as the assets exists and that the right to property does not cease by non-use. ”
8. The applicant appealed against this judgment, arguing, inter alia, that it acquired property in good faith and that the Privatisation Department had conducted all preliminary verification and confirmed that the disputed space was in municipal property.
9. In the course of cassation proceedings, the cadastre authority and the Privatization Department requested the court to dismiss the applicant’s appeal. The Chișinău City Council did not attend the hearing.
10. On 10 December 2008 the Supreme Court of Justice upheld the judgment of 23 May 2008. The court found inter alia:
“When on 27 March 2003 the Chișinău City Council decided to grant tenancy to [the applicant], the commercial space already belonged with property rights to G. 45%, to P. 28% registered in 17.07.2001 [and to other 2 companies 27%]. They altogether held 100% and it is excluded for the municipality to have had at that time any property on this commercial space.
[...] The plaintiffs did not submit any evidence that the Chișinău City Council was entitled to lease this space or that this space was municipal property. The municipality took a passive position in this dispute, admitting in fact the committed error by not having appealed the first instance judgment. [The applicant] is not deprived of the right to seek the restitution of money paid for the privatisation of the disputed real estate.
[...] Under Article 220 of the Civil Code the legal acts concluded contrary to the law, to public order or to morals shall be affected by absolute nullity. The Decision of the Chisinau City Council of 27 March 2003 is illegal, contrary to the law, and affected by absolute nullity. Void are, respectively, all acts issued on its basis, in particular [the lease contract and the privatisation decision and contract].”
This judgment was final.
COMPLAINT
11. The applicant complains under Article 1 of Protocol No. 1 to the Convention that its right to peaceful enjoyment of its possessions was violated.
QUESTION TO THE PARTIES
Has the applicant been deprived of its possessions in the public interest, in accordance with the conditions provided for by law within the meaning of Article 1 of Protocol No. 1? In particular, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V, Rysovskyy v. Ukraine, no. 29979/04, §§ 71-73, 20 October 2011)?
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