FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22617/02
by Victor SALINSCHI
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 16 September 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 20 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Victor Salinschi, is a Moldovan national who was born in 1961 and lives in Truşeni. He was represented before the Court by Mr G. Voicu, a lawyer practising in Danceni. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 February 1995 a private company (“T.”) bought from the State an industrial building. The contract was authenticated by a notary on 23 February 1995 and was registered with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)) on 27 February 1995.
In January 1999 that building was sequestrated by the State Fiscal Inspectorate (“the SFI”) in settlement of debts to the State. It was then offered for auction.
On 2 June 1999 the applicant succeeded in that auction. In accordance with the auction conditions, the applicant paid the price of the building (212,000 Moldovan lei, equivalent to 17,274 euros at the time) and signed the “Contract for the purchase of goods sold at auction” on 2 September 1999. According to clause 1.3 of the contract, the property right over the object sold at the auction was transferred to the buyer from the moment of signing the “act for the transfer of goods”.
The parties also signed the minutes of the auction, which provided, in section (4), the obligation of the buyer to register the contract of sale with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)). In accordance with section (6) of the minutes, the seller undertook to conclude the contract for the sale of the item “in accordance with the law, the auction conditions and the present minutes”.
According to the applicant, in order to observe the requirements of sections (4) and (6) of the auction minutes, the applicant and an SFI representative appeared before a notary in order to have the contract authenticated. The notary refused, however, to authenticate the contract because the seller (the SFI) had not presented documents confirming that the building had belonged to T. and that the SFI had the right to confiscate it. No evidence was submitted to support this claim. However, the applicant submitted a letter from a notary dated 20 March 2006, according to which registration of his property right was impossible in view of certain deficiencies in the contract and the absence of several documents, which had to be produced by the seller.
The applicant requested the SFI to issue the relevant documents and to have the contract authenticated by a notary. On 15 September 1999 the applicant and SFI representatives signed an “act for the transfer of goods”.
On 29 December 1999 T. bought from the Chişinău Municipality a plot of land dependent on the building bought by the applicant at the auction.
The applicant requested the TCO to register his title to the building on the basis of the contract of sale. On 19 January 2000 the TCO refused registration because the contract had not been authenticated by a notary as required by “civil law”.
The applicant claims that he has no access to his building. His request to T. to vacate it and to allow him free possession was allegedly ignored.
On 9 June 2000 the SFI repeatedly sent the TCO a copy of the sequestration order concerning the building belonging to T.
On 25 August 2000 the TCO informed the applicant that no real property was registered as belonging to T. on that date.
On 26 September 2000 the SFI refused to issue the applicant with any additional documents or to participate in the authentication of the contract before a notary, stating that according to the contract of sale, Government Decision no. 685 and Law no. 633-XIII (see below) the applicant had become the owner of the building from the date when he signed the “act for the transfer of goods” (i.e. 15 September 1999). The SFI considered that it had fulfilled its part of the contract and had acted in accordance with the law.
On 19 December 2000 the SFI rejected another request by the applicant, following which he initiated administrative proceedings against it.
On 27 March 2001 the Chişinău Regional Court left the applicant’s claim unexamined because it was not subject to administrative jurisdiction. On 6 June 2001 the Court of Appeal quashed that judgment and ordered a full re-hearing of the case.
On 13 August 2001 the Chişinău Regional Court rejected the applicant’s claims as unfounded. The court found that the SFI had acted in accordance with the law and duly transmitted the rights in the property to the applicant when they both signed the ‘Act for the transfer of goods’ on 15 September 1999. The court added that, according to the law, the applicant’s property right could be registered based on the auction results and the contract concluded with the SFI, without any obligation for further formalities between the parties. It considered the refusal of the TCO to register the applicant’s right to be a separate issue that could be examined in other court proceedings, which the applicant refused to initiate.
On 14 November 2001 the Court of Appeal upheld that judgment, basing itself on essentially the same arguments. It added that the law expressly mentioned the rights of a successful bidder at auction, and that there was no need to register the contract with a notary. The judgment was final.
The applicant requested a review of that judgment. On 29 November 2001 the same panel of judges rejected that request.
In response to a letter from the applicant, the SFI replied on 20 March 2006 that T. had never challenged the SFI’s confiscation of the building which had been sold at the auction.
B. Relevant domestic law
The relevant provisions of the Civil Code in force at the relevant time read as follows:
“Article 153
The owner may request the removal of any impediment to the enjoyment of his rights even if this impediment is not related to loss of possession.
Article 2402
Contracts for the sale of real estate belonging to natural and legal persons shall be authenticated by a notary and registered within three months with the [Territorial Cadastral Office].”
The relevant provisions of the Law on the real estate register no. 1543‑XIII (25 February 1998) read as follows:
“Section 29
... (3) The documents submitted for the registration of a title must ..., in the cases provided for by law, be authenticated by a notary and sealed.
... (5) The following shall not be accepted as a basis for registration of a title:
a) documents which do not correspond to the requirements under (2)-(4) above; ...”
The relevant provision of the regulation “Regarding the manner of sequestration and sale of goods”, adopted by Government Decision no. 685 of 23 June 1997 read as follows:
“After the signing of the sales contract the fiscal authority shall obtain the possession of sequestered goods...”.
The relevant provisions of the Law regarding the manner of forced collection of taxes and other payments no. 633-XIII of 10 November 1995 read as follows:
“Section 6(6)
(10) After signing the contract of sale at the auction, the fiscal authority shall transmit the sequestered item to the buyer. The property right passes to the buyer from the moment of signing the act for the transfer of goods.”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been infringed because the courts had come to incorrect conclusions.
2. The applicant also alleged that those court judgments had resulted in a violation of his right to protection of property guaranteed by Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant complained about a violation of his rights as a result of the SFI’s refusal to issue him documents and participate in the authentication of the contract by a notary. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, provide as follows:
Article 6 § 1:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”.
Article 1 of Protocol 1:
“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 applicant added that 80% of the building which he had bought at the auction in fact belonged to an investment fund (D-H). Since D-H did not have any debts towards the State, the SFI seized and sold a building without having the right to do so.
The Government submitted that the applicant had not exhausted available domestic remedies, despite an express explanation by the domestic courts to that effect.
The Court finds no evidence that the FSI sold a building which it did not have the right to sell. In particular, there is nothing in the case-file to suggest that any person or company claimed ownership of the building after the auction in 1999 or challenged its sale at the auction. In the absence of such competing claims, and given the presumption that a building sold by the State should be free of any attachment unless expressly specified, the Court is unable to accept the applicant’s argument in this respect.
The Court notes the domestic courts’ interpretation of the domestic law, according to which the general rule that contracts for the sale of real estate must be registered with a notary was not applicable to real estate sold by the SFI at an auction and on the basis of special legislation governing such sales. According to the courts, the TCO’s refusal to register the contract between the applicant and the SFI should properly be the subject of separate proceedings. However, the applicant refused to initiate such proceedings, despite having been expressly warned about the wrong choice of defendant in his case.
The Court has no reason to question the above interpretation of the law made by the domestic courts, the more so since the applicant did not submit any example of case-law contradicting the above judgments. It follows that the only reason for the applicant’s inability to properly register his own right to the building continues to be his failure to challenge in court the TCO’s refusal of such registration.
In these circumstances, the Court considers that the applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. The application must therefore be declared inadmissible according to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy