BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF
RASSOHIN v. MOLDOVA
(Application
no. 11373/05)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rassohin v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Ján
Šikuta,
Ineta
Ziemele,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11373/05) 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”) by a Moldovan national, Ms Varvara Rassohin (“the
applicant”), on 2 March 2005.
- The
applicant was represented by Mr A. Bodnariuc, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that her right to peaceful
enjoyment of her property had been breached, and that a court
examined her appeal in her absence.
- On
11 February 2008 the Court decided to give notice of the application
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1937 and lives in Chişinău.
- The applicant has lived in her house since 1950. Her
house is situated in a courtyard with two other private houses.
According to a document issued by the Chişinău General
Directorate for Architecture and Urbanism (a subdivision of the
Chişinău Municipality) on 8 December 1998, there is only
one common entrance into the courtyard and a single access serving
houses nos. 10 and 14 (the latter being the applicant’s house).
- In 1992 one of the applicant’s neighbours (D.)
built a fence around her own house which, according to the applicant,
included a part of the area left for common use by the owners of the
three houses in the courtyard. The fence blocked the applicant’s
access to the only entry into the courtyard, and she was only able to
reach her house through a gate left in the fence.
- In
1998 D. replaced the fence with a bigger one and did not leave any
opening for the applicant to go through. On 19 October 1998 the
applicant’s son-in-law (S.) came to visit her and discovered
the new fence. At the request of his mother-in-law he demolished part
of the fence in order to create an unobstructed passage to the
applicant’s house.
- At D.’s request, criminal proceedings were
initiated against S. On 2 February 1999 the Centru District
Court acquitted him. The court noted statements made by several
neighbours and an expert from the Chişinău Land Registry,
as well as the certificate issued on 8 December 1998 (see paragraph 6
above), according to which the courtyard had been reserved for common
use by the owners of all three houses and that there was only one
access to the applicant’s house, now blocked by the newly built
fence. The court found that D. had built the fence unlawfully and
blocked the applicant’s access to her own house, and that the
actions of S. to free the passage to the house had been dictated by
strict necessity. No appeal was lodged and the judgment became final.
- In reply to a complaint by the applicant, on 2 May
2000 the Chief Architect of Chişinău informed her that,
following an on-site visit, he had established that the territory on
which the applicant’s and D.’s houses were situated had
been in common use and that, accordingly, the access to the
applicant’s house was also in common use. This was confirmed by
a map annexed to the letter. The Department added that no decisions
had been adopted which could have provoked disputes between the
applicant and D.
- On 18 May 2000 the Chişinău municipal
council decided to sell D. a plot of land around her house, which
included the common access road. On 16 June 2000 the council and D.
concluded a contract for the sale of land.
- Following a complaint by the applicant, on 5 July 2001
the same authority amended its decision of 18 May 2000 by reducing
the surface of the plot of land sold to D., in order to resolve the
dispute between D. and the applicant and to secure access to the
applicant’s house.
- D. challenged the municipality’s decision of 5
July 2001 in court. On 15 April 2002 the Chişinău
Regional Court annulled the decision of 5 July 2001 as unlawful.
The court found that, according to a letter from the municipality’s
finance department dated 11 September 2000, the access road to the
applicant’s house had not been included in the plot of land
sold to D.
- In a separate court action, on 6 December 2001 the
municipality initiated court proceedings, asking for modification of
the contract of sale of land to D. It claimed that the plot of land
had mistakenly included the common access road used to access the
applicant’s house.
- In January 2002 the applicant initiated court
proceedings against D. and the municipality, asking for the annulment
of all decisions taken in favour of D. since 1992, including the
decision of 18 May 2000, and of all contracts between the two
parties. She also noted that the fence built by D. had blocked all
access to her house and had even left her without a water supply,
which had previously been secured via a water pipe ending in the
common courtyard, now situated on D.’s land. The applicant
asked for an order to remove all obstacles to her use of the house
and to determine the manner of common use of the access by all the
owners of the houses in the courtyard.
The
two court actions were joined.
- On
19 November 2002 the Centru District Court rejected the requests of
the applicant and the municipality. The court found that the
applicant had sufficient space to use her house and that, since the
water pipe ran through the land owned by D., the applicant could only
ensure access to water with D.’s agreement. It decided to
discontinue the applicant’s request to annul the decision of 18
May 2000, since its lawfulness had already been confirmed by the
final judgment of the Chişinău Regional Court on 15 April
2002.
- On
13 January 2003 the Chişinău Regional Court quashed the
lower court’s judgment and ordered a full re-hearing of the
case.
- On
19 February 2004 the Centru District Court struck the applicant’s
action out of its list due to her failure to appear in court when
summoned. That decision was quashed by the Chişinău Court
of Appeal on 8 April 2004 because there was no evidence in the file
that the applicant had been summoned.
- On 8 July 2004 the Centru District Court rejected the
applicant’s and the municipality’s requests. It stated,
inter alia, that the applicant had unobstructed access to her
house, without giving any details. It also repeated the reasons it
had given in its judgment of 19 November 2002 regarding the
applicant’s access to water. The court refused to annul the
contract for the sale of land concluded between D. and the
municipality on 16 June 2000, given that it was based on the
municipality’s decision of 18 May 2000, a decision previously
confirmed as lawful.
- On 7 October 2004 the Chişinău Regional
Court upheld that judgment. It essentially repeated the lower court’s
reasons regarding the lawfulness of the contract for the sale of
land.
- In
her appeal on points of law the applicant referred, inter alia,
to her inability to fully enjoy her property right over the house,
the access to which was blocked by the fence built by D. She claimed
that the contract of 16 June 2000 had been concluded in breach
of the law. The applicant asked for the annulment of the contract and
the demolition of the fence in order to secure unobstructed access to
her house.
- On 22 December 2004 the Supreme Court of Justice
dismissed the applicant’s appeal, in her absence. The court
acknowledged the confirmation by the Chief Architect of Chişinău
of 2 May 2000, after he had visited the relevant courtyard, that the
land and access road in question were in fact in common use. However,
in the absence of any decision by the Chişinău Municipality
expressly reserving that land for common use, the Chief Architect’s
opinion could not serve as a ground for annulling the lower court’s
judgments. Therefore the lower courts had correctly decided that the
land sold to D. had not been land in common use.
- The
court also found that the applicant had been summoned to the hearing
but had failed to appear without giving plausible reasons. The
applicant claims that she was not summoned. The judgment of 22
December 2004 was final.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of domestic law and the relevant domestic
practice have been set out in Godorozea v. Moldova, no.
17023/05, §§ 23 25, 6 October 2009).
- In addition, Article 449 (h) of the Code of Civil
Procedure reads as follows:
“A revision
request shall be granted when:
...
(h) The European
Court has found a violation of the fundamental rights and
freedoms...”
THE LAW
- The
applicant complained under Article 6 § 1 of the Convention that
the final court judgment in her case had been adopted in her absence.
She also complained that as a Russian-speaker she had not benefited
from a proper translation into Russian of the court proceedings.
The
relevant part of Article 6 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- She
also complained of obstacles to the use of her property, contrary to
Article 1 of Protocol No. 1 to the Convention, which reads:
“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.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. As to admissibility
- The
Court notes that the applicant complained under Article 6 of the
Convention of the insufficiency of translation of the court
proceedings and related documents. Assuming that Article 6 of the
Convention is applicable to this claim, the applicant did not submit
any evidence in its support, such as a rejection of a request to have
a document translated. It follows that this part of the application
must be rejected as being manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
- The
Court considers that the applicant’s complaint under
Article6 § 1 of the Convention concerning the
examination of her appeal by the Supreme Court of Justice in her
absence raises questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
the merits, and no other grounds for declaring these complaints
inadmissible have been established. The Court therefore declares this
complaint admissible.
B. As to the merits
- The
applicant complained of the examination of her appeal in her absence.
Even though there was evidence in the file that a summon had been
sent to her address, she claimed that she never received that summons
and there was no evidence to the contrary.
- The
Government submitted that the applicant had been properly summoned to
the hearing, as evidenced by the registration of the sending of the
letter to her address. It was for the applicant to show that she had
not received the summons and she had failed to submit such evidence.
- The
Court reiterates that Article 6 § 1 does not guarantee a right
to appeal from a decision of first or second instance. Where,
however, domestic law provides for a right of appeal, the appeal
proceedings will be treated as an extension of the trial process and
accordingly will be subject to Article 6 (Delcourt v. Belgium,
17 January 1970, § 25, Series A no. 11; Gurov
v. Moldova, no. 36455/02, § 33, 11 July 2006
and Clionov v. Moldova, no. 13229/04, § 39, 9
October 2007). This implies, for instance, that litigants must be
guaranteed an effective right of access to courts for the
determination of their “civil rights and obligations”
(see, for example, Brualla Gómez de la Torre v. Spain,
19 December 1997, § 37, Reports of Judgments and Decisions
1997 VIII).
- It
is to be noted that Moldovan law allowed the applicant to be summoned
to the hearing of the Supreme Court of Justice and to address the
court during that hearing. Moreover, the proceedings in the present
case concerned the effects of a contract on the applicant’s
enjoyment of her house and of her access to the only water source in
the common courtyard. This, in the Court’s view and in the
specific circumstances of the present case, made necessary to hear
the applicant. Only if she clearly chose not to appear the law
expressly allowed the court to examine the case in her absence (see
Article 444 of the Code of Civil Procedure, cited in the
above mentioned case of Godorozea, § 23).
Therefore, it is necessary to determine whether the applicant was
properly summoned to that hearing, in accordance with the domestic
law and practice.
- The
Court notes that in Russu v. Moldova (no. 7413/05, §§
23 28, 13 November 2008) it has already found that “in
practice the domestic courts do not accept as sufficient evidence the
sending of a letter by a court and require proof of delivery”.
The case-law of the Supreme Court of Justice, mentioned in Godorozea
(cited above, §§ 24 and 25) confirms that conclusion. The
Court does not see in the file before it any confirmation that the
summons – which was sent by the Supreme Court of Justice to the
applicant’s address – was in fact delivered to her. The
Court therefore concludes that the applicant was unable to fully
present her case before the Supreme Court of Justice. In the
particular circumstances of the present case where the applicant’s
presence was necessary, the failure to properly summon her deprived
her of her right of access to court.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE
CONVENTION
As to admissibility
- The
applicant complained that her right to protection of her property had
been breached. In particular, the access road to her house was
blocked and only a narrow 80 cm side passage was left, preventing any
meaningful access to the house. Moreover, as a result of the sale of
the land reserved for common use the applicant was cut off from the
water supply, which she had enjoyed for many years and which
pre-dated the purchase of the house by her neighbour D.
- The
Government considered that the applicant’s complaint was
ill founded. There was no interference with her property right
since she never had a legitimate claim to the land sold to D., given
that the domestic courts clearly established that access to the
applicant’s house had not been blocked. As for the water supply
to the applicant’s house, it was a matter for her to settle
with the owner of the land on which the water pipe was situated, as
also established by the courts. Moreover, this was a dispute between
two private individuals and the mere fact that the State had set in
place a court system allowing the parties to solve their disputes did
not imply any responsibility for the State for the result of the
dispute resolution.
- The
Court notes that it has found a violation of Article 6 § 1 of
the Convention due to the failure of the Supreme Court of Justice to
hear the applicant. It cannot, however, speculate as to the outcome
of the proceedings had the court heard the applicant. It therefore
considers that this complaint is inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in compensation for the damage
caused to her, without giving any further details.
- The
Government considered this claim unsubstantiated.
- The
Court considers that she must have suffered frustration as a result
of the Supreme Court of Justice’s failure to hear her before
dismissing her appeal. Deciding on an equitable basis, the Court
awards the applicant EUR 3,200 for non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claims under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint under Article
6 § 1 of the Convention concerning the examination of her appeal
in her absence, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,200 (three thousand two
hundred euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
