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!

 

 

 

SECOND SECTION

 

CASE OF MUHINA v. THE REPUBLIC OF MOLDOVA

(Application no. 342/09)

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

3 September 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Muhin a v. the Republic of Moldova ,

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

Egidijus Kūris, President,
Valeriu Griţco,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar ,

Having deliberated in private on 2 July 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 .     The case originated in an application (no. 342/09) 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 Larisa Muhina ("the applicant"), on 27 November 2008 .

2 .     The applicant was represented by Mr I. Doicov, a lawyer practising in Chișinău. The Moldovan Government ("the Government") were represented by their Agent, Mr L. Apostol.

3 .     The applicant alleged, in particular, that the domestic courts had examined a court action against her despite the expiry of the limitation period established by law .

4 .     On 25 January 2011 the application was communicated to the Government .

THE FACTS

1. THE CIRCUMSTANCES OF THE CASE

5 .     The applicant was born in 1957 and lives in Chișinău .

6 .     Since 1989 the applicant has rented an apartment from the State ( social housing ) . In 1996 her apartment was seriously damaged and was found to be un suitable for living purposes. On an unknown date she lodged a court actio n against the State authorities, requesting allocat ion o f an alternative apartment. She explained that the apartment which she rented was the property of the State. On 25 April 2000 the Botanica District Court accepted her claims and ordered the Chişinău municipality to allocate her another apartment. It found that the applicant was rent ing her apartment and that it was owned by the Chișinău municipality . However, that judgment was not enforced for many years.

7 .     After 25 April 2000 the applicant stopped pa y i ng any bills for the apartment, considering that since it was officially no longer habitable , she could not incur expenses in relation to it. Moreover, she claimed that most of the services (heating, hot water, building repairs, etc.) were no longer being provided.

8 .     On 11 January 2007 the Municipal Company for Administering the Housing Fund no. 14 ("the MCA H F -14 ") lodged a court action against the applicant, claiming that she had failed to pay for the services provided to her , thereby accumulat ing a debt of 9,606 Moldovan lei (MDL , the equivalent of 568 euros (EUR) at the time ). It subsequently increased the sum claimed to MDL 11,954 after discovering that two people were living in the apartment and not just the applicant.

9 .     The applicant submitted to the court, inter alia , that some of the MCAHF-14 ' s claims were time-barred on account of the three-year limitation period (see paragraph 17 below) .

10 .     The MCAAF-14 submitted that it had not missed the limitation period protecting its rights in court because it had itself been faced with court actions initiated by various service providers (heat, electricity, water, etc.) in 2004-2005 . This meant that it had had to lodge court actions against individuals who had used the relevant services but had failed to pay the service providers for them through the intermediary of the MCAHF-14. According to some of the judgments submitted to the file (for instance, th ose of 22 July 2004, of 25 April 2005 and of 23 October 2006 ) , it was established that contract s had been concluded between MCAHF-14 and various service provider s for the provision of heating , water and electricity t o the apartment blocks administered by MCAHF-14.

11 .     On 17 May 2007 the Buiucani District Court accepted the MCA H F -14 ' s initial claims. It found, in respect of the applicant ' s submissions about the limitation period, that:

"[The court] cannot accept [the applicant ' s] argument concerning the limitation period, since pursuant to Article 276 of the Civil Code, no limitation period s tarts t o run - and if one has started to run it must be suspended - between a person who, by virtue of a law, a court judgment or a legal act, is administer ing the property of another person and the person whose property is being thus administered, provided that the administration has not c e ased and the final calculations have not been made and approved."

12 .     The applicant appealed. In respect of the limitation period she noted that the lower court had applied a legal provision which could not apply to situations such as hers. She added that the first-instance court had failed to deal with most of her arguments, such as the de facto failure to provide her with the services for which she was being asked to pay.

13 .     On 28 November 2007 the Chişinău Court of Appeal upheld the lower court ' s judgment. The court found that the applicant had failed to submit any evidence in support of her contention that she had not been provided with the relevant services. It did not deal with the issue of the expiry of the limitation period.

14 .     The applicant lodged an appeal on points of law , relying on the same arguments as earlier, including the expiry of the limitation period and the failure of the Chişinău Court of Appeal to deal with that argument.

15 .     By its final judgment of 7 May 2008 the Supreme Court of Justice upheld the lower courts ' judgments, finding that they had been proper ly reasoned and based on the evidence in the file. The court relied on Article   17 of the "Regulation concerning the manner of offering housing services, utility-related services and non-utilit y-related services to the housing fund ... " ( see paragraph 18 below). It did not respond to the applicant ' s submission concerning the expiry of the limitation period.

16 .     According to the applicant, she challenged Judge S.M., who had sat on the three-judge panel of the Supreme Court of Justice when her previous case had been examined in 2000 . Her challenge had been accepted at the time and another judge had examined the case.

2. RELEVANT DOMESTIC LAW AND PRACTICE

17 .     The relevant provisions of the Civil Code , as in force at the relevant time, read:

Article 267

" The general limitation period for protection through a court action of a person ' s rights is three years.

... "

Article 271

" A court action for the protection of a right may be rejected on the basis of expiry of the limitation period only where the re has been a request from the party in whose favour the prescription runs , submitted before the end of the hearing concerning the merits of the case . "

Article 276

" No limitation period st arts to run - and if one has started to run it shall be suspended - between a person who, by virtue of a law, a court judgment or a legal act, is administer ing the property of another person and the person whose property is being thus administered, provided that the administration has not ceased and the final calculations have not been made and approved".

18 .     The relevant provisions of the " Regulation concerning the manner of offering housing services, utilit y-related services and non-utilit y-related services to the housing fund , installing metering equipment in apartments and the conditions for disconnecting them from, and reconnecting them to, the heating and water systems ", adopted by Government Decision no. 191 of 19 February 2002 read:

"2.     In the present Regulation , the terms used have the following meaning :

owner - a natural or legal person or group of persons possess ing , us ing and dispos ing of property (an apartment in an apartment block, a habitable room in a dormitory, ... ) in accordance with the law in force ;

renter - a natural person who rents accommodation on the basis of a rental agreement concluded with the administrator of the housing fund for a determin at e or i ndetermin at e period in return for a fee, in accordance with the law in force ;

housing fund administrator - a municipal company for administering the housing fund [ or other associations or business agents] o n the balance sheets or in the administration of which there is a housing fund ;

17.     The payment for housing services, utilit y-related services and non-utilit y-related services shall be r e ceived from the owners, renters, ... of apartments ... i n accordance with the contracts, on the basis of monthly calculations for each service issued by the administrating providers or service providers . "

19 .     By a judgment of the Economic Court of Appeal on 25 April 200 5 , the MCAH F -14 was ordered to settle its debt with a heating provider. The MCAH F -14 ' s argument that part of its debt did not have to be settled due to the applica bility of the three-year limitation period was accepted. Its debt was accordingly reduced from MDL   9.8 million to MDL 6.2 million.

THE LAW

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

20 .     The applicant complained that the domestic courts had breached her rights under Article 6 § 1 of the Convention by a gre eing to examine a part of the court action against her despite the expiry of the limitation period.

The relevant part of Article 6 § 1 reads:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

1. Admissibility

21 .     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

22 .     The applicant submitted that she had asked the first-instance court to reject some of the MCAHF-14 ' s claims against her as time-barred due to the expiry of the three-year limitation period provided by Article 271 of the Civil Code ("the CC", see paragraph 17 above). She relied on the Court ' s case-law in respect of the examination of procedural acts executed out of time , in particular on Dacia S.R.L. v. Moldova (no. 3052/04, §§ 72-78, 18   March 2008).

23 .     The Government submitted that the applicant had incorrectly interpreted the law. Article 276 CC (see paragraph 17 above), on which the first-instance court had relied, expressly provided that no limitation period was to st art run ning in relations hips between a person who is administer ing the property of another person and the person whose property is being thus administered, provided that the administration has not ceased and the final calculations have not been made and approved. The applicant was not the owner of the apartment which she rented from the municipality. The latter administered it and , as long as the applicant continued to rent it from the municipality , her relations with the administrator could not fall within the sphere of application of the limitation period.

24 .     Moreover, Article 272(6) CC provided for another exception from the general limitation period in respect of actions for recovery . This applied to a part of the claims that MCAHF-14 had against the applicant.

25 .     The Court reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments. In Ruiz Torija v. Spain , (judgment of 9 December 1994, Series A no. 303 - A), the Court found that the failure of a domestic court to give reasons for not accepting an objection that the action was time-barred amounted to a violation of that provision. The Court also found a breach of Article 6 § 1 when the Moldovan courts examined a late appeal without giving compelling reasons for extending the time-limit for lodging the appeal (see Melnic v. Moldova , no. 6923/03, §§   35-44, 14   November 2006 ). It also found in Dacia S.R.L. v. Moldova (no. 3052/04, §   77, 18 March 2008) that "the altering of a legal situation which has become final due to the application of a limitation period ... is incompatible with the principle of legal certainty (see, mutatis mutandis , Popov v. Moldova (no. 2) , no. 19960/04 , § 53, 6 December 2005)."

26 .     Turning to the facts of the present case, t he Court notes that the domestic courts examined a court action against the applicant in respect of some claims which w ould normally have been time-barred owing to the expiry of the three-year limitation period (see paragraph 17 above). The first-instance court, which was the only one to respond to the applicant ' s submission about the limitation period, found that the limitation period did not apply to the applicant ' s case by virtue of Article 276 CC (see paragraphs   11 and 17 above). The Government were of the same view.

27 .     The Court notes that Article 276 CC refers to the relationship between a person administering the property of another person and the person whose property is being thus administered . During an administration relationship of this kind, the limitation period does not apply in re spect of the administered property. In the present case it was undisputed that the applicant was not the owner of the apartment which she rented and that the real owner was the Chișinău municipality (see paragraph 6 above). The plaintiff in the court action against the applicant was the Municipal Company for Administering the Housing Fund no. 14 ("the MCAHF-14"). As its name suggests, this was a company created by the municipali ty in order to administer its housing fund. This is confirmed by the applicable Regulation (see paragraph 18 above), relied on in the decision of the Supreme Court of Justice.

28 .     It is obvious that Article 276 would be directly applicable in the relationship between the municipality, as the owner of the housing fund, and the MCAHF -14 manag ing a part of that fund. However, the Court does not see how that provision was relevant in the relation ship between MCAHF -14 and the renter of an apartment administered by that entity in the interests of the municipality. The applicant is a renter of her apartment. She is not its owner and thus could not mandate MCAHF-14 to manage the apartment, nor is she the administrator herself , since she has no mandate from the owner (the Chișinău municipality ) to administe r the apartment. There is nothing to suggest that MCAHF-14 and the applicant concluded any kind of agreement for the administration of the apartment.

29 .     The Court also notes that the first-instance court did not provide any reasons as to why it considered that Article 276 CC was appli cable to the present situation. When , in her appeals, the applicant asked the higher courts to verify the applicability of Article 276 CC to her situation , they did not respond in any manner.

30 .     As for the Government ' s argument that another legal provision provided for an exception from the general limitation period and was applicable to some of the applicant ' s claims, the Court notes that the domestic courts never referred to any other exception, which was thus not part of the decisions taken in respect of the applicant. In such circumstances, the Court does not need to examine any such additional argument now raised by the Government.

31 .     The applicant raised her objection about the expiry of the limitation period before the first-instance court, as required under Article 271 CC (see paragraphs 9 and 17 above). Pursuant to Article 271, the part of the court action against the applicant concerning claims relat ing to debts that were more than three years old at the time the court action was lodged against her should have been dismissed by the domestic court s , as was done in respect of MCAHF-14 ' s own debt in another case (see paragraph 19 above) . However, the courts accepted the claims in full.

32 .     The foregoing considerations are sufficient to enable the Court to conclude that by accepting claims against the applicant which were lodged after the expiry of the general limitation period and by failing to give a convincing explanation as to why the exception in Article 276 CC applied, the domestic courts breached the applicant ' s right to a fair hearing (see, mutatis mutandis , Ruiz Torija , cited above , § 30 ) .

33 .     There has accordingly been a violation of Article 6 § 1 of the Convention.

2. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

34 .     T he applicant also complained under Article 6 § 1 of the Convention that the courts had incorrectly accepted the claims against her, given the damaged condition of her apartment and the failure to provide her with good quality services.

35 .     She also complained, under the same provision, that one of the judges of the Supreme Court of Justice (S.M.) should not have examined her case , since in the year 2000 she had challenged him for showing a biased attitude towards her and he was subsequently replaced by another judge.

36 .     Having regard to all the material in its possession, t he Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

3. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37 .     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."

1. D amage

38 .     Theapplicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage.

39 .     The Government considered that in the absence of a violation of any Convention right , no compensation was payable . In any event, the sum claimed was excessive.

40 .     The Court considers that the applicant must have been caused a certain amount of frustration as a result of the violation of her rights under Article 6 § 1 of the Convention. Deciding on an equitable basis, it awards the applicant EUR   1 , 5 00 in respect of non-pecuniary damage.

2. Costs and expenses

41 .     The applicant did not make any claim in this respect .

3. Default interest

42 .     The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 concerning the failure to apply the limitation period admissible and the remainder of the application inadmissible ;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. 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 1 , 5 00 (o ne thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Moldovan lei at the rate applicable at the date of settlement ;

(b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 3 September 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris               Deputy Registrar               President