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FOURTH
SECTION
CASE OF
OVCIAROV v. MOLDOVA
(Application
no. 31228/02)
JUDGMENT
STRASBOURG
12
April 2007
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 Ovciarov v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 20 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31228/02) 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 25 July 2002 by a Russian national, Mr Nicolai
Ovciarov.
- The
applicant was represented before the Court by Mr
Vitalie Iordachi from “Lawyers for Human Rights”, a
non-governmental organisation based in Chişinău. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr Vitalie Pârlog.
- The
applicant alleged that his right to a fair hearing and his right to
the peaceful enjoyment of his possessions had been breached as a
result of the quashing of a final judgment in his favour.
- On
4 May 2004 the Court communicated the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
- On
29 July 2004 the representative of the Russian Government before the
Court, Mr Pavel Laptev, informed the Court that they did not wish to
exercise their right to intervene in the present case (Article 36 §
1 of the Convention and Rule 44 § 1 (b)).
- The
applicant and the Government each filed observations on the
admissibility and merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1933 and lives in Chişinău.
- On
22 January 1999 he bought a one-room apartment from X for 13,000
Moldovan lei (MDL) (the equivalent of 1,500 United States dollars
(USD) at the time). Since X did not comply with the applicant's
request to vacate the apartment, on 8 June 1999 he brought an action
against her, seeking her eviction. X brought a counter action against
the applicant, seeking the annulment of the sale contract and
restitutio in integrum on the ground that the contract had
been vitiated by fraud.
- On
16 March 2000 the Centru District Court ruled in favour of X and
dismissed the applicant's action. The applicant appealed.
- On
6 July 2000 the Chişinău Regional Court upheld the
applicant's appeal, quashed the judgment of the Centru District
Court, ordered X's eviction from the apartment and dismissed her
action. X appealed.
- On
3 October 2000 the Court of Appeal
dismissed X's appeal on points of law and upheld the judgment of 6
July 2000. The judgment became final and enforceable.
- On
6 June 2001 the Supreme Court of Justice upheld a Prosecutor
General's request for annulment of the judgment in favour of the
applicant and ordered the re-opening of the proceedings before the
first-instance court.
- On
26 October 2001 the Centru District Court upheld X's action and
dismissed the applicant's claims. The applicant appealed.
- On
23 January 2002 the Chişinău Regional Court upheld the
applicant's appeal, quashed the judgment of the Centru District Court
of 26 October 2001, ordered X's eviction from the disputed
apartment and dismissed her action. X appealed.
- By
a final judgment of 18 April 2002 the
Court of Appeal dismissed X's appeal.
- On
18 April 2002 the Deputy Prosecutor General lodged with the Supreme
Court of Justice a request for annulment of the judgments of the
Chişinău Regional Court of 23 January 2002 and of the Court
of Appeal of 18 April 2002. He asked the
court to uphold the judgment of the Centru District Court of
26 October 2001.
- By
a judgment of 29 May 2002 the Supreme Court of Justice upheld the
Prosecutor's request for annulment, quashed the judgment
in favour of the applicant and upheld the judgment of the
Centru District Court of 26 October
2001.
- Following
the communication of the case by the Court, the Prosecutor General
lodged with the Supreme Court of Justice a revision request in
respect of the judgment of 29 May 2002 on the ground that the
applicant and the Government intended to conclude a friendly
settlement agreement.
- By
a judgment of 5 October 2005 the Supreme Court of Justice upheld the
Prosecutor's request for revision, quashed its judgment of 29 May
2002 and discontinued the annulment proceedings. The Supreme Court
did not order payment of any compensation for the pecuniary damage
sustained by the applicant as a result of the alleged violations.
- On
an unspecified date between the quashing of the final judgment in
favour of the applicant and the discontinuance of the annulment
proceedings X had joined the disputed apartment to another apartment
and had substantially reconstructed the newly created apartment. She
subsequently sold 1/3 of the joined apartments to a third party. The
applicant and the third party have filed actions against each other
seeking mainly the recognition of their ownership rights over the
disputed apartment. The proceedings are still pending before the
domestic courts and the applicant has not been able to move into his
apartment to date.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in Roşca v. Moldova,
no. 6267/02, § 16, 22 March 2005.
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
- The
applicant complained that the quashing of the final judgment of
18 April 2002 had violated his rights under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention.
- The
Court considers that the applicant's complaints under both these
Articles raise questions of law which are sufficiently serious that
their determination should depend on an examination of the merits. No
other grounds for declaring them inadmissible have been established.
The Court therefore declares these complaints admissible. In
accordance with its decision to apply Article 29 § 3 of the
Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the judgment of the Supreme Court of
Justice of 29 May 2002, which set aside
a final judgment in his favour, had violated Article 6 § 1 of
the Convention.
The
relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
- He
further complained that the judgment of the Supreme Court of Justice
of 29 May 2002 had had the effect of
infringing his right to the peaceful enjoyment of his possessions as
secured by Article 1 of Protocol No. 1 to the Convention, which
provides:
“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
Government rejected the applicant's claims and argued that there had
been no violation of the applicant's rights and that the Deputy
Prosecutor General's request for annulment had been lawful.
- The
Court has found violations of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention in numerous cases
raising issues similar to those in the present case (see, among other
authorities, Brumărescu v. Romania [GC], no. 28342/95, §§
61 and 74, ECHR 1999 VII and Roşca v. Moldova, no.
6267/02, 22 March 2005, §§ 29 and 32).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- Having
regard to its case-law on the subject, the Court finds that by
quashing the final judgment in favour of the applicant, the Supreme
Court of Justice breached the applicant's right to a fair hearing
under Article 6 § 1 of the Convention and his right to the
peaceful enjoyment of possessions under Article 1 of Protocol No. 1
to 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. Pecuniary Damage
- The
applicant argued that because of the quashing of the judgment in his
favour and X's continued residence in the property, he had had to
rent an apartment since May 2002. The applicant submitted a copy of a
lease dated 5 May 2002 which fixed the rent at USD 200 and asked
the Court to award him USD 8,400 in respect of pecuniary damage.
Since a new round of domestic proceedings was pending before the
domestic courts and the disputed apartment had been significantly
reconstructed and partially sold to a third party, by a letter of 31
October 2006 the applicant requested the Court to award him the
market value of the apartment.
- The
Government argued that the applicant had not proved his expenditure
and expressed doubts about the validity of the lease. They pointed
out that, in accordance with a certificate from the National Social
Insurance Office, the applicant's pension was MDL 284 (the equivalent
of 20.61 euros (EUR) at the time). It would not, therefore, have been
possible for the applicant to pay such a high rent.
- The
Court observes that following a request to provide it with a
valuation of the disputed apartment, the applicant submitted a
valuation report made by a State real estate agency and a copy of the
Official Gazette (Monitorul Oficial)
indicating the average price of real estate. According to the
valuation report and the Official Gazette, the market value of a
one-room apartment was USD 29,000 (the equivalent of EUR 22,300 at
the time). The Government submitted a certificate issued by the
Chişinău Cadastre Office according to which the estimated
cadastral value of the apartment was MDL 180,285 (the equivalent of
EUR 11,357 at the time).
- The
Court also notes that in accordance with a final domestic court
judgment the applicant was recognised as the owner of a one-room
apartment. It appears from the case file that
in January 1999 he paid MDL 13,000 (the equivalent of EUR
1,291 at the time) for the apartment. As a result of the quashing of
that judgment he lost the ownership of his apartment. Taking
into account the fact that the disputed apartment had been
significantly reconstructed, partially sold to a third party and
that the applicant was unable to recover it even after the quashing
by the Supreme Court of its judgment of 29 May 2002 (see paragraphs
19 and 20 above), the Court considers that the
applicant should be awarded the market value of his one-room
apartment calculated at the price obtaining prior to its
reconstruction.
- As
to the market value of the disputed apartment, the Court is not
persuaded by the evidence submitted by the Government, since it
represents the estimated cadastral value
of the apartment whereas the applicant submitted its actual market
price as assessed by a real estate agency, which had compared the
average prices of similar one-room apartments. The valuation provided
by the latter is also consistent with the average property prices as
indicated in the Official Gazette (see paragraph 33 above).
The Court therefore awards the applicant EUR 22,300. In the Court's
view and having regard to the fact that the applicant's claim in
respect of rent of alternative accommodation had not been
sufficiently substantiated, such an award would be sufficient
compensation for the applicant's pecuniary loss.
B. Non-pecuniary damage
- The
applicant claimed EUR 50,000 for non-pecuniary damage suffered as a
result of the quashing of the final judgment in his favour. He argued
that the quashing of the final judgment caused him suffering, stress
and anxiety.
- The
Government disagreed with the amount claimed by the applicant,
arguing that he had not supported his claims with any evidence and
that there was no causal link between the alleged violation and the
moral damage claimed.
- The
Court considers that the applicant must have suffered a certain
amount of distress and frustration as a result of the quashing of the
final judgment of 18 April 2002 and
of the impossibility to use his apartment for a period of over four
years. Taking into consideration the amounts
awarded by the Court in similar cases (see, for example, Roşca,
cited above, § 41), it awards him EUR 2,000 in compensation for
non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 1,450 in respect of costs and expenses incurred
before the Court. He submitted a copy of a contract with his lawyer
and an itemised list of the number of hours
spent by the representative on the case.
- The
Government disagreed with the amounts claimed by the applicant and
stated that they were too high in the light of the average monthly
wage in Moldova.
- The
Court recalls that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(see, for example, Amihalachioaie v. Moldova, no. 60115/00, §
47, ECHR 2004 III).
- In the present case, regard being had to the itemised
list submitted by the applicant and the above criteria, the Court
awards the applicant EUR 800 in respect of
costs and expenses.
D. 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 the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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, the
following amounts, 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;
(i) EUR
22,300 (twenty-two thousand three hundred euros) in respect of
pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
800 (eight hundred euros) in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
