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THIRD
SECTION
DECISION
Application no.
32816/07
by Gheorghe CIUBUC and Others
against
Moldova
The
European Court of Human Rights (Third Section), sitting
on 10 January 2012 as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 19 July 2007,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Gheorghe Ciubuc, Petru Ciubuc and
Victor Lipovoi, are Moldovan nationals who were
born in 1958, 1953 and 1946 respectively and
live in Chişinău. They were represented before the Court by
Mr F. Nagacevschi from “Lawyers for Human Rights”, a
non-governmental organisation based in Chişinău. 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.
1. Background of the case
- In 1942 A. Lipovoi, the mother of one of the
applicants, bought part of a house in Chişinău, together
with the land surrounding it (2.5 hectares). On 19 June 1950 the
Soviet State nationalised most of the land, leaving 17.02 acres
of land adjacent to the house for the family’s use, which has
been used accordingly ever since. The applicants eventually became
co owners of the house, which is currently registered in their
name.
- On 19 March 1973 the Government decided to create a
dendrology park named “Dendrarium” and allocated
69 hectares of land in Chişinău for that purpose (“the
1973 decision”). The land included, inter alia,
twenty-one private houses standing on it. According to the decision,
the inhabitants of those houses were to be allocated alternative
accommodation and the houses were to be demolished. The developer of
the park was also obliged to pay the families living in those
twenty-one houses compensation for any orchards and for the work
carried out on the plots of land to be expropriated.
- By a decision of 14 November 1978 the Government
decided that the Dendrarium park was to become a separate institution
managed by the Chişinău local authority. It also ordered
the local authorities in Chişinău to offer the inhabitants
of the houses concerned by the earlier decision alternative
accommodation and to demolish their houses, situated on the reserved
territory, in 1979-1980. The Government also decided to prohibit any
private construction works within the boundaries of the Dendrarium
park and to ensure the strict enforcement of the protective park
regulations. However, the applicants and several other families were
not offered alternative accommodation and have remained in their
houses.
- On 23 May 1990 the Chişinău local authority
decided to allocate to the State Theatre-Park of National Culture
74.4 hectares of land, including the land on which the applicants’
house was situated. It also decided that the people living in the
houses to be demolished, which included the applicants, were to be
offered alternative accommodation.
- On 14 July 2000 the State was registered as the owner
of the territory of the Dendrarium park, which included the land
under and adjacent to the applicants’ house. On 8 July 2005 the
Chişinău municipality was registered as the owner of that
land. According to the local cadastral office, the land adjacent to
the applicants’ house is registered in the applicants’
name. According to an excerpt from the Land Register (cadastru),
provided to the applicants on 11 April 2005, the house in question is
situated on 17.02 acres of land and is owned by the applicants.
2. The proceedings concerning land ownership
- On
31 October 2005 the applicants asked the Chişinău
municipality to transfer the land adjacent to their house into their
ownership free of charge (as part of the process of privatisation).
On 18 January 2006 the municipality rejected the applicants’
request.
- On an unspecified date the applicants lodged a court
action in which they claimed the right to become the owners of the
land adjacent to their house, in accordance with article 11 of the
Land Code (see paragraph 15 below). They noted, inter alia,
that no specific decision had been taken to expropriate the land
which their family had owned since 1942 and that this was an ongoing
problem which the authorities had allowed considerable delay in
examining, causing the applicants non-pecuniary damage. The applicant
asked the court to order the Chişinău municipality to
register the land adjacent to their house in their name and to award
them compensation for the non-pecuniary damage incurred.
- In its written reply submitted to the court, the
Dendrarium park administration noted, inter alia, that the
applicants did not have access to their house and that to reach it
they had to trespass on park property.
- On
23 October 2006 the Chişinău Court of Appeal found in the
applicants’ favour. It found, inter alia, that the
applicants’ use and possession of the disputed land had been
undisturbed since 1942. The Court also found that the applicants had
become the owners of the disputed land before the creation of the
Dendrarium park and that no decision for the withdrawal of the
applicants’ land from their possession had been adopted.
- On
24 January 2007 the Supreme Court of Justice quashed the lower
court’s judgment and adopted a new one, rejecting the
applicants’ claims as unfounded. The court found that the
applicants’ house had been registered as their property by the
Land Registry. However, the land on which the applicants’ house
was situated had been set aside for the creation of a natural reserve
since 1973. Under the legislation concerning natural reserves
(including Article 7 of the Law on the State-protected natural areas
fund, see paragraph 15 below) such land was considered to be public
property which could not be privatised, rented out or disposed of in
any other way except for in the purposes of preserving and managing
the natural reserve. Under the 1973 decision the inhabitants of all
the houses within the perimeter of the park, including those in the
house owned by the applicants, had to be removed and offered
alternative accommodation and their houses demolished. Therefore,
their request to obtain ownership of the land adjacent to their house
was contrary to legal requirements.
- On 6 June 2007 the Supreme Court of Justice rejected
the applicants’ request for the reopening of the proceedings,
which had been grounded on the discovery that some of the applicants’
neighbours who were in a similar situation to that of the applicants
had obtained private ownership of the land adjacent to their houses.
The court found, inter alia, that the document submitted by
the applicants in support of their request had not been numbered or
dated and did not therefore constitute a valid document.
- On
11 February 2008 the Chişinău municipality informed the
applicants that at the time of writing that letter the boundaries of
the Dendrarium park had not yet been determined and that no title to
the land of that park had been issued. The applicants were also
informed that the municipality’s competent department was
preparing proposals to re-examine the boundaries of the Dendrarium
park, including the possibility of excluding the plot of land
adjacent to the applicants’ house from the reserved land and
the creation of an access road to their house.
B. Relevant domestic law
- The relevant part of Article 11 of the Land Code (in
force since 4 September 2001) reads as follows:
“Article 11. Allocation of land within the
city limits for housing, land annexes and gardens.
Local public administration authorities shall allocate
plots of land to citizens without payment, issuing them ownership
certificates which:
- transfer into the property of citizens plots of land
occupied by houses, annexes and gardens which have been allocated to
[those citizens] in accordance with the law; ...
Article 56. Land reserved for protecting nature.
Land reserved for protecting nature includes ...,
dendrology parks, ...
...
Land reserved for protecting nature is the exclusive
property of the State.
Any activity which is incompatible with the special
destination of land reserved for protecting nature shall be
prohibited. Such land is withdrawn from use, if such use does not
correspond to the special protection regime established for such
land.”
The
relevant part of Article 7 of the Law on the State-protected natural
areas fund (no. 1538, in force since 16 July 1998) reads as follows:
“Article 7.
...
2. Land which is part of entities or
complexes within protected natural areas shall be reserved for
protecting nature, shall be public property and may not be privatised
or rented; the protection and management of such land shall be
governed by the applicable legislation.”
COMPLAINTS
- The
applicants complained under Article 6 § 1 of the Convention that
the Supreme Court of Justice had not given sufficient reasons for its
judgment.
They
also complained, under the same Article, that the judgment of the
Supreme Court of Justice breached the principle of legal certainty.
- They
further complained under Article 1 of Protocol No. 1 to the
Convention of a disproportionate interference with their property
right as a result of the continued uncertainty as to whether and when
a 34-year old decision to expropriate would be enforced.
- The
applicants finally complained of a breach of Article 14 of the
Convention, in view of the fact that other persons had been allowed
to privatise the land adjacent to their houses.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE
1 OF PROTOCOL No. 1 TO THE CONVENTION OWING TO A BREACH OF THE
PRINCIPLE OF LEGAL CERTAINTY
- The
applicants complained that the very long period during which the 1973
decision had not been enforced caused an uncertainty in the legal
status of the land adjacent to their house, in breach of Article 6 §
1 of the Convention and of Article 1 of Protocol No. 1 to the
Convention.
The
relevant part of Article 6 § 1 of the Convention reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
1 of Protocol No. 1 to the Convention reads as follows:
“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.”
- The
Government pointed to the clear and imperative nature of the
legislation prohibiting the privatisation of land reserved for
protecting nature.
- The
Court notes first that the present case concerns only the legal
status of the land adjacent to the applicant’s house and not
that of the house as such or the right of access thereto, in respect
of which the applicants did not initiate any proceedings. Moreover,
it does not concern any challenge to the lawfulness of the 1973
decision, nor an attempt by the applicants to obtain the full
enforcement of that decision by asking for allocation of alternative
accommodation.
- Even
assuming that the applicants had a “possession” within
the meaning of Article 1 of Protocol No. 1 to the Convention, Article
56 of the same Code, as well as Article 7 of the Law on the
State-protected natural areas fund, expressly reserved ownership of
the land on the territory reserved for protecting nature (such as
dendrology parks) to the State and excluded its private ownership
(see paragraph 15 above).
- The
Court considers that, even assuming that there had been uncertainty
in the legal status of the relevant land during an initial – if
lengthy – period of time, such uncertainty disappeared with the
entry into force of the Law on the State-protected natural areas fund
on 16 July 1998. That law expressly prohibited private ownership of
areas reserved for protecting nature. The land adjacent to the
applicants’ house had been designated as such an area since
1973. Accordingly, after the entry into force of the new law in 1998
the applicants could no longer claim that the relevant land had a
questionable legal status, even if in practice they were allowed –
as they still are – to use it.
- Accordingly,
the applicants’ attempt to have the land transferred into their
private property did not have any chances of success in view of the
imperative provisions of the law, which they could not challenge.
- It
is clear that between 1973 and 2001 three Government decisions and
two legislative acts were adopted, each of which left no doubt as to
the status of the land in question, which was reserved for exclusive
ownership o the State as part of a natural protected area. Therefore,
in the absence of any remedies at the domestic level, the alleged
violation of the applicants’ rights happened on 4 September
2001 at the latest, when the Land Code entered into force. This was a
single event, not creating a continuous situation (see, mutatis
mutandis, Malhous v. the Czech Republic (dec.) [GC],
no. 33071/96, ECHR 2000-XII and Kopecký v. Slovakia
[GC], no. 44912/98, § 35, ECHR 2004 IX). Thus, the
six-month time-limit for lodging the application with the Court
started running on that date. However, the applicants lodged their
application on 19 July 2007, almost six years later.
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
This
finding is not affected by the subsequent institution of civil
proceedings by the applicants, since that court action did not have
any chances of success, given the imperative provisions of the law
concerning the prohibition of private ownership over land in
protected natural areas.
- For
the same reason, the Court finds that the complaint under Article 6
§ 1 concerning legal certainty was also lodged outside the
six month time-limit, in view of the fact that the legal status
of the land became clear at least starting with 16 July 1998.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE APPLICANTS’
RIGHTS
- The
Court has examined the applicant’s remaining complaints. Having
regard to all the material in its possession, it finds that they 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall Registrar President
