CASE OF POPOV v. MOLDOVA (No. 1)
Preliminary objections dismissed (non-exhaustion of domestic remedies, abuse of the right of petition);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Inadmissible under Art. 3;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
6. The applicant was born in 1925 and lives in Chişinău. 7. In 1941 the Soviet authorities nationalised the house owned by his parents. In the same year his family was deported to Russia and to Uzbekistan. 8. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim restitution of their confiscated or nationalised property. 9. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which he sought the restitution of his parents' house. As the former tenants of the house had purchased it from the State, the applicant sought a judicial ruling declaring the purchase contracts null and void. He also requested the eviction of all the occupants of the house. 10. On 25 June 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which the house had been sold to the tenants. The court further ordered the Municipal Council to evict all the occupants, and indicated that the Municipal Council was to provide them with alternative accommodation. 11. The Municipal Council, the Ministry of Privatization and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 5 November 1997 the Chişinău Regional Court dismissed the appeal and upheld the judgment with some textual amendments. Since nobody lodged an appeal in cassation, the judgment of 5 November 1997 became final. 12. In 1999, 2000 and 2001 the bailiff assigned to the case brought proceedings against the Municipal Council for failure to comply with the judgment of 5 November 1997 along with twenty-six similar judgments. On 28 December 1999 the Centru District Court issued a decision by which a fine of 18 Moldovan lei (MDL) (the equivalent of EUR 1.53 at the time) was imposed on the Head of the Housing Division of the Municipal Council for failure to comply with the judgments. On 25 August 2000 the same court issued a decision by which it imposed a fine of MDL 1,800 (the equivalent of EUR 161 at the time) on the Municipal Council. The court found inter alia that the shortage of funds and the lack of available apartments could not be relied upon by the Municipal Council to justify the failure to comply with the above judgments. The Municipal Council lodged an appeal against that decision and on 24 January 2001 the Chişinău Regional Court quashed it on the ground that the shortage of funds and the lack of available apartments had objectively impeded the Municipal Council from complying with the judgments. On 23 February 2001 the Centru District Court issued a decision by which it imposed a fine of MDL 1,800 on the Municipal Council. 13. Between 1997 and 2002 the applicant lodged numerous complaints about the non-enforcement of the judgment of 5 November 1997 with the Municipal Council, Centru District Court and the Ministry of Justice. In their replies, the Municipal Council and the Ministry of Justice informed the applicant that due to the lack of funds for the construction of apartment buildings and due to the lack of available alternative accommodation for the evicted persons, the judgment of 5 November 1997 could not be complied with. 14. In April 2004 four occupants of the applicant's house lodged with the Chişinău Court of Appeal a request for revision of the judgments of 25 June 1997 and 5 November 1997. Relying on Article 449 of the new Code of Civil Procedure (see paragraph 21 below) they argued in their request that new information have become known to them. They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from the National Archives in April 2004. On 26 May 2004 the Court of Appeal found in favour of the occupants, quashed the judgments of 25 June 1997 and 5 November 1997 and ordered the re-opening of the proceedings in the light of the newly discovered facts. The court also decided to extend the time limit for lodging the request. The new facts relied upon by the Court of Appeal in its judgment were an issue of the Municipal Official Gazette of 1940, and a few certificates from the National Archives and from the Land Register dated April and May 2004. According to these documents, due to a change of numbers of the houses on the street, it was unclear whether the house provided for in the final judgments or another house belonged to the applicant's family. The Court of Appeal did not specify in its judgment whether Article 449 of the new Code of Civil Procedure had a retroactive effect; nor were reasons given for extending the time limit for the lodging of the revision request. 15. The relevant provisions of Law no. 1225-XII of 8 December 1992, as amended on 23 November 1994, read as follows: “Section 12. Restitution of property to persons subjected to repression (1) Any citizen of the Republic of Moldova who has been subjected to political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. ... (5) Any deed of sale and purchase or other form of transfer of a house, building or other construction or goods that have been confiscated, nationalised or taken away from a person who has been a victim of repression may, when made after his rehabilitation, be declared null and void by the courts on an application by the victim or his heirs.” 16. In 1998 a new paragraph was added to the above Article by virtue of Law No. 84-XIV of 8 July 1998, which reads as follows: “(6) Any person evicted from a house that is the subject of a restitution order shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.” 17. Article 325 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003 “the old Code of Civil Procedure”, reads as follows: Final judgments ... can be revised in the following cases: 1) the discovery of new facts or circumstances, that were unknown and could not be known earlier by the parties to the proceedings; Article 426, insofar as relevant, reads as follows: “The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against any action which the bailiff takes or refuses to take in the enforcement proceedings. ...” 18. Article 478 of the Civil Code, in force between 26 December 1964 and 12 June 2003 “the old Civil Code”, reads as follows: “Full redress shall be provided by the State in the manner prescribed by law for damage caused to a natural or juristic person by the illegal action of the criminal-investigation organs, the prosecution service or the courts, regardless of whether a public servant from one of those bodies has been at fault.” 19. According to the Review of the Supreme Court of Justice of the Republic of Moldova (Buletinul Curţii Supreme de Justiţie a Republicii Moldova) for February 2003 (page 17), Article 478 of the old Civil Code, along with other relevant provisions of the Moldovan Law, was applicable in the following situations: illegal detention, illegal arrest, illegal indictment, illegal conviction; illegal search, seizure or distraint of goods within criminal proceedings; illegal administrative arrest, illegal fining; illegal operative investigative measures; illegal seizure of accounting documents, money, stamps, blocking of accounts. 20. On 12 June 2003 a new Civil Code entered into force. Article 1404 of the new Civil Code reads as follows: “(1) Damage caused by an unlawful administrative decision or as a result of a failure by a public authority or public official to act upon a request made within the statutory time-limit shall be made good by the public authority .... (2) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph 1 of the present Article. (...)” 21. On 12 June 2003 a new Code of Civil Procedure entered into force. Article 449, insofar as relevant, reads as follows: Grounds for revision Revision may be requested: c) When new and essential facts or circumstances have been discovered, that were unknown and could not be known earlier; Article 450, in so far as relevant, reads as follows: A revision request may be lodged: c) within three months from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....