CASE OF RASSOHIN v. MOLDOVA
Violation of Art. 6-1
Alvina Gyulumyan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
5. The applicant was born in 1937 and lives in Chişinău. 6. 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). 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. On 13 January 2003 the Chişinău Regional Court quashed the lower court’s judgment and ordered a full re-hearing of the case. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. The relevant provisions of domestic law and the relevant domestic practice have been set out in Godorozea v. Moldova, no. 17023/05, §§ 2325, 6 October 2009). 25. 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...”