FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49806/99 by Tatiana PRODAN against Moldova

The European Court of Human Rights (First Section), sitting on 7 January 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 5 January 1999 and registered on 23 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Tatiana Prodan , is a Moldovan national, born in 1924 and living in Chişinău, Moldova. She is represented before the Court by Mr V. Nagacevschi , a lawyer practising in Chişinău . The respondent Government are represented by their Agent, Mr V. Pârlog , Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In June 1946 the house owned by the applicant’s parents was nationalised by the communist regime. The applicants’ parents were deported to Siberia in 1949.

In 1997 the applicant lodged with the Chişinău District Court an action by which she sought the restitution of the house nationalised from her parents. She also sought to declare null and void the contracts of sale by which certain tenants purchased the flats in the house and to evict all the tenants, including those who had not purchased their flats.

On 14 March 1997 the District Court ordered the return to the applicant of the house which she inherited from her parents and declared  null and void the contracts by which the flats composing the house had been sold out to the third parties. The court further ordered the Municipal Council to evict all the tenants, including those who had not purchased their flats, and indicated that the State was responsible for providing alternative accommodation.

The Municipal Council and flat owners lodged with the Chişinău Regional Court an appeal against the decision of the District Court. On 17 October 1997 the Regional Court allowed the appeal and quashed the decision of the District Court.

In 1997 the applicant lodged an appeal in cassation against the decision of the Regional Court. On 31 March 1998 the Chişinău Court of Appeal in its final decision rejected the appeal and upheld the decision of the Regional Court.

On 10 August 1998 the General Prosecutor’s Office lodged with the Supreme Court of Justice, in the applicant’s interest, an appeal for annulment seeking to quash the decisions of the Regional Court of 17 October 1997 and of the Court of Appeal of 31 March 1998, and to uphold the decision of the District Court of 14 March 1997.

On 19 August 1998 the Supreme Court quashed the decisions of the Regional Court and of the Court of Appeal, and upheld the decision of the District Court on the ground that the quashed decisions had contravened to the Law on the rehabilitation of victims of political repression.

On 19 November 1998 the Municipal Council adopted the decision concerning the restitution of immovable property to citizens restored in their property rights. The decision inter alia provided that following the entering into force of the Law no. 1225-XII on the rehabilitation of victims of political repression of 8 September 1992, the Municipal Council had not been granted necessary funds and therefore it had no available alternative accommodation for persons evicted from the restored premises. The decision also provided that the Municipal Commission for rehabilitation had been empowered to propose that the enforcement of certain judgments be suspended until the resolution of the situation concerning the alternative accommodation for evicted persons.

In 1998 the applicant complained to the Municipal Council about the non-enforcement of the judgment of 14 March 1997. In a letter of 14 January 1999, the Municipal Council informed the applicant that due to the lack of  funds for the construction of apartment-buildings and available alternative accommodation for evicted tenants, it could not enforce the judgment of 14 March 1997 prior to acquiring necessary funding or vacant premises becoming available.  In a letter of 24 March 1999, the Municipal Council informed the applicant that, from the date when the judgment of 14 March 1997 had become enforceable and the Chişinău Land Register had issued to her the ownership title to the house, the Municipal Council had ceased to be the owner or the lessor of the house and therefore could no longer be considered as being involved in the legal relationship between the applicant and the previous owners of the house.

In 1999 the applicant lodged with the Chişinău Land Register a request to issue her the ownership title to the entire house. In a letter of 15 September 1999, the Information Centre of the Land Register informed the applicant that it would issue the ownership title to the entire house only on the basis of the “act of delivery and receipt of the house” issued by the Municipal Council.

In October 1999 the applicant lodged with the Chişinău District Court an action seeking compensation by way of damages for the delay in enforcing the judgment of 14 March 1997. On 17 November 1999 the District Court rejected the action as unfounded. The applicant failed to lodge an appeal against this decision and it became final.

In 2000 the applicant lodged with the Chişinău District Court an action seeking to partially change the manner of enforcement of the judgment of 14 March 1997 by claiming an award of the estimated market value of the flats composing the house and the eviction of the tenants who had not purchased their flats.

On 7 February 2000 the District Court ordered that the experts of the Chişinău Land Register assess at the applicant’s expense the market value of the flats which had been purchased by their tenants.  In the same month, the applicant lodged with the District Court a request seeking that the assessment be carried out by independent real estate experts. On 24 February 2000 the District Court ordered that the assessment be carried out by independent real estate experts.

On 3 October 2000 the District Court decided to partially change the manner of enforcement of the judgment of 14 March 1997 and ordered the Municipal Council to award to the applicant the estimated market value of the flats in the amount of MDL 488,274. The court also ruled that all other provisions of the judgment of 14 March 1997 should be duly enforced.

The Municipal Council lodged with the Chişinău Regional Court an appeal against the above decision. On 10 January 2001 the Regional Court, in its final decision, rejected the appeal and upheld the decision of the District Court of Chişinău of 3 October 2000.

On an unspecified date in February 2001, a judge of the Chişinău District Court issued an enforcement warrant in respect of the judgment of 3 October 2000.

In 2001 the Mayor of Chişinău lodged with the General Prosecutor’s Office a request seeking that the Prosecutor General file an appeal for annulment against the judgment of 3 October 2000. In a letter of 21 March 2001, the General Prosecutor’s Office informed the mayor that an appeal for annulment had been lodged with the Supreme Court.

In 2001 the applicant was orally informed by a judge of the Chişinău District Court that the latter had failed to issue an enforcement warrant in respect of the judgment of 14 March 1997.

In 2001 the applicant complained at the Housing Division of the Municipal Council about the non-enforcement of the judgment of 14 March 1997 insofar as it concerned the eviction of the tenants from the flat which had not been sold to them. In a letter of 26 March 2001, the Municipal Council informed the applicant that due to the lack of funds for the construction of apartment-buildings and available alternative accommodation for the evicted tenants, it could not enforce the judgment of 14 March 1997.

On 10 April 2001 the Chişinău District Court rejected the Municipal Council’s request seeking to suspend the enforcement of the judgment of the District Court of 3 October 2000. On 19 June 2001 the Chişinău Regional Court, in its final decision, rejected the vice-mayor’s appeal against the above decision.

On 12 September 2001 the Supreme Court dismissed the appeal for annulment lodged by the General Prosecutor’s Office and upheld by the Municipal Council against the judgments of 3 October 2000 and 10 January 2001 respectively.

The applicant lodged a fresh complaint with the Municipal Council about the non-enforcement of the judgments of 14 March 1997 and 3 October 2000 respectively. In a letter of 23 October 2001, the Municipal Council informed the applicant that due to the lack of funds and available alternative accommodation for the evicted tenants, it could not enforce the judgment of 14 March 1997. As regards the enforcement of the judgment of 3 October 2000, the bailiff orally informed the applicant that she had forwarded the payment order to the bank operating the relevant account of the Municipal Council.

On 9 November 2001 the applicant informed the Court that neither the judgment of 14 March 1997 nor the judgment of 3 October 2000 had been enforced to that date.

B. Relevant domestic law

The relevant provisions of the Law no. 1225-XII on the rehabilitation of victims of political repression of 8 September 1992 (as amended by the Law no. 295-XII of 23 November 1994 concerning the amendments and additions to the Law no. 1225-XII of 8 September 1992) read as follows:

“Article 12. Restitution of property to persons who were subject to repression

(1) The citizens of the Republic of Moldova, who had been subject to political repression and subsequently rehabilitated, shall be returned, at their request or at the request of their heirs, the property which had been confiscated, nationalised or taken away from them in a different manner.

(...)

(5) The acts of sale-purchase or transfer in a different manner of the houses, buildings or other constructions and goods confiscated, nationalised or taken away from the persons who were victims of repression, which had been concluded after their rehabilitation, can be declared null through the courts following a request lodged by victims of repression or  their heirs.”

In 1998 a new paragraph was added to the above Article through the Law no. 84-XIV of 8 July 1998, which reads as follows:

“(6) The persons to be evicted from the restituted houses shall be provided at their eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention, that by non-enforcement of the judgments of 14 March 1997 and 3 October 2000 respectively, her right to have her civil rights determined by a court was violated.

2. The applicant also complains that because of the non-enforcement of the judgments of 14 March 1997 and 3 October 2000 respectively, she was unable to enjoy her possessions, and thus her right to protection of property under Article 1 of Protocol No. 1 to the Convention was violated.

THE LAW

The applicant complains under Articles 6 § 1 and 1 of Protocol No. 1 to the Convention about the non-enforcement of two final judgments ordering the eviction of tenants from the flat which was returned to her and awarding of the market value of other flats.

The Court notes that the application has been communicated to the Moldovan Government who have been invited to submit observations on the admissibility and merits of the application. The Government have not requested for an extension of time for submitting observations and have not submitted any observations.

The Court recalls case-law according to which the parties must be invited to participate in the examination of the facts by the Court, though such an examination cannot be hindered by the manner in which the parties in fact participate (see, mutatis mutandis , Glavno Myuftiistvo (Chief Mufti Office), Fikri Hasan , Fehmi Syuleiman , and Ismail Chaush v. Bulgaria , no. 30985/96, Commission decision of 8 September 1997, unreported). The fact the Government have failed to submit observations will not prevent the Court from examining the admissibility of the application.

The Court considers, in the light of the elements in the case file, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudicing the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President