SECOND SECTION

DECISION

Application no. 11735/09 Claudia CORNEI against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 21 November 2017 as a Committee composed of:

Ledi Bianku, President, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 12 February 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Claudia Cornei, is a Moldovan national, who was born in 1953 and lives in Durlești. She was represented before the Court by Mr V. Pruteanu, a lawyer practising in Chisinau.

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

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

On 31 January 2006 the applicant ’ s husband sold to B., without her consent, a plot of land measuring 50 square meters acquired during their marriage. The price of the transaction was USD 350. The applicant was abroad at the time and allegedly found out about it only when she returned and saw that B. had built a garage on the plot.

On 2 October 2007 the applicant brought an action in court against B., claiming the nullity of the sales contract, demolition of the garage and compensation for damages. The applicant argued, inter alia, that the plot of land constituted community property ( proprietate comună în devălmășie ), jointly owned by her husband and herself, as property acquired during marriage. She claimed that, according to the Article 21 of the Family Code, any transfer by one spouse of deed regard real estate, forming part of marital property, was null if concluded without the notarised consent of the other spouse.

B. submitted a counterclaim to obtain the court ’ s acknowledgement of the fact that he had acquired the property in good-faith because he did not know that the applicant was the co-owner of the disputed plot of land. He argued that the applicant and her husband wanted more money for the plot of land and therefore one of them initiated the court action. He therefore claimed protection of his title on the basis of Article 375 of the Civil Code which guara nteed the right to property to bona fide acquirers.

On 3 December 2008 the Supreme Court of Justice gave final ruling in the case dismissing the applicant ’ s action. The court found that, according to the law on cadaster, all immovable goods which were obtained during marriage must be indicated with both spouses as their owners. The court noted that for unknown reason, the cadaster indicated only the applicant ’ s husband as the sole owner of the plot in question. It was also established that, before the notary public, the applicant ’ s husband had signed a declaration according to which he was the only owner of the property. B. did not know about the applicant ’ s right of property and was therefore a good faith buyer. Moreover, after having acquired the plot, B. obtained a building permit and built a garage on it. The court gave weight to the fact that the applicant did not indicate her husband as a defendant in her action and the fact that she had waited for a long time before lodging her action.

COMPLAINTS

Without invoking any provision of the Convention, the applicant complained that the domestic courts ’ decisions were arbitrary. She further complained under Article 1 of Protocol No. 1 to the Convention that she was unable to recover her property owing to the arbitrary decisions which did not have a basis in domestic law.

THE LAW

The Government submitted that the applicant was married to her husband since 1975 and had a happy marriage. According to them, the applicant did not suffer any interference with the property right since the proceeds from the sale of the plot of land entered into their family budget.

The applicant disagreed and argued that, according to the domestic law, the husband could not sell the plot of land without her consent.

The Court recalls that it is the master of the characterisation to be given in law to the facts submitted to its examination (see Ioniță v. Romania , no. 81270/12, § 59, 10 January 2017). Therefore it will examine the applicant ’ s complaints from the standpoint of Article 6 of the Convention and Article 1 of Protocol No. 1.

The Court notes that, under Article 21 of the Family Code, the disputed plot of land could not normally be sold without the applicant ’ s consent. However, according to Article 375 of the Civil Code, B. qualified as a bona fide buyer, whose property right also enjoyed protection. Thus, the domestic courts had to strike a fair balance between the two interests involved, namely that of the applicant and that of B., who besides being a bona fide buyer, had completed the building of a garage on the disputed plot of land. In striking that balance, the national courts came to the conclusion that B. would bear a disproportionate burden if obliged to demolish his garage and return the disputed plot of land. The courts also noted that the applicant did not contest the manner in which the cadastre registered the disputed plot and, at the same time, found that the applicant ’ s husband was to blame for submitting false information in his declaration made before the notary public. The courts also took due note of the fact that the applicant did not lodge her action against her husband, who was responsible for the sale. Finally, the courts noted that there was no evidence to support the allegation that the applicant had not known about the transaction and that she had been against it.

In view of the above and after having examined the materials of the case file, the Court does not discern any signs of arbitrariness in the domestic court ’ s decisions (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999 ‑ I). The interference with the applicant ’ s right of property was in accordance with the domestic law, pursued a legitimate aim and struck a fair balance between the parties ’ competing interests. Moreover, it was open to the applicant to claim compensation from her husband and/or the cadastre. Accordingly, the Court concludes that the applicant ’ s complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention are manifestly ill-founded and rejects them under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 December 2017 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President