SECOND SECTION

DECISION

Application no . 17891/08 FUNDAÈšIA PENTRU COPII SPERANÈšA against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 17 October 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 6 April 2008,

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, Fundația pentru Copii “ Speranța ” (“the Foundation”), is a Moldovan non-governmental organisation based in Chişinău . It was represented before the Court by Mr Nicolae Leşan , a lawyer practising in Chişinău .

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

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

The Foundation is a charitable organisation for children, which was created in 1994.

On 27 June 2000 the Chişinău Municipality allowed the use by the Foundation of a plot of land of 0.92 hectares for the purpose of building an amusement park for children and a racetrack for carting.

On 30 June 2004 the applicant applied to the Municipal Council for permission to buy the land under construction and, by a decision of 30 December 2004, the Municipal Council accepted to sell. On 20 January 2005 the applicant Foundation bought the land from the Municipal Council.

On 2 February 2006 the General Prosecutor ’ s Office instituted civil proceedings on behalf of the Government against the Chişinău Municipal Council and the applicant Foundation, challenging the validity of the Municipality ’ s decision of 27 June 2000, the Municipal Council ’ s decision of 30 December 2004 and that of the contract of sale of 20 January 2005. According to the Prosecutor ’ s Office, the above acts were illegal because the Law on Foundations did not provide for a right for foundations to receive plots of land free of charge. Moreover, it was for the Municipal Council to dispose of the land, not the Municipality which adopted the decision of 27 June 2000. The sale of the land on 20 January 2005 was also illegal because, according to the law, only land which had previously been leased could be sold and only by a tender.

On 22 May 2006 the Appeal Chamber of the Commercial Court dismissed the Prosecutor General ’ s action.

On 2 November 2006 a panel of the Supreme Court composed of Judges I.M., N.C. and V.B. examined the merits of the appeal, upheld it and ordered a re-examination of the case by the Court of Appeal.

On 1 March 2007 the Appeal Chamber of the Commercial Court confirmed that the land in question was the property of the Municipality before the sale and dismissed the Prosecutor General ’ s action on the same grounds as those relied upon in the judgment of 22 May 2006. The Prosecutor ’ s Office appealed.

On 11 October 2007 a panel of the Supreme Court composed of Judges N.M., N.C. and I.V. held a hearing in the case. The applicant Foundation argued, inter alia , that the Prosecutor General ’ s Office did not have standing to lodge the action.

The Supreme Court dismissed the applicant Foundation ’ s objections arguing that, contrary to the law, the Municipality had failed to organise a tender first in 2000 and later in 2005. The Supreme Court declared null and void the Municipality ’ s decision of 27 June 2000, the decision of the Chişinău Municipal Council of 30 December 2004 and the contract of sale of 20 January 2005.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the proceedings had been unfair because the Supreme Court had not been impartial since judge N.C. participated twice in the proceedings. Furthermore, the Supreme Court failed to give reasons for its judgment and to involve the Chişinău Municipal Council in the proceedings. Moreover, the Prosecutor ’ s Office did not have the right to institute proceedings on behalf of the Government because the land in question belonged to the local government and, accordingly, only the Local Government could be plaintiff.

The applicant further complained under Article 1 of Protocol No. 1 to the Convention that the interference with its right of property was unlawful and disproportionate.

THE LAW

The applicant complained that the proceedings in question had not been fair and that his rights under Articles 6 § 1 and Article 1 of Protocol 1 to the Convention had been breached. The relevant Articles provide, in so far as relevant, as follows:

Article 6 § 1:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time.”

Article 1 of Protocol 1 :

“1. 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 Government argued that the proceedings had been fair and that there had been no breach of the applicant ’ s right to respect for its goods.

The applicant submitted that the judgment given by the Supreme Court of Justice was not compliant with the domestic law and in breach of its Convention rights.

The Court notes that the applicant complained about the lack of independence of a judge from the Supreme Court because he had participated twice in the examination of his case. While it is true that the same judge (N.C.) from the Supreme Court of Justice participated twice in the examination of two appeals on points of law in the same case, it does not appear that any objection relating to that problem was raised during the proceedings by the applicant and that there is no indication that the applicant was hindered to do so. It shall be not open to a party to litigation to await the outcome of a case and, when he or she loses, to claim ex post facto that the judges which decided the case were not sufficiently independent.

The Court further notes that the applicant criticised the manner in which the Supreme Court of Justice reasoned its decision and argued that the prosecutor should not have had standing as a party in the proceedings. The Court notes that the Supreme Court interpreted the domestic law, and held that the prosecutor could challenge the transaction on behalf of the State and that the land in question could not be attributed to the applicant Foundation without a tender. The Court recalls that the interpretation and application of domestic law and the assessment of the facts and evidence in a case are generally matters that fall within the exclusive competence of the domestic courts (see Garcia Ruiz v. Spain (GC) no. 30544/96, § 28 ECHR 1999 ‑ I). In this case, it cannot be said that the national courts ’ decisions were arbitrary or manifestly unjust or unfounded, such as to give rise to a violation of Article 6.

In the light of the above, the Court finds the complaint under Article 6 § 1 of the Convention to be manifestly ill-founded and rejects it under Article 35 §§ 3 and 4 of the Convention.

In view of its finding in respect of Article 6, the Court does not consider it necessary to examine the complaint under Article 1 of Protocol No. 1 to the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 November 2017 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President