SECOND SECTION

CASE OF MELNIC v. THE REPUBLIC OF MOLDOVA

( Application no. 46351/08 )

JUDGMENT

STRASBOURG

2 July 2019

This judgment is final but it may be subject to editorial revision.

In the case of Melnic v. the Republic of Moldova ,

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

Egidijus Kūris , President, Valeriu Griţco , Darian Pavli, judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 11 June 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46351/08) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Ana Melnic (“the applicant”), on 6 September 2008.

2. The applicant was represented by Mr S. Demian , a lawyer practising in Chișinău . The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr L. Apostol.

3. On 26 May 2011 notice of the application was given to the Government .

THE FACTS

4. The applicant was born in 1937 and lives in Orhei .

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

6 . On 16 January 1997 the Orhei mayor ’ s office attested the property right of a number of private individuals over plots of land in the town. Based on that decision, on 3 April 1997 the same office issued the applicant ’ s brother (C.) title to 0.0569 hectares of land.

7. On 13 July 1998 C. died. After his death the applicant took possession of the land and used continuously for her own needs.

8. On 10 September 1999 the territorial cadastre office registered the plot of land as belonging to C.

9. On 31 January 2000 the Orhei mayor ’ s office amended the annex to its decision of 16 January 1997. C. continued to be mentioned as the owner of the relevant plot of land.

10. On 15 July 2005 the Orhei mayor ’ s office lodged a civil court action aimed at annulling the property right of C. and the applicant to the relevant land. It claimed that the title had been issued in error since C. had moved to an apartment provided by the town and was no longer eligible to obtain such land. Following this relocation, the cadastre office was supposed to remove C. ’ s title from the list, which it had failed to do. In the meantime, on an unspecified date the applicant initiated a court action aimed at extending the time-limit for accepting her brother ’ s inheritance. The two court actions were joined by the court on 6 November 2006.

11 . On 15 February 2017 the Orhei district court rejected the court action lodged by the mayor ’ s office and accepted that of the applicant. It noted, inter alia , that the applicant had raised the issue of expiry of the three-year limitation period and added that under Article 78 of the old Civil Code (see paragraph 15 below), the court had to apply the rules concerning the limitation period regardless of the parties ’ arguments. It found that the mayor ’ s office had missed the three-year limitation period. However, in the operative part the court omitted to refer to the expiry of the limitation period and found that the court action had been groundless. The court also accepted the applicant ’ s action, extending the time-limit for accepting her brother ’ s inheritance since she had taken possession of the relevant land immediately after his death.

12. On 4 October 2007 the Chișinău Court of Appeal overturned that judgment, accepting the appeal lodged by the mayor ’ s office. It annulled C. ’ s title to the relevant land, finding that he had obtained it in error and that under the applicable law he could not be the owner of that land. Moreover, the court rejected the applicant ’ s claim for extending the time-limit for accepting her brother ’ s inheritance, finding that she had missed it without a valid reason.

13. On 12 March 2008 the Supreme Court of Justice upheld the judgment of the Chișinău Court of Appeal.

14. The applicant submitted documents showing that she had paid various taxes for the land in question over the years.

15 . The relevant provisions of the Civil Code (1964, in force before 12 June 2003) reads as follows:

“Article 74. General limitation periods.

The general limitation period for defending, by a court action, against the breach of a person ’ s rights ( prescripția ) is of three years ...”

“Article 78. Mandatory application of the limitation period.

The competent court ... shall apply the limitation period regardless of the parties ’ request.”

“Article 581. Acceptance of inheritance.

In order to inherit, the heir must accept the inheritance. ...

It shall be considered that the heir has accepted the inheritance if he/she took actual possession or administration of inheritance assets ...”

16 . The relevant provisions of the Civil Code (in force from 12 June 2003) read as follows:

“Article 7. Application of the civil law in time.

(1) The civil law has no retroactive effect. It does not modify and does not annul the conditions of creation of a legal situation which previously appeared, nor the conditions of ending of a legal situation which previously ended.

...

(6) The provisions of the new law concerning limitation periods ... shall apply to limitation periods which started before the date of entry into force of the new law, but did not end before that date. ... The start, the suspension and the interruption of the limitation period shall be determined under the old law for the period before the entry into force of the new law.

...”

THE LAW

17. The applicant complained of a violation of Article 6 § 1 of the Convention as a result of the domestic courts ’ examination of the court action. The relevant part of Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

18 . The Government argued that the applicant had failed to exhaust available domestic remedies. In particular, she had not raised the issue of the limitation period in her appeal to the Court of Appeal. As a result, she was not entitled to raise this issue before the Supreme Court of Justice, which could not examine new claims or arguments. Moreover, while the first-instance court referred to the limitation period in the text of its judgment, it did not rely on it in the operative part. Since the applicant did not appeal against that judgment, she acquiesced to the non-application of the limitation period in her case. The higher courts could not examine ex officio the issue of the limitation period since that would mean exceeding the parties ’ arguments.

19 . The Court notes that the Orhei mayor ’ s office attested the property right of the applicant ’ s brother on 16 January 1997 and issued him title to the relevant land on 3 April 1997 (see paragraph 6 above). Subsequently, it took the view that these acts had been made in error.

20. The applicant referred to the expiry of the limitation period, which prevented the courts from accepting the case against her for examination. It is to be noted that since the interests of the mayor ’ s office were affected by its own decision of 16 January 1997, the limitation period for lodging a court action started from that date. This should mean in principle that any court action aimed at defending rights and interests affected by that decision must have been lodged not later than 16 January 2000.

21. Article 7 of the Civil Code provides that civil law does not have retroactive effect. Specifically in respect of limitation periods, the same Article provides that the new law applies only when a limitation period has not yet expired at the date of the entry into force of that new law (see paragraph 16 above). The limitation period is a rule provided for in the Civil Code. Therefore, since the Civil Code entered into force on 12 June 2003, and the three-year limitation period in the applicant ’ s case ended on 16 January 2000, the old Civil Code applied. This was confirmed by the first-instance court in the present case (see paragraph 11 above) and not disputed by the higher courts.

22. Under Article 78 of the old Civil Code, applying the limitation period was mandatory for the courts, regardless of the parties ’ position (see paragraph 15 above), as confirmed by the first-instance court in the present case (see paragraph 11 above). Accordingly, regardless of whether or not the applicant had raised the issue of the expiry of the limitation period before the Chișinău Court of Appeal and the Supreme Court of Justice, those courts had to verify observance of the limitation period ex officio .

23. The Court concludes that it cannot be said that the applicant ’ s failure to raise the issue again in her appeal to the Court of Appeal after having done so before the first-instance court deprived the domestic courts of the possibility to take that issue into consideration in order to prevent or correct the alleged breach of Article 6 § 1 of the Convention. The same holds for the applicant ’ s failure to appeal against the first-instance court ’ s judgment, which did not rely in the operative part on the limitation period. Regardless of the grounds for which that court adopted its judgment, under Article 78 of the old Civil Code the higher courts had to verify compliance with the limitation period.

24 . Accordingly, the Government ’ s objection must be rejected.

25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

26. The applicant claimed that Article 6 § 1 had been breached by the domestic courts ’ acceptance for examination of a court action lodged after the expiry of the three-year limitation period.

27. The Government considered that in the light of their argument concerning the appliant ’ s failure to exhaust domestic remedies there was no need to submit any arguments concerning the merits of this complaint.

28 . The Court reiterates that the observance of admissibility requirements for carrying out procedural acts is an important aspect of the right to a fair trial. The role played by limitation periods is of major importance when interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII, RoÅŸca v. Moldova , no. 6267/02, § 24, 22 March 2005, and Dacia S.R.L. v. Moldova , no. 3052/04, § 75, 18 March 2008).

29 . It also recalls that it is not for this Court to question under Article 6 of the Convention whether the domestic courts ’ interpretation of the limitation period was appropriate, since that would effectively involve substituting its own views for those of the domestic courts as to the proper interpretation and content of domestic law (see, mutatis mutandis , Z and Others v. the United Kingdom [GC], no. 29392/95, § 101, ECHR 2001 ‑ V, and Orlen Lietuva Ltd. v. Lithuania , no. 45849/13 , § 90, 29 January 2019).

30. The Court notes that, under Article 78 of the old Civil Code, the courts of all levels were to verify ex officio whether the limitation period prevented the examination of the case against the applicant. Moreover, it cannot be said that the courts were unaware of the issue since the applicant had clearly raised it before the first-instance court, which had confirmed her argument (see paragraph 11 above).

31. In such circumstances, it was primarily for the domestic courts to interpret the manner in which the limitation period invoked by the applicant applied in her case (see paragraph 29 above). However, while reversing the lower court ’ s decision, the higher courts remained entirely silent in this respect.

32. In the absence of a specific and express reply, it is impossible to ascertain whether these courts simply neglected to deal with the submission that the action was out of time or whether they intended to dismiss it and, if that was their intention, what their reasons were for so deciding (see Ruiz Torija , cited above, § 30; Hiro Balani v. Spain , 9 December 1994, § 28, Series A no. 303 ‑ B; Lebedinschi v. the Republic of Moldova , no. 41971/11, § 35, 16 June 2015, and Nichifor v. the Republic of Moldova , no. 52205/10, § 30, 20 September 2016).

33 . In the light of the above, the Court concludes that the proceedings were not fair and that, accordingly, there ha s been a violation of Article 6 § 1 of the Convention.

34. In view of the finding in the preceding paragraphs that the domestic courts did not give sufficient reasons for examining the case against the applicant despite the alleged expiry of the limitation period, the Court finds it unnecessary to examine other aspects of the complaint under Article 6.

35. The applicant complained of a violation of her property right as a result of losing ownership over the relevant plot of land. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

37. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

38. The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. She referred to her age (77 at the time of making her observations) and the suffering caused to her, a person with the 2 nd degree of invalidity, as a result of the unlawful actions of the authorities.

39. The Government considered that no compensation was due to the applicant and that in any event the sum claimed was excessive.

40. The Court does not discern any causal link between the violation of Article 6 § 1 which it has found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 1,500 in respect of non-pecuniary damage.

41. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court.

42. The Government noted the manner of calculating the costs and expenses claimed by the applicant, but did not express an opinion.

43. Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads for the proceedings before the Court.

44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant , within three months the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 2 July 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus KÅ«ris Deputy Registrar President