SECOND SECTION

DECISION

Application no. 11666/13 Tatiana AGHENIE and Others against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 19 October 2021 as a Chamber composed of:

Jon Fridrik Kjølbro, President, Carlo Ranzoni, Valeriu Griţco, Egidijus Kūris, Branko Lubarda, Pauliine Koskelo, Marko Bošnjak, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 19 January 2013,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Tatiana Aghenie, Mr Mihail Aghenie, Mr Nicolae Bolea, Mr Gheorghe Gavriliță and Mr Constantin Malai are Moldovan nationals who were born in 1959, 1939, 1957, 1960 and 1951, respectively, and who live in Sadova. They are represented before the Court by Mr I. Dodon, a lawyer practising in Chişinău.

2. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr L. Apostol, and then by Mr O. Rotari.

3. On 8 April 2010 the applicants applied to the Călărași District Court in accordance with the procedure concerning non-contentious proceedings, seeking a judgment recognising a fact which has legal value, namely their right of property over two aqueducts from their village.

4. By a judgment dated 20 May 2010, the Călărași District Court ruled that the aqueducts in question were part of immovable property previously privatised by the applicants. The judgment stated that it could be challenged before the Chișinău Court of Appeal within twenty days.

5. On an unspecified date in June 2010 the Sadova Local Council lodged an appeal against the above judgment arguing, inter alia , that the aqueducts in question were part of the village’s infrastructure providing the water supply to some public institutions such as the school, the kindergarten, the musical school and others and were thus public property. It also argued that it had wrongly not been involved in the proceedings. However, the appeal was rejected by the Chișinău Court of Appeal on 26 October 2010 on the ground that only participants in the proceedings had the right to lodge an appeal.

6. The local council’s appeal on points of law was dismissed by the Supreme Court of Justice on 11 May 2011 on the same grounds.

7. On 17 June 2011 the Sadova Local Council lodged a review request against the judgment of 20 May 2010, seeking its annulment. The local council argued inter alia that it had wrongly not been involved in the proceedings concerning the right over property which was in the public domain and that, because of that, it had not been able to present important documents to the court.

8. On 29 May 2012 the Călărași District Court upheld the review request and quashed the judgment of 20 May 2010, ordering the reopening of the proceedings. The main grounds for upholding the review request was the fact that the local council had not been involved in the proceedings and that newly obtained information which could not have been presented during the proceedings had become available. In so far as the three months’ deadline to lodge the review request was concerned, the court considered that it had not been missed by the local council. It found that the local council had challenged the judgment of 20 May 2010 as soon as it had found out about it, although not with a review request but with an appeal. The fact that it had used the wrong format for challenging the impugned court judgment could not be equated to a failure to comply with the statutory time-limit. The decision stated that it could not be challenged separately, but only together with the judgment on the merits.

9. On 6 June 2012 the same court examined the applicants’ claim and decided to strike the action out of its list of cases because the case was to be examined in contentious proceedings and not in special non ‑ contentious proceedings as done by the CălăraÈ™i District Court on 20 May 2010.

10. The applicants lodged an appeal on points of law against the decisions of 29 May and 6 June 2012 and argued inter alia that the review was abusive and that the review request had been lodged out of time.

11. On 19 September 2012 the Chișinău Court of Appeal dismissed the applicants’ appeal on points of law.

12. According to Article 166 (6) of the Code of Civil Procedure, an application to challenge a court decision shall be considered to be valid even if it bears a wrong name.

13. According to Article 279 of the Code of Civil Procedure, cases concerning such issues as authorisation of adoption, recognition of facts which have legal value, declaring a person disappeared or dead and others shall be examined in a special non-contentious procedure. According to Article 280 of the same Code, if the judge responsible for the examination of such a case considers that the case is of a contentious nature, he or she must strike it out of the list of cases and explain to the applicant that he or she has to lodge a normal civil action in accordance with the procedure concerning contentious cases.

14. According to Article 447 (b) of the Code of Civil Procedure, persons who have not been involved in the proceedings but whose rights were affected by them have the right to seek the review of a final judgment.

15. According to Article 449 (b) of the Code of Civil Procedure, a reason to seek the review of a final judgment is when new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier. Under Article 449 (c) another reason to seek the review of a final judgment is when that judgment concerns rights of persons who had not been involved in the proceedings.

16. According to Article 450 of the Code of Civil Procedure, an application for review must be lodged within three months from the date when the circumstances relied upon had become known to the person seeking the review.

THE LAW

17. The applicants complained that the quashing of the judgment of 20 May 2010 in their favour had infringed their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The relevant parts of the above Articles read as follows:

Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

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

Article 1 of Protocol No. 1 to the Convention 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.”

18. The Government submitted that the principle of legal certainty is not absolute and that it does not presuppose restrictions on the domestic courts’ power of review and correction of judicial errors and miscarriages of justice. In the Government’s opinion the judgment of 20 May 2010 amounted to a judicial error since the aqueducts were by law public property and could not be transmitted into private hands.

19. The Court notes from the outset that the judgment of 20 May 2010 was adopted in proceedings which were non-contentious. However, the Court does not consider it necessary to examine whether Article 6 is applicable in the present case given that it is inadmissible for the reasons set out below.

20. The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be 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. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95 , § 61, ECHR 1999 ‑ VII; RoÅŸca v. Moldova , no. 6267/02 , § 24, 22 March 2005).

21. Legal certainty presupposes respect for the principle of res judicata , that is the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re ‑ examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character ( RoÅŸca v. Moldova , cited above, § 25).

22. Turning to the facts of the present case, the Court notes that, in spite of being a disputed matter, the right of property over the impugned aqueducts was determined in a special procedure provided for by Article 279 of the Code of Civil Procedure, without the involvement of the local council. The local council’s interest in seeking the review of that judgment appears therefore to be obvious. However, the main issue to be determined here is whether the local council’s review application was lodged within the statutory three months’ time-limit provided for by Article 450 of the Code of Civil Procedure. In this respect it is to be noted that the local council lodged its review application only in June 2011, that is approximately twelve months after the judgment of 20 May 2010 had become final. Despite that, when accepting the review request, the Călărași District Court ruled that the time-limit had not been missed because the initial appeal lodged by the local council in June 2010 should have been treated as a review application.

23. The Court recalls that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts. Rather, its role is to ensure that the decisions of those courts are not arbitrary or otherwise manifestly unreasonable ( Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I).

24. Having regard to the circumstances of the case at hand, the Court is prepared to accept that the manner in which the CălăraÈ™i District Court applied the provisions of the Code of Civil Procedure concerning the application for review and the calculation of the time-limit to lodge it do not appear to be arbitrary or manifestly unreasonable. It is to be noted in this respect that the local council adduced similar reasons both in its appeal and in its application for review. Therefore, the quashing of the judgment of 20 May 2010 was not in breach of the principle of legal certainty in the circumstances of the case and this complaint is manifestly ill ‑ founded under Article 35 §§ 3 and 4 of the Convention.

25. In so far as the complaint under Article 1 of Protocol No. 1 to the Convention is concerned, the Court recalls that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX). “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets” (ibid.). Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see Kopecký , cited above, §§ 49 and 52, and Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301-B).

26. Turning to the facts of the present case, the Court considers that the judgment in the non-contentious proceedings, in view of the fact that it had not finally determined the merits of the case, cannot be regarded as sufficiently established to be enforceable. Consequently, the applicants’ claim did not have a sufficient basis in domestic law to constitute a “possession” within the meaning of Article 1 of Protocol No. 1. The applicants only had a possibility of acquiring possession of the aqueducts in the future, if successful in the civil proceedings. In this respect, the Court recalls that the possibility of acquiring possessions in the future is not protected by Article 1 of Protocol No. 1 to the Convention ( Marckx v. Belgium , 13 June 1979, § 50, Series A no. 31). Thus, the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3(a).

27. These complaints are therefore inadmissible within the meaning of 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 18 November 2021.

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Hasan Bakırcı Jon Fridrik Kjølbro Deputy Registrar President