FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19967/02 
by BISERICA SFANTUL HARALAMBIE and Others 
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 30 November 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 
Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 27 April 2002,

Having deliberated, decides as follows:

THE FACTS

Biserica Sfantul Haralambie (Saint Haralambie Church, hereinafter “the applicant church”), is a church registered in Moldova. The second, third, fourth and fifth applicants (Mr Mihail Gondiu, Mr Arcadie Bulban, Mr Dumitru David, Mr Dumitru Croitoru) are Moldovan nationals, were born in 1959, 1931, 1947 and 1948, respectively and they live in Chisinau. All applicants are represented before the Court by Mr A. Guzun, a lawyer practising in Chisinau.

A.  The circumstances of the case

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

By a decision of 1995, the Government decided to return to the applicant church a church building together with three auxiliary buildings and to repair the church. The restitution and repair was to be carried out within five years of the decision. However, the authorities only partly complied: the church was returned but not repaired and none of the auxiliary houses were returned.

In 2001 the applicant church addressed the State Agency for Cults which, in turn, requested the Government to comply with their decision. There was no response so the applicant church took proceedings in the Court of Appeal. On 24 August 2001 that court rejected the action because they had failed to attempt to resolve the issue by addressing the Government directly. The applicant church appealed to the Supreme Court of Justice claiming that it had not been properly summoned to the hearing (so it was not represented there) and that the Court of Appeal had missed the three-day deadline for summarily rejecting its application but nevertheless decided on the admissibility of the claim without giving it the opportunity to modify its application or present supporting documents or arguments. On 31 October 2001 the Supreme Court of Justice held a hearing at which the applicant was present and rejected its appeal.

The applicant church then addressed the Government directly. The latter responded that implementation of the 1995 decision was the responsibility of the municipality.

The applicant church then took a new action against the Government in the Court of Appeal. On 17 July 2002 that court found that it was not competent but that the first instance ordinary courts were: the complaint was not about the 1995 decision itself but rather about the action and inaction of the authorities implementing it. The applicant church was not represented at the hearing because, it claims, it was not properly summoned. On 30 October 2002 the Supreme Court of Justice rejected the applicant church's appeal. The applicant was represented at the Supreme Court hearing.

The applicant church did not initiate further proceedings.

B.  Relevant domestic law

The relevant provisions of the Code of Civil Procedure in force at the relevant time read as follows:

“Article 28/2:

The Court of Appeal:

1) judges as a first instance court proceedings against actions of the authorities of the central public administration and of their officials done in violation of the law or in excess of competence and which violate the rights of citizens;

...

Article 131: Acceptance for examination and refusal to examine civil law suits

The judge determines whether a civil action is to be accepted for examination.

The judge shall refuse to receive an action:

...

2) if the interested person who filed the action did not complete the pre-trial settlement procedure through the use of extra-judicial means or the procedure established by law for the particular type of action;

...

7) if the court is not competent to examine the case;

...

Article 313: Powers of the court of appeal

The court of appeal has the power:

1) to reject the appeal and maintain the judgment, finding or decision; or

2) to accept the appeal.

...”

The relevant provisions of the Law on Administrative Justice in force at the relevant time read:

“Article 3: The object of an action in administrative law

...

(2) The failure to resolve, within the period prescribed by law, a query regarding a right recognised by law may itself constitute the object of an action in administrative law.

...”

COMPLAINTS

1. The applicants complain under Article 6 § 1 of a violation of the right of access to justice as the courts refused to hear the case. They also took issue under this Article with certain procedural decisions (hearing the case in the absence of the applicant church, missing the summary examination deadline and failing to allow the applicant church the opportunity to correct any shortcomings in its application or to make further submissions).

2. They also complain under Article 1 of Protocol 1 about the failure to return the auxiliary houses and to repair the church.

3. Finally, they complain under Article 13 that they had no effective remedy because the Court of Appeal refused to examine the case before it.

THE LAW

1. The applicant church complains under Article 6 § 1 about the “refusal” of the domestic courts to examine the merits of its case and about certain procedural shortcomings in those proceedings. This Article, insofar as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”.

The Court recalls that Article 6 does not, as a general rule, apply to interim procedural decisions by domestic courts and that this is particularly true when such determinations are not “decisive” for the applicant's rights and obligations (see, a contrario, Markass Car Hire Ltd v. Cyprus (dec.), no. 51591/99, 23 October 2001 and the Commission case law cited there).

In the present case, the proceedings dealt exclusively with admissibility issues. The Court of Appeal's conclusion that it was not competent did not prevent the applicant church from lodging the same complaint in an ordinary first instance court as was, indeed, explained to it by the Court of Appeal and the Supreme Court of Justice. The alleged “refusal to examine” amounted therefore to an interim procedural decision on competence which had no bearing on, and posed no obstacle to, any later pursuit before an appropriate court of the substantive claim of the applicant church.

It follows that Article 6 § 1 was not applicable to these proceedings. The applicant church's complaint under this provision is thus incompatible ratione materiae within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

2. The applicant church also claims that its rights guaranteed by Article 1 of Protocol No. 1 were violated because it was prevented from proving in court its right over three houses and its right to have its church repaired. Article 1 of Protocol No. 1, insofar as relevant, provides 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.”

However, and as noted at 1. above and as advised by the Court of Appeal and by the Supreme Court of Justice, the applicant church could have but did not initiate proceedings in the ordinary first instance courts as regards the failure to return the auxiliary houses or to repair the church. It follows that this complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicant church also complains under Article 13 in conjunction with Article 6 of the Convention arguing that had no effective domestic remedy in respect of the refusal of the domestic courts to hear its case. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an “arguable claim” of a violation of the Convention (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no.131, § 52).

The Court has found the applicant's complaint under Article 6 to be inadmissible. Accordingly, the applicant had no “arguable claim” of a violation of that Article and the applicant cannot derive from Article 13 a right to a remedy in respect of the alleged violation. It follows that this part of the application must also be declared inadmissible in accordance with Article 35 § 4 of the Convention.

4. The second, third, fourth and fifth applicants make the same complaints under Articles 6 § 1, Article 1 of Protocol 1 and Article 13 in conjunction with Article 6 § 1 of the Convention. Even if these applicants can be considered to have a claim or interest in the auxiliary houses or in the repair of the church separate to that of the applicant church, they did not attempt to settle this matter with the Government nor thereafter did they bring any remaining claim before an ordinary first instance court. All complaints of these four applicants must therefore be rejected for a failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

BISERICA SFANTUL HARALAMBIE AND OTHERS v. MOLDOVA DECISION


BISERICA SFANTUL HARALAMBIE AND OTHERS v. MOLDOVA DECISION