TANASIEVA proti Moldavsku

SECOND SECTION

DECISION

Application no. 11660/17
Ludmila TANASIEVA
against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 22 November 2022 as a Committee composed of:

Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 11660/17) 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”) on 20 January 2017 by a Moldovan national, Ms Ludmila Tanasieva (“the applicant”), who was born in 1961 and lives in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns dual proceedings concerning a stone wall constructed on public property without the requisite building permit, resulting in the applicant’s acquittal and subsequently in her obligation to demolish the unlawful construction. The applicant alleged that this infringed her right not to be tried twice for the same offence, provided for in Article 4 of Protocol No. 7 to the Convention, and constituted a breach of the principle of legal certainty contrary to Article 6 of the Convention.

2. Specifically, in 1998 the applicant inherited from her parents the use of a plot of land in the Chișinău municipality, a part of which was public property and was used without any entitlement.

3. On 4 May 2006 the administrative committee of the Chișinău municipality concluded that the applicant had unlawfully built a stone wall on public property contrary to Article 149 of the Code of Administrative Offences and ordered her to pay a fine of 54 Moldovan lei (equivalent to 3.30 euros). On 30 June 2006 the Buiucani District Court upheld with final effect an appeal by the applicant and terminated the proceedings, finding that the wall had been built by the applicant’s parents in 1991, which released the applicant from any administrative liability and also made any related proceedings statute‑barred.

4. From 2013 to 2017 the applicant unsuccessfully sought to privatise the entire plot of land, including the portion which was public.

5. On 11 May 2015 the Chișinău municipality ordered the applicant to demolish the stone wall and other unauthorised constructions on the part of the land that was public. The applicant appealed against that decision, arguing that she had already been acquitted on charges related to the unlawful constructions in 2006. On 17 December 2015 the Buiucani District Court dismissed the applicant’s appeal. It held that the principle of ne bis in idem was not applicable because the proceedings before it had been brought in order to protect public property from unlawful use, whereas in the previous set of proceedings the District Court had concluded that no administrative liability could be established. The finding of a lack of administrative liability had been made because it had not been the applicant who had erected the unlawful constructions and because the statutory time-limit in respect of administrative liability had already expired – but the court had not reached a conclusion as to the lawfulness of those constructions. The Buiucani District Court’s judgment was upheld with final effect by the Supreme Court of Justice on 27 July 2016.

6. The unlawful constructions were never demolished and in 2020 the applicant acquired ownership of the entire plot of land, including the disputed part.

THE COURT’S ASSESSMENT

7. The applicant complained that she had been tried twice for the same offence, in breach of Article 4 of Protocol No. 7 to the Convention, and that the existence of two judgments with opposite outcomes was in breach of Article 6 of the Convention.

8. The Government submitted that Article 4 of Protocol No. 7 to the Convention was not applicable to the applicant’s situation because the second set of proceedings had been “civil” in nature, since the demolition order had sought to protect public property but not to punish the applicant. The Government argued that the complaint under Article 6 was also inadmissible for the same reasons.

9. The applicant disagreed and submitted that the acquittal in the first set of proceedings had precluded any further civil or administrative proceedings.

10. The Court considers that the case falls to be examined under Article 4 of Protocol No. 7 alone. It reiterates that Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled (see A and B v. Norway ([GC], nos. 24130/11 and 29758/11, §§ 130-32, 15 November 2016). In particular, for the Court to be satisfied that there is no duplication of trial or punishment (bis) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question have been “sufficiently closely connected in substance and in time”. In other words, it must be shown that they have been combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected.

11. The Court notes that in the present case the two sets of proceedings concerned identical facts (unlawful constructions on public land) but had complementary purposes: the first set was concerned with “criminal” liability for the unlawful constructions, whereas the second set was concerned with removing the consequences of the unlawful conduct (by way of the demolition of the unlawful constructions), which cannot be equated to a “conviction”. While the proceedings took place nine years apart, it appears that during that time other proceedings were pending in respect of the applicant’s entitlement to use the disputed public land. During that entire time, it must have been foreseeable for the applicant that the constructions would be found to be unlawful and that she had no entitlement to use the disputed land. Lastly, while the second set of proceedings did not seek to punish the applicant, the domestic courts gave consideration to the outcome of the first set of proceedings and their conclusions cannot be considered arbitrary or unreasonable.

12. It follows that the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 December 2022.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President