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FOURTH
SECTION
CASE OF
VENERA-NORD-VEST BORTA A.G. v. MOLDOVA
(Application
no. 31535/03)
JUDGMENT
STRASBOURG
13
February 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Venera-Nord-Vest Borta A.G. v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31535/03) 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 16 June 2003 by Venera-Nord-Vest Borta A.G., a
company incorporated in Moldova (“the applicant”).
- The
applicant was represented before the Court by Mr Mihai Gheorghiţă,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr
Vitalie Pârlog.
- The
applicant alleged that its rights to a fair hearing and to the
peaceful enjoyment of its possessions had been breached as a result
of the quashing of a final judgment in its favour.
- On
25 June 2004 the Court communicated the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
- The
Government submitted two unilateral declarations and invited the
Court to strike out the application, in accordance with Article 37 of
the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
1 May 1999 the applicant concluded a contract with another private
company. According to the contract, the applicant would locate assets
belonging to the debtors of the second company in exchange for a
commission. Since the second company failed to comply with the
contract, the applicant brought an action against it seeking damages
for breach of the contract.
- On
8 May 2001 the Chişinău Economic Court found in favour of
the applicant and awarded it 244,939 Moldovan lei (MDL) (the
equivalent of 21,050.46 euros (EUR) at that time).
- On
30 January and 9 October 2002 the Economic Court of the Republic of
Moldova and the Supreme Court of Justice respectively dismissed the
second company’s appeals and upheld the judgment of the
first-instance court, which thus became final.
- On
24 December 2002 the Prosecutor General lodged with the Plenary of
the Supreme Court of Justice a request for annulment of the judgment
in favour of the applicant.
- On
27 January 2003 the Plenary of the Supreme Court of Justice upheld
the Prosecutor General’s request for annulment and quashed the
judgment. It adopted a new judgment dismissing the applicant’s
action.
- Following
the communication of the case by the Court, the Government Agent
asked the Prosecutor General to lodge a request with the Plenary of
the Supreme Court of Justice in order to quash its judgment of
27 January 2003 and to discontinue the request for annulment
proceedings. He considered that the quashing of a final judgment in
favour of the applicant following the annulment proceedings had
breached the applicant’s rights under the Convention.
- On
2 November 2004 the Prosecutor General complied with the
Government Agent’s request. He lodged a revision request
relying on section 449 § 1 (j) of the Code of Civil
Procedure (the “CCP”, see paragraph 16 below) and
indicated that the applicant and the Government intended to conclude
a friendly settlement agreement.
- By
a judgment of 21 February 2005 the Plenary of the Supreme
Court of Justice dismissed the Prosecutor’s request for
revision on the ground that the parties had not submitted any
evidence of the alleged friendly settlement.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law
- The relevant domestic law concerning the quashing of a
final judgment was set out in Roşca v. Moldova, no.
6267/02, § 16, 22 March 2005.
- The
Code of Civil Procedure of 12 June 2003, insofar as relevant, reads
as follows:
Section 449 Grounds for revision
Revision may be requested:
...
j) When the Government of the
Republic of Moldova, represented by the Government Agent, or the
European Court of Human Rights has started a procedure of friendly
settlement in a pending case against the Republic of Moldova, and the
Government consider that by a final decision of a court a fundamental
right guaranteed by the Constitution of the Republic of Moldova or by
the European Convention for the Protection of Human Rights and
Fundamental Freedoms has been breached.
k) When the European
Court of Human Rights has found a violation of fundamental
rights and liberties, as well as when it has found that the
interested person could obtain, in accordance with domestic law, at
least partial reparation by way of annulment of a judgment pronounced
by a domestic court.
B. Relevant domestic practice
- In
Ungureanu v. the Sângerei Local Council on 25 January
2006 the Supreme Court of Justice upheld the Prosecutor’s
request for revision lodged in accordance with section 449
§ 1 (j) following the Government’s Agent request. It
discontinued the annulment proceedings, acknowledged the violation of
the applicant’s rights under Article 6 § 1 of the
Convention and awarded her compensation in respect of pecuniary and
non-pecuniary damage and for costs and expenses.
- In
Dumitru Grosu v. the Ministry of Finance on 22 March 2006 the
Supreme Court of Justice upheld the Prosecutor’s request for
revision lodged on 6 May 2004 in accordance with section 449
§ 1 (j) following the Government’s Agent request. It
discontinued the annulment proceedings, acknowledged the violation of
the applicant’s rights under Article 6 § 1 and Article 1
of Protocol No. 1 to the Convention and awarded him compensation in
respect of pecuniary and non-pecuniary damage and for costs and
expenses.
- In
Enachi v. the Ministry of Finance on 15 March 2006 the Supreme
Court of Justice upheld the applicant’s action following the
re-opening of the proceedings upon the Prosecutor’s request for
revision lodged in accordance with section 449
§ 1 (j). It acknowledged the violation of the applicant’s
rights under Article 6 § 1 and Article 1 of Protocol No. 1 to
the Convention and awarded him compensation in respect of pecuniary
and non-pecuniary damage and for costs and expenses.
- In
The Ministry of Industry of the Republic of Moldova v. JSC
Hidromasina
on 29 June 2006 the Supreme Court of Justice dismissed the
Prosecutor’s request for revision lodged in accordance
with section 449 § 1 (j)
following the Government’s Agent request. It found that the
Government had failed to submit any evidence of the violation of the
applicant company’s rights under the Convention. The Supreme
Court also stated it could not re-open the case until the Court had
adopted a judgment on the merits of the case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained under Article
6 § 1 of the Convention about the quashing on 27 January 2003 of
a final judgment in its favour.
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 and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
- It
further complained that the judgment of the Plenary of the Supreme
Court of Justice of 27 January 2003 had had the effect of infringing
its right to the peaceful enjoyment of its possessions as secured by
Article 1 of Protocol No. 1, which provides:
“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, in their initial observations of 1 September 2005, denied
that there had been a violation of the applicant’s rights under
the Convention. However, in subsequent observations, including
unilateral observations (see paragraph 24 below), they admitted the
breach of the provisions of the Convention in respect of the
applicant.
II. THE GOVERNMENT’S REQUEST
TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- In
their additional observations of 7 December 2005 the Government
submitted a unilateral declaration similar to that in the case Tahsin
Acar v. Turkey ((preliminary objection) [GC], no.
26307/95, ECHR 2003 VI). They informed the Court that they were
ready to accept that there had been a violation of the applicant’s
rights under Article 6 § 1 and Article 1 of Protocol No. 1 to
the Convention as a result of the quashing of the final judgment in
its favour. In respect of pecuniary damage, the Government proposed
to reinstate the applicant in the position in which it had been prior
to the quashing of the judgment of the Supreme Court of
Justice of 9 October 2002,
by lodging a revision request with the Plenary of the Supreme Court
of Justice in accordance with section 449 (k) of CCP (see paragraph
16 above), after the Court had struck the application out of its list
of cases. In respect of non-pecuniary damage, the Government proposed
to award the applicant the equivalent in MDL of EUR 2,000. They also
proposed to award it EUR 300 in compensation for legal costs before
the Court.
- In
their second unilateral declaration of 28 March 2006 the Government
submitted that the applicant should seek compensation for the breach
of its rights under the Convention with the domestic courts. They
mentioned several cases in which the domestic courts had acknowledged
the breach of an applicant’s rights and had awarded substantial
amounts of compensation (see paragraphs 17-19 above).
- In
both unilateral declarations the Government invited the Court to
strike out the application in accordance with Article 37 of the
Convention.
- The
applicant did not object to a possible review of the judgment after a
strike-out decision of the Court. It stated, however, that even if
the judgment were to be revised so as to reinstate it in the position
prior to the quashing of the final judgment, it would still be
entitled to compensation for pecuniary damage arising from the
impossibility of using the money during the intervening period. The
applicant agreed with the amount of compensation for non-pecuniary
damage and considered that the costs and expenses should reflect the
time spent by the representative on the case.
- The
Court observes, as it has previously stated in Tahsin Acar (cited
above, § 74), that a distinction must be drawn between, on the
one hand, declarations made in the context of strictly confidential
friendly-settlement proceedings and, on the other, unilateral
declarations – such as the present declarations – made by
a respondent Government in public and adversarial proceedings before
the Court. In accordance with Article 38 § 2 of the Convention
and Rule 62 § 2 of the Rules of Court, the Court will proceed on
the basis of the Government’s unilateral declarations and the
parties’ observations submitted outside the framework of
friendly-settlement negotiations, and will disregard the parties’
statements made in the context of exploring the possibilities for a
friendly settlement of the case and the reasons why the parties were
unable to agree on the terms of a friendly settlement.
- The
Court considers that, under certain circumstances, it may be
appropriate to strike out an application under Article 37 § 1
(c) of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of
the case to be continued. It will, however, depend on the particular
circumstances whether the unilateral declaration offers a sufficient
basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (see Tahsin Acar, cited above, § 75).
- Relevant
factors in this respect include the nature of the complaints made,
whether the issues raised are comparable to issues already determined
by the Court in previous cases, the nature and scope of any measures
taken by the respondent Government in the context of the execution of
judgments delivered by the Court in any such previous cases, and the
impact of these measures on the case at issue (see Tahsin Acar,
cited above, § 76).
- The
foregoing list is not intended to be exhaustive. Depending on the
particular circumstances of each case, it is conceivable that further
considerations may come into play in the assessment of a unilateral
declaration for the purposes of Article 37 § 1 (c) of the
Convention (see Tahsin Acar, cited above, § 77).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declarations made by the
Government, the Court notes in the first place that on
21 February 2005 the Plenary of the Supreme Court of
Justice already dismissed an attempt to initiate revision
proceedings. It therefore considers that the striking out of the
present application by the Court would not guarantee a successful
outcome to the second attempt to review a judgment. Moreover, it is
to be noted that the provisions of section 449 (k) (see paragraph 16
above) do not provide as a ground for revision a decision of the
Court to strike the application out of its list of cases.
- In
any event, and more fundamentally, the Court considers that it would
be too onerous in a case where the applicant is complaining about the
quashing of a final judgment through annulment proceedings to require
him to initiate another round of domestic proceedings for
compensation. Such a proposal therefore
cannot be considered appropriate redress or as a basis on which to
strike an application out of the list of cases (see Brumărescu
v. Romania [GC], no. 28342/95, § 50, ECHR 1999 VII
and Macovei and Others v. Moldova, nos. 19253/03, 17667/03,
31960/03, 19263/03, 17695/03 and 31761/03, § 36 and 37, 25 April
2006).
- Finally,
although the Government accepted in their unilateral declarations
that the upholding by the Supreme Court of Justice of the Prosecutor
General’s request for annulment and the quashing of the
judgment in favour of the applicant constituted violations of Article
6 § 1 and Article 1 of Protocol No. 1 to the Convention,
they did not offer any redress in respect of pecuniary damage for its
inability to use the money during the intervening period.
- On
the facts and for the reasons set out above, the Court finds that the
Government have failed to submit a statement offering a sufficient
basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (see, by contrast, Akman v. Turkey (striking out),
no. 37453/97, §§ 23-24, ECHR 2001 VI).
- This
being so, the Court rejects the Government’s request to strike
the application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
III. ADMISSIBILITY OF THE COMPLAINTS
- The
applicant complained that its rights under Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention were violated by
the fact that the Plenary of the Supreme Court of Justice upheld the
Prosecutor General’s request for annulment and quashed a final
judgment in its favour.
- The
Government, in their initial observations of 1 September 2005, denied
that there had been a violation of the applicant’s rights under
the Convention.
- The
Court considers that the applicant’s complaints under Article 6
§ 1 and Article 1 of Protocol No. 1 to the Convention raise
questions of law which are sufficiently serious that their
determination should depend on an examination of the merits and no
other grounds for declaring them inadmissible have been established.
- The
Court therefore declares these complaints admissible. In accordance
with its decision to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider the merits of
these complaints.
IV. MERITS
- The
Court has found violations of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention in numerous cases
raising issues similar to those in the present case (see, among other
authorities, Brumărescu v. Romania, cited above, §§
61 and 74 and Roşca, cited above §§ 29 and
32).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- Having
regard to its case-law on the subject, the Court finds that by
quashing the final judgment in favour of the applicant, the Plenary
of the Supreme Court of Justice breached the applicant’s right
to a fair hearing under Article 6 § 1 of the Convention and its
right to the peaceful enjoyment of possessions under Article 1 of
Protocol No. 1 to the Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention and of Article 1 of Protocol No. 1 to the Convention in
respect of the applicant.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Pecuniary damage
- The
applicant claimed MDL 244,939 (EUR
21,050.46 at the time) as
awarded by the Supreme Court of Justice in its final judgment of
9 October 2002. It also asked for EUR
50,064 in compensation for pecuniary damage suffered as a result of
its inability to use its money since 27 January 2003, when the
violation occurred.
- The
Government considered that the applicant was not entitled to receive
compensation in respect of pecuniary damage and that it should seek
compensation before the domestic courts (see paragraph 25 above).
- The
Court considers that the applicant must have suffered pecuniary
damage as a result of the quashing of the final judgment favourable
to the applicant and as a result of the impossibility to use and
enjoy the money awarded to it for a period of approximately forty-six
months (see Prodan v. Moldova, no. 49806/99, § 71,
ECHR 2004 III (extracts)). Taking into account the line of
approach in the Prodan case, and the circumstances of the case
under consideration, the Court awards the applicant the total sum of
EUR 28,333 for pecuniary damage. This amount includes the sum awarded
to the applicant by virtue of the judgment of 9 October 2002 and the
lost interest.
B. Non-pecuniary damage
49. The
Court notes that the applicant was satisfied with the amount proposed
by the Government (see paragraph 24 above), which corresponds
to amounts awarded by the Court in similar cases (see, for example,
Roşca, cited above, § 41). It therefore awards the
applicant EUR 2,000 in compensation for non-pecuniary
damage.
C. Costs and expenses
- The
applicant claimed EUR 2,630 in respect of costs and expenses incurred
before the Court. The fees of the representative who presented the
case before the Court amounted to EUR 935.17 and those of the
representative who presented the case before the domestic courts
amounted to EUR 1,595.87. The applicant presented two receipts which
showed that the representatives had been paid these fees. Other costs
incurred for the representation before the Court amounted to EUR 50.
- The
Government disagreed with the amounts claimed by the applicant and
stated that they were too high in the light of the average monthly
wage in Moldova.
- The
Court recalls that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(see, for example, Amihalachioaie v. Moldova, no. 60115/00, §
47, ECHR 2004 III).
- In the present case, regard being had to the receipts
submitted by the applicant, the above criteria and the complexity of
the case, the Court considers an award of EUR 985 should be made for
the Convention proceedings.
D. Default interest
- The
Court considers it appropriate that the default interest 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
- Rejects the Government’s request to strike
the application out of the list;
- Declares the application admissible;
3. Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(i) EUR
28,333 (twenty eight thousand three hundred and
thirty three euros) in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
985 (nine hundred and eighty five euros) 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
