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FOURTH
SECTION
CASE OF TUDOR-COMERT v. MOLDOVA
(Application
no. 27888/04)
JUDGMENT
STRASBOURG
4 November
2008
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 Tudor-Comert v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 7 October 2008
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27888/04) 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 Tudor-Comert (“the applicant company”),
on 28 June 2004.
- The
applicant company was represented by Mr V. Nagacevschi, a lawyer
practising in Chişinău and a member of the non-governmental
organisation Lawyers for Human Rights. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant company alleged, in particular, that the refusal of the
domestic courts to examine its appeal due to its inability to pay
court fees had breached its right of access to court, guaranteed by
Article 6 of the Convention.
- The
application was allocated to the Fourth Section of the Court. On 21
November 2006 the President of that Section decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it was decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant is a company registered in Chişinău.
- On
20 December 1994 two companies (Tehoptimed and Tudor & K.)
concluded a contract according to which the latter rented a warehouse
from the former.
- In
June 1996 the applicant company was registered. On 19 February
1997 the original contract for the use of the warehouse was amended
to the effect that all the rights and obligations of Tudor & K.
passed to the applicant company. The applicant company stored
merchandise (food and clothes) in the warehouse.
- On
11 June 1997 the police of the Ciocana Commissariat of Chişinău
sealed the warehouse rented by the applicant company. On 30 June 1997
the applicant company complained to the Ciocana Commissar about a
violation of its right to property and asked for the reasons for the
police action. In a reply dated 2 July 1997 the applicant
company was informed that the police had acted on the basis of the
order of an investigator of the Chişinău Prosecutor's
Office.
- On
30 October 1997 the applicant company requested the Chişinău
Prosecutor's Office to revoke the order. In a letter of 19 November
1997 the Chişinău Prosecutor's Office stated that its
actions had been lawful. The applicant company made several other
complaints to the Ciocana Police Commissariat and the Chişinău
Prosecutor's Office and received similar answers. In its complaints,
the applicant company claimed that the merchandise taken from the
rented warehouse had not been listed in the minutes as required by
law and that its total value had been 11,750,000 Moldovan lei
(MDL), (approximately 1,059,340 United States Dollars (USD)).
- The
applicant company initiated court proceedings against the Chişinău
Prosecutor's Office, the Ciocana Police Commissariat and Tehoptimed,
requesting the restitution of the MDL 11,750,000.
- On 31 March 1998 the Chişinău Economic Court
found that the sequestration of the applicant company's property “in
the amount of MDL 11,750,000” from its rented warehouse
had been unlawful. It ordered the defendants to return the property
taken from the applicant company. No appeal was lodged and the
judgment became final 15 days later.
- On
3 September 1998 the applicant company requested an expert report to
be prepared in order to establish the current value of the property
which had been kept in the sealed warehouse since July 1997. On
4 September 1998 the applicant company obtained access to that
property. A list of items found in the warehouse was drawn up.
- On
14 September 1998 an expert of the Central Laboratory of Scientific
Research of the Ministry of Justice concluded that the warehouse had
not been heated or ventilated and was infested with moths and
rodents. The food and clothes stored in the warehouse had been
severely damaged and their monetary value was MDL 74,158
(approximately USD 6,685).
- On
29 October 1998 the Râşcani District Court returned the
enforcement warrant to the applicant company and notified it that the
total value of the merchandise found in the warehouse was MDL 74,158
and that there was no other property to be returned.
- The
applicant company requested the Chişinău Economic Court to
change the manner of enforcing the warrant by ordering payment of the
original value of its property.
- At
the request of the Prosecutor General's Office, on 19 December
2001 the Supreme Court of Justice quashed the judgment of 31 March
1998 and ordered a re-hearing of the case.
- On
23 December 2002 the Chişinău Economic Court left the
applicant company's action unexamined because it had failed to appear
and had not submitted the originals of the documents confirming its
claims.
- On
14 January 2003 the same court returned the applicant company's
appeal (contestaţia in anulare) because of its failure to
pay court fees. On 19 March 2003 the Economic Court of the
Republic of Moldova ordered a re-hearing of the case, finding that
the length of the proceedings had already been excessive and that a
decision on the substance of the case was required.
- On
11 November 2003 the Chişinău Economic Court rejected the
applicant company's claims. It found that on 23 December 1997 the
prosecution had informed the applicant company about the
discontinuation of the proceedings and that all the restrictions on
the use of its property had been lifted. Accordingly, the applicant
company could have used its property from that date, which meant that
there was no outstanding issue to be decided by the court.
- In
its appeal the applicant company stated that the investigator's order
to seize its property had been taken in violation of the law and that
the seizure itself had been carried out without drawing up a list of
all the items seized, again contrary to the law. The applicant
company also noted that the unlawful actions of the prosecution and
the police had violated its property rights and that not all the
items taken from it had been returned. This resulted in its inability
to fulfil its contractual obligations towards third parties.
- On
15 January 2004 the Appeals Chamber of the Economic Court left the
appeal unexamined because of the applicant company's failure to pay
court fees MDL 352,500, (EUR 21,021 at the time). The court gave the
applicant company until 12 February 2004 to pay the court fees.
- The
applicant company requested the postponement of the payment of court
fees until after the examination of its case. It relied on its
difficult financial situation, annexing bank certificates proving
that there had been virtually no money in its accounts since 2002. It
also claimed that in 1997, when it lodged its complaint, no court
fees were payable. It finally invoked its right to access to justice.
- In
response to the applicant company's request, the court postponed the
time-limit for payment of the court fee until 15 March 2004.
- On
15 March 2004 the Appellate Chamber of the Economic Court rejected
the applicant company's request to postpone the payment of the court
fees pending the examination of the case. The court refused to
examine the applicant company's appeal because of its failure to pay
the court fees despite two extensions of the time-limit for payment.
- In
its appeal in cassation the applicant company relied on its difficult
financial situation, which, it claimed, had resulted from the
unlawful actions of the police and prosecution and had blocked its
economic activity. It asked for the postponement of the payment of
court fees until after its appeal had been examined.
- On 6 May 2004 the Supreme Court of Justice rejected as
unfounded the applicant company's appeal. The court found that the
applicant company's submissions that the lower courts had not taken
into consideration its difficult financial situation was
unsubstantiated. It found that the courts had the power but not an
obligation to postpone the payment of court fees in accordance with
Article 86 of the CCP. It also found that no waiver of court fees was
possible for legal persons. Since the applicant company had failed to
pay the court fees, its appeal was to be rejected.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Civil
Procedure, in force at the relevant time, read as follows:
“Article 84
Court fees shall be due for actions lodged by natural
and legal persons ..., for appeals and appeals in cassation...:
(1) For court actions of a pecuniary nature ... –
3% of the value of the action or of the amount sought...;
(11) For appeals – 75% of the court fees due when
lodging the action ...;
(12) For appeals in cassation – 50% of the court
fees due when lodging the action ...;
Article 85
...
(4) The judge (the court) may exempt partly or entirely
a natural person from paying court fees, taking into account the
person's financial situation.”
“Article 86
(1) The judge or the court has the power to postpone the
payment of court fees or to allow its payment in instalments by one
or both parties to the proceedings, taking into account their
financial state. If the plaintiff does not pay the court fee within
the time-limit set, the court will strike the case off its list.”
“Article 437
...
(2) Proof of payment of court fees shall be annexed to
the cassation appeal; Articles 85(4) and 86 do not apply.”
THE LAW
- The
applicant company complained that its right of access to a court had
been limited and that the principle of legal certainty had not been
respected, contrary to Article 6 § 1 of the Convention,
which, in so far as relevant, provides:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
by a tribunal ....”
- It
also complained that its rights guaranteed under Article 1 of
Protocol No. 1 to the Convention had been violated as a result
of the domestic courts' refusal to examine its appeal.
Article 1
of Protocol No. 1 to the Convention 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 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.”
I. ADMISSIBILITY
- The
Court notes that, in its initial application, the applicant company
referred to the annulment, by the Supreme Court of Justice, of the
final court judgment of 31 March 1998, as contrary to the principle
of legal certainty, within the meaning of Article 6 § 1 of the
Convention. However, in a letter of 9 July 2004 it asked the Court
not to proceed with the examination of that complaint.
The
applicant company also complained about a violation of its rights
guaranteed by Article 1 of Protocol No. 1 to the Convention as a
result of the refusal to examine its appeal against the judgment of
11 November 2003. However, in its observations on the admissibility
and merits it asked the Court not to proceed with the examination of
that complaint.
- The
Court finds no reason to examine either of the complaints referred to
above. It considers that the applicant company's only remaining
complaint under Article 6 § 1 of the Convention regarding
access to court raises questions of law which are sufficiently
serious that its determination should depend on an examination of the
merits, and no other grounds for declaring it inadmissible have been
established. The Court therefore declares this complaint 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 the complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company submitted that by refusing to examine its appeals,
the Appeals Chamber of the Economic Court and the Supreme Court of
Justice had infringed its right of access to court. It referred to
evidence which it had submitted to the courts regarding its inability
to pay the court fees and to the fact that the courts were prevented
by law from waiving the court fees in respect of court actions lodged
by legal persons. While the applicant company requested postponement
of court fee payment since that was the only remedy it had under the
law, it had no hope of ever paying those fees since it effectively
ended its activity following the major loss of property caused by the
State authorities. The repeated postponement of the payment of court
fees allowed by the courts had, therefore, no practical effect on the
applicant company's right of access to court.
- The
Government considered that there had been no violation of the
applicant company's rights. Article 6 of the Convention left a wide
margin of appreciation to States in organising their judicial
systems. Article 6 did not guarantee an absolute right of access to
court and it could legitimately be restricted, including by requiring
the payment of court fees as a condition for examining court actions.
Moreover, the domestic courts had fulfilled their positive
obligations by giving the applicant company, on two occasions,
additional time to pay the court fees. Finally, the applicant company
did not show the domestic courts any document to confirm that it was
going to pay those fees. In such circumstances, the courts had to
take a decision in order to prevent a violation of the applicant
company's right to an examination of its case within a reasonable
time.
- The
Court refers to the general principles established in its case-law
concerning access to a tribunal within the meaning of Article 6 §
1 of the Convention and, more specifically, the requirement to pay
court fees (see, among many authorities, Kreuz v. Poland, no.
28249/95, §§ 52-57, ECHR 2001 VI and the further
references therein).
- In
the present case the Court notes that the relevant proceedings
concerned the applicant company's claim for damages. Accordingly,
Article 6 § 1 applies under its civil head (see Kreuz,
cited above, § 35, and Clionov v. Moldova, no. 13229/04,
§ 39, 9 October 2007). The Court also reiterates that
Article 6 § 1 does not guarantee a right to appeal from a
decision of first instance. Where, however, domestic law provides for
a right of appeal, the appeal proceedings will be treated as an
extension of the trial process and accordingly will be subject to
Article 6 (see Delcourt v. Belgium, judgment of
17 January 1970, § 25, Series A no. 11, and Gurov
v. Moldova, no. 36455/02, § 33, 11 July
2006). It is to be noted that Moldovan law allowed the applicant
company to lodge an appeal with the Appeals Chamber of the Economic
Court and an appeal in cassation with the Supreme Court of Justice.
Those courts could restrict its right of appeal only where they found
that the appeal did not correspond to the applicable legal
requirements.
- The
Court notes that both these domestic courts relied on the provisions
of the law in refusing to examine the applicant's appeal, namely its
failure to pay court fees. Accordingly, the Court needs to examine
whether, in rejecting the applicant company's appeal, these courts
took into account the particular circumstances of its case, first of
all its ability to pay.
- The
Court notes that only the Supreme Court of Justice mentioned, in its
judgment, the applicant company's claim that it was unable to pay the
court fees (see paragraph 26 above). That court found that submission
unsubstantiated, but did not refer to any part of the lower courts'
judgments in which the applicant company's ability to pay had been
examined. Neither did the Supreme Court of Justice itself make such a
verification.
- Moreover,
the Supreme Court of Justice expressly stated that courts were
prevented by the law from waiving court fees in law suits lodged by
legal persons (see paragraph 26 above). Such a blanket prohibition on
granting court fee waivers raises in itself an issue under Article 6
§ 1 of the Convention (see Clionov, cited above, §
41).
- The
Court also notes that, according to the documents in the case file
and which had also been submitted to the domestic courts, the
applicant company had no economic activity at the relevant time and
was therefore unable to pay the court fees. It further takes account
of the nature of the law suit initiated by the applicant company,
namely a complaint about allegedly unlawful acts of State authorities
which had effectively ruined the company, rather than a commercial
dispute relating to its normal economic activity.
- In
so far as it might be argued that the applicant company allowed
itself to be saddled with the payment of a fairly substantial amount
of court fees (EUR 21,021) by claiming compensation in excess of 1
million USD, the Court can but note that the applicant company based
its estimated financial loss on the amount actually awarded by the
Chişinău Economic Court in its final judgment of 31 March
1998 (see paragraph 11 above). That judgment was later quashed in
extraordinary proceedings. In these circumstances, the applicant
company cannot be criticised for inflating the amount of compensation
claimed, thus unnecessarily exposing itself to hefty court fees.
- In
view of the above, and having regard to the amount claimed, the court
fees requested and considering the domestic courts' failure to
determine the applicant company's ability to pay the court fees, the
Court concludes that the applicant company's right of access to court
was effectively limited to the point where it became illusory.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
III. 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. Non-pecuniary damage
- The
applicant company claimed 20,000 euros (EUR) in compensation for
non-pecuniary damage. It submitted that, as a result of the courts'
refusal to examine its claim against the authorities, its economic
activity had ended and it had had to dismiss all of its employees.
The management's plans for the future had all been abandoned.
- The
Government disagreed and argued that the applicant company had not
submitted any evidence of non-pecuniary damage. In any event, the
amount sought by the applicant company was exaggerated. The
Government submitted that a finding of a violation of Article 6 of
the Convention would constitute sufficient just satisfaction in the
present case.
- The
Court notes that, as a result of the domestic courts' failure to
examine its claims in circumstances where it could not pay the court
fees, the applicant company effectively discontinued its activity,
which must have caused a major change of plans and uncertainty for
the company's management. In these circumstances, the Court awards
the applicant company EUR 5,000 for non-pecuniary damage (cf.
Sovtransavto Holding v. Ukraine (just satisfaction), no.
48553/99, §§ 78-82, 2 October 2003, and Nistas GmbH
v. Moldova, no. 30303/03, § 56, 12 December 2006).
B. Costs and expenses
- The
applicant company also claimed EUR 1,785 for costs and expenses, as
well as EUR 30 for translation costs. In support of this claim it
submitted a contract with its representative and an itemised list of
hours spent by the representative in working on the case. The rates
applied were within the limits recommended for representation before
the international tribunals by the Moldovan Bar Association in its
decision of 29 December 2005.
- The
Government considered that the amount claimed was excessive and that
the Moldovan Bar Association's decision was only a recommendation.
They contested the number of hours spent by the applicant company's
representative working on the case, the hourly fee (EUR 85) and the
translation costs.
- In
the present case, regard being had to the legal representation
provided by the applicant company's lawyer and the complexity of the
case, the Court awards the applicant company EUR 1,530 for costs and
expenses.
C. 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
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 5,000 (five thousand euros) in respect of non-pecuniary damage
and EUR 1,530 (one thousand five hundred and thirty euros) in respect
of costs and expenses, 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;
(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
company's claim for just satisfaction.
Done in English, and notified in writing on 4 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
