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FOURTH
SECTION
CASE OF
GODOROZEA v. MOLDOVA
(Application
no. 17023/05)
JUDGMENT
STRASBOURG
6 October
2009
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 Godorozea v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17023/05) 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 a Moldovan national, Mrs Maria Godorozea (“the
applicant”), on 26 April 2005.
- The
applicant was represented by Mr V. Nagacevschi from Lawyers for Human
Rights, a non-governmental organisation based in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the Supreme Court of Justice
had adopted a judgment in her absence, contrary to the requirements
of Article 6 of the Convention.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 11 February 2008 the
President of a Chamber of that Section decided to give notice of 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 was born in 1958 and lives in Chişinău.
- The
applicant is a shareholder in a private company (M.). On 20 July 1999
she and five other shareholders initiated court proceedings against a
company (L.) which also held shares in M., asking for the annulment
of a number of contracts and decisions adopted by the shareholders'
association.
- On
10 January 2001 the Grigoriopol District Court allowed the claims
made by the plaintiffs in part. No appeal was lodged and the judgment
became final fifteen days later.
- The
applicant sought enforcement of the judgment and claims that a number
of measures were taken with a view to having it enforced.
- In
a letter signed 30 November 2001 (but apparently lodged with the
court on 6 December 2001) L. appealed against the judgment of 10
January 2001. L. claimed that it had not received a copy of the
judgment until the middle of November. The representative for the
applicant and the other five plaintiffs asked the court to reject the
appeal as lodged out of time and argued that, in his opinion, L. had
known about the judgment of 10 January 2001 since April 2001. He
submitted, in particular, that on 25 May 2001 he had personally
handed a copy of the judgment to L.'s president in the presence of
all the shareholders.
- On
30 April 2002 the Chişinău Regional Court allowed L.'s
appeal in part, without taking any decision in respect of the
fifteen-day time-limit for lodging an appeal.
- In
an appeal in cassation, the applicant emphasised L.'s failure to
lodge its appeal within the time-limit set by law.
- On
11 July 2002 the Court of Appeal sent the case back to the Chişinău
Regional Court for a decision on the payment of court fees.
- On
3 September 2002 the Chişinău Regional Court decided that
the applicant and the other plaintiffs were to pay the court fees.
- On
28 January 2003 the Court of Appeal rejected the applicant's appeal
in cassation and upheld the judgment of 30 April 2002.
- At
the applicant's request, on 14 April 2003 the Deputy Prosecutor
General lodged a request with the Supreme Court of Justice asking for
the reopening of the case. One of the reasons given was that, in
lodging its appeal on 6 December 2001, L. had missed the fifteen-day
time-limit for lodging an appeal and had also failed to comply with
the statutory requirement to apply to the court for a decision
holding that the reasons for missing the time-limit were acceptable.
Moreover, the Chişinău Regional Court had examined the case
in the applicant's absence, depriving her of her procedural rights.
- On 4 June 2003 the Supreme Court of Justice granted
the request and ordered a rehearing of the case by the Court of
Appeal. It noted that L. had lodged its appeal on 6 December
2001, outside the time-limit for lodging appeals. The court also
noted that the examination of the appeal in the absence of the
applicant's representative had amounted to a failure to respect the
rights of all the parties to the proceedings, “especially given
that a new judgment was adopted”.
- On
24 September 2003 the Chişinău Court of Appeal rejected
L.'s appeal against the judgment of 10 January 2001. The court found
that L. had missed the fifteen-day time-limit for lodging an appeal.
Even if L. had stated the truth when it declared, in its appeal, that
it had not found out about the judgment of 10 January 2001 until
the middle of November 2001, it should have lodged its appeal by the
end of November, and not on 6 December 2001 as it had done.
Moreover, no reasons had been adduced to convince the court that the
time-limit had been missed for acceptable reasons.
- On
3 March 2004 the Supreme Court of Justice quashed the judgment of 24
September 2003 and ordered a rehearing, finding that the lower court
had not taken the correct procedural decision in respect of its
finding that the time-limit had been missed by L. The court also
noted that under domestic law the fifteen-day time-limit started
running – for parties not present when the court read out the
judgment – from the date when a copy of the operative part of
the judgment was served on the parties. There was no evidence in the
case file that L. had been shown the contents of the judgment of 10
January 2001.
- On
an unspecified date thereafter, L. lodged a request with the Court of
Appeal for a decision considering as acceptable the reasons for
missing the fifteen-day time-limit for lodging the appeal.
- On
17 June 2004 the Chişinău Court of Appeal granted that
request, finding that there was no evidence that L. had seen the
operative part of the judgment before November 2001. On the same day
the court dismissed L.'s appeal and upheld the judgment of 10 January
2001. L. appealed.
- On
11 November 2004 the Supreme Court of Justice quashed the judgments
of 10 January 2001 and 17 June 2004 and adopted a new judgment,
allowing L.'s appeal and rejecting all of the applicant's claims.
- The
court noted that the applicant was not present at the hearing but
that she and the other participants had been properly summoned. The
applicant claims that she never received a summons. The judgment of
11 November 2004 was final.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Code of Civil Procedure read as follows:
“Article 105. Service of the summons...
(1) The summons ... shall be sent by registered mail
with confirmation of delivery or through a person authorised by the
court. The date of service of the summons ... shall be written on the
summons, as well as on the receipt, which shall be returned to the
court.
...
(5) The summons ... addressed to a natural person shall
be served on him or her personally and shall be countersigned on the
receipt. ...”
“Article 441
... (2) The President of the Chamber [of the Supreme
Court of Justice] shall set, within one month, the date for hearing
the appeal in cassation and inform the parties accordingly. A copy of
the appeal in cassation shall be sent to the other party together
with a summons to attend the hearing, indicating that a written reply
should be submitted to the court not later than five days before the
hearing.
Article 444
... (2) The appeal in cassation shall be examined after
the parties have been summoned. However, their failure to appear
shall not prevent the examination of the appeal.
Article 445
(1) The court which examines the appeal in cassation has
the power:
b) to allow the appeal and to quash entirely or in part
the decision of the appellate court or of the first-instance court,
adopting a new judgment;...”
- On 12 December 2005 the plenary meeting of the Supreme
Court of Justice adopted a decision “Regarding the application
of the rules of the Code of Civil Procedure to the examination of
cases by the first-instance courts”. In point 5 of that
decision the court noted that examining a case in the absence of a
party which had not been properly summoned was contrary to the law.
It added that under Article 105 § 5 of the Code of Civil
Procedure a person should be considered as lawfully summoned only if
he or she had been personally served with the summons and had
countersigned the receipt.
- The applicant submitted copies of three judgments
adopted by the Supreme Court of Justice on 30 January (no. 2ra-3/08),
4 June (no. 2ra-1097/08) and 25 June 2008 (no. 2r-156/08), in which
the court confirmed the requirement of personal service of the
summons and the counter-signature by the addressee, failing which the
summons was considered as not having been properly served.
THE LAW
- The
applicant complained of a violation of her right of access to
justice, contrary to Article 6 of the Convention.
The
relevant part of Article 6 reads 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 established by
law.”
I. ADMISSIBILITY
- The
Court considers that the applicant's complaint under Article 6 § 1
of the Convention raises questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits, and no other grounds for declaring the
complaint 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 OF THE CONVENTION
- The
applicant submitted that, despite the Government's arguments and
evidence that the Supreme Court of Justice had sent her a summons,
she had never received such a summons for the hearing of 11 November
2004, nor was there any evidence to that effect. At the same time,
the Supreme Court of Justice had repeatedly found that only serving
the summons personally on the addressee and having him or her
countersign was acceptable evidence of delivery of the summons (see
paragraphs 24 and 25 above). The applicant's representative added
that mail addressed to his organisation had occasionally been lost in
transit, including mail from the Court itself.
- Moreover,
the applicant was not aware of the existence of an appeal in
cassation lodged by L. and thus could not submit any comments, either
in writing ahead of the hearing or at the hearing itself. She
emphasised that the Supreme Court of Justice had not only dealt with
procedural matters, but had decided on the merits, reversing the
lower court's judgment. It was therefore essential for all the
parties to be heard, which distinguished the present case from that
of Nesme v. France (no. 72783/01, 14 December 2004), cited by
the Government.
- The
Government submitted that the applicant had been properly summoned to
the hearing, as evidenced by the registration of the sending of the
letter to her address. Moreover, the Court had found no violation of
Article 6 in Nesme, cited above, given that the applicant in
that case was himself to blame, having missed reasonable
opportunities to submit his comments in writing ahead of the hearing.
- The
Court notes that in Russu v. Moldova (no. 7413/05, §§
23-28, 13 November 2008) it has already found that “in
practice the domestic courts do not accept as sufficient evidence the
sending of a letter by a court and require proof of delivery”.
Similarly to that case, and in view of the additional case-law
submitted by the applicant and not contested by the Government (see
paragraphs 24 and 25 above), the Court considers that the Government
did not sufficiently demonstrate that the applicant in the present
case had been properly summoned to the hearing of 11 November 2004 in
accordance with domestic law and practice.
- The
Court also concludes, as it did in Russu (cited above, §
27), that “having had no prior notice of the hearing, the
applicant was unable to organise her defence and was not represented
by a lawyer”. It agrees with the applicant that this
distinguishes the present case from that of Nesme, cited
above. Given that the Supreme Court of Justice reversed the judgment
of the lower court, which was favourable to the applicant, it was
essential for her to be heard in person.
- 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 claimed 4,000 euros (EUR) in compensation for the
non-pecuniary damage caused to her. She referred to her sentiment of
frustration at having been sure that she had had a final judgment in
her favour, in the absence of any information to the contrary from
the court, only to find out later that a new judgment, dismissing all
of her claims in her absence, had been adopted.
- The
Government considered that no compensation was due to the applicant
and that, in any event, the amount claimed was excessive in
comparison with previous case-law and unsubstantiated.
- While
the Court cannot speculate as to the outcome of the proceedings had
the Supreme Court of Justice heard the applicant in person, it
considers that the failure to give her the chance to state her
position caused her damage which cannot be compensated only by a
finding of a violation in the present case. Accordingly, and deciding
on an equitable basis, the Court awards the applicant EUR 1,000 on
this account.
B. Costs and expenses
- The
applicant claimed EUR 500 for costs and expenses and EUR 30 for
translation services.
- The
Government considered that the applicant had not proved her expenses
since she had not submitted any contract with her lawyer or the
itemised list of hours worked on the case. In any event, they
considered that the amounts claimed were exaggerated and
unsubstantiated.
- The
Court notes that the applicant was represented by a lawyer, who
submitted all the relevant observations and has clearly worked on the
case. It considers that the sum claimed is reasonable and therefore
accepts the applicant's claim in full.
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, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage and EUR 530 (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's claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
