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FOURTH
SECTION
CASE OF MELNIC v. MOLDOVA
(Application
no. 6923/03)
JUDGMENT
STRASBOURG
14
November 2006
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 Melnic 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 M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
F. Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 24 October 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 6923/03) 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 30 December 2002 by Mrs Galina Melnic.
- The
Moldovan Government (“the Government”) were represented
by their Agent, Mr Vitalie Pârlog.
- The
applicant alleged, in particular, that her right to a fair hearing
was breached as a result of the failure of the
Court of Appeal to give any reasons for extending the
time-limit for lodging an appeal. She also complained about a
violation of her rights under the Convention as a result of the
quashing of the judgments in her favour following a request for
annulment lodged by the Prosecutor General with the Supreme Court of
Justice.
- On
29 March 2005 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 observations on the merits
and on the claims for just satisfaction under Article 41 of the
Convention.
- 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
- The applicant was born in 1948
and lives in Rezina.
- The
applicant is the widow of the former President of the Rezina District
Court. On 7 June 1998, after the death of her husband, the applicant
lodged several requests with the Ministry of Finances (“the
Ministry”) and Ministry of Justice, seeking the lump sum to
which she was entitled in accordance with the “Law on the
Status of Judges”. When she was refused on the ground of lack
of resources, the applicant brought an action against the Ministry.
- On
2 March 1999 the Buiucani District Court awarded the applicant
345,491 Moldovan lei (MDL, the equivalent of 35,987 euros (EUR) at
the time), to which it found she was entitled following the death of
her husband. The Ministry appealed. By judgments of 11 May 1999 and
17 August 1999 the Chişinău Regional Court and the Court of
Appeal, respectively, dismissed the Ministry’s appeals.
- The
applicant lodged numerous complaints about the failure of the
Ministry to comply with the judgment and pay her compensation. On
13 January 2000 the Ministry paid the compensation.
- Since
the applicant considered that the late enforcement of the judgment
had significantly reduced the value of her compensation due to
inflation, she requested the Ministry to make good the diminished
value. The Ministry refused to comply with the applicant’s
request and she brought an action against it, seeking compensation
for the late enforcement.
- On
14 September 2001 the Buiucani District Court ruled in favour of the
applicant and ordered the Ministry to pay her MDL 244,953
(EUR 21,007 at the time) in compensation. The Ministry appealed.
- On
5 February 2002 the Chişinău Regional Court dismissed the
Ministry’s appeal and upheld the judgment of 14 September 2001.
The judgment of the Chişinău Regional Court stated
specifically that the Ministry’s representative had been
present and had addressed the court. Since the Ministry did not lodge
an appeal in cassation within fifteen days, the judgment of 5
February 2002 became final.
- On
8 April 2002, 47 days after the expiry of the legal time-limit for
lodging the appeal in cassation, the Ministry lodged an appeal in
cassation with the Court of Appeal and requested an extension of the
legal time-limit for lodging it, without providing any reasons for
the failure to observe it.
- On
9 July 2002 the Court of Appeal examined the Ministry’s appeal
in cassation. The Court of Appeal requested, ex-officio, a
report from the Statistics Department on the level of inflation and
relied on it in its judgment. The applicant alleged that she had not
been given the possibility either to familiarise herself with the
document or to challenge it before the court. The applicant also
alleged that she had expressly requested the Court of Appeal to
dismiss the Ministry’s appeal in cassation since it had been
lodged out of time.
- By
a judgment of 9 July 2002 the Court of Appeal upheld the Ministry’s
appeal in cassation, quashed the judgments in favour of the applicant
and reduced the amount of compensation for inflation to MDL 118,848
(EUR 8,766 at the time). The Court of Appeal did not give any reason
for accepting the appeal in cassation lodged out of time.
- On
16 September 2002 the Prosecutor General lodged with the Supreme
Court of Justice a request for annulment of the judgments in favour
of the applicant and asked for the reduction of the amount of
compensation awarded.
- On
9 October 2002 the Supreme Court of Justice upheld the Prosecutor
General’s request for annulment, quashed the judgments in
favour of the applicant and dismissed her claims for compensation.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Civil Procedure, in force between
26 December 1964 and 12 June 2003, read as follows:
Section 114. Extension of a time-limit
“Where a person has failed to comply with a legal
time-limit for reasons considered by a court to be plausible, that
time-limit may be extended by the court.
A request for the extension of the time-limit shall be
lodged with the court concerned and shall be examined at a court
hearing....
A court judgment dismissing a request for extension of a
time-limit may be challenged by way of an appeal.”
Section 284. The extension of the time-limit
“The time-limit for lodging an appeal may be
extended in accordance with the provisions of section 114 of the
present Code. If a court does not have reasons to extend the
time-limit, it shall dismiss the appeal as time-barred.”
Section 305. The time-limit for lodging an appeal in
cassation
“The legal time-limit for lodging an appeal in
cassation is fifteen days, unless the law provides otherwise.”
Section 314. The judgment of the cassation instance
and the procedural provisions
“The issuance of the judgment as well as other
procedural provisions before the appeal instance should be applicable
to the proceedings before the cassation instance.”
Section 316. Irrevocable judgments (Hotărârile
irevocabile)
“Irrevocable judgments are:
...
3) non-appealed judgments, issued by the appeal
instances.”
THE LAW
I. THE GOVERNMENT’S REQUEST TO
STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- The
Government, in their additional observations of 7 December 2005
and 28 March 2006, submitted two unilateral declarations similar to
that in the case Tahsin Acar v. Turkey ((preliminary
objection) [GC], no. 26307/95, ECHR 2003 VI) and
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 judgments in her favour. In respect of pecuniary
damage, the Government proposed to reinstate the applicant in the
position in which she found herself prior to the quashing of the
judgment of the Court of Appeal of 9 July 2002, by lodging a revision
request with the Supreme Court of Justice in accordance with relevant
provisions of the domestic law. In respect of non-pecuniary damage,
the Government proposed to award the applicant the equivalent in MDL
of EUR 1,800. They also proposed to award her compensation for her
reasonable and proven costs and expenses incurred before the Court.
The Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
- The
applicant did not agree with the Government’s proposal. She
considered that she was entitled to receive a higher amount of
compensation and requested the Court to continue the examination of
the application. She claimed that in accordance with the judgment of
the Chişinău Regional Court she was entitled to receive MDL
244,953 (EUR 21,007 at the time). She also requested MDL 150,000 (EUR
8,785.39) in respect of non-pecuniary damage.
- The
Court observes, as it has previously stated in Tahsin Acar (cited
above, §§ 74-77), 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 (Article 37 § 1 in fine).
- 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. It may also be
material whether the facts are in dispute between the parties, and,
if so, to what extent, and what prima facie evidentiary value
is to be attributed to the parties’ submissions on the facts.
In that connection it will be of significance whether the Court
itself has already taken evidence in the case for the purposes of
establishing disputed facts. Other relevant factors may include the
question of whether in their unilateral declaration the respondent
Government have made any admission(s) in relation to the alleged
violations of the Convention and, if so, the scope of such admissions
and the manner in which they intend to provide redress to the
applicant. As to the last-mentioned point, in cases in which it is
possible to eliminate the effects of an alleged violation (as, for
example, in certain categories of property cases) and the respondent
Government declare their readiness to do so, the intended redress is
more likely to be regarded as appropriate for the purposes of
striking out the application, the Court, as always, retaining its
power to restore the application to its list as provided in
Article 37 § 2 of the Convention and Rule 44 § 5 of
the Rules of Court.
- 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.
- 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 the applicant
mainly complained about the fact that the Court of Appeal had quashed
the judgment of the Chişinău Regional Court following the
examination of the Ministry’s appeal in cassation lodged
outside the time-limit, without providing any reason for extending
that time-limit. The Government did not comment on that issue, either
in their observations or in the unilateral declarations.
- Secondly,
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
judgments in favour of the applicant constituted violations of
Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention,
they did not, however, offer her an adequate redress, but proposed to
initiate further proceedings before the Supreme Court of Justice in
order to discontinue the request for annulment proceedings.
- Thirdly,
the Court notes that in accordance with the judgment of the Chişinău
Regional Court the applicant would be entitled to receive MDL 244,953
(EUR 21,007 at the time), while under the Government’s
unilateral declarations the applicant would receive only MDL 118,848
(EUR 8,766 at the time), (MDL 126,105 (EUR 12,241) less). The Court
can but note the substantial difference in the amount awarded to the
applicant by the judgment of the Chişinău Regional Court
and by that of the Court of Appeal.
- As
to the Government’s proposal to lodge a request with the
Supreme Court of Justice in order to discontinue the request for
annulment proceedings and to place the applicant in the situation
prior to the initiation of those proceedings, even assuming that the
Government’s proposed revision request was successful (see
paragraph 20 above), that would not lead to a reinstatement of the
applicant in the position in which she found herself prior to the
quashing of the final judgment of the “original” court,
namely the judgment of the Chişinău Regional Court of 5
February 2002.
Finally,
the Court considers that the sum proposed in declarations made by the
Government in respect of non-pecuniary damage suffered by the
applicant as a result of the alleged violations of the Convention
does not bear a reasonable relationship with the amounts awarded by
the Court in similar cases for non-pecuniary damage.
- On
the facts and for the reasons set out above, the Court finds that the
Government 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.
II. ADMISSIBILITY OF THE APPLICATION
- The
applicant complained that her right to a fair trial, as guaranteed by
Article 6 § 1 of the Convention, was violated by the fact that
the Court of Appeal examined the Ministry’s appeal in cassation
even though it was out of time. She also complained that her right to
a fair trial was violated by the refusal of the Court of Appeal to
allow her time to read and challenge evidence relied on by the Court
of Appeal. Finally, the applicant complained that her rights under
Article 6 § 1 and Article 1 of Protocol No. 1 to the
Convention were violated by the fact that the Supreme Court of
Justice upheld the Prosecutor General’s request for annulment
and quashed the judgments in her 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. ...”
The
relevant part of Article 1 of Protocol No. 1 to the Convention reads
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.”
- The
Government did not comment on the complaint about the quashing of the
judgment, which became final through failure to
appeal within the legal time-limit, and mentioned that the
Ministry had requested an extension of the time-limit. The Government
submitted that the applicant’s other complaints should be
dismissed either as being manifestly ill-founded or on the ground
that the applicant could have sought redress
for the alleged violations before the domestic courts.
- The
Court considers that the application as a whole raises questions of
law which are sufficiently serious that their determination should
depend on an examination of the merits. No other ground for declaring
it inadmissible has been established. The application must therefore
be declared admissible. Pursuant to Article 29 § 3 of the
Convention, the Court will now consider the merits of the applicant’s
complaints.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
CONCERNING THE APPEAL OUT OF TIME
- The
applicant complained under Article 6 § 1 of the Convention about
the quashing by the Court of Appeal of the judgment of the
Chişinău Regional Court of 5 February 2002, without
providing any reasons for upholding an appeal in cassation which had
been lodged out of time.
- The
Government submitted that since the Ministry in its appeal in
cassation had expressly requested the extension of the time-limit,
the applicant’s complaint should be rejected as manifestly
ill-founded.
- The
Court reiterates that Article 6 § 1 of the Convention obliges
the courts to give reasons for their judgments. In Ruiz Torija
v. Spain, (judgment of 9 December 1994, Series A no. 303 A),
the Court found that the failure of a domestic court to give reasons
for not accepting an objection that the action was time-barred
amounted to a violation of that provision.
- The
right to a fair hearing before a tribunal as guaranteed by Article 6
§ 1 of the Convention must be interpreted in the light of
the Preamble to the Convention, which, in its relevant part, declares
the rule of law to be part of the common heritage of the Contracting
States. One of the fundamental aspects of the rule of law is the
principle of legal certainty, which requires, among other things,
that where the courts have finally determined an issue, their ruling
should not be called into question (see Brumărescu v. Romania
[GC], no. 28342/95, § 61, ECHR 1999 VII; Roşca
v. Moldova, no. 6267/02, § 24, 22 March 2005).
- In
the present case, the Court notes that an appeal in cassation should
be lodged by a party in the domestic proceedings in accordance with
the provisions of the Moldovan Code of Civil Procedure (the “CCP”).
The Court’s task is to determine whether this procedure was
applied in a manner which is compatible with Article 6 of the
Convention, including respect for the principle of legal certainty.
The Court shall do so while bearing in mind that it is in the first
place the responsibility of national courts to interpret provisions
of national law (see Waite and Kennedy v. Germany [GC],
no. 26083/94, 18 February 1999, § 54).
- It
is to be noted that according to Article 316 of CCP, in force at the
time, a judgment delivered by the appeal instance became final once
the time-limit for the lodging of an appeal had expired. According to
Article 305 of the same Code, “the legal time-limit for
lodging an appeal in cassation is fifteen days”. Articles 314,
284 and 114 of CCP provide that when a party has failed to observe
the legal time-limit for lodging an appeal in cassation, the
cassation instance should either dismiss it as statute-barred, or
provide reasons for extending the time-limit.
- In
the present case, the Court notes that since the Ministry’s
representative had been present during the proceedings before the
Chişinău Regional Court on 5 February
2002 (see paragraph 13 above), the legal
time-limit for lodging the appeal in cassation expired on
20 February 2002. Thus, the judgment of 5 February 2002
became final through the failure to appeal within the time-limit. The
Court also notes that although the appeal in cassation was lodged
only on 8 April 2002, that is 47 days after the expiry of the legal
time-limit for lodging it, the Ministry’s representative
did not provide any reasons for the failure to observe the legal
time-limit and nor did the Court of Appeal examine the issue of the
extension of the time-limit or at least give reasons for its decision
(see, mutatis mutandis, Ruiz Torija, cited above).
- The
Court observes that a similar situation has already been examined in
the case of Popov v. Moldova (no. 2), (no. 19960/04, §
53, 6 December 2005), in which the Court found that by not
giving any reasons for extending the defendant’s time-limit for
lodging a procedural act, the domestic courts breached the
applicant’s right to a fair hearing.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
- With
regard to the complaint about defects in the proceedings before the
Court of Appeal, the Court finds that, having concluded that there
has been a violation of the applicant’s right under Article 6 §
1, it is not necessary to consider whether other procedural
guarantees were observed in those proceedings.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION CONCERNING THE
REQUEST FOR ANNULMENT
- The
applicant also complained that her rights under Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention were violated by
the fact that the Supreme Court of Justice had upheld the Prosecutor
General’s request for annulment and subsequently quashed the
judgments in her favour.
- In
their observations the Government requested the Court to dismiss the
applicant’s complaints on the ground that she could have
obtained redress for the alleged violations with the domestic courts.
- Having
regard to the fact that the Court has found a violation of the
applicant’s rights under Article 6 § 1 of the Convention
prior to the upholding by the Supreme Court of Justice of the
Prosecutor General’s request for annulment, the Court does not
consider it necessary to rule on the question whether there has been
a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to
the Convention in the circumstances alleged.
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. Damage
- The
applicant claimed MDL 244,953 (EUR
21,007 at the time) in respect of pecuniary
damage, as awarded by the Chişinău
Regional Court in its judgment of 5 February 2002.
The applicant also claimed the sum of MDL 150,000 (approx. EUR
8,800) in compensation for non-pecuniary damage arising from
suffering and anxiety caused by the alleged violations of her rights.
50. The
Government considered that the applicant was not entitled to receive
compensation in respect of pecuniary damage and disagreed with the
amount of non-pecuniary damage claimed by the applicant.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach
(see Former King of Greece and Others v. Greece [GC]
(just satisfaction), no. 25701/94, § 72). In the
present case, the reparation should aim at putting the applicant in
the position in which she would have found herself had the violation
not occurred, namely prior to the quashing of the judgment of the
Chişinău Regional Court of 5 February
2002 by the Court of Appeal.
- Therefore,
the Court awards the applicant EUR 21,007 in
respect of pecuniary damage.
- The
Court also considers that the applicant must have been caused a
certain amount of stress and frustration as a result of the quashing
of the judgment of 5 February 2002.
The particular amount claimed is, however, excessive. Making its
assessment on an equitable basis, the Court awards the applicant
EUR 2,000 for non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed no costs and expenses for the
Convention proceedings. The Court therefore makes no award under this
head.
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
- Rejects the Government’s request to strike
the application out of the list;
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the quashing
of the judgment of the Chişinău
Regional Court of 5 February 2002;
- Holds that there is no need to examine the
applicant’s other complaints under Article 6 and under 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, EUR 21,007 (twenty-one thousand and
seven euros) for pecuniary damage, EUR
2,000 (two thousand euros) in respect of non-pecuniary damage, 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 14 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nicolas Bratza
Deputy
Registrar President
