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FOURTH
SECTION
CASE OF OFERTA PLUS S.R.L. v. MOLDOVA
(Application
no. 14385/04)
JUDGMENT
(Just
satisfaction)
STRASBOURG
12
February 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 Oferta Plus S.R.L. v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Josep
Casadevall,
Giovanni
Bonello,
Kristaq
Traja,
Stanislav
Pavlovschi,
Lech
Garlicki,
Ján
Šikuta,
judges
and Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14385/04) 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 Oferta Plus S.R.L., a company incorporated
under Moldovan law (“the applicant”), on 13 April 2004.
- In
a judgment delivered on 19 December 2006 (“the principal
judgment”), the Court held that there had been a violation of
the applicant company's rights provided for by Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 to the Convention as a
result of the non-enforcement of a final judgment followed by the
abusive quashing of it and that there had been a violation of Article
34 of the Convention as a result of malicious criminal proceedings
instituted against the applicant company's chief executive officer in
order to dissuade him from pursuing the present application and as a
result of the impossibility for the applicant's representative's
conferring with the chief executive officer of the applicant company
without being separated by a glass partition (see Oferta Plus
S.R.L. v. Moldova, no. 14385/04, 19 December 2006).
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue.
- The
applicant and the Government each filed observations.
THE FACTS
- The
applicant, Oferta Plus S.R.L., is a company incorporated under the
law of Republic of Moldova.
1. Background to the case
- The
background to this case lies in a series of complex contractual
arrangements made in 1997 concerning importation of electricity from
Ukraine to Moldova and involving, in addition to the applicant
company, a Moldovan State-owned power distribution company called
Moldtranselectro, a Ukrainian State-owned power distribution company
and a Ukrainian private company. The agreement to which Oferta Plus
was a party provided, inter alia, that it would pay the
Ukrainian private company for the electricity energy supplied to
Moldtranselectro in United States Dollars (USD) and would later be
paid back by Moldtranselectro in Moldovan Lei (MDL) at the official
exchange rate of the day of payment.
- On
unspecified dates between 1997 and 1998 the applicant company paid
USD 33,000,000 for the electricity supplied to Moldtranselectro from
Ukraine.
- On
an unspecified date Moldtranselectro paid the applicant company MDL
189,869,277.
- On
3 March 1998 the Government of Moldova adopted Decision No. 243
by which the Ministry of Finance was authorised to issue Treasury
nominative bonds in favour of private companies for the payment of
debts arising from the importation of electricity supplied to state
institutions.
- On
25 March 1998 Moldtranselectro wrote a letter to the Ministry of
Finance asking it to issue a Treasury nominative bond (“Treasury
bond”) with a value of MDL 20,000,000 in favour of Oferta Plus.
- On
27 March 1998 the Ministry of Finance issued a Treasury bond valued
at MDL 20,000,000 (USD 4,240,702 at the time) in favour of the
applicant company, payable by 10 July 1998. The Treasury bond
provided that the applicant company had to present it to the Ministry
of Finance at least ten banking days before the date of payment. It
also provided that Moldtranselectro had to present, by that date, to
the Ministry of Finance, documents proving the supply of electricity
to state institutions.
- The applicant company presented the Treasury bond to
the Ministry of Finance ten banking days before the date of payment.
However, the latter refused to pay, on the ground that
Moldtranselectro had failed to submit evidence concerning the payment
by Oferta Plus for the imported electricity.
2. The court proceedings between Oferta Plus and the
Ministry of Finance and the subsequent enforcement proceedings
- In
October 1998 the applicant company initiated civil proceedings
against both the Ministry of Finance and Moldtranselectro. The
Ministry of Finance defended the action on the grounds set out in
paragraph 12 above while Moldtranselectro declined all
responsibility.
- On 27 October 1999 the Chisinau Economic Court found
in favour of the applicant company and confirmed its right to be paid
MDL 20,000,000 by the Ministry of Finance, in accordance with
the Treasury bond. It based its judgment on the finding that Oferta
Plus had paid for energy supplied to Moldtranselectro from Ukraine in
accordance with the agreement between them and that that energy had
been consumed by state institutions. The court considered that the
fact alone that Moldtranselectro had failed to comply with its
obligation provided for in the Treasury bond was not enough to
absolve the Ministry of Finance from its obligation to pay. The court
also decided to absolve Moldtranselectro of any responsibility.
- Since
the Ministry of Finance's appeal was dismissed on 25 November
1999 for failure to pay court fees, a warrant for the enforcement of
the judgment of 27 October 1999 was issued to the applicant company
in November 1999.
- On
14 February 2000 the applicant company officially requested a bailiff
to start the enforcement procedure under the warrant.
- On
27 April 2000 the Ministry of Finance requested an extension of the
time-limit for lodging an appeal against the judgment of 27 October
1999 and its request was granted. The appeal was examined on the
merits and dismissed by a judgment of the Appeal Chamber of the
Economic Court of the Republic of Moldova on 4 October 2000. The
Ministry of Finance lodged an appeal on points of law reiterating
that Moldtranselectro had not complied with its obligation provided
for in the Treasury bond.
- On 7 February 2001 the Supreme Court of Justice
dismissed the appeal and upheld the judgments of 27 October 1999 and
4 October 2000. It found it undisputed that Oferta Plus had paid for
electricity supplied from Ukraine to Moldtranselectro and consumed,
inter alia, by state institutions. The failure of
Moldtranselectro, which was a State company, to fulfil its
obligations vis à vis the Ministry of Finance by
presenting it with the documents required by the latter, could not
affect the rights of the applicant company, which had paid for
electricity supplied from Ukraine. It noted that the Treasury bond
did not contain any provision making the payment dependent on the
fulfilment of Moldtranselectro's obligations towards the Ministry of
Finance. The court also noted that the applicant company had on many
occasions asked the Ministry of Finance for payment, but that the
Ministry had refused and asked for the documents which should have
been presented by Moldtranselectro. The court considered the Ministry
of Finance's request to be unlawful and argued that, according to the
law, it was Moldtranselectro that should have presented the
documents.
- In March 2001, following a request by the Ministry of
Finance, the Prosecutor General's Office introduced a request for
annulment of the final judgment of the Supreme Court of Justice. On 7
May 2001 the Plenary Supreme Court of Justice dismissed it and upheld
the judgments favourable to the applicant company. It found, inter
alia, that both during the proceedings before the lower courts
and before the Plenary Supreme Court, it was established that
electricity had been supplied to state institutions in a volume
exceeding MDL 20,000,000. The fact that Moldtranselectro had failed
to comply with its obligations towards the Ministry of Finance could
not have had any influence on the right of the applicant company to
be paid.
- On 19 June 2003 the applicant sold a part of the
Ministry's debt, amounting to MDL 291,801, to a third company.
- Since the judgment of 27 October 1999 had still not
been enforced, on 26 December 2003, at the applicant company's
request, the Ministry of Finance agreed to conclude an agreement,
according to which the Ministry would pay MDL 2,000,000 each month
from January to October 2004 in exchange for the applicant's promise
not to initiate further claims for damages.
- Between January and March 2004 the Ministry paid MDL
4,000,000 to the applicant company.
- On an unspecified date the Ministry paid MDL 291,801
to a third company (see paragraph 20 above).
- The
Ministry of Finance then stopped making the payments, and on 14 April
2004 the applicant company informed the Government Agent that it had
introduced an application with the Court complaining about the
failure to enforce the judgment.
- On 26 April 2004 the Government Agent informed the
Ministry of Finance about the applicant company's application with
the Court and requested it to “take all the necessary steps in
order to avoid a finding of a violation against the State by the
Court and the impairment of the country's image”.
- On 11 May 2004 the Ministry of Finance paid MDL
1,000,000 to the applicant company. After that date all the payments
were stopped. There were no further payments after that date.
3. The revision of the final judgment of 7 February
2001
- On
7 June 2004 the Ministry of Finance wrote to the Prosecutor General's
Office informing it, inter alia, that it considered the
judgment in favour of the applicant company to be unlawful, but that
it had complied with it partially, so that Oferta Plus would not
complain to the Court. The Government Agent had informed it that
Oferta Plus had already complained to the Court. The Ministry asked
the Prosecutor General's Office for its advice.
- On 8 June 2004 the Prosecutor General's Office wrote
to the Ministry as follows:
“...during the proceedings [between the applicant
company, Moldtranselectro and the Ministry of Finance] the applicant
company and Moldtranselectro presented invoices for MDL 15,608,692,
of which by 24 April 1998 only MDL 6,226,504 had been paid.
No other evidence as to the extent to which Oferta Plus
had fulfilled its obligations under the agreement [of 1997] has been
presented. Despite this the courts ruled in its favour.
In that respect the Prosecutor General's Office has
ordered an audit to verify the supply of electricity and the payments
between Oferta Plus, Moldtranselectro and state institutions. A final
decision will be adopted by the Prosecutor General's Office after the
results of the audit become available to it and the Ministry of
Finance will be informed accordingly.”
An
attempt to carry out this audit was made in August 2004 by a
representative of the Ministry of Finance at the request of the
Prosecutor General's Office. However, it was unsuccessful because, in
accordance with book-keeping legislation, the applicant company had
destroyed the accounting documents after three years.
- The
Ministry of Finance did not wait for a final reply from the
Prosecutor General's Office and on 15 June 2004 lodged with the
Plenary Supreme Court of Justice a request for revision of the
judgments in favour of the applicant company. The request referred to
Article 449 of the Code of Civil Procedure but did not specify any
reasons for revision.
- On
12 July 2004 the applicant company submitted to the Supreme Court its
observations on the revision request in which it argued, inter
alia, that the Ministry had not indicated any reasons for
revision, that the revision request was time-barred and if the
request were to be upheld this would amount to a breach of the
principle of legal certainty.
- On
the same date the Plenary Supreme Court of Justice upheld the
revision request, following a hearing at which the Ministry of
Finance was represented by the deputy Prosecutor General. It quashed
the judgments in favour of the applicant company and ordered the
reopening of the proceedings. It relied on the Prosecutor General
Office's letter of 8 June 2004 (see paragraph 28 above), which
had been submitted by the Ministry during the hearing. The Plenary
considered the letter to be a new and essential fact or circumstance
which was unknown and could not have been known earlier, in
accordance with the provisions of Article 449 (c) of the Code of
Civil Procedure. In particular it considered new and essential the
submission of the Prosecutor General's Office that “by 24 April
1998 only MDL 6,226,504 had been paid”. The Supreme Court
of Justice did not address in its judgment the objections raised by
the applicant company.
4. The reopened proceedings
- On 3 November 2004 the Economic Court of Appeal held a
hearing in the re-opened proceedings. Unlike the first round of
proceedings, Moldtranselectro sided this time with the Ministry of
Finance and argued that Oferta Plus's action should be dismissed
because it (Moldtranselectro) had already covered the entire debt for
the electricity supplied, including MDL 20,000,000 provided in
the Treasury bond, by paying Oferta Plus MDL 189,869,272 on an
unspecified date.
The
court upheld the applicant company's action and ordered the Ministry
of Finance to pay it MDL 20,000,000 in accordance with the Treasury
bond. It based its judgment on the fact that the supply of the
electricity and the cost of the supplied energy were not disputed by
the parties. Referring to the electricity supplied to state
institutions, it found that by 1 March 1998 they had consumed MDL
27,551,000 worth of electricity imported from Ukraine with the
participation of Oferta Plus.
In
the court's view, the Treasury bond constituted an incontestable
obligation on the Ministry of Finance towards Oferta Plus, which
could not depend on the fulfilment of third party obligations.
Referring
to the submissions of Moldtranselectro concerning the payment of MDL
189,869,272 to the applicant company, the court argued that that
amount represented USD 33,133,404 at the date of supply of the
electricity, but not at the date of payment of the MDL 189,869,272.
The court held that at the date of payment of the above amount by
Moldtranselectro, USD 33,133,404 was worth MDL 210,692,688.
Referring
to the amounts indicated by the Prosecutor General's Office in its
letter dated 8 June 2004, which served as a basis for the revision of
the final judgment of 27 October 1999 (see paragraph 28 above), the
court found that those figures were related to a completely different
matter and were irrelevant to the case before it.
The
Ministry of Finance appealed against this judgment to the Supreme
Court of Justice.
- On 10 February 2005 the Supreme Court of Justice
upheld the Ministry's Appeal and dismissed the applicant company's
action against it. While not contesting the findings of the
first-instance court (see the preceding paragraph) and while
confirming that electricity was supplied to Moldtranselectro and
consumed, inter alia, by state institutions, it made its own
calculations directly in USD without converting the amounts to MDL,
and came to the conclusion that the entire debt owed by the State to
the applicant company had been covered by the payment of MDL
189,869,272 by Moldtranselectro to the former. The Supreme Court also
ordered the applicant company to pay the court fees of MDL 600,000.
- On
17 March 2005 the Ministry of Finance lodged with the Economic Court
of Appeal a request for the return of the MDL 5,291,801 which
had been paid in accordance with the judgment of 7 February 2001. The
applicant company argued, inter alia, that the request
had been lodged out of time and that in any event the amount of MDL
291,801 had never been paid to it, but had instead been paid to a
third person (see paragraphs 20 and 23 above).
- By
a final judgment of 29 September 2005 the Supreme Court of Justice
upheld the request of the Ministry of Finance. It dismissed the
applicant company's submission concerning the time-limit and ignored
its submission concerning the MDL 291,801 which had been paid to a
third person.
5. Facts related to the applicant company's complaints
under Article 34 of the Convention
- On 19 October 2004, the Prosecutor General's Office,
having examined the letter of the Ministry of Finance of 7 June 2004
(see paragraph 28 above) initiated criminal proceedings against the
applicant company and against the head of Moldtranselectro on charges
of large-scale embezzlement of State property. The Prosecutor
General's Office referred to the results of the audit which it had
attempted to carry out in August 2004 (see paragraph 28 above) and
stated, inter alia, that according to the results of that
audit, Oferta Plus had not paid for electricity supplied to state
institutions.
- On 15 April 2005 the Chief Executive Officer of the
applicant company (“C.T.”) was
questioned by the Prosecutor General's Office.
- On 20 April 2005 the offices of the applicant company
were searched and some documents were seized.
- On 25 October 2005 the criminal proceedings were
discontinued. The prosecutor in charge of the criminal case stated in
his decision of discontinuation, inter alia, the following:
“According to the evidence obtained during the
audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus
reached MDL 202,644,866...
The materials gathered [during the investigation] and
the audit prove the existence of the debt of Moldtranselectro to
Oferta Plus for the electricity supplied. The transfers [of MDL
5,000,000 by the Ministry of Finance] to Oferta Plus's accounts were
carried out in accordance with court judgments...
Taking into consideration the evidence gathered, [the
prosecution concludes] that the acts of Oferta Plus's management do
not disclose any signs of the offence [of large-scale embezzlement]
or of other offences.”
- On 8 December 2005 all the bank accounts of the
applicant company were frozen by a bailiff to ensure the restitution
of MDL 5,291,801. The company had to make all of its employees
redundant, except for C.T.
- On 15 February 2006 the Court communicated the present
case to the Moldovan Government.
- On 26 April 2006 the Deputy Prosecutor General quashed
the decision of 25 October 2005. He submitted, inter alia,
that on 1 January 2001 Moldtranselectro's debt to the applicant
company for the electricity supplied had been MDL 38,454,671. He
argued that while Oferta Plus had paid the Ukrainian partner more
than MDL 20,000,000 for the electricity supplied to Moldtranselectro,
it appeared that the energy for which it had paid was not supplied
exclusively to state institutions. He also noted that Oferta Plus had
transferred a part of the debt to third companies in exchange for
money and goods. He requested, in particular, that an international
fact-finding mission be sent to Ukraine and that the books of the
applicant company be seized.
- On
11 May 2006 C.T. was declared a suspect in the criminal proceedings.
In a decision of the same date, it was reiterated that on 1 January
2001 Moldtranselectro's debt to Oferta Plus for the electricity
supplied had been MDL 38,454,671. However, the electricity for which
Moldtranselectro owed this amount had not been supplied to state
institutions.
- On 9 August 2006 a prosecutor issued a decision by
which C.T. was officially indicted for misappropriation of MDL
5,000,000 and attempted misappropriation of MDL 15,000,000. The
charges against him were based on the fact that the energy supplied
to Moldtranselectro, for which the applicant company had paid the
Ukrainian private company, had not been consumed by state
institutions. The prosecution argued that a Treasury bond could be
issued by the Ministry of Finance only for energy supplied to state
institutions. Contrary to that provision, Moldtranselectro had asked
the Ministry of Finance on 25 March 1998 to issue a Treasury bond in
favour of Oferta Plus and such a bond had been issued by the Ministry
of Finance on 27 March 1998.
After
that, Oferta Plus, in the person of V.L, its former chief executive,
making use of the favourable environment created for his company by
the illegal actions of Moldtranselectro, and seeking to obtain
MDL 20,000,000, had initiated civil proceedings against the
Ministry of Finance, and in the absence of any proof that electricity
had been supplied to state institutions, illegally obtained judgments
in its favour.
However
V.L. could not complete his criminal intention of misappropriating
MDL 20,000,000 due to circumstances which were independent of his
will (he was killed).
The
criminal intention to misappropriate MDL 20,000,000 was continued by
C.T., the present Chief Executive Officer of Oferta Plus.
Despite
the fact that on 23 May 2002 Moldtranselectro owed Oferta Plus only
MDL 3,948.49, C.T. had pursued his criminal intention by pressing the
Ministry of Finance repeatedly to comply with the judgment of
27 October 1999. As a result, on 26 December 2003 the Ministry
of Finance had concluded an agreement with him and later transferred
MDL 5,000,000 to Oferta Plus.
Later
C.T. transferred the money to the account of a third company, which
also belonged to him, from where it had been transferred to his
wife's personal account and later withdrawn in cash.
Referring
to the reopened proceedings which followed the judgment of the
Plenary Supreme Court of 12 July 2004, the prosecutor noted that,
despite being well aware that Oferta Plus had not paid for energy
supplied to state institutions, C.T. had managed to obtain a judgment
in favour of Oferta Plus before the first-instance court. C.T. had
presented evidence which, while showing the payment for electricity,
did not prove that the electricity had been supplied to state
institutions.
- Also on 9 August 2006, according to the applicant
company, C.T. was told by the investigating officer, Eugen Bîcu,
that no criminal charges against him would have been instituted had
he contented himself with MDL 5,000,000.
- On
the same date C.T. was arrested and a request for him to be remanded
in custody for thirty days was addressed to the Buiucani District
Court.
- A detention warrant for a period of thirty days was
issued by the investigating judge of the Buiucani District Court on
the same day. The judge argued, inter alia, that C.T. had
attempted to influence a witness. He relied on a transcript of a
telephone conversation of 12 May 2006, which, however, was never
disclosed to the defence, despite the latter's requests.
- C.T.
appealed against the detention warrant and argued, inter alia,
that the criminal proceedings against him had been a form of pressure
to persuade Oferta Plus to abandon its application before the Court.
He complained that he and his lawyers had not been allowed to see the
transcript of the telephone conversation which was the main reason
for his detention and insisted that he had not made any attempt to
influence any witnesses.
He
also argued that he had become the CEO of Oferta Plus only in late
2003 and thus had not even been involved in the transaction between
the applicant company and Moldtranselectro and that in any event the
electricity had been supplied to Moldtranselectro, which was a State
company and held a monopoly on distribution of electricity at that
time. The applicant company could not know the final consumers of the
electricity.
- On
15 August 2006 C.T.'s appeal was dismissed. The Court of Appeal did
not give any assessment of the argument concerning C.T.'s lack of
access to the transcript of the telephone conversation.
- In
the meantime, on 14 August 2006, the applicant company's lawyer in
the present case applied to the Centre for Fighting Economic Crimes
and Corruption (“CFECC”) to visit C.T. He pointed out
that he was Oferta Plus's lawyer in the proceedings before the Court
and submitted that he needed to see C.T. in order to prepare together
with him the observations due on 22 August 2006. He asked that the
meeting between them take place without a glass partition separating
them, since he knew that there was such a partition in the CFECC
lawyer-client meeting room. He submitted that both he and C.T. had
reason to believe that conversations through the glass partition in
the CFECC meeting room were intercepted and that they were convinced
that the criminal proceedings against C.T. had been instituted in
order to discourage Oferta Plus from pursuing its application before
the Court. He argued that their separation by the glass partition,
especially in such conditions, would not allow them to speak freely
and would seriously hinder his ability to represent the applicant
company before the Court. The lawyer further argued that C.T. was not
a violent person and that there was no risk that he would attack his
lawyer. In any event he, the lawyer, would bear responsibility for
any attack. He also declared that he would allow the CFECC
representatives to search him, except for the documents he would be
carrying, in order to ensure that he had no forbidden objects on his
person.
- After repeated requests by telephone, on 18 August
2006 the lawyer was finally allowed to see C.T. in the CFECC
lawyer-client meeting room, separated by the glass partition. In
these circumstances, C.T. refused to discuss any matters relating to
pecuniary damage and asked his lawyer to do likewise because the
conversation would have related to the whereabouts of the company's
accounting documents.
During
the conversation with C.T., the lawyer informed him that the charges
against him were not consistent with the findings of the civil courts
in the civil proceedings between Oferta Plus, the Ministry of Finance
and Moldtranselectro. The next working day, on 21 August 2006, the
criminal investigator E. Bîcu went to
the archives of the Appeal Economic Court and took the case file in
the civil proceedings. The case file was returned to the archives on
4 September 2006.
- On
18 August 2006, in the afternoon, the applicant's lawyer telephoned
the Government Agent's Office and asked for assistance in seeing C.T.
without a glass partition. His request was not successful.
- On
21 August 2006 the lawyer telephoned the investigating officer, and
asked him for another meeting with C.T. He repeated his request to
see C.T. without the glass partition, but this request was again
rejected. He was told that the conditions for meetings between
lawyers and clients in the CFECC detention centre were not contrary
to the law. A meeting between the lawyer and C.T. took place the next
day.
- On the same day the CFECC made public a press release
according to which it had discovered, in the context of the criminal
investigation against C.T., an illegal scheme for misappropriation of
budgetary funds. A similar item, with images of C.T., was broadcast
on the evening news bulletin of Moldovan national television.
- On
29 August 2006, the applicant's lawyer wrote to the Buiucani District
Court that he was the representative of Oferta Plus in the
proceedings before the Court. He submitted that, since his client
believed that the criminal proceedings against C.T. and his
subsequent detention served the purpose of discouraging the pursuit
of the Oferta Plus v. Moldova application before the
Court, on 22 August 2006 a formal complaint under Article 34 of the
Convention had been lodged with the Court. He noted that the main
piece of evidence relied upon by the courts in placing C.T. in
detention was a transcript of a telephone conversation which
allegedly proved his attempt to influence a witness. Since C.T.'s
defence had not been presented with a copy of it during the remand
proceedings, he formally requested a copy of that transcript for the
purpose of presenting it to the Court in support of the Article 34
complaint.
- On
5 September 2006 Mr Gribincea's request was rejected by the Buiucani
District Court on the ground that he was not C.T.'s lawyer in the
criminal proceedings against him. The court also noted that in any
event the materials of the criminal case file were not usually
disclosed to the defence unless the criminal investigator decided
otherwise.
- On
7 September 2006 the investigation was completed in the criminal
proceedings and the case was sent for examination on its merits to
the Centru District Court. On the same date, C.T. told the applicant
company's lawyer that he had been told that he would be convicted
before the Court adopted a judgment in the present case.
- In
a letter of 29 November 2006, the applicant company's representative
informed the Court that C.T. was released from detention on
14 November 2006.
6. Facts related to the period after the pronouncement
of the principal judgment
- On
4 January 2007 the applicant company lodged a revision request with
the Supreme Court of Justice asking it, inter alia, to quash
the judgment of 12 July 2004 on the ground that it had been found to
be in breach of Article 6 of the Convention and Article 1 of Protocol
No. 1 to the Convention in the principal judgment of 19 December
2006.
- The
Ministry of Finance disagreed with the revision request and submitted
arguments similar to those submitted by Moldranselectro during the
re-opened proceedings (see paragraph 32 above). In particular it
argued that the entire amount was paid to Oferta Plus by
Moldtranselectro before 2001. In response, the applicant submitted
arguments similar to those relied on by the Economic Court of Appeal
in its judgment of 3 November 2004 to rebut Moldtranselectro's
contentions (see paragraph 32 above).
- In a judgment of 29 October 2007 the Plenary Supreme
Court of Justice, under the presidency of the President of the
Supreme Court, Judge I.M., stated that it was upholding the applicant
company's revision request and quashing its judgment of 12 July 2004
and all the judgments which followed the abusive reopening of the
proceedings. The ground relied upon by the Supreme Court was that the
revision proceedings were contrary to Article 6 of the
Convention as found by the Court in the principal judgment. Thus, the
judgment of the Chisinau Economic Court of 27 October 1999 (see
paragraph 14 above) became the final authority in the case.
At
the same time the Supreme Court ordered that the judgment of
27 October 1999 was never to be enforced on the ground that the
applicant was paid the entire debt before 2001 and that it was of bad
faith. The Supreme Court did not elaborate on its finding that the
applicant was of bad faith; however, it entirely espoused the
contention of the Ministry of Finance that the applicant company had
been paid the entire debt (see the preceding paragraph). Finally, the
Supreme Court considered that a simple quashing of its judgment of 12
July 2004 not followed by the enforcement of the judgment of 27
October 1999 might not be sufficient in terms of just satisfaction
and decided proprio motu to award the applicant compensation
for non-pecuniary damage in the amount of MDL 16,000 (969 euros
(EUR)).
- Five
judges of the Supreme Court of Justice, M.P., S.M., V.D., T.R. and
I.O., disagreed with the opinion of the majority and wrote a
dissenting opinion in which they stated, inter alia, that it
was illegal under Moldovan law and contrary to the Convention not to
enforce a final judgment. Moreover, the dissenting judges expressed
the opinion that the order of non-enforcement made by the majority
was contrary to the principle of legal certainty guaranteed by
Article 6 § 1 of the Convention as it upset the judgment of 27
October 1999 which was res judicata and which, moreover, was
partly executed. According to them the majority's decision
also generated a breach of Article 1 of Protocol No. 1 to the
Convention. Finally they considered the compensation for
non-pecuniary damage awarded to the applicant company by the majority
to be too small.
- Judge
N.C. wrote a dissenting opinion in which she expressed the view that
the majority was wrong in upholding the revision request lodged by
the applicant company. In reaching this conclusion, Judge N.C. relied
on the same reasons as the majority in support of its order of
non-enforcement of the judgment of 27 October 1999 (see paragraph 61
above).
- The criminal proceedings against the chief executive
officer of the applicant company continued after the adoption of the
principal judgment. On 28 June 2007 C.T. was acquitted by the Centru
District Court. The acquittal was upheld on 12 October 2007 by the
Chisinau Court of Appeal. The Court has not been informed by the
parties whether C.T.'s acquittal has become final or whether it has
been challenged by an appeal on points of law.
THE LAW
- 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
- In
its observations of 15 March 2007 the applicant company claimed
EUR 2,386,857.99 for pecuniary damage suffered as a result of
the failure of the authorities to enforce the judgment of 27 October
1999 followed by the abusive quashing of it on 12 July 2004. The
amount consisted of the main amount owed to the company by the
Government by virtue of the judgment of 27 October 1999 less the
amount already paid to it in January-May 2004 (see paragraphs 23 and
26 above) and the part of the debt sold by it to a third company (see
paragraph 20 above) converted into euros. It also included interest
calculated in accordance with the Civil Code, and took account of
inflation. The applicant also requested to be awarded EUR 470.46
for every day from 15 March 2007 until the adoption by the Court of
the present judgment. The total amount of the applicant's claim
calculated on the date of adoption of the present judgment was
EUR 2,534,111.97.
- The
Government disputed the amount claimed by the applicant company and
argued that it had not suffered any pecuniary damage. In support of
their position, and in spite of the findings of the Court in its
principal judgment at paragraphs 134-44, the Government insisted that
the chief executive officer of the applicant company had committed an
offence and that the charges against him (see paragraph 64 above)
were still a matter for examination by the domestic courts. They
expressed the view that if the applicant company's chief executive
officer was found guilty in the criminal proceedings in the Moldovan
courts, that would automatically exclude any pecuniary liability of
the Government in the Strasbourg proceedings and asked the Court not
to decide on the matter until the criminal proceedings had been
finally decided domestically.
- In
any event, the Government contested the method of calculation
employed by the applicant company and argued that no compensation for
inflation should be awarded. They submitted that in this particular
case, in view of the very large amount of money, the interest should
not be calculated in accordance with the provisions of the Civil Code
but rather on the basis of a yearly interest rate of three percentage
points and argued that the total pecuniary damage could not exceed
the amount of EUR 1,027,087.
- The Court notes that the revision procedure provided
for by Article 449 of the Moldovan Code of Civil Procedure is
not an effective remedy within the meaning of the Convention and
therefore the applicant company was not under a duty to use it.
However, the applicant company chose to do so, thus giving the
Supreme Court of Justice a chance to finally resolve the case at the
domestic level. The Plenary Supreme Court examined the revision
request and on 29 October 2007 adopted a judgment. Having examined
that judgment, the Court cannot but express serious concern that
despite its abundant case-law concerning the principle of legal
certainty and respect for res judicata in applications against
Moldova and other countries, and regardless of its findings in the
principal judgment, the Supreme Court of Justice adopted a solution
which disrespects once again the finality of the judgment of 27
October 1999 in a manner incompatible with the Convention. Indeed, it
appears that the order of non-enforcement of the judgment of 27
October 1999 (see paragraph 61 above), has the effect of setting at
naught an entire judicial process which had ended in a judicial
decision that was “irreversible” and thus res judicata
and which had, moreover, been partly executed. The Court finds this
situation particularly regrettable given that the judgment was
adopted by the Plenary Supreme Court of Justice.
- Having
examined the parties' submissions and the evidence submitted by them,
the Court accepts that the applicant company suffered pecuniary
damage as a result of the breach of its rights guaranteed by
Article 6 of the Convention and Article 1 of Protocol No. 1 to
the Convention. It 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 Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 19, ECHR 2001 I).
- The
Court considers that in the present case the applicant company has
the right to recover the money to which it is entitled by virtue of
the judgment of 27 October 1999, less all the amounts to which
reference is made in paragraphs 20, 22 and 26 above (MDL 5,291,801).
It is also entitled compensation for the inability to make use of it
until now. Taking into account the
provisions of Article 619 of the Civil Code governing the calculation
of default interest for non-consumer related debts (see Mizernaia
v. Moldova, no. 31790/03, §§ 14 and 28, 25 September
2007) and the circumstances of the case under consideration, the
Court, making its own calculations, awards the applicant company a
total amount of EUR 2,500,000.
B. Non-pecuniary damage
- The
applicant company claimed EUR 100,000 for non-pecuniary damage. It
argued that the failure to enforce the judgment of 27 October
1999 and the subsequent abusive quashing of it had seriously
disrupted the management of the company by rendering any decision
making impossible and placing the company in a state of total
uncertainty. This was seriously aggravated by the subsequent abusive
freezing of the bank accounts of the company and the blocking of its
entire activity, as a result of which all the company's staff had to
be laid off. Later, after the communication of the case, the
company's chief executive officer was imprisoned on the basis of
abusive criminal charges in order to force him to abandon the present
application. The criminal proceedings against the CEO were a serious
blow to the company's reputation. According to the applicant, the
pressure on it continues to date and the Government have refused to
discontinue the criminal proceedings against its CEO despite the
Court's finding that they are abusive and in breach of Article 34 of
the Convention. The companies' accounts remain frozen and its CEO is
still under an order forbidding him from leaving the town.
The
applicant cited Sovtransavto Holding v. Ukraine ((just
satisfaction), no. 48553/99, 2 October 2003), in which the Court
awarded EUR 75,000 in respect of non-pecuniary damage and argued that
in the present case the violations were more serious, in view of the
violation of Article 34.
- The
Government disagreed and argued that the applicant company had failed
to adduce evidence in support of its claims under this head. They
also argued that since the applicant was a company, it could not have
experienced suffering and mental anguish, and cited the case of
Immobiliare Saffi v. Italy ([GC], no. 22774/93, ECHR 1999 V)
and asked the Court to dismiss the applicant company's claims.
- The
Court recalls that it has previously made awards in respect of
non-pecuniary damage in cases where companies or other moral entities
were applicants (see for example Metropolitan Church of Bessarabia
and Others v. Moldova, no. 45701/99, ECHR 2001 XII;
Sovtransavto Holding v. Ukraine, cited above; Ukrainian
Media Group v. Ukraine, no. 72713/01, 29 March 2005; and
Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR
2000 IV).
- The
Court further notes that the Plenary Supreme Court of Justice awarded
the applicant company the equivalent of EUR 969 for non-pecuniary
damage, an amount, which, in the Court's view, is insufficient to
compensate violations of such gravity as the ones found in the
principal judgment. Moreover, the Court is of the opinion that not
only did the Supreme Court fail to award adequate compensation, but
it further aggravated the applicant company's situation by
interfering once again with the finality of the judgment of 27
October 1999 (see paragraph 69 above).
- The
fact that the final judgment of 27 October 1999 was not enforced for
more than three years and was subsequently quashed following abusive
revision proceedings must have caused Oferta Plus S.R.L. considerable
inconvenience, if only in the conduct of the company's everyday
affairs. Moreover, having regard to the Court's reasons for its
finding of a breach of Article 34 (see in particular paragraphs 143
and 156 of the principal judgment), the Court considers that an award
of compensation for moral damage is justified in this case. Such an
award must also reflect the aggravation of the applicant company's
situation as a result of the Plenary Supreme Court's judgment of 29
October 2007. Making its assessment on an equitable basis, the Court
awards the applicant company EUR 25,000.
C. Costs and expenses
- The
applicant's representative claimed EUR 104 for postal expenses and
EUR 10,000 for representation costs.
- Insofar
as the postal expenses are concerned, he sent the Court copies of DHL
receipts. He argued that the use of rapid post was justified in this
case in view of the violations of Article 34.
- As
to the representation fees, the lawyer sent the Court copies of three
bank receipts proving the payment of EUR 9,723 to him. The first two
bank receipts proved the payment of EUR 2,850 and EUR 1,900 by the
applicant company and the last one of EUR 4,973 by the former
accountant of the company. The lawyer explained that the accounts of
the company were frozen at the latter date and that is why he was
paid by other means.
- The
representative submitted a copy of a contract between him and the
applicant company, according to which the applicant had to pay
EUR 10,000 for representation fees. He also submitted a detailed
time-sheet according to which he had spent 124.5 hours on the case at
a rate of EUR 100 per hour.
- He
argued that the number of hours spent by him on the case was not
excessive and was justified by its complexity and abundance of
detail.
- As
to the hourly fee of EUR 100, the applicant's lawyer argued that it
was within the limits of the fees recommended by the Moldovan Bar
Association which were EUR 40-150.
- Moreover,
he argued that an hourly fee of EUR 100 was reasonable in view of his
experience and of the cases previously won by him before the Court
and pointed to the case of Boicenco v. Moldova, in which the
Court found reasonable the amount of EUR 75 per hour.
- The
Government argued that Mr Gribincea was not a lawyer in the sense of
the Law on Advocacy since he did not possess a licence issued by the
Ministry of Justice. They therefore argued that the contract between
the applicant company and Mr Gribincea, in which the latter was
called “the lawyer”, should be considered null and void
and no fees should be awarded.
- The
Government disagreed with the amount claimed for representation
calling it excessive and unreal in the light of the economic
situation of the country and of the average monthly salary. They
disputed the number of hours spent by the applicant's lawyer and the
hourly fees charged by him. They also challenged the postal expenses
claimed by the applicant.
- The
Court recalls that in order for costs and expenses to be included in
an award under Article 41 of the Convention, 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 itemised list submitted,
the receipts proving payment of the claimed amounts to the
representative, the complexity of the case and the input of the
lawyer, the Court awards the applicant company the entire amount
claimed.
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
- 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, the following amounts to be converted into the currency
of the respondent State at the rate applicable on the date of
settlement:
(i) EUR
2,500,000 (two million five hundred thousand euros) in respect of
pecuniary damage;
(ii) EUR
25,000 (twenty-five thousand euros) in respect of non-pecuniary
damage;
(iii) EUR
10,104 (ten thousand one hundred and four euros) in respect of costs
and expenses;
(iv) any
tax that may be chargeable on the above amounts;
(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 12 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
