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FOURTH SECTION
CASE OF BUCURIA v.
MOLDOVA
(Application no.
10758/05)
JUDGMENT
STRASBOURG
5 January 2010
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 Bucuria 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 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10758/05) 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 company registered in Moldova, Bucuria Inc.
(“the applicant company”), on 4 January 2005.
- The
applicant company was represented by Mr O. Dorogan, a lawyer
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant company alleged, in particular, that it had not been
summoned to the hearing of the Supreme Court of Justice and that, as
a result, it had suffered damage after losing the case.
- The
application was allocated to the Fourth Section of the Court. On
5 December 2006 a Chamber of that Section decided to give notice
of the application to the Government. It also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- On
25 November 2002 the applicant company dismissed M. from his job. On
20 December 2002 M. initiated court proceedings seeking his
re-instatement.
- After
numerous postponements of the hearing at M.'s request, the Buiucani
District Court found in his favour on 5 February 2004.
- The
applicant company appealed. On 22 April 2004 the Court of Appeal
quashed the first-instance judgment and adopted a new one, rejecting
all of M.'s claims. The court found that M. had not submitted any
evidence to support his claim that on 1 November 2002, when he was
absent from work, he had been at a close relative's funeral.
- M.
lodged an appeal in cassation. The first hearing before the Supreme
Court of Justice was scheduled for 23 June 2004. On 18 June 2004 the
applicant company informed the court that its representative would be
away for the day and asked for a postponement of the hearing.
- According
to the applicant company, it did not hear from the court and thus did
not submit its written reply to M.'s appeal, as it was waiting for a
summons for a new date. On 15 July 2004 it enquired about the
new date of the hearing. In response, it was informed that M.'s
appeal had been examined on 7 July 2004 and fully allowed.
- In its judgment, the court relied, inter alia,
on evidence of M.'s presence at a close relative's funeral and on the
trade union association's opposition to the dismissal.
- Having
examined the materials in the file, the applicant company found that
its request for a postponement had been accepted by the court on 23
June 2004 and a new date for the hearing had been set for 7 July
2004. There was also a summons for that date, which had been signed
only by M.
- The
applicant company lodged a request for revision of the judgment of
the Supreme Court of Justice. It informed the court that it had not
received any summons for 7 July 2004 and drew the court's attention
to the absence in the file of any evidence regarding the delivery of
the summons. It invoked Article 6 of the Convention.
- On
27 October 2004 the Supreme Court of Justice rejected the request. It
found that the court had sent the summons to the applicant company's
address on 24 June 2004 and that the applicant company had failed to
appear at the hearing on 7 July 2009 without informing the court. The
court did not see any reason to believe that the applicant company
had not received the summons since the stub from the summons proved
that it had been sent out and since “there was no evidence that
the summons had not been received”. It added that, under
Article 444 § 2 of the Code of Civil Procedure (CCP, see below),
the failure of one of the parties to appear did not prevent the court
from examining the case and that, under Article 449 CCP, the
examination of the case in the absence of a party was not a ground
for the revision of the judgment.
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. The summons ... addressed to a legal
person shall be served on the authorised employee and shall be
countersigned on the receipt; if such a person is absent, the summons
shall be served on another employee in the same conditions...”
“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 parties
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.”
- 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.
- In the following judgments adopted by the Supreme
Court of Justice on 30 January 2008 (no. 2ra-3/08), 4 June 2008 (no.
2ra-1097/08) and 25 June 2008 (no. 2r-156/08), that 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 company complained of a violation of its 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.”
- The
applicant company also complained under Article 1 of Protocol No. 1
to the Convention that it had incurred losses as a result of the
judgment of the Supreme Court of Justice adopted in its absence.
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. ...”
I. ADMISSIBILITY
- The
Court considers that the applicant company's complaints under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 to the
Convention raise 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 § 1 OF THE
CONVENTION
- The
applicant company submitted that, despite the Government's arguments
and evidence that the Supreme Court of Justice had sent it a summons,
it had never received such a summons for the hearing of 7 July 2004,
nor was there any evidence to that effect. The law provided, however,
for an express obligation to serve the summons personally on the
applicant company's representative (see paragraph 15 above).
- The
Government submitted that the applicant company had been properly
summoned to the hearing, as confirmed by the documents concerning the
sending of the letter by the Supreme Court of Justice. Moreover, it
was for the applicant company to prove that it had not received the
letter, and not for the authorities to prove that it had been
received.
- 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 clear legal provisions as
interpreted by the Supreme Court of Justice itself (see paragraphs
15-17 above), the Court considers that the applicant company in the
present case was not properly summoned to the hearing of 7 July
2004.
- The
Court also notes that the Supreme Court of Justice did not simply
confirm the findings of the lower court, but overturned a judgment in
favour of the applicant company. In such circumstances, it was
important to hear the applicant company's representative, also in the
light of the fact that the parties disagreed on a number of factual
issues such as the presence of legitimate reasons for the employee's
absence from work and the existence of a decision of the trade union
regarding the dismissal (see paragraph 11 above).
- In
the light of the above, the Court concludes, for the reasons given in
Russu (cited above, § 27), that the applicant company was
not given an opportunity to fully present its case to the Supreme
Court of Justice.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant company also contended that its rights guaranteed by
Article 1 of Protocol No. 1 to the Convention had been violated as a
result of the decision of the Supreme Court of Justice of 7 July
2004.
- The
Government considered that the applicant company had not been
deprived of its property, since the damages which it was eventually
ordered to pay to its employee resulted from its own illegal actions.
- The
Court cannot speculate on the outcome of the proceedings had the
Supreme Court of Justice heard the applicant company's
representative. In this respect the present case must be
distinguished from other cases where the courts fail to follow clear
rules which leave no room for discretion (such as time-limits for
various procedural acts, compare Dacia SRL v. Moldova,
no. 3052/04, §§ 75 et seq., 18 March 2008).
- There
has, therefore, been no violation of Article 1 of Protocol No. 1 to
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant company claimed 38,798 Moldovan lei (2,482 euros (EUR)) for
the pecuniary damage it had suffered as a result of the violation of
its rights. It referred to the sums it had been ordered to pay by
virtue of the judgments adopted against it.
- The
Government contended that the outcome of the proceedings, even with
the participation of the applicant company's representative, could
not be foreseen. There was therefore no causal link between the
allegation of a failure to summon the applicant company to the
hearing and the outcome of the proceedings.
- The
Court refers to its findings of a violation of Article 6 of the
Convention in respect of the failure to summon the applicant company
to the hearing of the Supreme Court of Justice. As it has already
stated above, the Court will not speculate as to what the outcome of
the hearing before the Supreme Court of Justice might have been if
the applicant company had been properly summoned.
- The
Court considers that there is no causal link between the violation it
has found in the present case and the applicant company's claim for
compensation for pecuniary damage. This claim must therefore be
rejected.
B. Non-pecuniary damage
- The
applicant company claimed EUR 10,000 in respect of non-pecuniary
damage caused to it as a result of the gravity of the violations of
its rights and the length of time during which its money had been
withheld.
- The
Government disagreed and considered that the applicant company had
not adduced any evidence to support its claim. Any damage caused to
it had been the consequence of its own actions. In any event, a
finding of a violation of any Articles of the Convention would offer
sufficient just satisfaction.
- The
Court considers that the applicant company's management must have
been caused a certain amount of stress and frustration as a result of
the failure to summon its representative to the hearing of the
Supreme Court of Justice. Deciding on an equitable basis, the Court
awards the applicant company EUR 1,000 for non-pecuniary damage.
C. Costs and expenses
- The
applicant company did not claim any compensation on this account.
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
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one 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 amount 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 5 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
