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THIRD
SECTION
CASE OF DRAGOSTEA COPIILOR - PETROVSCHI - NAGORNII v. MOLDOVA
(Application
no. 25575/08)
JUDGMENT
(merits)
STRASBOURG
13
September 2011
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 Dragostea Copiilor
- Petrovschi - Nagornii v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25575/08) 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, Dragostea
Copiilor - Petrovschi - Nagornii (“the applicant company”),
on 13 May 2008.
- The
applicant company was represented by Mr V. Gribincea, a lawyer
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant company alleged, in particular, a breach of the right to a
fair trial by a “tribunal established by law” on the
ground that the judge rapporteur had been changed in disregard of the
provisions of the law. The applicant company also complained that its
right to a fair hearing and its right to the peaceful enjoyment of
its possessions had been breached as a result of the wrongful
quashing of a final judgment in its favour.
- On
5 February 2009 the Court decided to give notice of the application
to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company, which runs a primary school in Chişinău,
was party to civil proceedings in 2001. By a judgment of the Rascani
District Court of 25 July 2001 the applicant company was ordered to
pay Mr M. 78,400 United States dollars.
- On
an unspecified date in 2006 Mr M. applied to the Department for the
Execution of Judgments for the enforcement of the judgment of
25 July 2001. However, his application was dismissed on the
ground that it had been time-barred. In a letter dated 4 May 2006 Mr
M. was informed that no enforcement warrant in respect of the
judgment of 25 July 2001 had been lodged between 2001 and 2006.
- On
22 May 2006 Mr M. lodged a request with the Rascani District Court
asking for an extension of the three-year time-limit for requesting
enforcement of the judgment in his favour. He argued, inter alia,
that he had submitted a request for enforcement sometime in 2001
together with the enforcement warrant, but that it had allegedly been
lost by the Department for the Execution of Judgments.
- On
18 July 2007 the Chişinău Court of Appeal finally dismissed
Mr M’s request. It found, inter alia, that the
enforcement of a judgment may be requested by an interested party to
the proceedings within three years from the date when the judgment
became final and enforceable. Since Mr M. had made such a formal
request only some five years after the judgment of 25 July 2001
had become final, he had missed the deadline. The court found that Mr
M. could not produce any plausible evidence justifying his missing
the time-limit and could not prove his contention that he had
submitted a request which had subsequently been lost by the
Department for the Execution of Judgments.
- On 20 July 2007 Mr M. lodged a request for review of
the final judgment of 18 July 2007. He relied on Article 449 (c) of
the Code of Civil Procedure (see paragraph 14 below) and argued that
according to a letter dated 13 July 2007 sent to him by the
Department for the Execution of Judgments in reply to a letter from
him, an enforcement warrant had been registered with the Department
on 31 July 2001 but had been returned to the Rascani District Court
two days later.
- On
22 August 2007 the Chişinău Court of Appeal refused Mr M.’s
request for review because the ground relied on by him did not fall
under Article 449 (c) of the Code of Civil Procedure, namely the
letter from the Department for the Execution of Judgments had become
known to him before the pronouncement of the judgment of 18 July
2007. Moreover, the enforcement warrant referred to in the letter of
13 July 2007 did not concern the enforcement of the judgment of 25
July 2001 but the enforcement of a surety ordered by the
first-instance court several months before the date on which the
judgment of 25 July 2001 became enforceable. On 28 September 2007 Mr
M. lodged an appeal on points of law against this decision.
- On
24 October 2007 a Judge S.N. was appointed rapporteur in the case.
- On 14 November 2007, a panel of three judges of the
Supreme Court of Justice allowed Mr M.’s appeal, quashed the
decision of 22 August 2007, granted Mr M.’s request for review
and ordered a fresh examination of the case. The Supreme Court
considered the letter of 13 July 2007 as a new document within the
meaning of Article 449 (c) of the Civil Procedure Code and argued
that Mr M. could have obtained it later than 13 July 2007. The court
did not dispute the lower court’s findings to the effect that
the enforcement warrant referred to in the letter of 13 July 2007 did
not concern the enforcement of the judgment of 25 July 2001 but the
enforcement of a surety ordered by the first-instance court. Judge
S.N., appointed rapporteur on 24 October 2007, did not participate in
the examination of the appeal.
- The
reopened proceedings ended with a final judgment of the Supreme Court
of Justice of 28 October 2008 in favour of Mr M. resulting in the
enforcement of the judgment of the Rascani District Court of
25 July 2001 against the applicant company.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Civil Procedure
concerning the review of final judgments read as follows:
Article 449
“A request for
review shall be granted when:
(c) after
a judgment has been adopted, new documents have been discovered which
were withheld by one of the parties to the proceedings or which could
not have been submitted to the court during the proceedings because
of circumstances beyond the control of the interested party;
Article 450
A request for review
may be lodged:
...
(d) within
three months from the date on which the
document was discovered – in cases concerning Article
449 (c);”
The
relevant provisions of the Law on the Supreme Court of Justice read:
Section 8
“(1) The
Civil and Administrative Division, and the Criminal and Commercial
Divisions of the Supreme Court of Justice shall be headed by a
president and a vice-president who shall have the following
responsibilities:
(b) ...
distribute cases among the members of the Division...”
The
relevant part of the Code of Civil Procedure reads as follows:
Article 407
“The
participation of the judge rapporteur in the examination of an appeal
on points of law is obligatory. If the rapporteur is unable to
participate, a new rapporteur should be appointed not later than
three days before the date of the examination of the appeal.”
The
relevant part of the Law on Judicial Organisation reads:
Section 6 §1. The principle of random
distribution of cases
“(1) The
work of the judiciary must be carried out in accordance with the
principle of random distribution of cases, except when a particular
judge is prevented from participating in the examination of a case on
objective grounds.”
(2) Cases
assigned to one panel cannot be assigned to another panel except
within the limits of the law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained that the quashing of the final judgment
of the Court of Appeal of 18 July 2007 was wrongful and violated
Article 6 § 1 of the Convention. It also complained about the
change of rapporteur in the proceedings concerning its appeal on
points of law before the Supreme Court of Justice (see paragraph 12
above) and argued that as a result of that change the Supreme Court
of Justice was not a “tribunal established by law”.
The
relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the first part of the complaint under Article 6 is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
- In
so far as the second part of the complaint under Article 6 is
concerned, the Government submitted that the applicant company had
failed to exhaust domestic remedies and lacked victim status.
However, in view of the findings below (see paragraph 36 below) the
Court does not consider it necessary to reach a conclusion on these
admissibility objections raised by the Government.
B. Merits
- The
applicant company submitted that the quashing of the judgment of
18 July 2007 had violated its right to a fair trial as
guaranteed by Article 6 of the Convention. The letter of 13 July
2007 of the Department for the Execution of Judgments had not
disclosed any “new and essential facts or circumstances which
were unknown and could not have been known earlier” in the
sense of Article 449 (c) of the Code of Civil Procedure. The
applicant company stressed that the information in the letter of 13
July 2007 could have been obtained by the applicant at any time
between 2001 and 2007. The applicant company concluded that the
request for review had in essence been an appeal in disguise and
breached the principle of legal certainty.
- The
Government argued that a review was an effective way of challenging a
judgment where new facts were discovered after the judgment had
become final. They gave the example of the International Court of
Justice, which could review its judgments if new facts or
circumstances of decisive importance were discovered after adoption
of a judgment. The request for review had to be made within six
months of the date on which the new facts or circumstances were
discovered, but not later than ten years from the date of adoption of
the judgment.
- A
similar situation could be found in the Rules of the European Court
of Human Rights. If new facts concerning a case which had been
concluded were discovered, and if those facts could have had a
decisive effect on the outcome of the case and were unknown or could
not reasonably have been known, a party could ask the Court, within a
period of six months after that party had acquired knowledge of the
fact, to review that judgment.
- The
Government also invoked a recommendation of the Committee of
Ministers according to which the Governments of the member States
were advised to guarantee a procedure for the review and reopening of
cases.
- The
Supreme Court of Justice considered the letter from the Department
for the Execution of Judgments dated 13 July 2007 addressed to Mr M.
as a new and essential fact or circumstance which had been unknown
and could not have been known earlier in the sense of Article 449 (c)
of the Code of Civil Procedure.
- The Court reiterates that Article 6 § 1 of the
Convention obliges courts to give reasons for their judgments. In
Ruiz Torija v. Spain (9 December 1994, Series A no.
303 A), the Court found that the failure of a domestic court to
give reasons for not allowing an objection that an 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, and Roşca
v. Moldova, no. 6267/02, § 24, 22 March 2005).
- Legal
certainty presupposes respect for the principle of res judicata
(see Brumarescu, cited above, § 62), that is, the
principle of the finality of judgments. This principle insists that
no party is entitled to seek a review of a final and binding judgment
merely for the purpose of obtaining a rehearing and a fresh
determination of the case. Higher courts’ power of review
should be exercised to correct judicial errors and miscarriages of
justice, but not to carry out a fresh examination. The review should
not be treated as an appeal in disguise, and the mere possibility of
there being two views on the subject is not a ground for
re-examination. A departure from that principle is justified only
when made necessary by circumstances of a substantial and compelling
character (see Roşca, cited above, § 25).
- The
above conclusion in Roşca was drawn in connection with
the procedure for annulment requests under which the Prosecutor
General’s Office could seek review of final judgments with
which it disagreed. The Court held that this procedure, although
possible under domestic law, was incompatible with the Convention
because it resulted in a litigant’s “losing” a
final judgment in his favour.
- As to the reopening of the proceedings owing to newly
discovered circumstances, the Court observes that this issue was
considered in Popov v. Moldova (no. 2) (no. 19960/04, 6
December 2005), where it found a violation of Article 6 § 1 on
account of misuse of review proceedings. The Court held in that case
that reopening was not, as such, incompatible with the Convention.
However, decisions to review final judgments must be in accordance
with the relevant statutory criteria; and the misuse of such a
procedure may well be contrary to the Convention, given that its
result – the “loss” of the judgment – is the
same as that of a request for annulment. The principles of legal
certainty and the rule of law require the Court to be vigilant in
this area (see Popov (no. 2), cited above, § 46).
- In
the present case the Court notes that the review procedure provided
for by Articles 449-53 of the Code of Civil Procedure does indeed
serve the purpose of correcting judicial errors and miscarriages of
justice. The Court’s task, exactly as in Popov (no. 2),
is to determine whether this procedure was applied in a manner which
was compatible with Article 6 of the Convention, and thus ensured
respect for the principle of legal certainty. In doing so, the Court
must bear 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, § 54, ECHR
1999-I).
- It
is noted that, under Article 449 (c) of the Moldovan Code of Civil
Procedure, proceedings can be reopened “when new and essential
facts or circumstances have been discovered, that were unknown and
could not have been known earlier”. Under Article 450 of
the same Code, a request for review can be lodged “within three
months from the date on which the person concerned has come to know
essential circumstances or facts of the case which were unknown to
him or her earlier and which could not have been known to him or her
earlier”.
- The
decision of the Supreme Court of Justice of 14 November 2007 cited as
grounds for reopening the proceedings the letter of 13 July 2007 from
the Department for the Execution of Judgments addressed to Mr M. in
reply to his letter, in which the former stated that an enforcement
warrant had been registered with the Department on 31 July 2001 (see
paragraph 9 above).
- The
Court notes in the first place that in dismissing the request for
review in its judgment of 22 August 2007 the Court of Appeal found
that the enforcement warrant referred to in the letter of 13 July
2007 did not concern the enforcement of the judgment of 25 July 2001,
which was not final and enforceable at that date. In overturning the
Court of Appeal’s decision, the Supreme Court of Justice did
not contradict this important finding.
- The
Court further notes that there is no indication in the Supreme
Court’s judgment of 14 November 2007 whether the letter from
the Department for the Execution of Judgments contained “information”
that could not have been obtained earlier by Mr M. Nor is there any
indication that Mr M. unsuccessfully tried to obtain such
“information” earlier than 13 July 2007. In such
circumstances the Court considers that it cannot be said that the
letter from the Department for the Execution of Judgments of 13 July
2007 qualified as “new facts or circumstances that were unknown
and could not have been known earlier” by the parties to the
proceedings. Moreover, there is no mention in the Supreme Court’s
judgment of the three-month time-limit for requesting a review or of
any ground found by the Supreme Court to justify extending the
time-limit (see, mutatis mutandis, Ruiz Torija, cited
above).
- Accordingly,
the Court considers that the review proceedings at issue was in
essence an attempt to re-argue the case on points which Mr M. could
have but apparently did not raise during the proceedings which ended
with the final judgment of 18 July 2007. It was in effect an “appeal
in disguise” whose purpose was to obtain a fresh examination of
the matter rather than a genuine review as provided for in Articles
449-453 of the Code of Civil Procedure.
- By
granting Mr M.’s request for review the Supreme Court of
Justice infringed the principle of legal certainty and the
applicant’s “right to court” under Article 6 §
1 of the Convention (see, mutatis mutandis, Roşca,
cited above, § 28). Moreover, by not giving any reasons for
extending the time-limit within which the defendant could request a
review, the Court of Appeal breached the applicant’s right to a
fair hearing (see paragraph 24 above).
- In the light of the above the Court considers that
there has been a violation of Article 6 § 1. In the
circumstances, it does not consider it necessary to examine,
additionally, whether other aspects of the proceedings did or did not
comply with that provision.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant company complained that the Supreme Court’s judgment
of 14 November 2007 had had the effect of infringing its right to
peaceful enjoyment of its possessions as secured by Article 1 of
Protocol No. 1 to the Convention. Article 1 of Protocol No. 1,
in so far as relevant, provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law....”
- The
Government disagreed with the applicant and argued that there was no
violation of Article 1 of Protocol No. 1 to the Convention.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court considers that the applicant company had a “possession”
for the purposes of Article 1 of Protocol No. 1, namely the amount of
money which it had been absolved of returning to Mr M. by virtue of
the Court of Appeal’s judgment of 18 July 2007. Quashing such a
judgment after it has become final and unappealable constitutes an
interference with the judgment beneficiary’s right to the
peaceful enjoyment of that possession (see Brumărescu,
cited above, § 74). Even assuming that such an interference may
be regarded as serving a public interest, the Court finds that it was
not justified since a fair balance was not preserved and the
applicant company was required to bear an individual and excessive
burden (compare Brumărescu, cited above, §§
75-80).
- It
follows that there has been a violation of Article 1 of Protocol
No. 1 to 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.”
- The
applicant company submitted that it was not prepared to present any
just satisfaction claims because the company was in the process of
bankruptcy and that it preferred to leave this question for a later
examination. The Government did not object.
- The
Court considers that the question of the application of Article 41
is not ready for decision. The question must accordingly be reserved
and a further procedure fixed, with due regard to the possibility of
an agreement being reached between the Moldovan Government and the
applicant company.
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 a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that the question of the application of
Article 41 in the instant case is not ready for decision and
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant company to submit, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
their written observations on the matter and, in particular, to
notify the Court of any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 13 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
