SECOND SECTION

CASE OF ELECTRONSERVICE-NORD S.A. v. THE REPUBLIC OF MOLDOVA

(Application no. 12918/12)

JUDGMENT

(Merits)

STRASBOURG

2 July 2019

This judgment is final but it may be subject to editorial revision.

In the case of Electronservice-Nord S.A. v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Egidijus Kūris, President,
Valeriu Griţco,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 11 June 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 12918/12) 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 23 December 2011 by a company incorporated in Moldova, Electronservice-Nord S.A. (“the applicant company”).

2. The applicant company was represented by Ms Pîrău, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant company alleged, in particular, that a final judgment in its favour had been quashed as a result of it having been revised in an abuse of process.

4. On 27 June 2012 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. Following judicial proceedings which ended with a final judgment of the Bălţi Court of Appeal of 8 December 2009, the applicant company obtained a final ruling obliging the Cadastral Authority to register immovable property privatised by it in 1999 and in 2004 in its name.

6. On an unspecified date the defendant in the proceedings lodged a request for a review of the judgment of 8 December 2009, seeking its annulment on the grounds that in a technical report dated 25 May 2009 it had been stated that the immovable property in question did not qualify as immovable property (“the review request”).

7. On 24 August 2010 the Bălţi Court of Appeal dismissed the review request on the grounds that the information contained in the technical report of 25 May 2009 did not qualify as new and relevant information which could not have been obtained before the delivery of the final judgment in the case.

8. On 22 December 2010 the Supreme Court quashed the above judgment and ordered a re-examination of the review request.

9. On 16 November 2011 the Chişinău Court of Appeal re-examined the review request and allowed it. The court relied on grounds other than those relied upon by the defendant in framing the request. In particular, the court relied on a Government decision from 2005, in accordance with which the disputed goods had been transferred to the defendant’s control. The court quashed the final judgment of 8 December 2009 and ordered a fresh examination of the case.

10. On 16 August 2012, after examining the merits of the case, the Edineţ District Court again found in favour of the applicant company and required the Cadastral Authority to register some of the immovable property privatised by the applicant company in 1999 and in 2004 in its name. The Cadastral Authority challenged that judgment by lodging an appeal and the proceedings are still pending.

II. RELEVANT DOMESTIC LAW

11. 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:

...

(d) 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 [falling within] Article 449 (d);

....”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

12. The applicant company complained that the quashing of the final judgment given by the Bălţi Court of Appeal on 8 December 2009 had been unjust and had violated Article 6 § 1 of the Convention.

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. ...”

A. Admissibility

13. The Court notes that 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.

B. Merits

14. The applicant company submitted that the quashing of the judgment of 8 December 2009 had violated its right to a fair trial as guaranteed by Article 6 of the Convention and that the review request had in fact been an appeal in disguise.

15. The Government submitted that the case had been resolved once the Edineţ District Court effectively reinstated, by its judgment of 16 August 2012, the quashed judgment. In the alternative, the Government argued that the review had not been an appeal in disguise but a remedy used in order to correct a judicial error.

16. The Court reiterates that 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).

17. 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).

18. The above conclusion in Roşca was drawn in connection with the procedure for annulment requests, under which the Prosecutor General’s Office could seek a review of a final judgment 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 “losing” a final judgment in his favour.

19. As to the reopening of 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 a misuse of such 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 made 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).

20. The Court notes in the first place that the reopened proceedings are still pending. Therefore, the Government’s argument that the case was resolved once the Edineţ District Court had effectively reinstated the quashed judgment, by its judgment of 16 August 2012, cannot be accepted.

21. The Court further notes that the review procedure provided for by Article 449 of the Code of Civil Procedure does indeed serve the purpose of correcting judicial errors and miscarriages of justice. The Court’s task, as in the case of 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).

22. The Court notes that, under Article 449 (d) 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 a review can be lodged “within three months from the date on which the person concerned has become aware of 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”.

23. The decision of the Chişinău Court of Appeal of 16 November 2011 cited a Government decision of 2005 as the grounds for reopening the proceedings (see paragraph 9 above).

24. The Court notes that there is no indication in the Court of Appeal’s judgment of 16 November 2011 as to whether the Government decision of 2005 contained “information” that could not have been obtained earlier by the defendant. Nor is there any indication that the defendant unsuccessfully tried to obtain such “information” earlier. In such circumstances, the Court considers that it cannot be said that the Government’s decision of 2005 qualified as a “new ... fact or circumstance that [was] unknown and could not have been known earlier” by the parties to the proceedings.

25. Accordingly, the Court considers that the review proceedings at issue were, in essence, an attempt to relitigate the case on points which the Cadastral Authority could have but apparently did not raise earlier. It was in effect an “appeal in disguise”, the purpose of which was to obtain a fresh examination of the matter, rather than a genuine review as provided for in Articles 449-53 of the Code of Civil Procedure.

26. By granting the review request, the Court of Appeal infringed the principle of legal certainty and the applicant company’s “right to court” under Article 6 § 1 of the Convention (see, mutatis mutandis, Roşca, cited above, § 28). In the light of the above, the Court considers that there has been a violation of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

27. The applicant company complained that the Court of Appeal’s judgment of 16 November 2011 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 which, 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....”

A. Admissibility

28. 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

29. The Government argued that there had been no breach of Article 1 of Protocol No. 1 to the Convention.

30. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute 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 the public interest, the Court finds that in the present case it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (compare Brumărescu, cited above, § 75-80).

31. 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

32. 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

33. The applicant claimed 8,682.21 euros (EUR) to cover lost income.

34. The Government submitted, inter alia, that the applicant’s claim was unsubstantiated and asked the Court to reject it.

35. The Court considers that the question of the application of Article 41 in respect of pecuniary damage 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.

B. Non-pecuniary damage

36. The applicant company also claimed EUR 3,000 in respect of non‑pecuniary damage.

37. The Government contended that the claim was excessive and asked the Court to dismiss it.

38. Having regard to the violations found above, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant company EUR 2,000 in respect of non-pecuniary damage.

C. Costs and expenses

39. The applicant company also claimed EUR 800 for the costs and expenses incurred before the Court.

40. The Government disagreed with the amount claimed by the applicant company and asked the Court to dismiss it.

41. The Court reiterates 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, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses.

D. Default interest

42. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant company, within three months, EUR 2,000 (two thousand euros) in respect of non‑pecuniary damage plus any tax that maybe chargeable on this amount and EUR 800 (eight hundred euros) in respect of costs and expenses plus any tax that maybe chargeable on this amount.

(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;

5. Holds that the question of the application of Article 41 of the Convention in respect of pecuniary damage is not ready for decision, and accordingly:

(a) reserves the said question;

(b) invites the Moldovan Government and the applicant company to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;

6. Dismisses the remainder of the applicant company’s claim for just satisfaction.

Done in English, and notified in writing on 2 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris
Deputy Registrar President