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FOURTH
SECTION
CASE OF EUGENIA AND DOINA DUCA v. MOLDOVA
(Application
no. 75/07)
JUDGMENT
STRASBOURG
3 March 2009
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 Eugenia and Doina Duca
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,
Ján
Šikuta,
Nebojša Vučinić,
judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75/07) 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 two Moldovan nationals, Ms Eugenia Duca and Ms
Doina Duca (“the applicants”), on 27 December 2006.
- The
applicants were represented by Mr Alexandru Tanase and Mrs Janeta
Hanganu, lawyers practising in Chişinău. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr Vladimir Grosu.
- The
applicants alleged, in particular, that their right to a fair trial
and their right to property had been breached as a result of an
abusive quashing of a judgment favourable to them.
- On
1 February 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- Judge
Poalelungi, the judge elected in respect of Moldova, withdrew from
sitting in the case (Rule 28 of the Rules of Court) after it had been
notified to the Government. On 31 January 2009, the Government,
pursuant to Rule 29 § 1 (a), informed the Court that they were
content to appoint in his stead another elected judge and left the
choice of appointee to the President of the Chamber. On 1 February
2009, the President appointed Judge Šikuta to sit in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are a mother and daughter who were born in 1953 and 1975
respectively and live in Chişinău.
- The
applicants are shareholders in company C. The background to the case
lies in a dispute between the applicants and two other shareholders
in the company (I.A. and S.A.) which started in 1998. At that time
the first applicant owned eighty percent of the company's shares
while I.A. and S.A. claimed to be the owners of over fifty percent of
the shares. The matter was taken before the courts and the first
applicant was successful before the first two instances, which
accepted her position in the judgments of the Râşcani
District Court of 25 July 1999 and of the Chişinău Regional
Court of 27 September 1999. The judgments were reversed,
however, by the Court of Appeal on 21 December 1999.
- The
first applicant lodged an extraordinary appeal which was upheld by
the Supreme Court on 5 July 2000. The Supreme Court quashed the
judgment of the Court of Appeal of 21 December 1999 and left the
judgment of the Chişinău Regional Court of 27 September
1999 as the final decision in the case.
- After
that date I.A. and S.A. lodged numerous extraordinary appeals and
revision requests challenging the judgment of 27 September 1999.
However, they were all unsuccessful.
- In
2000 the first applicant purchased 13.15% of the shares of the
company and in 2003 she donated all her shares to the second
applicant. In the same year the second applicant purchased 1.31% of
the shares, thus becoming the owner of 94.46% of the shares.
- On 3 July 2006 I.A. and S.A. lodged a new revision
request with the Supreme Court of Justice challenging the judgment of
27 September 1999. The request was based on Article 449 (b), (c) and
(h) of the Code of Civil Procedure and the reason given in the
request was that following two expert evaluations ordered by them and
carried out on 18 and 19 May 2006, it appeared that several documents
which had formed the basis of the judgment of 27 September 1999 had
been false. I.A. and S.A. also argued that they had lodged an
application with the European Court complaining that the principle of
legal certainty had been violated by an abusive quashing by the
Supreme Court of Justice on 5 July 2000 of the judgment of the Court
of Appeal of 21 December 1999. In support of their request I.A. and
S.A. attached to their request a copy of their application lodged
with the Court and copies of correspondence with the Court concerning
application no. 10232/03.
- The
first applicant and company C. objected and argued, inter alia,
that the revision request was time-barred and that the simple fact of
lodging an application with the European Court of Human Rights was
not a sufficient basis for quashing a final judgment under the
provisions of the Code of Civil Procedure. They also disputed the
allegations concerning the false documents and argued that these
allegations had been made in previous revision requests lodged by
I.A. and S.A. and had been rejected by the courts. In particular they
submitted that the conclusion from the expert reports of 18 and 19
May 2006 had been taken from a previous expert report dated 12 July
2005 written by the same expert. Moreover, the first applicant had
finally been acquitted in criminal proceedings on charges of forging
the above documents on 18 February 2003. Finally, the defendants
argued that I.A. and S.A. had failed to pay court fees.
- On
27 November 2006 the Supreme Court of Justice upheld I.A.'s and
S.A.'s revision request. As a result, the judgment of the Chişinău
Regional Court of 27 September 1999 was quashed while the judgment of
the Court of Appeal of 21 December 1999 became the final decision in
the case. The Supreme Court did not examine any of the defendants'
contentions and, after acknowledging the existence of the reports of
18 and 19 May 2006 and of the lodging by I.A. and S.A. of an
application with the Court, found that the quashing by the Supreme
Court on 5 July 2000 of the judgment of the Court of Appeal of 21
December 1999 had been contrary to the principle of legal certainty.
- After
the enforcement of the above judgment I.A. and S.A. obtained control
of 50.925% of the shares of company C.; the first applicant kept
control of 48.775% of the shares, while the second applicant lost all
of her shares.
- On
20 February 2007 a committee of three judges of the European Court
declared application no. 10232/03 lodged by I.A. and S.A. manifestly
ill-founded and therefore inadmissible
- After
learning about the Court's decision in the above case, the applicants
initiated revision proceedings with the Supreme Court of Justice
seeking revision of the judgment of 27 November 2006. In particular,
they argued that the application to the Court which had served as
grounds for the revision of the final judgment of 27 September 1999
had been declared inadmissible. They also argued that the second
applicant, who had had over 94% of the company's shares, was not a
party to the revision proceedings which had ended with the judgment
of 27 November 2006.
- On 2 July 2007, the Plenary Supreme Court of Justice
dismissed the applicants' revision request. Judge D.V. wrote a
separate opinion in which he disagreed with the decision of the
majority and expressed the view that the applicants' revision request
should have been upheld, especially in view of the European Court's
decision to dismiss application no. 10232/03.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Civil Procedure
read as follows:
“Article 449
A revision request
shall be granted when:
b) Certain essential
circumstances or facts of the case become known which were not and
could not have been known to the applicant;
(c) After a judgment
has been adopted, new documents have been discovered which have been
held by one of the participants 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;
(h) The European
Court has found a violation of the fundamental rights and freedoms...
Article 450
A revision request
may be lodged:
...
(c) within
three months of the date on which the person concerned has come to
know essential circumstances or facts of the case which were unknown
to him/her earlier and which could not have been known to him/her
earlier - in cases concerning Article 449 (b);
(d)
within three months of the date on which the
document was discovered - in cases concerning Article
449 (c);
(g)
within three months of the date on which the European Court of Human
Rights adopted the judgment – in cases concerning Article 449
(h).”
THE LAW
- The
applicants complained that the quashing of the final judgment of 27
September 1999 by the Supreme Court of Justice on 27 November 2006
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. ...”
- They
also submitted that the quashing of the final judgment in their
favour had had the effect of infringing their right to peaceful
enjoyment of their possessions as secured by Article 1 of Protocol
No. 1 to the Convention, which 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.”
I. ADMISSIBILITY OF THE CASE
- The
Government argued that the second applicant could not claim to be a
victim within the meaning of Article 34 of the Convention because the
revision proceedings examined by the Supreme Court of Justice on
27 November 2006 did not concern the issue of transfer of shares
between the first and the second applicant. Moreover, the second
applicant received the shares from the first applicant free of charge
and therefore she could not have suffered any loss even if the shares
had been taken away from her. In any event, the Government expressed
the opinion that the transfer of shares between the first and the
second applicant by way of donation was not genuine but was only
intended to avoid restitution of shares to I.A and S.A.
- The
applicants disagreed with the Government and argued that while the
judgment of the Supreme Court of Justice had not expressly ruled on
the fate of the second applicant's shares, as a result of the
enforcement of that judgment she had lost all of her shares. The
applicants also contested the Government's other submissions.
-
The Court reiterates that the word “victim” in Article 34
refers to the person directly affected by the act or omission at
issue; and the existence of a violation is conceivable even in the
absence of prejudice, prejudice being relevant only for the purposes
of Article 41 (see, inter alia, Walston v. Norway,
no. 37372/97, § 58, 3 June 2003, and Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, § 66).
- It is undisputed in the present case that, as a result
of the judgment of the Supreme Court of Justice of 27 November 2006,
the second applicant lost all of her shares in company C. The Court
does not consider of any relevance the fact that the Supreme Court of
Justice did not expressly annul the second applicant's title. The
deprivation took place during the ensuing enforcement proceedings of
the judgment of 27 November 2006. Nor does the Court consider
relevant the fact that the second applicant had received the shares
free of charge.
- The Court also recalls that in its previous case-law
concerning the issue of quashing of a final judgment it has
established that the new owner of an asset concerned by the quashing,
and not any previous owner, can claim all the rights, including
procedural ones, which could be claimed by the party in whose favour
the original judgment had been adopted (see Anghelescu v. Romania,
no. 29411/95, §§ 49 et seq. and §§ 66
et seq., 9 April 2002; Mihailescu v. Romania (dec.), no.
32913/96, 22 June 2004). This approach underlines the continuing
validity and finality of the original judgment, which is at the heart
of the Court's jurisprudence concerning the quashing of final
judgments (see Moldovahidromaş v. Moldova (dec.),
no. 30475/03, 4 April 2006).
- Accordingly,
the Court concludes that the second applicant was directly affected
by the quashing of the judgment of 27 September 1999 and can
therefore claim to be a victim within the meaning of Article 34 of
the Convention. The Government's objection is dismissed.
- The
Court considers that the present application raises questions of fact
and law which are sufficiently serious for their determination to
depend on an examination of the merits, and that no grounds for
declaring it inadmissible have been established. The Court therefore
declares the application admissible. In accordance with its decision
to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider its merits.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the principle of legal certainty had been
breached and relied on Article 6 § 1 of the Convention. They
argued that the revision proceedings were an appeal in disguise
because I.A. and S.A. had merely tried to obtain a rehearing and a
fresh determination of the case. They had relied on arguments which
had been raised before, such as the issue concerning the false
documents, and on the fact that they had lodged an application with
the Court. The Supreme Court of Justice had failed to give reasons
for accepting their revision request.
- The Government disagreed and argued that the Supreme
Court of Justice had accepted I.A's and S.A.'s arguments concerning
the false documents and had corrected a judicial error. Moreover, the
Supreme Court of Justice had found that the upholding of the
Prosecutor General's request for annulment on 5 July 2000 had
breached I.A.'s and S.A.'s right to a fair hearing as it had set
aside an entire judicial process which had ended with a final
judgment. By upholding the revision request on 27 November 2007, the
Supreme Court of Justice had corrected that error.
- 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 request for annulment procedure under which the Prosecutor
General's Office could seek review of final judgments it disagreed
with. 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) and in Oferta Plus SRL v. Moldova (no.
14385/04, 19 December 2006), where it had found a violation of
Article 6 § 1 on account of a misuse of revision proceedings.
The Court held in those cases that reopening is not, as such,
incompatible with the Convention. However, decisions to revise 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 revision 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, exactly as in Popov (no. 2) and in
Oferta Plus, 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).
- The
plaintiffs in the revision proceedings based their revision request
on Article 449 (b), (c) and (h) of the Code of Civil Procedure. It is
noted that under paragraphs (b) and (c), proceedings can be reopened
when new and essential facts, circumstances or documents have been
discovered, which were not and could not have been known to the
interested party earlier. Under paragraph (h) of the Article,
proceedings can be reopened after the finding of a violation by the
European Court. Under Article 450 of the same Code, a revision
request on the grounds provided in paragraphs (b) and (c) can be
lodged within three months of the date on which the person concerned
has come to know essential circumstances or facts of the case or
documents which were unknown to him or her earlier and which could
not have been known to him or her earlier. As to the grounds provided
in paragraph (h), the time-limit is three months from the date on
which the Court adopted the judgment.
- The
decision of the Supreme Court of 27 November 2006 appears to cite the
expert reports of 18 and 19 May 2006 finding several documents to be
false as grounds for reopening the proceedings under Article 449 (b)
and (c) of the Code of Civil Procedure (see paragraph 11 above).
- The
Court notes that there is no indication in the Supreme Court's
decision as to whether the expert reports of 18 and 19 May 2006 were
documents which could not have been obtained earlier or whether they
contained information that could not have been obtained earlier by
the I.A. and S.A. Nor is there any indication from the plaintiffs'
submissions that they had unsuccessfully tried to obtain those
documents earlier. The defendants in the revision proceedings
objected, inter alia, that the conclusion from the expert
reports of 18 and 19 May 2006 had been taken from a previous report
dated 12 July 2005 written by the same expert and that the
allegations concerning forgery of the documents had already been
dismissed by courts during the previous stages of the proceedings.
The Supreme Court did not address this important objection in any
way. Neither did it address the statute of limitation objection but
simply extended the time-limit for lodging the revision request
without giving any reason.
- In
such circumstances the Court considers that it cannot be said that
the reports of 18 and 19 May 2006 qualified as new facts,
circumstances or documents that were unknown and could not have been
known earlier by the parties to the proceedings.
- In
so far as the ground based on Article 449 (h) is concerned, the Court
finds it striking that the Supreme Court of Justice did not dismiss
it, in the circumstances in which I.A. and S.A. relied on the fact of
their lodging an application with the Court. The Court cannot but
note the different approach taken by the Supreme Court of Justice in
the case of Moldovahidromaş v. Moldova (no. 30475/03, §§
38 and 39, 27 February 2007). In that case, after the Court had
declared the application admissible, within the context of
friendly-settlement negotiations, the Government Agent requested the
Supreme Court of Justice to revise a decision by which a
Brumarescu-type request had been upheld. The Supreme Court of
Justice dismissed the revision request on the ground, inter alia,
that the Court had not adopted a judgment on the merits of the case.
- In
the light of the above considerations, the Court considers that the
revision procedure at issue was in essence an attempt to re-argue the
case after more than six years. It was in effect an “appeal in
disguise” whose purpose was to obtain a fresh examination of
the matter rather than a genuine revision procedure as provided for
in Articles 449-451 of the Code of Civil Procedure. In addition, the
Supreme Court of Justice failed to give any reasons for extending the
plaintiffs' time-limit for lodging the revision request (see, mutatis
mutandis, Ruiz Torija, cited above).
- By
granting the plaintiffs' revision request the Supreme Court of
Justice infringed the principle of legal certainty and the
applicants' “right to a court” under Article 6 § 1
of the Convention (see, mutatis mutandis, Roşca,
cited above, § 28). Moreover, by not giving any reasons for
extending the plaintiffs' time limit for revision, the Supreme Court
breached the applicants' right to a fair hearing.
- 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
applicants complained that the Supreme Court's judgment of
27 November 2006 had had the effect of infringing their
right to peaceful enjoyment of their possessions as secured by
Article 1 of Protocol No. 1 to the Convention. The Government
disputed the applicants' contention.
- The
Court considers that the applicants had a “possession”
for the purposes of Article 1 of Protocol No. 1 on the basis of the
judgment of the Chişinău Regional Court of 27 September
1999 (see, among other authorities, Brumărescu, cited
above, § 70). Quashing that judgment six years after it has
become final and unappealable constitutes an interference with the
judgment beneficiaries' 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 applicants were required to
bear an individual and excessive burden (see Brumărescu,
cited above, § 75-80).
- It
follows that there has been a 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.”
- The
applicants claimed 140,815 euros (EUR) for pecuniary damage suffered
as a result of the quashing of the judgment of 27 September 1999.
They also claimed EUR 3,000 for the non-pecuniary damage and
EUR 3,000 for costs and expenses.
- The
Government disagreed with the amounts claimed by the applicants and
asked the Court to dismiss the applicants' claims.
- 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
agreement being reached between the Moldovan Government and the
applicants.
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
(a) that
the question of the application of Article 41 of the Convention is
not ready for decision;
accordingly,
(b) reserves
the said question;
(c) 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;
(d) reserves
the further procedure and delegates to the President of the Chamber
power to fix the same if need be.
Done in English, and notified in writing on 3 March 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
