CASE OF DONPRUT S.R.L. v. THE REPUBLIC OF MOLDOVA
(Application no. 45504/09)
21 July 2015
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 Donprut S.R.L. v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 30 June 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 45504/09) 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 incorporated in the Republic of Moldova, Donprut S.R.L. (“the applicant”), on 12 August 2009.
2. The applicant was represented by Mr I. Cerga, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The applicant alleged, in particular, that the closure of the company constituted a breach of its rights under Article 1 of Protocol No. 1 to the Convention.
4. On 26 May 2011 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant is a taxi cab company from Chişinău. At the time of the events it employed approximately ninety persons and was functioning on the basis of a licence issued by the Licensing Chamber (Camera de Licențiere din Republica Moldova) in July 2005.
6. On 13 December 2007 the Licensing Chamber issued decision no. 4891 by which the applicant company’s licence was withdrawn in view of irregularities. In particular, the applicant company failed to request the inclusion of the names of two new persons employed in administrative positions and of new cars in its licence within the ten-day time-limit provided for by law.
7. On 18 January 2008 the applicant company initiated court proceedings against the Licensing Chamber seeking the annulment of its order of 13 December 2007. The applicant company submitted, inter alia, that the sanction applied to it had been disproportionally harsh and in breach of the company’s right to property. It argued that ninety persons employed by the company had lost their jobs as a result of the measure applied to it and that the company had suffered losses of approximately 170,000 Euros (EUR). The applicant company submitted that it could not comply with the requirement of including all fifty-two new cars in the licence in ten days because of new regulations instituted by the Government according to which all taxi cabs had to be equipped with receipt printing machines. The company did not have sufficient time to equip all new cars because of the lengthy bureaucratic procedure and because all the taxi cab companies were attempting to do that at the same time. The company submitted that it only managed to equip twenty-eight of its cars with the new equipment.
8. On 9 April 2008 the Chişinău Court of Appeal found in favour of the applicant company. Referring to the alleged breach by the applicant company of the ten-day time limit to inform the authorities about the new cars, the Court of Appeal found inter alia that the formalities linked to the equipment of those cars with receipt printing machines made it impossible for the applicant company to comply with the time-limit. In that context the Court of Appeal found that all the taxi cab companies were doing the same thing at the time, which created lengthy delays. As to the applicant company’s failure to inform the Licensing Chamber about two new employees at the company, the Court of Appeal held that that breach was minor and could not justify such a severe sanction. Relying on the Court’s judgments in the cases of Megadat.com SRL v. Moldova (no. 21151/04, 8 April 2008) and Bimer S.A. v. Moldova (no. 15084/03, 10 July 2007) the Court of Appeal found that the interference with the applicant company’s right to respect for its possessions had not been proportionate with the legitimate aim pursued and, thus, that the withdrawal of the applicant company’s licences had been in breach of Article 1 of Protocol No. 1 to the Convention.
9. On 23 September 2008 the Licensing Chamber lodged an appeal against the above judgment. It does not appear that the applicant company lodged written pleadings with the Supreme Court of Justice.
10. On 12 February 2009, after an oral hearing, the Supreme Court of Justice upheld the appeal lodged by the Licensing Chamber, quashed the judgment of the Court of Appeal and dismissed the applicant company’s action. The Supreme Court held that that according to the law in force, the breaches committed by the applicant company were sufficient ground for withdrawing its licence.
II. RELEVANT DOMESTIC LAW
11. The relevant provisions of Law no. 451 on Licensing (“the Licensing Act”) read as follows:
Section 16. Change in the data contained in the annexes to an application for a licence
“(1) The holder of a licence shall be obliged to inform the Chamber about any change in the data contained in the annexes to the application for licence. The information shall be provided in writing, within 10 days from the date of the change together with all relevant documents ...”
Section 21. Withdrawal of licences
“(1) (f) [A licence may be withdrawn] if a licence holder fails to notify the appropriate authority in due time of a change in the data contained in the annexes to the application for the licence.”
12. According to Article 439 of the Code of Civil Procedure, the party to the appeal proceedings before the Supreme Court of Justice who has not lodged the appeal, shall present written pleadings (referință) in which to state his or her position in respect of the appeal. If no such pleadings are presented, the court shall nevertheless examine the case in their absence.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
13. The applicant complained that the appeal lodged by the State Licensing Chamber against the judgment of the Court of Appeal was late and that its upholding by the Supreme Court of Justice breached its right to a fair trial guaranteed by Article 6 § 1 of the Convention. In so far as relevant, Article 6 of the Convention provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
14. The applicant company also complained that the withdrawal of its licence 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....”
15. The Government argued that the applicant had failed to raise the issue of the late appeal in the proceedings before the Supreme Court of Justice. Therefore, they considered that the applicant had failed to exhaust domestic remedies. Alternatively they argued that the application was manifestly ill-founded.
16. The applicant company submitted that its representative had raised this issue in his oral submissions before the Supreme Court. However, since no record of the proceedings before the Supreme Court was made, he could not prove it.
17. The Court notes that according to Article 439 of the Code of Civil Procedure (see paragraph 12 above), the applicant company had a chance to raise the issue of the late appeal in its written pleadings. Had it done so, it could have proven to the Court that it had exhausted domestic remedies. In the absence of such proof, the complaint under Article 6 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
18. The Court further notes that the complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.
19. The Court recalls that, according to its case-law, the termination of a valid licence to run a business amounts to an interference with the right to the peaceful enjoyment of possessions guaranteed by Article 1 of the Protocol (Tre Traktörer Aktiebolag v. Sweden judgment of 7 July 1989, Series A no. 159, § 55 and Rosenzweig and Bonded Warehouses Ltd. v. Poland, no. 51728/99,§ 48, 28 July 2005).
20. Consistently with the Court’s case-law referred to in the preceding paragraph, such interference constitutes a measure of control of use of property which falls to be examined under the second paragraph of Article 1 of Protocol No. 1 to the Convention.
21. For a measure constituting control of use to be justified, it must be lawful (see, Katsaros v. Greece, no. 51473/99, § 43, 6 June 2002) and “for the general interest” or for the “securing of the payment of taxes or other contributions or penalties”. The measure must also be proportionate to the aim pursued.
22. It is undisputed between the parties that the applicant company’s licence to run the taxi cab business constituted a possession for the purposes of Article 1 of Protocol No. 1 to the Convention and that its withdrawal constituted an interference with its right to the peaceful enjoyment of possessions. It is similarly common ground that the interference had a basis in the domestic law and that it pursued a legitimate aim.
23. While the Government did not argue in respect of the proportionality of the interference either, the Court will nevertheless focus on determining whether the interference was proportionate with the legitimate aim pursued.
24. The Court will consider at the outset the nature and the seriousness of the breach committed by the applicant company. Without underestimating the importance of State control in the field of regulating public transportation, the Court cannot but note that the Supreme Court of Justice were not able to cite any negative consequences of the applicant company’s failure to comply with the procedural requirement. Indeed, the Supreme Court contented itself with finding that the applicant company had failed to respect the ten-day time limit and did not attempt to examine the seriousness of such an omission. Neither did the Supreme Court of Justice attempt to give arguments in respect of the finding of the Court of Appeal that the failure of the applicant company to register all its new cars had been attributable to the lengthy delays caused by the bureaucratic formalities.
25. Against this background, the Court notes that the measure applied to the applicant company was of such severity that the company which had ninety employees had to wind up its business as a result of the decision of the Supreme Court of Justice. As a result of that all of the companies employees lost their jobs and the company supported considerable economic losses.
26. The Court finally refers to its case-law in Bercut S.R.L. v. Moldova, no. 32247/07, 6 December 2011, where, in very similar circumstances, it found a breach of Article 1 of Protocol No. 1 to the Convention. In the light of the above case-law and of the considerations stated above, the Court concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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.”
28. The applicant company did not submit a claim for just satisfaction. The Court notes that Article 449 (h) of the Code of Civil Procedure provides for the possibility of revision of a judgment where the Court has found a violation of fundamental rights and liberties.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Deputy Registrar President