CASE OF OFERTA PLUS SRL v. MOLDOVA
(Application no. 14385/04)
19 December 2006
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 Oferta Plus SRL v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 28 November 2006,
Delivers the following judgment, which was adopted in its final form, after further consideration, on 5 December 2006.
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. The court proceedings between Oferta Plus and the Ministry of Finance and the subsequent enforcement proceedings
3. The revision of the final judgment of 7 February 2001
“...during the proceedings [between the applicant company, Moldtranselectro and the Ministry of Finance] the applicant company and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid.
No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour.
In that respect the Prosecutor General's Office ordered an audit to verify the supply of electrical energy and the payments between Oferta Plus, Moldtranselectro and budgetary institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.”
An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, the applicant company had destroyed the accounting documents after three years.
4. The re-opened proceedings
The court upheld the applicant company's action and ordered the Ministry of Finance to pay it MDL 20 million in accordance with the Treasury Bond. It based its judgment on the fact that the supply of the electrical energy and the cost of the supplied energy were not disputed by the parties. Referring to the electrical energy supplied to budgetary institutions, it found that by 1 March 1998 they had consumed MDL 27,551,000 worth of electrical energy imported from Ukraine with the participation of Oferta Plus.
In the court's view, the Treasury Bond constituted an incontestable obligation on the Ministry of Finance towards Oferta Plus, which could not depend on the fulfilment of third party obligations.
Referring to the submissions of Moldtranselectro concerning the payment of MDL 189,869,272 to the applicant company, the court argued that that amount represented USD 33,133,404 at the date of supply of the electrical energy, but not at the date of payment of MDL 189,869,272. The court held that at the date of payment of the above amount by Moldtranselectro, USD 33,133,404 was worth MDL 210,692,688.
Referring to the amounts indicated by the Prosecutor General's Office in its letter dated 8 June 2004, which served as a basis for the revision of the final judgment of 27 October 1999 (see paragraph 29 above), the court found that those figures were related to a completely different matter and were irrelevant to the case before it.
The Ministry of Finance appealed against this judgment to the Supreme Court of Justice.
5. Facts related to the applicant company's complaints under Article 34 of the Convention
“According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866...
The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electrical energy supplied. The transfers [of MDL 5 million by the Ministry of Finance] to Oferta Plus's accounts were carried out in accordance with court judgments...
Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.”
After that, Oferta Plus, in the person of V.L, its former chief executive, making use of the favourable environment created for his company by the illegal actions of Moldtranselectro, and seeking to obtain MDL 20 million, had initiated civil proceedings against the Ministry of Finance, and in the absence of any proof that electrical energy had been supplied to budgetary institutions, illegally obtained judgments in its favour.
However V.L. could not complete his criminal intention of misappropriating MDL 20 million due to circumstances which were independent of his will (he was killed).
The criminal intention to misappropriate MDL 20 million was continued by C.T., the present Chief Executive Officer of Oferta Plus.
Despite the fact that on 23 May 2002 Moldtranselectro owed to Oferta Plus only MDL 3,948.49, C.T. had pursued his criminal intention by pressing the Ministry of Finance repeatedly to comply with the judgment of 27 October 1999. As a result of that, on 26 December 2003 the Ministry of Finance had concluded an agreement with him and later transferred MDL 5 million to Oferta Plus.
Later C.T. transferred the money to the account of a third company, which also belonged to him, from where it had been transferred to his wife's personal account and later withdrawn in cash.
Referring to the re-opened proceedings which followed the judgment of the Plenary Supreme Court of 12 July 2004, the prosecutor noted that, despite being well aware that Oferta Plus had not paid for energy supplied to budgetary institutions, C.T. had managed to obtain a judgment in favour of Oferta Plus before the first-instance court. C.T. had presented evidence which, while showing the payment for electrical energy, did not prove that the electrical energy had been supplied to budgetary institutions.
He also argued that he had become the CEO of Oferta Plus only in late 2003 and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electrical energy had been supplied to Moldtranselectro, which was a State company and held a monopoly on distribution of electrical energy at that time. The applicant company could not know the final consumers of the electrical energy.
During the conversation with C.T., the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between Oferta Plus, the Ministry of Finance and Moldtranselectro. The next working day, on 21 August 2006, the criminal investigator E. Bîcu went to the archives of the Appeal Economic Court and took the case file in the civil proceedings. The case file was returned to the archives on 4 September 2006.
II. RELEVANT NON-CONVENTION MATERIALS
A. Enforcement and revision of final judgments
Section 338. The issuing of an enforcement warrant
An enforcement warrant shall be issued to the plaintiff by a court, after the judgment has become final...
Section 343. The request for enforcement
The bailiff shall start the enforcement of a judgment upon the request of [one of the parties to the proceedings]...
Section 361. The adjournment of the enforcement
The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order.
“Grounds for revision
Revision may be requested:
c) When new and essential facts or circumstances have been discovered, that were unknown and could not have been known earlier;”
“A revision request may be lodged:
c) within three months from the date on which the concerned person has come to know the 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....”
B. Confidentiality of lawyer-client communications in the CFECC remand centre
On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client in conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004.
C. Recommendation Rec(2006) 2 of the Committee of Ministers to member states on the European Prison Rules
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ...
23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ...
23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.
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. ...”
“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 relevant part of Article 34 reads:
“...The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
I. ADMISSIBILITY OF THE COMPLAINTS
II. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE CONVENTION
A. The Court's findings of facts and law
1. Concerning the non-enforcement of the judgment of 27 October 1999
(a) Submissions of the parties
(b) The Court's assessment
2. Concerning the quashing of the judgment of 27 October 1999
(a) Submissions of the parties
(b) The Court's assessment
B. Conclusion concerning the fairness of the proceedings
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
IV. ALLEGED FAILURE TO OBSERVE ARTICLE 34 OF THE CONVENTION
A. The submissions of the parties
1. The applicant's submissions
In any event, the applicant company could never present any such evidence because the electrical energy had been supplied to Moldtranselectro and it could not know the identities of the final consumers. Finally, C.T. became the head of the applicant company only in 2003.
2. The Government's submissions
C.T.'s detention on remand was ordered in compliance with the relevant provisions of the Code of Criminal Procedure and was based on the following considerations:
- C.T. was accused of having committed a serious offence punishable with more than two years' imprisonment (10 to 25 years' imprisonment);
- On 12 May 2006 C.T. had received a telephone call from A.C., who was the former accountant of the applicant company and a witness in the criminal proceedings against him. During the telephone conversation, C.T. suggested to the former what to tell the investigators during her interrogation. That was proof of the fact that C.T. had attempted to influence witnesses;
- The investigation discovered that the MDL 5 million paid by the Ministry of Finance to Oferta Plus on the basis of the judgment of 27 October 1999, had been transferred to the accounts of a third company, owned by C.T., and were later transferred to the private accounts of his wife and subsequently withdrawn in cash;
- C.T. refused to present to the investigating officers documents requested by them, concerning the transfers between Oferta Plus, the third company and C.T.'s wife's personal accounts.
B. The Court's assessment
1. The criminal proceedings against C.T.
Whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see the Akdivar and Others and Kurt judgments, cited above, p. 1219, § 105, and pp. 1192-93, § 160, respectively).
2. Confidentiality of discussions in the CFECC lawyer-client meeting room
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the question of the application of Article 41 of the Convention is not ready for decision;
(b) reserves the said question;
(c) invites the Moldovan Government and the applicant 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 19 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
1 USD 4,240,702 as of 27 March 1998