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CEACHIR v. MOLDOVA - 11712/04 [2008] ECHR 36 (15 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/36.html
Cite as:
[2008] ECHR 36
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FOURTH
SECTION
CASE OF CEACHIR v. MOLDOVA
(Application
no. 11712/04)
JUDGMENT
STRASBOURG
15
January 2008
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 Ceachir v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq
Traja,
Stanislav Pavlovschi,
Ján
Šikuta,
Päivi
Hirvelä, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 11712/04) 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, Mr Gheorghe Ceachir and
Mr Ion Ceachir (“the applicants”), on 9 March 2004.
The
applicants were represented before the Court by Mr
Vladislav Gribincea from Lawyers for Human Rights, a non-governmental
organisation based in Chişinău. The Moldovan
Government (“the Government”) were represented by their
Agent at the time, Mr Vitalie Pârlog.
The
applicants complained that their right to a fair hearing had been
infringed by the failure of the Supreme Court
of Justice to give any reasons for extending the time-limit
for lodging an appeal on points of law.
The
application was allocated to the Fourth Section of the Court. On
28 October 2005 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
The
applicants and the Government each filed observations on
admissibility, merits and just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, Mr Gheorghe Ceachir, who was born in 1931, and Mr Ion
Ceachir, who was born in 1940, live in Chişinău and Bălţi,
respectively.
In
1949 the applicants' parents were persecuted by the communist
authorities. Their property was confiscated and they were exiled to
Siberia.
In
1989 they were rehabilitated.
On
2 August 2002 the applicants brought an action against the Ministry
of Finance (“the Ministry”), seeking compensation for the
confiscation of their parents' property.
On
27 May 2003 the Râşcani District
Court ruled in favour of the applicants and ordered the Ministry to
pay each of them compensation in the amount of 150,500 Moldovan lei
(MDL) (8,988 euros (EUR) at the time). It also issued an enforcement
warrant. The Ministry appealed.
On
14 August 2003 the Chişinău Court of Appeal dismissed the
appeal and upheld the judgment of 27 May 2003. The representative of
the Ministry did not attend the hearing.
On
29 August 2003 the Ministry lodged with the Supreme Court of Justice
an appeal on points of law, dated 28 August 2003.
Relying
on Articles 437 and 438 of the Code of Civil Procedure (the “CCP”)
(see Relevant domestic law below), on 15 September 2003 the
Vice-President of the Supreme Court of Justice returned the
Ministry's appeal on points of law on the ground that the latter had
failed to pay court fees. He also informed the Ministry that it could
lodge a renewed appeal on points of law after having remedied
previous omissions and after having complied with other legal
requirements.
On
1 October 2003 the bailiff of the Râşcani
Judicial Decisions Enforcement Department received the enforcement
warrant of 27 May 2003 and on 7 October 2003 he requested the
Ministry to enforce it.
On
18 November 2003 the Ministry informed the bailiff that it had lodged
an appeal on points of law against the judgment of 14 August 2003 and
that it would comply with the enforcement warrant only after the
examination of the appeal on points of law by the Supreme Court.
In
the meantime, on 13 November 2003 the Ministry allegedly sent a
letter to the Supreme Court of Justice and argued that according to
the law “on the State duty” (privind taxa de stat)
it was exempted from paying court fees during the examination of the
appeal on points of law.
On
8 December 2003 the Ministry lodged with the Supreme Court of Justice
a new appeal on points of law against the judgment of 14 August
2003. Its content was identical to that of 29 August 2003 and bore
the same date on which it had been drafted by the Ministry – 28
August 2003. The Ministry did not request the reinstatement of the
running of the legal time-limit for lodging the new appeal on points
of law, nor did it mention the issue of court fees.
On
20 May 2004 the applicants lodged with the Supreme Court of Justice
their observations on the Ministry's appeal on points of law and
argued, inter alia, that it had been lodged out of time.
On
26 May 2004 the Supreme Court of Justice upheld the Ministry's appeal
on points of law, quashed the judgments of 27 May and 14 August
2003 and ordered a retrial of the case by the Sângerei
District Court. The Supreme Court specifically mentioned in
its judgment that the Ministry had lodged the appeal on points of law
on 8 December 2003.
On
4 October 2004 the Sângerei District
Court partially upheld the applicants' action and ordered the
Ministry to pay each of them compensation of MDL 36,250 (EUR 2,402 at
the time). On 22 October 2004 the applicants lodged an appeal with
the Bălţi Court of Appeal.
By
a decision of 7 December 2004 the Bălţi
Court of Appeal dismissed the applicants' appeal on the ground that
it had been lodged out of time. The applicants appealed against this
decision.
On
13 April 2005 the Supreme Court of Justice upheld the appeal, quashed
the decision of 7 December 2004 and ordered that the case be retried
before the Bălţi Court of Appeal.
On
7 July 2005 the Bălţi Court of
Appeal dismissed the applicants' appeal against the judgment of 4
October 2004. They lodged an appeal on points of law with the Supreme
Court of Justice.
On
9 November 2005, during the proceedings before the Supreme Court, the
applicants sought to withdraw their appeal on points of law and to
discontinue the proceedings. On the same date their request was
upheld and the proceedings discontinued.
On
16 January 2006 the applicants lodged with the Supreme Court of
Justice a revision request against its decision of 9 November 2005 by
which it discontinued the proceedings. On 24 May 2006 their request
was refused.
On
17 July 2007 a bailiff requested the Ministry to enforce the judgment
of the Sângerei District Court of 4
October 2004.
On
11 August 2006 the Ministry lodged an appeal against the judgment of
4 October 2004, which was dismissed by the final judgment of
7 February 2007 of the Supreme Court of Justice as
statute-barred.
On
28 March 2007 a bailiff enforced the judgment of 4 October 2004
and paid the applicants MDL 36,250 each.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Civil Procedure read as follows:
“Article 254. Final and irrevocable judgments
(1) A judgment becomes final:
...
b) when after having been issued by the first
instance court, challenged by way of appeal (apel), the appeal
is examined by the appeal instance (instanţa
de apel) and dismissed;
...
(2) A judgment becomes irrevocable
a) when after having been issued by the first
instance court, the legal time-limit for lodging an appeal runs out;
b) when after having been issued by the first
instance court, challenged by way of appeal (apel) or appeal
on points of law (recurs), [the appeal or the appeal on points
of law] is examined by the cassation instance (instanţa de
recurs) and dismissed;”
Article 433. Reasons for inadmissibility of an appeal
on points of law:
...
b) if the appeal on points of law is lodged
outside the time limit set out in Article 434...
Article 434. The time limit for lodging an appeal on
points of law:
(1) (...) An appeal on points of law which
has been lodged within two months of the date of the judgment or the
date when it became known [to the party], is considered to have been
lodged within the legal time limit.
(2) The period of two months is restrictive
(“de decădere”) and cannot be extended.”
“Article 437. The content of an appeal on
points of law:
...
(2) Proof of the payment of court fees should
be annexed to the appeal on points of law (...)
Article 438. Restitution of an appeal on points of
law:
...
(2) If an appeal on points of law does not
comply with the requirements of Article 437 or has been lodged
without the court fees being paid, the court, by a letter signed by
the President or the Vice-President of the panel, returns it [to the
appellant] within five days.
(3) The restitution of an appeal on points of
law does not prevent [the appellant] from repeated lodging an appeal
on points of law after having remedied the omissions and after having
complied with other requirements of the law.”
The
law State Duty Act (no. 1216) of 3 December 1992 reads as follows:
“Section 4. Facilities concerning the State
duty:
(1) The following [parties] are exempted from
the payment of court fees:
...
(12) Central public authorities, central
public administrative bodies (...) during the institution of claims
for the protection of the State's patrimonial interests, as well as
during the lodging of appeals against the courts' judgments in
respect of the above-said claims;”
The
Civil Code of 12 June 2003, in so far as relevant, reads as follows:
“Article 619. Default interest:
(1) Default interest is payable for delayed
execution of pecuniary obligations. Default interest shall be five
per cent above the interest rate provided for in Article 585
[NBM refinancing interest rate] unless the law or the contract
provides otherwise. Proof that less damage has been incurred shall be
admissible.
(2) In non consumer-related situations
default interest shall be nine per cent above the interest rate
provided for in Article 585 unless the law or the contract provides
otherwise. Proof that less damage has been incurred shall be
inadmissible.”
THE LAW
The
applicants complained that their right to a fair trial, as guaranteed
by Article 6 § 1 of the Convention, had been infringed by the
fact that on 26 May 2004 the Supreme Court of Justice had upheld the
Ministry's appeal on points of law even though it was out of time.
The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The applicants' complaints about the non-enforcement
of the judgment of 27 May 2003
In
their initial application the applicants complained of an
interference with their rights under Articles 6 § 1 and 14 of
the Convention and under Article 1 of Protocol No. 1 to the
Convention, namely the non-enforcement of the judgment of the Râşcani
District Court of 27 May 2003. However, in their observations on the
admissibility and merits of the case, they informed the Court that
they did not want to pursue those complaints. Accordingly the Court
will not examine them.
B. The complaint concerning the appeal on points of law
lodged out of time
The
Government submitted that the applicants had lost their “victim”
status. They argued that in view of the fact that on 9 November 2005
the applicants had requested the Supreme Court to withdraw their
appeal on points of law and to discontinue the proceedings, they must
be taken to have agreed with the amount of compensation awarded by
the Sângerei District Court on 4
October 2004 (see paragraphs 20 and 24 above).
The
Government also stated that at the date of submitting the present
application with the Court, Mr Gheorghe Ceachir had not been
authorised according to the provisions of the Moldovan Code of Civil
Procedure to represent his brother before the Court. The Government
requested the Court to dismiss the application submitted by Mr Ion
Cheachir on the ground that it had not been duly introduced with the
Court.
The
applicants disagreed with the Government's objections and argued that
as their complaint related to the unlawful quashing of the judgment
of 27 May 2003 as a result of an appeal on points of law lodged out
of time, the national authorities had neither acknowledged the breach
of the Convention nor paid them any compensation for that unlawful
quashing. The applicants considered that the Government's objection
concerning the withdrawal of their appeal on points of law had raised
an issue of non-exhaustion of domestic remedies. They argued that in
cases where the issue of the quashing of a final judgment was at
stake, the subsequent development of the unlawfully reopened
proceedings was irrelevant.
Secondly,
on 21 April 2006 Mr Ion Ceachir informed the Court that on the date
of lodging the application, his brother, Mr Gheorghe Ceachir, and his
representative, Mr Vladislav Gribincea, had had his consent to act on
his behalf and to initiate proceedings before the Court.
The
Court reiterates that “the quashing of a final judgment
is an instantaneous act, which does not create a continuing
situation, even if it entails a reopening of the proceedings”
(see Frunze v. Moldova, no. 42308/02, 14 September 2004).
It is to be noted that the applicants' complaint relates to the
unlawful quashing of the judgment of 27 May 2003, as upheld on 14
August 2003 by the Chişinău Court of Appeal, and not to the
amount of compensation awarded by the domestic courts for the
confiscation of their parents' property. It therefore dismisses the
Government's first objection and considers that the issue of the
lawfulness of the reopening of the proceedings by the Supreme Court
on 26 May 2004 is bound up with the examination of the merits of the
case. It therefore joins this issue to the merits.
As to
the second objection raised by the Government, the Court reiterates
that “the representative of an applicant must produce a “power
of attorney or a written authority to act”. A simple written
authority would be valid for purposes of the proceedings before the
Court, in so far as it has not been shown that it was made without
the applicants' understanding and consent” (see Velikova v.
Bulgaria, no. 41488/98, § 50, ECHR 2000 VI). From the
content of the letter of 21 April 2006 (see paragraph 35 above) the
Court considers that there is no doubt as to Mr Ion Ceachir's
understanding and consent to pursue his application.
The
Court therefore dismisses the Government's objection.
C. Conclusion on admissibility
The
Court considers that the applicants' complaint under Article 6
§ 1 of the Convention raises questions of law which are
sufficiently serious that their determination should depend on an
examination of the merits, and no other grounds for declaring them
inadmissible have been established. The Court therefore declares the
complaint admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4 above), the
Court will immediately consider the merits of the
applicants' complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained under Article 6 § 1 of the Convention
about the quashing by the Supreme Court of Justice of the judgment of
the Râşcani
District Court of 27 May 2003 without
providing any reasons for upholding an appeal in cassation which had
been lodged out of time.
The
Government submitted that the Ministry had lodged the appeal on
points of law on 29 August 2003 and thus within the legal time-limit.
They contended that by its letter of 13 November 2003 the Ministry
had clarified the issue of court fees (see paragraph 16 and paragraph
30 of Relevant domestic law above) and that the appeal on points of
law of 8 December 2003 had been a reiteration of that of
29 August 2003. In so far as the Supreme Court in its judgment of 26
May 2004 had provided sufficient reasons for upholding the Ministry's
appeal on points of law, the Government considered that there
had been no infringement of the applicants' rights under the
Convention.
The
Court observes that the general principles which apply in cases of
this type are set out in Melnic v. Moldova (no. 6923/03, §§
41-43, 14 November 2006).
It
is to be noted that according to Article 434 of the CCP an appeal on
points of law may be lodged within a two-month restrictive period,
which cannot be extended. This period shall be calculated from the
date of the judgment or from the date when it became known to the
party. Failure to observe it renders a judgment final and
irrevocable, as provided for by Article 254 of the CCP (see
paragraph 29 above).
In
the present case, the Court notes that the Ministry's representative
had not been present during the proceedings before the Chişinău
Court of Appeal of 14 August 2003 (see
paragraph 11 above). In the absence of
any evidence submitted by the parties concerning the date on which
the Ministry became aware of the judgment of 14 August 2003, the
Court is ready to consider the date appearing on the Ministry's
appeal application as being the date on which it had found out and
from which the two month time limit started to run (see paragraphs 12
and 17 above). Thus, the legal time-limit
during which the Ministry could have lodged an appeal on points of
law expired on 29 October 2003.
The
Government argued that on 13 November 2003 the Ministry had sent a
letter to the Supreme Court to clarify the issue of court fees.
However, that letter appears to have been sent outside the time-limit
provided for by Article 434 of the CCP (see paragraphs 16 and 40
above). Indeed, Article 434 sets out clearly that the two month
time-limit cannot be extended.
The
Court attaches particular importance to the fact that despite the
applicants' objection of 20 May 2004 that the Ministry's appeal on
points of law was statute-barred, the Supreme Court did not
give any reasons for dismissing it and apparently treated it as
irrelevant.
Finally,
the Court notes that on 26 May 2004 the Supreme
Court of Justice specifically mentioned that it had examined
the appeal on points of law lodged on 8 December 2003, and not the
Ministry's appeal of 29 August 2003.
The
Court recalls that similar situations
have already been examined in Popov
v. Moldova (no. 2), (no. 19960/04, §
53, 6 December 2005) and Melnic (cited above, §§
40 and 41), in which it was found that by not
giving any reasons for extending the defendants' time-limit for
lodging a procedural act, the domestic courts had infringed the
applicants' rights to a fair hearing.
There
has accordingly been a violation of Article 6 § 1 of the
Convention, and the Government's preliminary objection (see paragraph
36 above) must be therefore dismissed.
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.”
A. Pecuniary damage
1. Judgment debt
The
applicants claimed that they should be awarded MDL 114,250 each,
representing the difference between the amount awarded by the
judgment of 27 May 2003 of the
Râşcani District Court
and MDL 36,250, which had already been paid to them (see paragraph 28
above).
The
Government disagreed with the amount claimed and argued that since
the applicants had withdrawn their appeal on points of law, they had
therefore agreed with the amount of compensation awarded by the
Sângerei District Court on 4 October
2004. Having received MDL 36,250 each, their claims should be
dismissed.
In
view of its finding that the authorities have breached the
applicants' rights by quashing the judgment awarding each of them
MDL 150,500 and given that they have been paid MDL 36,250, the
Court finds that the applicants are still entitled to recover
MDL 114,250 (EUR 6,586) each, representing the rest of the
judgment debt as awarded by the Râşcani
District Court on 27 May 2003.
2. Default interest
Relying
on Article 619 of the Civil Code (see the Relevant domestic law
above), the applicants requested to be paid interest for the delayed
execution of the pecuniary obligation, namely MDL 150,500 as awarded
by the judgment of 27 May 2003. According to their method of
calculation the interest due to each applicant was EUR 7,278.99,
which should be calculated from the date of adoption of the judgment.
The
Government did not depart from their position as submitted in
paragraph 51 above and considered the applicants' claims to be
groundless.
The
Court considers that the applicants must have suffered pecuniary
damage as a result of the upholding by the Supreme Court of Justice
of an appeal on points of law lodged out of time. Taking into account
the domestic legislation concerning the calculation of default
interest (see paragraph 31 above), the Court awards each of the
applicants EUR 7,279 in compensation for the lost
interest.
B. Non-pecuniary damage
Referring
to Popov (no. 2) (cited
above), the applicants claimed EUR 3,000 each, in
compensation for non-pecuniary damage suffered as a result of the
infringement of their rights under the Convention.
The
Government disagreed with the amount claimed by the applicants and
stated that they were not entitled to receive compensation.
The
Court considers that the applicants must have been caused a certain
amount of stress and frustration as a result of the breach of their
rights under the Convention. The particular amount claimed is,
however, excessive. Making its assessment on an equitable basis, the
Court awards the applicants jointly EUR 3,600 for non-pecuniary
damage.
C. Costs and expenses
The
applicants claimed EUR 2,730 for the costs and expenses incurred
before the Court. He submitted a detailed timesheet according to
which the lawyer's hourly rate was EUR 60 and relied on the decision
of the Moldovan Bar Association adopted on 29 December 2005, which
set out the recommended level of remuneration for lawyers
representing applicants before international courts. They also
submitted a receipt according to which on 21 April 2006 their
representative had been paid MDL 41,402 (EUR 2,580). The amount
claimed was due to the fact that the initial application had been
drafted in respect of non-enforcement of the judgment of 27 May 2003.
Following the Supreme Court of Justice's decision to uphold the
Ministry's appeal on points of law, the initial complaints had to be
fully re-drafted. Lastly, in view of the partial payment of MDL
36,250, the claims for just satisfaction had to be repeatedly
submitted.
The
Government disagreed with the amount claimed for representation and
stated that the Court should not award them any compensation for
costs and expenses since those claims had been excessive.
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, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 ...).
In
the present case, regard being had to the itemised list submitted and
the complexity of the case, and also to the fact that the applicants'
representative had to substantially redraft the initial application,
the Court awards the applicants EUR 1,800 for costs and expenses.
D. Default interest
The
Court considers it appropriate that the default interest 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
Joins to the merits the Government's
preliminary objection regarding the applicant's “victim”
status;
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention and dismisses the Government's
preliminary objection;
Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
under Article 44 § 2 of the Convention the following amounts, to
be converted into Moldovan lei at the rate applicable at the date of
settlement:
(i) EUR
6,586 (six thousand five hundred and eighty six euros) each in
respect of pecuniary damage, representing the judgment debt;
(ii) EUR
7,279 (seven thousand two hundred and seventy-nine euros) each in
respect of pecuniary damage, representing the lost
interest;
(iii) EUR
3,600 (three thousand six hundred euros) in total in respect of
non-pecuniary damage;
(iv) EUR
1,800 (one thousand and eight hundred euros) in total in respect of
costs and expenses; and
(v) any
tax that may be chargeable on the above amounts;
(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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 15 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
