(Application no. 39815/07)
16 July 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 Baroul Partner-A v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations.
The competent court ... shall apply the limitation period whether or not the parties request such application.
The limitation period starts running from the day on which the right of action arises. The right of action arises on the day when a person comes to know or should have come to know that his right has been breached...
Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim.
If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected.
The limitation period does not apply:
(2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”.
Article 6. The action in time of the civil law
“(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has been extinguished or is in the process of execution.”
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a tribunal ....”
“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
I. ADMISSIBILITY OF THE COMPLAINTS
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
Referring to the Government's submission concerning absolute nullity, the applicant company submitted that the sale of the shares in 2000 was concluded under the old Civil Code and that the domestic courts themselves did not rely on the provisions of the new Civil Code relating to absolute nullity. The applicant company pointed to Article 6 of the new Civil Code which provided that its provisions did not apply to legal acts concluded before its entry into force.
III. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION
IV. 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.”
A. The parties' submissions
- the applicant company had returned to it the price of the shares purchased in 2000, namely MDL 2,498,437.5;
- during its activity with the applicant company as a shareholder, the quarry obtained a profit which was not claimed by the State after the annulment of the sale of the shares;
- during 2006-2007 the quarry used public goods, namely twenty-seven carriages, without any legal grounds;
- it was the State which saw its property right infringed by the illegitimate actions of the applicant company.
B. The Court's conclusion
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question;
(b) 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;
(c) 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 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza