European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> IPTEH SA AND OTHERS v. MOLDOVA - 35367/08 [2010] ECHR 1016 (29 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1016.html
Cite as: [2010] ECHR 1016

[New search] [Contents list] [Printable RTF version] [Help]

FOURTH SECTION

CASE OF IPTEH SA AND OTHERS v. MOLDOVA

(Application no. 35367/08)

JUDGMENT

(just satisfaction-striking out)

STRASBOURG

29 June 2010

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 Ipteh SA and Others 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,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 8 June 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 35367/08) 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 Ipteh SA – a company incorporated in Moldova, Worldway Limited – a company incorporated in the United Kingdom, Kapital Invest SA – a company incorporated in Romania and Ion Rusu – a Romanian national, on 25 July 2008.

The applicants were represented by Ms J. Hanganu, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

In a judgment delivered on 24 November 2009 (“the principal judgment”), the Court held that there had been a violation of the applicants' rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as a result of the annulment of the privatisation of a building in Chişinău, in breach of the principles of equality of arms and legal certainty (Ipteh SA and Others v. Moldova, no. 35367/08, 24 November 2009).

Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach.

THE FACTS

The first applicant, Ipteh SA, is a company incorporated in Moldova. The other applicants are Worldway Limited (“the second applicant company”) – a company incorporated in the United Kingdom and holder of 35.29% of the shares of the first applicant; Kapital Invest SA (“the third applicant company”) – a company incorporated in Romania and holder of 49.63% of the shares of the first applicant; and Ion Rusu (“the fourth applicant”) – a Romanian national born in 1962, living in Iaşi and holder of 11.72% of the shares of the first applicant company.

At the end of the 1990s, Ipteh SA and a third company, I., were owners of a six-floor building located on the main boulevard of Chişinău (“the building”). Both companies were State-owned and had as their only asset different parts of the building.

In 1999 the State decided to privatise the companies and sold their shares to a private company, U.

In 2000 and 2001 the new owner of the companies transferred all parts of the building to the first applicant company.

Also in 2000 the former director of the first applicant company challenged the privatisation in the courts. However, his action was dismissed by a final judgment of the Economic Court of the Republic of Moldova of 11 July 2000, the courts having found that the privatisation had been legal in all respects.

In July 2001 the fourth applicant bought 141,772 shares in the first applicant company.

In August 2001 the second applicant company bought the rest of the shares of the first applicant company.

In August 2006 the first applicant company issued 510,000 new shares and sold them to the third applicant company.

On an unspecified date in 2002 the Prime Minister requested the Prosecutor General's Office to conduct an investigation into the lawfulness of the privatisation. On 17 February 2002 the Prosecutor General informed the Prime Minister that he had verified the lawfulness of the privatisation and had found it to be “in strict compliance with the legislation in force”. The Prosecutor General also informed the Prime Minister that the lawfulness of the privatisation had been thoroughly verified during the proceedings ending with the final judgment of 11 July 2000.

On an unspecified date in 2003 the President of Moldova requested the Prosecutor General's Office to examine the possibility of challenging the privatisation of 1999. In a letter of 26 June 2003 the Prosecutor General informed President V. Voronin that the transaction had been lawful and that there were no grounds to challenge it. Moreover, he indicated that after the entry into force of the new Code of Civil Procedure on 12 June 2003 it had become impossible to bring an appeal in cassation against the final judgment of 11 July 2000.

On 19 April 2007 the Prosecutor General's Office instituted proceedings on behalf of the State in which it contested the lawfulness of the 1999 privatisation of the first applicant company and of company I. on the ground that two Government regulations concerning the sale of State- owned shares had been breached. In particular, the Prosecutor argued that the size of the down payment made by company U. was smaller than the one provided in the regulations and that the final price offered for the shares had been too low. The Prosecutor relied on Article 50 of the Civil Code as a legal basis for his action (see paragraph 16 below). As a consequence of the alleged illegality of the privatisation, the Prosecutor's Office also sought the annulment of all the subsequent transfers and issues of shares as a result of which the second, third and fourth applicants had become shareholders of the first applicant company.

The applicants opposed the action and argued, inter alia, that it was time-barred and contrary to the principle of legal certainty. They submitted that the provision of Article 86 of the old Civil Code exonerating the Prosecutor from observing the three-year time-limit when lodging actions in the interest of the State was contrary to Article 6 of the Convention and made reference to Dacia SRL v. Moldova (no. 3052/04, 18 March 2008). They also submitted that the lawfulness of the privatisation had been confirmed by a final judgment of 11 July 2000 with the power of res judicata and that they were bona fide buyers who had been discriminated against with respect to other companies which had obtained State property in similar conditions and whose privatisations had not been contested later by the State. They also challenged the presiding judge on grounds of lack of impartiality and argued that in the proceedings which had ended with the final judgment of 11 July 2000 he had been successfully challenged on such grounds. However, the challenge was dismissed.

On 10 June 2008 the Chişinău Economic Court ruled in favour of the Prosecutor General's Office in the absence of the third and fourth applicants, who had not been summoned. The court dismissed the applicants' objection concerning the existence of a final judgment of 11 July 2000. The court did not dispute the applicants' submission that the proceedings of 2000 had had a similar subject matter; however, it dismissed the objection on the ground that that judgment had been adopted in proceedings in which the Prosecutor General's Office had not been involved. The court also dismissed the applicants' objection concerning the Statute of Limitations, arguing that according to Article 86 of the Civil Code an action by the Prosecutors in the interest of the State could not be time-barred.

The applicants appealed on the basis of the same arguments which were put before the first-instance court. They also complained that not all of them had had the possibility to take part in the proceedings and that the judge had lacked impartiality.

On 28 August 2008 the Supreme Court of Justice heard the applicants' appeal. During the proceedings, the applicants challenged judge N.M. from the panel and expressed doubts as to the manner in which the President of the Supreme Court, Judge I.M., had composed the panel. On the same day, the Supreme Court dismissed the appeal and upheld the judgment of the first-instance court.

The Supreme Court relied on provisions of the old Civil Code in order to dismiss the applicants' objection concerning their status as good faith buyers. In particular, the court argued that according to the old Civil Code property obtained unlawfully from the State could be claimed back irrespective of the fact that it had been obtained by a bona fide buyer. However, when examining the problem of the Statute of Limitations, the Supreme Court agreed with the applicants' objection concerning Article 86 of the old Civil Code (see paragraph 16 above). Nonetheless, the court stated for the first time in the proceedings that since the Prosecutor had introduced his action after the entry into force of the new Civil Code, the rules concerning limitations in time contained in that Code should apply. The Supreme Court expressed the opinion that the Prosecutor's action concerned the declaration of the absolute nullity of the privatisation and that therefore, in accordance with the provisions of Article 217 of the new Civil Code, it could not be limited in time. The Supreme Court also dismissed the objection concerning the existence of a final judgment in respect of the same problem on the same grounds as the first-instance court and dismissed the objection concerning the non-participation of some of the applicants in the proceedings.

On 24 November 2009 the Court examined the merits of the present case and found a violation of Article 6 and Article 1 of Protocol No. 1 to the Convention.

On 22 April 2010 the Supreme Court of Justice of Moldova upheld a revision request lodged by the applicants against its judgment of 28 August 2008 (see paragraph 19 above) and quashed it. In the same judgment the Supreme Court of Justice re-examined the merits of the case, dismissed the Prosecutor General's action and ordered the Ministry of Finance to compensate the applicants for the pecuniary and non-pecuniary damage and for the costs and expenses incurred. The first applicant was awarded 196,952.53 euros (EUR), the second applicant – EUR 46,545.47, the third applicant – EUR 58,000 and the fourth applicant – EUR 18,434.88. The judgment became final on the date of pronouncement.

THE LAW

On 10 May 2010 the applicants informed the Court about the judgment of the Supreme Court of Justice of 22 April 2010, submitted that they were no longer interested in pursuing the remainder of the case before the Court (the reserved Article 41 issue) and asked the Court to strike it out of the list of cases in view of its settlement at home.

Having regard to Article 37 § 1 (a) and (b) of the Convention, the Court finds that the applicants do not intend to pursue the application since the matter before it has been resolved. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the remainder of the application to be continued.

Accordingly, the remainder of the case should be struck out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the remainder of the application out of its list of cases.

Done in English, and notified in writing on 29 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President