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THIRD SECTION

CASE OF PÎRNĂU AND OTHERS v. MOLDOVA

(Applications nos. 37225/07, 7456/08 and 12255/08)

JUDGMENT

STRASBOURG

31 January 2012

This judgment is final but it may be subject to editorial revision.

In the case of Pîrnău and Others v. Moldova,

The European Court of Human Rights (Third Section), sitting as a committee composed of:

Egbert Myjer, President,
Luis López Guerra,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 10 January 2012,

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

PROCEDURE

The cases originated in three applications (nos. 37225/07, 7456/08 and 12255/08) 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 two Moldovan nationals and one company based in Moldova (“the applicants”).

2. Following the entry into force of Protocol No. 14 to the Convention, the present applications were attributed to a committee of three judges and the parties have been informed as to this fact.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASES

The applicants obtained favourable decisions concerning various goods by means of final judgments. These judgments have later been quashed following revision proceedings or appeals lodged out of time initiated by third parties. Detailed information concerning the applicants and their proceedings can be found in the appended table.

II. RELEVANT DOMESTIC LAW

The relevant provisions of the Code of Civil Procedure read as follows:

“Section 114. Extension of a time-limit

Where a person has failed to comply with a legal time-limit for reasons considered by a court to be plausible, that time-limit may be extended by the court.

A request for the extension of the time-limit shall be lodged with the court concerned and shall be examined at a court hearing....

A court judgment dismissing a request for extension of a time-limit may be challenged by way of an appeal.

Section 284. The extension of the time-limit

The time-limit for lodging an appeal may be extended in accordance with the provisions of section 114 of the present Code. If a court does not have reasons to extend the time-limit, it shall dismiss the appeal as time-barred.

Section 305. The time-limit for lodging an appeal in cassation

The legal time-limit for lodging an appeal in cassation is fifteen days, unless the law provides otherwise.

Section 314. The judgment of the cassation instance and the procedural provisions

The issuance of the judgment as well as other procedural provisions before the appeal instance should be applicable to the proceedings before the cassation instance.

Section 316. Irrevocable judgments (Hotărârile irevocabile)

Irrevocable judgments are:

...

3) non-appealed judgments, issued by the appeal instances.

Section 449. Reasons for lodging a revision request

A revision request shall be granted when:

...

b) Certain essential circumstances or facts of the case become known which were not and could not have been known to the applicant;

(c) After a judgment has been adopted, new documents have been discovered which have been held by one of the participants to the proceedings or which could not have been submitted to the court during the proceedings because of circumstances beyond the control of the interested party;

...

(h) The European Court has found a violation of the fundamental rights and freedoms...

Section 450. The time-limit for lodging a revision

A revision request may be lodged:

...

(c) within three months of the date on which the person concerned has come to know 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 - in cases concerning Article 449 (b);

(d) within three months of the date on which the document was discovered - in cases concerning Article 449 (c);

...

(g) within three months of the date on which the European Court of Human Rights adopted the judgment – in cases concerning Article 449 (h).”

THE LAW

I. JOINDER OF THE APPLICATIONS

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

The applicants complained that the quashing of their final decisions by means of revision or appeals lodged out of time had violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal”

Article 1 of Protocol No. 1

“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.”

A. Admissibility

As regards cases nos. 37225/07 and 12255/08 the Government argued that the applicants have lost their victim status due to the fact that, upon the Prosecutor General’s request, the proceedings have been reopened and the impugned decisions were quashed. The Government asked the Court to strike out these applications on the basis of Article 37 § 1 (b) of the Convention.

The applicants agreed with the Government that the impugned decisions have been annulled. However, they complained that no violation of their rights has been found by the domestic authorities and that no compensation has been awarded.

The Court reiterates that, as a matter of principle, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a victim unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (Amuur v. France, 25 June 1996, § 23, Reports of Judgments and Decisions 1996 III; Dalban v. Romania [GC], no. 28114/95, §§ 41-45, ECHR 1999 VI).

As regards case no. 12255/08 the Court notes that the domestic authorities did not expressly acknowledge a breach of the Convention as regards the applicant’s rights to a fair trial and to property. Also, they have not offered any kind of compensation to the applicant. No redress was either afforded in case no. 37225/07.

Therefore, the Court rejects the Government’s objection.

Moreover, the Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The parties in cases nos. 37225/07 and 12255/08 complained that the legal certainty principle had been breached and relied on Article 6 § 1 of the Convention. They argued that the revision proceedings initiated by third parties were an appeal in disguise as they have merely tried to obtain a rehearing of the case.

The applicant in case no. 7456/08 complained that the legal certainty principle had been breached and relied on Article 6 § 1 of the Convention. He argued that the judicial authorities admitted the appeal lodged by the defendant after their final decision on his case had become final and enforceable.

The applicants further argued that their right to property as guaranteed by Article 1 of Protocol No. 1 to the Convention had been equally breached.

The Government did not formulate observations on the merits in cases nos. 37225/07 and 12255/08. In case no. 7456/08 the Government argued that according to the domestic legislation the defendant’s appeal was lodged on time.

2. The Court’s assessment

The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

Legal certainty presupposes respect for the principle of res judicata (ibid., § 62), that is the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (Ryabykh v. Russia, no. 52854/99, §52, ECHR 2003-IX).

The Court has found that the purpose of the revision procedure was to obtain a fresh examination of the matter rather than a genuine revision procedure as provided for in the legislation of Republic of Moldova (Popov v. Moldova (no. 2), no. 19960/04, § 52, 6 December 2005; Eugenia and Doina Duca v. Moldova, no. 75/07, §§ 28-42, 3 March 2009; Oferta Plus SRL v. Moldova, no. 14385/04, §§ 86-112, 19 December 2006).

Moreover, the Court held that Moldovan legislation provides for a decision to become final through the failure to appeal within the time-limit. The Court then found a violation when the domestic authorities admitted an appeal lodged after the expiry of the time-limit for lodging it (see mutatis mutandis Melnic v. Moldova, cited above, §§ 41-43; Istrate v. Moldova, no. 53773/00, §§ 53-55, 13 June 2006).

On the facts of the present cases, the Court holds the view that nothing distinguishes them from the above-mentioned case-law. As regards in particular case no. 7456/08 the Court considers that, though it is not its task to resolve problems of interpretation of domestic legislation, the reasoning adduced by the Government cannot override the conclusion derived from the relevant legal framework in Moldova that the appeal was introduced and allowed out of time. The Court finds thus a violation of Article 6 § 1 of the Convention in respect of the legal certainty principle.

Lastly, in relation to the applicants’ complaint concerning their right of property, the Court finds, in accordance with its constant case-law on the matter (see Popov (no. 2) cited above), that the decision of the domestic authorities to quash the final judgments by which the applicants had acquired various possessions violated their rights as guaranteed by Article 1 of Protocol No. 1 to the Convention.

Hence, there has been a violation of that provision, too.

III. 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. Damage

The applicants claimed the following amounts in respect of pecuniary and non-pecuniary damage:

	Case no.	Pecuniary damage (EUR)	Non-Pecuniary damage (EUR)
1.	37225/07	Did not make any claims	500,000
2.	7456/08	Enforcement of the final decision of 8 December 2006 of Orhei District Court	Did not make any claims
3.	12255/08	2,036,069	25,000

The Government contested the requested amounts. As regards case no. 7456/08 the Government noted that the applicant had failed to request just satisfaction.

1. Pecuniary damage

The applicant in case no. 37225/07 having made no claim for pecuniary loss, there is no call to make any award under this head.

In case no. 7456/08 the applicant requested the enforcement of the final decision of 8 December 2006 of Orhei District Court by which he had been awarded EUR 200,000 for pecuniary damage and MDL 200,000 (approximately EUR 1,333) for non-pecuniary damage.

The Court, taking into account the circumstances of the case, holds the view that the payment of the amounts stipulated in the final decision of 8 December 2006 of Orhei District Court, would place the applicant in the position in which he would have found himself had the violation not occurred (see Răţeanu v. Romania, no. 18729/05, §§ 26-31, 7 February 2008). Therefore, the Court awards the applicant EUR 201,300 for pecuniary damage, plus any tax that may be chargeable on that amount.

The Court notes that in case no. 12255/08 the unlawful decision adopted in the applicant’s case has been quashed following the Prosecutor General’s intervention. As a result, the applicant was put in the position in which it would have found itself had the violation not occurred, namely prior to the quashing of the final decision in its favour. The Court considers therefore that no pecuniary damage should be awarded in this case.

2. Non-pecuniary damage

The applicant in case no. 7456/08 having made no claim for non-pecuniary loss, there is no call to make any award under this head.

Making its assessment on an equitable basis as regards cases nos. 37225/07 and 12255/08, the Court awards each applicant EUR 2,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicants also claimed the following amounts for the costs and expenses incurred before the domestic courts and before the Court:

	Case no.	Costs and expenses (EUR)
1.	37225/07	5,000
2.	7456/08	Did not make any claims
3.	12255/08	3,525

The Government contested the requested amounts.

Regard being had to the fact that the applicant in case no. 37225/07 failed to join documents justifying the incurred legal costs, the Court rejects the claim for costs and expenses.

The applicant in case no. 7456/08 having made no claim for costs and expenses, there is no call to make any award under this head.

33. Finally, taking into consideration the justifying documents provided by the applicant in case no. 12255/08 and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads, plus any tax that may be chargeable on that amount.

C. Default interest

The Court considers it appropriate that the default interest rate 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

1. Joins the present applications;

2. Declares the applications admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, plus any tax that may be chargeable, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) in case no. 37225/07:

- EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

(ii) in case no. 7456/08:

- EUR 201,300 (two hundred one thousand and three hundred euros) in respect of pecuniary damage;

(iii) in case no. 12255/08:

- EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

- EUR 2,000 (two thousand euros) in respect of costs and expenses;

(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 31 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Egbert Myjer
Deputy Registrar President

Annex
No.	No. of application and date of introduction	Information concerning the applicants	Object of the dispute and Final decision	Decision adopted following the extraordinary appeal	Reopening of the proceedings following the communication of the case
1.	37225/07 (lodged on 28 August 2007)	PÎRNĂU Mihail, born on 7 February 1953 and residing in Chişinău.	Annulment proceedings seeking to declare void a sale contract by which the applicant bought the shares of company F. Final decision of 16 March 2006 of the Supreme Court of Justice rejecting the annulment action and concluding that the sale at issue was legally concluded.	Final decision of 25 September 2009 of the Supreme Court of Justice admitting revision proceedings initiated by third parties and declaring void the sale contract at issue.	By the final decision of 8 July 2010 the Supreme Court of Justice admitted the revision proceedings initiated by the Prosecutor General, quashed the decision of 25 September 2009 and maintained the decision of 16 March 2006. The Supreme Court of Justice held that the applicant’s right to equality of arms was breached, but awarded no damages.
2.	7456/08 (lodged on 7 December 2007)	COCIORVA Ionel, born on 20 May 1992 and residing in Braviceni, Orhei.	Proceedings seeking to obtain compensation from the power supply company for serious burns received following an electric shock. Decision of 8 December 2006 of Orhei District Court, uphold by the final decision of 13 June 2007 of the Supreme Court of Justice awarding the applicant EUR 200,000 as pecuniary damage and MDL 200,000 (approximately EUR 1,333) for non-pecuniary damage.	Final decision of 23 April 2008 of the Supreme Court of Justice admitting the appeal lodged by the power supply company against the decision of 8 December 2006 and awarding the applicant MDL 96,000 in terms of pecuniary and non-pecuniary damage.
3.	12255/08 (lodged on 3 March 2008)	RENAN S.R.L. is a company registered in Chişinău.	Proceedings seeking to declare void a rental agreement concluded between the applicant company and Chişinău Town Hall in 1998. Final decision of 30 May 2007 of the Supreme Court of Justice rejecting the annulment proceedings on the ground that the rental agreement at issue was lawfully concluded.	Final decision of 18 October 2007 of the Supreme Court of Justice admitting the revision proceedings, quashing the final decision of 30 May 2007 and ordering the reopening of the annulment proceedings. Following the reopened proceedings, the Supreme Court of Justice annulled by the final decision of 30 April 2008 the rental agreement concluded by the applicant company in 1998.	Final decision of 22 December 2010 of the Supreme Court of Justice admitting the revision proceedings initiated by the Prosecutor General and quashing the final decision of 30 April 2008. The Supreme Court of Justice found no breach of the applicant company’s rights and awarded no damages.