European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF RUSU LINTAX SRL v. THE REPUBLIC OF MOLDOVA

 

(Application no. 17992/09)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

(merits)

 

 

 

STRASBOURG

 

13 December 2016

 

 

 

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




In the case of Rusu Lintax SRL v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Valeriu Griţco,
          Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 22 November 2016,

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

PROCEDURE

1.  The case originated in an application (no. 17992/09) 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 a company incorporated under Moldovan law, Rusu Lintax SRL (“the applicant company”), on 18 March 2009.

2.  The applicant company was represented by Mr V. Nagacevschi, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3.  On 23 June 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant is a limited liability company incorporated under Moldovan law.

5.  On 11 June 2008 the Supreme Court of Justice acknowledged the applicant company’s entitlement to a plot of land adjacent to a warehouse it owned. The judgment ordered the Public Property Agency to sell the plot of land to the applicant company. The judgment was final.

6.  On 24 December 2008 the Supreme Court of Justice upheld an application for revision lodged by a third party, quashed the final judgment of 11 June 2008 and remitted the case for a fresh examination on the merits. As new evidence the court cited a letter dated 2 November 2007 from the Public Property Agency which, referring to the disputed plot of land and other plots, listed the legal provisions applicable to the sale of land that was public property.

7.  After a fresh hearing, on 16 June 2010 the Supreme Court of Justice dismissed in a final judgment the applicant company’s claims in respect of the plot of land as unsubstantiated.

II.  RELEVANT DOMESTIC LAW

8.  The relevant domestic law concerning the revision of a final judgment is set out in Popov v. Moldova (no. 2) (no. 19960/04, §§ 27-29, 6 December 2005), and Jomiru and Creţu v. Moldova, (no. 28430/06, §§ 26-27, 17 April 2012).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

9.  The applicant company complained that the quashing of the final judgment of 11 June 2008 of the Supreme Court of Justice delivered in its favour following revision proceedings 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

10.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

11.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one raised in the present application (see Popov v. Moldova (no.2), cited above, §§ 52-58, 6 December 2005; Oferta Plus SRL v. Moldova, no. 14385/04, §§ 104-107 and 112-115, 19 December 2006; Melnic v. Moldova, no. 6923/03, §§ 38-44, 14 November 2006; and Istrate v. Moldova, no. 53773/00, §§ 46-61, 13 June 2006).

12.  The Court notes that the Public Property Agency was a party to the main proceedings and, as the signatory of the letter dated 2 November 2007, was clearly aware of the letter and had no impediments in producing that document before the courts. Additionally, although the letter made reference to the disputed plot of land, its contents included an explanation of legal provisions generally applicable to any sale of publicly-owned land.

13.  The Court considers that a situation allowing a party to the proceedings to obtain the revision of a final judgment by citing as a new circumstance a letter of an authority party to those proceedings and which reiterates general legal provisions would be contrary to the principle of legal certainty.

14.  Having examined all the material submitted to it, the Court does not see any reasons to depart from its findings in the above-mentioned cases. The Court considers that in the present case the revision procedure was used by the Supreme Court of Justice in a manner that was incompatible with the principle of legal certainty.

15.  In relation to the applicant company’s complaint concerning its property rights, the Court finds, in accordance with its consistent case-law on the matter (see Popov v. Moldova (no. 2), cited above), that the abusive quashing by the domestic authorities of the final judgment by which the applicant company had acquired an entitlement to a plot of land, violated its rights as guaranteed by Article 1 of Protocol No. 1 to the Convention.

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

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  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.”

17.  The applicant company claimed 375,065.57 euros (EUR) in respect of pecuniary damage, representing lost profit from leasing the warehouse on the disputed plot of land, transportation and construction costs related to the use of the land and the price paid for the plot of land plus interest. The applicant company claimed EUR 200,000 in non-pecuniary damage, arguing that the violation of its rights had made it almost insolvent. The applicant company also claimed EUR 1,300 as costs and expenses.

18.  The Government disputed the amounts claimed by the applicant company, arguing that they were excessive. They noted that if a violation of the applicant company’s rights were to be found, an award of EUR 2,000 as compensation for non-pecuniary damage would be equitable.

19.  The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and a further procedure fixed with due regard to the possibility of an agreement being reached between the Moldovan Government and the applicant company.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  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;

 

3.  Holds that the question of the application of Article 41 is not ready for decision and accordingly,

(a)  reserves the said question in whole;

(b)  invites the Government and the applicant company to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they might reach.

Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                     Stéphanie Mourou-Vikström
Deputy Registrar                                                                  President