European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF NICHIFOR v. THE REPUBLIC OF MOLDOVA

 

(Application no. 52205/10)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

20 September 2016

 

 

 

 

 

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 Nichifor v. the Republic of Moldova,

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

          Işıl Karakaş, President,
          Julia Laffranque,
          Paul Lemmens,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 30 August 2016,

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

PROCEDURE

1.  The case originated in an application (no. 52205/10) 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 Moldovan national, Mr Leonid Nichifor (“the applicant”), on 30 August 2010.

2.  The applicant was represented by Ms S. Macrinici and Ms A. Balan, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3.  The applicant alleged, in particular, that he had been deprived of property as a result of unfair civil proceedings.

4.  On 15 September 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1966 and lives in Chișinău.

6.  The applicant was a shareholder in a limited liability company created in 2002 with a registered capital of 5,400 Moldovan lei (MDL) (the equivalent of some 396 euros (EUR)). At the time of the events he owned 50% of the company’s shares. The other half of the shares was owned by A.N.

7.  On 13 January 2009 A.N. lodged an action with the Chişinău Economic Court seeking the applicant’s exclusion from the list of shareholders on the grounds, inter alia, that he had not paid for his part of the shares, that is to say he had only paid MDL 1,080 instead of MDL 2,700. The applicant objected, claiming that the action was time-barred: under the relevant law, it had to be introduced within three years of the creation of the company. The applicant also presented bank documents which showed that A.N. had not paid his part of the shares until September 2009.

8.  On 14 March 2009 the Chişinău Economic Court dismissed the action against the applicant on the grounds that it was time-barred. A.N. appealed.

9.  The hearings before the Economic Court of Appeal took place on five different dates: 30 April, 27 May, 2 June, 4 June and 9 June 2009. On 2 June 2009 A.N.’s representative submitted that the applicant had not paid his contribution and that he had been asked to do so every year since the creation of the company in 2002. When asked whether there were any minutes to confirm the contention that the applicant had been summoned to pay his contribution, he answered that he was not aware of any such minutes.

10.  On 4 June 2009 A.N.’s representative presented for the first time minutes of a meeting of the company’s shareholders, which had allegedly taken place on 20 February 2007. The minutes showed that the applicant had admitted to not having paid for the totality of his shares and had pledged to pay within one month or lose his status as a shareholder in the company.

11.  The applicant objected that the minutes in question had been forged. He argued, inter alia, that his first name had been spelt wrongly and that the signature was not his. He requested that an expert authentication of his signature be carried out. His request was not mentioned in the transcript of the hearing.

12.  On 9 June 2009 the parties made their closing statements at the hearing before the Economic Court of Appeal. The applicant reiterated that the minutes of a shareholders’ meeting dated 20 February 2007 had been forged and requested that an expert authentication be carried out. A document containing his submissions was attached to the file.

13.  On the same date the Economic Court of Appeal adopted a judgment in the case by which it upheld the appeal, reversed the judgment of the first-instance court and found in favour of A.N. In ruling on the case, the Court of Appeal relied entirely on the minutes of the shareholders’ meeting dated 20  February 2007.

14.  Several days after the pronouncement of the judgment, the applicant had access to the case file and noted that the transcript of the hearing of 4 June 2009 did not contain a record of his request for an expert authentication of his signature. He made an official request to have the transcript corrected. However, on 17 June 2009 the Economic Court of Appeal rejected his request.

15.  The applicant lodged an appeal on points of law with the Supreme Court of Justice claiming, inter alia, that the proceedings had been unfair because the Economic Court of Appeal had used as the main and sole piece of evidence in the ruling against him a forged document, namely the minutes of a shareholders’ meeting dated 20 February 2007. The Economic Court of Appeal had given decisive weight to that document in spite of his express statement that the signature on the document was not his. He had requested to have the document authenticated by an expert, but the court had rejected his request without giving any reasons. He stressed that A.N. had not relied on the minutes of 20 February 2007 either in his initial action or in his appeal against the judgment 14 March 2009. He had presented them for the first time during the fourth hearing before the Economic Court of Appeal. In support of his assertion that the minutes in question had been forged, the applicant submitted evidence that between 11 and 22 February 2007 he had been undergoing medical treatment in Israel and could not therefore have attended a shareholders’ meeting held on 20 February 2007. He presented documents issued by the Moldovan border authorities and Israeli stamps in his passport confirming his travel to Israel between the above-mentioned dates. He also reiterated his objection concerning the statute of limitations and urged the Supreme Court to quash the judgment of the Economic Court of Appeal and order a re-examination of the case.

16.  In the proceedings before the Supreme Court of Justice, A.N. presented for the first time a copy of minutes of a meeting of the company’s shareholders which had allegedly taken place on 23 February 2007. In the new minutes the applicant was recorded as acknowledging that in the previous minutes dated 20 February 2007, the date had been wrongly indicated and that the correct date should have been 23 February 2007.

17.  On 17 December 2009 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, upholding the judgment of the Economic Court of Appeal. It did not respond to the applicant’s argument that A.N.’s action was time-barred or to the contention that the Economic Court of Appeal’s judgment had been based on a forged document. Nor did the Supreme Court respond to the applicant’s argument that the Economic Court of Appeal had rejected without any reasons his request for an expert authentication of the minutes of 20 February 2007. Instead, relying on the minutes of 20 February 2007, the Supreme Court concluded that the applicant had not paid the totality of his shares in the company. The Supreme Court did not mention the new minutes dated 23 February 2007 presented by A.N. in the proceedings before it.

18.  On an unspecified date the applicant lodged a criminal complaint against A.N., alleging that he had forged the company shareholders’ minutes dated 20 February 2007. In the course of the criminal proceedings, an expert from the National Forensic Centre presented his report dated 7 August 2010, in which he concluded that the signature on the minutes of the company shareholders’ meeting dated 20 February 2007 did not belong to the applicant. The criminal proceedings are pending.

II.  RELEVANT DOMESTIC LAW

19.  Pursuant to section 22 of Law no. 135 of 14 June 2007 concerning limited liability companies, shareholders must pay their contribution of the company’s registered capital within six months of the date of the company’s registration by the State. The company’s right to require that its shareholders pay their contribution of the registered capital can be exercised within three years of the date of the company’s registration by the State.

20.  Under section 47 of the same law, a shareholder who has not paid his or her contribution to the company’s registered capital can be excluded from the list of shareholders by a court judgment at the request of a meeting of company shareholders or of one or more shareholders.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

21.  The applicant complained that the proceedings had been unfair, in breach of Article 6 § 1 of the Convention, which in so far as relevant provides:

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

A.  Admissibility

22.  The Government submitted that the applicant had failed to exhaust domestic remedies because the transcript of the hearing before the Economic Court of Appeal did not contain evidence that he had asked that court to order an expert authentication of the minutes of the company shareholders’ meeting of 20 February 2007.

23.  The applicant objected, arguing that at the hearing of 4 June 2009 he had asked the court to order an expert examination of that document. However, the court had refused not only to grant his request but also to include it in the transcript of the hearing. In any event, the applicant had reiterated his request at the following hearing, on 9 June 2009, and a document proving that he had done that was attached to the case file.

24.  The Court notes that, in spite of the fact that the transcript of the hearing of 4 June 2009 before the Economic Court of Appeal does not contain a record of the applicant’s request for an expert authentication of the evidence submitted by A.N., there is a clear record of his subsequent request in the transcript of the hearing of 9 June 2009 attached to the case file (see paragraph 12 above). The Government did not contest the existence of that document in the domestic case file. The Court thus dismisses the Government’s objection of non-exhaustion of domestic remedies.

25.  The Court notes that this complaint 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

26.  The applicant submitted that the proceedings had been unfair under Article 6 § 1 of the Convention because the Economic Court of Appeal and the Supreme Court of Justice had failed to apply the statute of limitations and had refused without any reasons to order an expert analysis of the authenticity of the minutes of the company shareholders’ meeting of 20 February 2007, which was the main piece of evidence used against him.

27.  The Government submitted that there was no record in the transcript of the hearing of 4 June 2009 before the Economic Court of Appeal of the applicant’s request for an expert analysis of the authenticity of the document submitted by A.N. as evidence. In so far as the statute of limitations was concerned, the Government argued that the domestic courts had not considered it necessary to respond to that objection raised by the applicant.

28.  The Court refers to its previous case-law in which it has said that the observance of admissibility requirements for carrying out procedural acts is an important aspect of the right to a fair trial. The role played by limitation periods is of major importance when 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 (see Dacia S.R.L. v. Moldova, no. 3052/04, § 75, 18 March 2008).

29.  The Court further reiterates that Article 6 § 1 of the Convention obliges courts to give reasons for their judgments. In Ruiz Torija v. Spain, (judgment of 9 December 1994, Series A no. 303-A), the Court found that the failure of a domestic court to give reasons for not accepting an objection that the action was time-barred amounted to a violation of that provision.

30.  The Court notes in the context of the present case that the issue concerning the statute of limitations raised by the applicant during the proceedings constituted an important argument. If accepted, it could have led to the dismissal of the action lodged by A.N. against the applicant. In fact, the first-instance court dismissed A.N.’s action against the applicant on precisely that ground (see paragraph 8 above). In spite of that, the Economic Court of Appeal and the Supreme Court of Justice remained silent on the applicant’s objection as to the admissibility of the claim. In the absence of a specific and express reply, it is impossible to ascertain whether these courts simply neglected to deal with the submission that the action was out of time or whether they intended to dismiss it and, if that was their intention, what their reasons were for so deciding (see Ruiz Torija, cited above, § 30; Hiro Balani v. Spain, 9 December 1994, § 28, Series A no. 303-B; and Lebedinschi v. the Republic of Moldova, no. 41971/11, § 35, 16 June 2015).

31.  The above findings alone might be a sufficient basis for the Court to find a breach of Article 6 of the Convention. Nevertheless, the Court also finds other aspects of the proceedings problematic. In particular, when A.N. presented evidence which, on the face of it, seemed very suspect, both the Economic Court of Appeal and the Supreme Court of Justice refused without any explanation the applicant’s legitimate request to have an expert authenticate the document in question and confirm or reject his allegation that his signature had been forged. The issue of the authenticity of the minutes dated 20 February 2007 ought to have triggered the judges’ concern merely because they were presented very late in the proceedings (see paragraph 10 above), after A.N.’s representative had stated that to his knowledge no such document existed (see paragraph 9 above) and because the applicant had submitted that the signature on them was not his (see paragraphs 11 and 12 above). Nevertheless, the domestic courts seemed to be unperturbed by the applicant’s objections, even after he adduced evidence to prove that on 20 February 2007 he had been out of the country and could not have been present at the company shareholders’ meeting.

32.  In the light of the above, the Court concludes that the proceedings were not fair and that, accordingly, there has been a violation of Article 6 §  1 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

33.  The applicant complained that the judgments by which A.N.’s claim had been upheld had had the effect of infringing his right to peaceful enjoyment of his possessions as secured by Article 1 of Protocol No. 1 to the Convention, which provides:

“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.”

34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore declares it admissible. However, in view of its findings under Article 6 § 1 of the Convention (see paragraphs 26-32 above), the Court does not consider it necessary to examine the complaint separately.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  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

36.  The applicant claimed EUR 1,025,171 in respect of pecuniary damage. He claimed that this amount represented 50% of the value of the company, plus interest. The applicant also claimed EUR 25,000 for non-pecuniary damage.

37.  The Government objected and argued that the amounts claimed were excessive.

38.  The Court cannot speculate as to whether the applicant would have suffered any pecuniary damage had the breach of Article 6 § 1 not taken place; it therefore rejects that claim. In this connection, the Court notes that Article 449 (h) of the Code of Civil Procedure provides for the possible revision of a judgment where the Court has found a violation of fundamental rights and liberties.

39.  On the other hand, the Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 2,500 for non-pecuniary damage.

B.  Costs and expenses

40.  The applicant also claimed EUR 2,502 for the costs and expenses incurred before the Court.

41.  The Government objected and argued that the amount claimed was excessive.

42.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the EUR 2,000 to the applicant for costs and expenses.

C.  Default interest

43.  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.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, 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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                     Işıl Karakaş
       Registrar                                                                              President