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FOURTH
SECTION
CASE OF
MATEI AND TUTUNARU v. MOLDOVA
(Application
no. 19246/03)
JUDGMENT
STRASBOURG
27 October
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 Matei and Tutunaru v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19246/03) 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, Mr Constantin Matei and
Mrs Elena Tutunaru (“the applicants”), on 7 March
2003.
- The
applicants were represented by Ms N. Mardari, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent at the time, Mr V. Pârlog.
- The
applicants alleged, in particular, that the proceedings in their case
had been excessively long and that they had lost their property
rights to part of their company as a result of arbitrary domestic
judgments, which included the quashing of a final judgment in their
favour.
- On
8 December 2004 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were both born in 1951 and live in
Ialoveni and Vorniceni respectively.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The proceedings prior to the request for annulment
- In
July 1987 the applicants and several other persons founded a business
association ('the Association'). After other members of the
Association left, the two applicants remained its only members.
According to the applicants, in 1989 the Association hired three
other persons (“the employees”) who were subsequently
dismissed in 1992. According to the Government, they had become
members of the Association in 1989.
- In
December 1992 the applicants transformed the Association into a
limited liability company. The newly registered company retained its
old name – Victoria.
- On
1 June 1993 one of the employees initiated court proceedings against
the applicants claiming that he had been a member of the Association
and requesting the annulment of the transformation into a limited
liability company. He also claimed his part of the assets of the
Association. The two other employees initiated identical proceedings
on 16 August 1994. The cases were joined.
- In
1995 the Botanica District Court granted their claims. The Supreme
Court of Justice upheld that judgment. On 27 November 1995 the
Plenary Supreme Court of Justice quashed that judgment and ordered a
full rehearing of the case.
- On 3 October 1997 the Botanica District Court rejected
the employees' claims. On 22 January 1998 the Chişinău
Regional Court upheld that judgment. On 10 September 1998 the Court
of Appeal also upheld that judgment, which then became final.
B. The proceedings following the request for annulment
- On an unspecified date the Prosecutor General filed a
request for the annulment of all previous judgments and for the
claims against the applicants to be granted in full. On
26 January 2000 the Supreme Court of Justice upheld that request and
quashed the above-mentioned judgments.
It ordered a full rehearing of the case.
- On 27 November 2001 the Buiucani
District Court declared null and void the transformation of the
Association into a limited liability company. Although the employees
had been hired by the Association, the court found that they had
taken part in the decision-making process and had made financial
contributions to the common assets of the Association. Accordingly,
the court considered that the employees should be recognised as
having been members of the Association. The court ordered “the
distribution of the assets of the association 'Victoria', situated at
99 Decebal str. in Chişinău” between the
applicants and the employees, each of the two groups obtaining
various items (production equipment, cars and office equipment) of
common property. The court also specified that “the building of
the 'Victoria' market” should remain the applicants' property.
- On 11 April 2002 the Chişinău
Regional Court quashed that judgment and adopted a new one by which
it rejected all the claims against the applicants. On 12 September
2002 the Court of Appeal quashed the judgment of the Chişinău
Regional Court and upheld the judgment of the Buiucani District Court
of 27 November 2001 (in favour of the employees). That judgment
became final.
C. Enforcement proceedings
1. Enforcement of the judgment of 27 November 2007
- On 21 February 2003 a bailiff received a warrant for
the enforcement of the judgment of 27 November
2001. On the same day he informed all interested parties that the
assets would be distributed on 26 February 2003. On that date
the bailiff came to Victoria's premises and proceeded to distribute
some of the assets, even though the applicants had failed to appear.
The items which the bailiff intended to transmit to the applicants
were stored for safekeeping with one of the employees. The applicants
challenged the bailiff's actions in court, but on 7 April 2003 the
Buiucani District Court rejected their complaint.
- On
23 June 2003 the bailiff informed the parties that the remainder of
the assets would be distributed on 8 July 2003. For unknown reasons
full enforcement of the warrant was not possible on that date and a
new date was set for 23 July 2003.
- On 23 July 2003 the bailiff
reported that one of the applicants refused to take possession of the
items distributed to them in accordance with the enforcement warrant,
including those items already given to one of the employees for
safe-keeping.
- On
24 July 2003 the applicants complained to the bailiff's office about
the events of the previous day. They explained that they had objected
to the manner in which the judgment had been enforced, in particular
to being given possession of specific rooms allocated to them by the
bailiff. These consisted of a small room of eight square metres and
space under the stairs, which belonged to S., another company. They
were not reflected in Victoria's accounting documents and did not
belong to it, while other rooms belonging to Victoria had either been
distributed to the employees or had not been distributed at all.
- On
16 October 2003 the Decisions Enforcement Department of the
Ministry of Justice (“the Department”) asked the Buiucani
District Court to order the return of the enforcement warrant to the
applicants without enforcement, due to their refusal to receive the
relevant property. On 4 November 2003 the court rejected that
request as unfounded. The court found that the applicants had not
refused to receive the assets to which they were entitled under the
judgment of 27 November 2001.
- On
18 November 2003 the applicants asked the Buiucani District
Court to explain how its judgment of 27 November 2001 should
be enforced, namely, to specify, with reference
to the plan of the building, the address and size of the part of the
building which should be attributed to them.
- On
3 March 2004 the Buiucani District Court adopted a decision whereby
it amended part of its judgment of 27 November 2001, namely,
by describing the exact size and address of the part of the building
which should be attributed to the applicants. It added that the
applicants had the right to register their property rights with the
Territorial Cadastral Office (“the TCO”). One of the
applicants was not present at the hearing.
- Following
a request by the applicants who had not been present at the hearing
of 3 March 2004, on 27 April 2004 the decision explaining the
judgment of 27 November 2001 was set aside and the case was sent for
fresh examination.
- On
31 May 2004 the Buiucani District Court decided that the judgment of
27 November 2001 was to be enforced exactly as it had been
formulated, “in accordance with the documents and the
description in the relevant property as registered with the relevant
authorities”. That decision was upheld by the Chişinău
Court of Appeal on 18 November 2004.
2. Registration of the applicants' property rights with
the TCO
- On
18 June 2004 the Department asked the TCO to issue one of the
applicants with copies of documents concerning Victoria's building
situated at 99 Decebal str. in Chişinău. It appears that no
such documents were issued.
- On
3 August 2004 the applicants asked the TCO to register their property
rights to Victoria's building situated at 99 Decebal str. in
Chişinău, pursuant to the judgment of 27 November 2001 and
the decision of 31 May 2004. On the same date the TCO refused
the applicants' request and explained that the file did not contain
all the necessary documents. In particular there was no exact
description of the size and address of the rooms to be registered in
the applicants' names, while a number of other buildings were
situated at 99 Decebal str. in Chişinău.
- On 7 September 2004 the Department asked the Buiucani
District Court to explain which exact address, including the specific
room in the building, should be attributed to the applicants in
accordance with the judgment of 27 November 2001. On 21 February 2005
the court answered that it had already given all the necessary
explanations on 31 May 2004. The court added that the judgment was to
be enforced as formulated, and that specifying the exact address and
specific room to be attributed to the applicants implied an unlawful
amendment of the judgment of 27 November 2001.
- The applicants challenged the TCO's decision of 3
August 2004 in court. On 19 May 2005 the Chişinău Court of
Appeal granted their request and set aside that decision, ordering
the TCO to register the relevant property in the applicants' names.
- On 21 September 2005 the Supreme Court of Justice
quashed the lower court's decision as unfounded and ordered a
rehearing by the Chişinău Court of Appeal. The court noted
that the applicants were present at the hearing and that it had
examined the materials of the file before reaching its decision.
- On 22 December 2005 the Chişinău Court of
Appeal ordered an expert report to be made. An expert was asked to
determine whether there had been any kind of registration of Victoria
in the relevant land register, and, if so, in whose name. The expert
was also asked to determine, if such a registration existed, the
exact address and what rooms (their surface and other details), were
included.
- On 21 June 2007 the Chişinău Court of Appeal
found that even though the applicants had paid for the services of
the expert and the TCO had made available the relevant register, no
expert report had been made. On 26 April 2007 the National Judicial
Expert Report Centre (“the Centre”) returned the case
file to the court with an explanation that its expert had not been
allowed onto the premises of the Victoria market. The court found the
reason for the failure to carry out the expert report to have been
“manifestly invented” since there was no evidence that
the expert had been prevented from accessing the building and since
on 2 April 2007 the Centre had informed the applicants that, due to a
high workload, the relevant report would not be made until May 2007.
The court again ordered the Centre, which is a State institution, to
make the report in which it was asked to answer essentially the same
questions as those raised in 2005. The court also asked the Centre,
if Victoria was not registered in the relevant documents, to give a
description of the market as actually visible at its location at 99
Decebal str. in Chişinău. The court noted that a
representative of the third party S. was also to be present.
- On 21 April 2008 the Centre submitted its decision,
according to which it had been impossible to reply to the court's
questions. The reason for that was that Victoria was not registered
in the land register, either in the applicants' names or in anybody
else's name.
- On
13 June 2008 the Chişinău Court of Appeal annulled the
TCO's decision of 3 August 2004. It found that Victoria was not
registered in the land register and had no technical description as
required by law. It therefore ordered the TCO to register the market
in the applicants' names.
- On 26 November 2008 the Supreme Court of Justice
quashed that judgment. It found that S.'s property rights to the
building situated at 99 Decebal str. in Chişinău were
registered in the land register. The court concluded that the
applicants “asked for registration of their property to real
estate which does not exist, since the existence [of a piece of real
estate] is confirmed only when the relevant entry is made in the land
register”.
D. Access to the case file
- On 18 July 2005 Ms N. Mardari became the applicants'
representative in their case before the Court. On the same day she
attempted to obtain access to the case file but was unable to find it
at the Buiucani District Court.
- According
to the applicants' lawyer, on 20 July 2005 she was informed by a
person from the registry of the Buiucani District Court that the case
file had been sent to the Government Agent's Office on 14 January
2005. The case file was returned to the Buiucani District Court on
9 March 2005.
- On
22 July 2005 she asked the Supreme Council of the Judiciary for
assistance in removing obstacles she had encountered at the Buiucani
District Court, namely, that she had not been given access to the
case file.
- On
23 July 2005 the Buiucani District Court informed the applicants'
lawyer that the case file was nowhere to be found.
- According
to the applicants' lawyer, she obtained access to the case file on 19
October 2005.
THE LAW
- The
applicants complained, under Article 6 § 1 of the Convention,
that the length of proceedings was excessive and about the annulment
of a final judgment in their favour.
The
relevant part of Article 6 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- They
also contended that they had been forced into a business association
with persons with whom they did not want to associate, contrary to
Article 11 of the Convention. Article 11 reads as follows:
“1. Everyone has the right to ...
freedom of association with others ...”
- The
applicants complained of a violation of their right to respect for
their property as guaranteed by Article 1 of Protocol 1 to the
Convention, which reads:
“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
applicants finally complained that the failure to give their lawyer
access to the file in a timely manner had constituted a violation of
Articles 1, 10 and 34 of the Convention.
Article 1
reads as follows:
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
Article 10
reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises. ...”
Article 34
reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
I. ADMISSIBILITY
- The
applicants complained, under Article 6 of the Convention, of the
quashing of the final judgment in their favour (see
paragraph 12 above). The Court reiterates that the quashing of
a final judgment is an instantaneous act which does not create a
continuing situation, even if it entails a reopening of the
proceedings (see Frunze v. Moldova (dec.), no. 42308/02,
14 September 2004). The quashing of the final judgment in this
case took place on 26 January 2000.
The six-month period started running from that date, while this
application was introduced on 7 March 2003, more than three
years later.
This
complaint has therefore been introduced outside the time-limit set
down by Article 35 § 1 of the Convention and must be rejected as
inadmissible pursuant to Article 35 § 4 of the Convention.
- The
Court notes that in their initial application the applicants
complained of a violation of their rights guaranteed under Article 10
of the Convention. However, in their letter of 16 February 2006, they
asked the Court not to deal with that complaint. The Court will not
therefore examine it.
- The
applicants also complained, under Article 11 of the Convention, that
they had been forced to become co-owners of their company with
persons with whom they did not want to be partners. The Court
considers that they failed to substantiate their complaint, given
that the domestic courts did not order them to be partners with the
employees, but to split the assets of the company, effectively ending
any form of cooperation with them. In any event nothing prevented the
applicants from leaving the company at any time.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
- The
applicants further complained, under Articles 1 and 34 of the
Convention, that their lawyer had been prevented for three months
from obtaining access to the case file in order to submit their
observations on the case. The Court notes that the lawyer was indeed
unable to consult the file for three months. It also notes that the
applicants do not argue that the case file was withheld from them on
purpose. Rather, they see serious deficiencies in the organisation of
the domestic courts' filing and archiving systems which allowed the
file to be misplaced for a long time. They also mentioned that the
Government Agent's Office had been given better treatment since it
was sent the file three days after the relevant request had been
made.
- The
Court considers that obstacles created for applicants or their
lawyers in accessing documents in order to make submissions requested
by it may amount to a violation of Article 34 of the Convention.
However, where the respondent State is able to show that there were
objective impediments to reasonable efforts on the part of the
domestic authorities to ensure observance of an applicant's rights
under Article 34, the latter provision will not have been breached
(see, mutatis mutandis, Paladi v. Moldova [GC],
no. 39806/05, § 92, ECHR 10 March
2009). The Court notes that in the present case the request to access
the file was made on 18 July 2005 (see paragraph 34 above). Even
though the main proceedings had ended on 12 September
2002 (see paragraph 14 above), the enforcement proceedings,
including the issue of registration of the applicants' ownership of
Victoria, were still on-going. Moreover, two judgments were adopted
just before and after the request for access to the file (see
paragraphs 27 and 28 above), which shows clearly that the case
file was in active use by various courts during the relevant period.
It is unfortunate that the filing systems in the various domestic
courts were so confusing that they prevented the staff from quickly
determining which court had the file at the time of the applicants'
lawyer's request. However, the Court also notes that the applicants
attended the hearing of the Supreme Court of Justice of 21 September
2005 and that the court had examined the case file (see paragraph 28
above). It follows that the applicants were aware of the whereabouts
of the file on 21 September 2005 and there is nothing in the
materials before the Court to show that they had asked to see the
file at the Supreme Court of Justice on that date. Thus the
applicants had missed an opportunity to access their file a month
before their lawyer eventually managed to access it.
- The
Court is therefore not convinced that the domestic authorities had
acted in a manner incompatible with their obligations under
Article 34 of the Convention. It follows that the complaints
under Article 1 and 34 must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and
4 of the Convention.
- The applicants also complained, under Article 1 of
Protocol No. 1 to the Convention, of a violation of their right to
protection of property as a result of the judgments adopted by the
domestic courts. In particular, they referred to the continuing
impossibility to use the part of Victoria's building which should
have been transferred to them in accordance with the final judgment
of 27 November 2001. The Court notes that, in its judgment of
26 November 2008, the Supreme Court of Justice mentioned that S.
was the registered owner of the disputed building, while the
applicants had no registered right (see paragraph 33 above). If the
title to the disputed building held by S. is indeed valid, then the
applicants cannot complain about a violation of their property rights
as a result of the failure to give them such a title in accordance
with the judgment of 27 November 2001. In this connection, the Court
notes that S. did not participate in the proceedings which resulted
in the judgment of 27 November 2001 and that, accordingly, that
judgment was not binding on S.
- In
the absence of details as to the circumstances in which S. became the
registered owner of the building, the Court will not determine which
person or entity is the real owner of that building, since that is
for the domestic courts to decide. The applicants did not submit
evidence that they challenged in court the title to the building held
by S. It follows that the applicants' complaint under Article 1 of
Protocol No. 1 to the Convention is premature and must be rejected
under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
- As
to the length of the proceedings complaint, the Court notes that the
Government considered that it was incompatible ratione temporis
with the Court's jurisdiction, given that the alleged violations took
place in 1993, before Moldova joined the Convention on 12 September
1997. The Court notes that the proceedings in the present case lasted
at least until 2002, when the final judgment was adopted (see
paragraph 14 above). This preliminary objection must therefore be
rejected.
- The
Court considers that the applicants' complaint under Article 6 of the
Convention (length of the proceedings) raises questions of law which
are sufficiently serious that their determination should depend on an
examination of the merits. No grounds for declaring it inadmissible
have been established. The Court therefore declares this complaint
admissible. In accordance with its decision to apply Article 29 §
3 of the Convention (see paragraph 4 above), the Court will
immediately consider the merits of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Submissions by the parties
- The applicants complained that the length of the
proceedings had been excessive, lasting from 1993 until the present,
given that the judgment of 27 November 2001 had not yet been enforced
to date. The relevant period started on 12 September 1997 when
Moldova joined the Convention. They considered that the case was not
very complex and involved only two parties (the applicants on the one
hand and the employees on the other), not five as argued by the
Government. The applicants submitted that they had acted diligently
and had not caused undue delay. At the same time, the courts had
allowed lengthy periods of inactivity, despite the case being very
important for the livelihoods of the applicants. For instance, only
one court hearing had been held in 1999 and only three in 2000.
Finally, their refusal to receive some of Victoria's assets had been
due to the fact that those items had included massive production
equipment of up to four tons in weight which needed space in which to
be placed. Yet the judgment in respect of the building had not been
enforced and so the applicants had no place in which to store those
items.
- The Government agreed that the period to be taken into
consideration started on 12 September 1997. They submitted that this
was one of the most complex cases to have been examined by the
domestic courts, involving as it did four plaintiffs and three
defendants. Three witnesses had been heard and several expert reports
had been made. The case file contained almost a thousand pages. In
addition, the applicants had been responsible for some of the delays,
having, on a number of occasions, requested the postponement of court
hearings. Moreover, the applicants' refusal to accept the items
proposed to them by the bailiff in enforcement of the judgment of 27
November 2001 had contributed to the length of the proceedings.
Finally, the domestic authorities had taken all reasonable steps to
ensure a timely examination of the case.
B. The Court's assessment
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII, and Cravcenco v. Moldova, no. 13012/02, §
44, 15 January 2008).
- The
Court agrees that the period to be taken into consideration started
on 12 September 1997 when Moldova joined the Convention. As for when
that period ends, the following must be noted. The proceedings in the
present case ended on 12 September 2002,
upholding the judgment of 27 November 2001 (see paragraph 14
cited above). However, the final
judgment awarding the applicants, inter alia, a part of
Victoria's building, was never enforced. The courts eventually
determined that that part of the judgment could not be enforced since
S. was the registered owner of the building (see paragraph 33
above). However, it took them six years and two months from the date
of the final court judgment to reach that conclusion, despite their
obligation to verify the legal basis for awarding property rights
already in the original proceedings. In this respect the Court refers
to the finding of the Supreme Court of Justice that the existence of
real estate could be proved only with evidence of registration in the
land register (see paragraph 33 cited above). It follows that in
the proceedings which ended on 12 September
2002 the courts failed to verify whether the parties had any legal
title to the property which they had claimed to belong to Victoria.
- The Court notes that the final judgment of 10
September 1998 in the applicants' favour required no enforcement,
since it rejected the other party's claims against the applicants. As
such, no proceedings were pending between the above-mentioned date
and 26 January 2000, when the Supreme Court of Justice quashed the
final judgment and ordered a retrial (see paragraph 12 cited
above). Therefore, this period of approximately sixteen months is not
to be included in the overall length of the proceedings.
- The
Court considers that if the title held by S. is not valid, then the
judgment of 27 November 2001 is to be considered not yet enforced. If
the title held by S. is proved to be valid, this will also mean that
the original distribution of Victoria's property made on 27 November
2001 was unfair to the applicants, who received fewer assets on
account of the part of the building which they were awarded. It
follows that, until a final determination of the manner of
distributing those assets is made, taking account of the results of
any verification of the validity of the title held by S., the
original proceedings initiated against the applicants in 1993 must
still be considered as pending.
- The
Court thus concludes that the period to be counted for the purposes
of verifying compliance with Article 6 of the Convention lasted from
12 September 1997 until the present. After excluding sixteen months
as noted in paragraph 57 above, the relevant period equals
approximately ten years and eight months.
1. Complexity of the case
- The
Court notes that the domestic courts considered it necessary to order
several expert reports in order to determine the ownership of the
disputed part of the building, and that the experts were unable to
make such a report for lack of relevant documents. As such, the case
could be considered somewhat complex. However, such complexity cannot
in itself explain the total length of the proceedings, particularly
in the light of the fact that the expert took a year and a half to
announce before the court that it was impossible to make such a
report (see paragraphs 29 and 30 cited above). After the court
rejected that reason and ordered a new report to be made, the expert
took another ten months before again reporting that it was impossible
to make a report (see paragraph 31 cited above). In this latter
respect, the Court notes that the principal responsibility for the
delay due to waiting for the expert opinions rests ultimately with
the State (see Capuano v. Italy, 25 June 1987, §
32, Series A no. 119).
2. The applicants' conduct
- The
Court notes the Government's submission that the applicants were
responsible for some delay in the proceedings (see paragraph 54
above). They submitted evidence of three requests by the applicants
to postpone the hearings. In all three, the applicants asked the
courts to postpone the hearing because they were ill, as proved by
medical certificates. The Court considers that these delays were too
few and too short to explain the overall length of the proceedings.
- The
Government also considered that, by refusing to receive items offered
to them by the bailiff in 2003 (see paragraphs 15 and 17 cited
above), the applicants had contributed to the overall length of the
proceedings. The Court notes that the applicants focused on what they
saw as a distribution of the disputed real estate in a manner not
conforming to the final judgment. Whether or not they agreed to
obtain the remainder of Victoria's assets did not change the fact
that the main contentious issue – concerning the building –
continued to be examined for many years thereafter. It follows that
the refusal to receive the items, in the absence of space in which to
put them, did not in any way extend the overall length of the
proceedings.
3. Conduct of the authorities
- As
to the conduct of the judicial authorities, the Court reiterates that
it is for the Contracting States to organise their legal systems in
such a way that their courts can guarantee to everyone the right to a
final decision within a reasonable time in the determination of his
or her civil rights and obligations (see Frydlender, cited
above, § 45). The manner in which a State provides for
mechanisms to comply with this requirement – whether by way of
increasing the numbers of judges, or by automatic time-limits and
directions, or by some other method – is for the State to
decide. If a State lets proceedings continue beyond the “reasonable
time” prescribed by Article 6 of the Convention without
doing anything to advance them, it will be responsible for the
resultant delay (see Price and Lowe v. the United Kingdom,
nos. 43185/98 and 43186/98, § 23, 29 July 2003).
- The
Court notes that there were very long unexplained periods of
inactivity by the courts in the present case (see, for instance,
paragraphs 26 and 29-31 cited above).
- It
also notes that the case was first decided by a final court judgment
on 10 September 1998. The proceedings were subsequently reopened
through an extraordinary procedure of a type that is in itself
contrary to Article 6 of the Convention (see, for instance,
Brumărescu v. Romania [GC], no. 28342/95, § 65,
ECHR 1999 VII, and Roşca v. Moldova,
no. 6267/02, § 29, 22 March 2005). The applicants lodged
their complaint in this respect outside the six-month period
established in Article 35 of the Convention. However, it remains true
that, following the reopening of a final court judgment, the judicial
authorities need to take particular care to ensure a swift conclusion
to the reopened proceedings. The Court assumes that, since a final
judgment was adopted in the case, the factual and legal issues had
largely been resolved. Unless new important facts are discovered and
form the ground for the reopening, the courts do not have difficult
issues to examine in any reopened proceedings. However, in the
present case, most of the delays occurred after the quashing of the
final judgment.
4. What was at stake for the applicants
- The
Court notes that, when the proceedings started, Victoria was the
applicants' main activity. Having been effectively prevented from
continuing it, they were consequently deprived of their income. The
proceedings thus concerned an important issue for the applicants.
5. Conclusion
- The
Court considers that the present case was somewhat complex, but that
this in itself does not explain the overall length of the proceedings
of more than ten years. The applicants could not be reproached for
any serious delays, while the authorities and the courts allowed
lengthy delays caused by inactivity. Moreover, after the case was
resolved by a final court judgment, its reopening called for a swift
determination of the outstanding issues, rather than a lengthy fresh
examination. In the light of the above, the Court concludes that the
requirement of a “reasonable time” laid down in Article 6
§ 1 of the Convention was not complied with in the present case.
There has therefore been a breach of that provision.
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. Pecuniary damage
- The
applicants sought the return of the disputed building, in accordance
with the judgment of 27 November 2001.
- The
Court notes its finding that the complaint about obtaining title to
the disputed building was inadmissible as premature (see paragraph 49
above). It therefore rejects the applicants' claim for return of the
disputed building.
B. Non-pecuniary damage
- The
applicants claimed 10,000 euros (EUR) each in compensation for
non-pecuniary damage caused to them. They submitted that they had
suffered from the excessive length of the proceedings, during which
their company had been prevented from working.
- The
Government submitted that the applicants could not claim any
compensation, in the absence of any violation of their Convention
rights. In any event, the amount claimed was unsubstantiated and
excessive in comparison with similar cases.
- The
Court considers that the applicants must have been caused a certain
level of stress and frustration as a result of the excessive length
of the proceedings. Considering the total length of the proceedings,
and deciding on an equitable basis, the Court awards each applicant
EUR 2,000 for non-pecuniary damage.
C. Costs and expenses
- The
applicants claimed jointly EUR 556 for costs and expenses, including
EUR 450 for legal costs.
- The
Government considered that the amount claimed for legal costs was
excessive.
- In
the light of the materials in the file, the Court allows the
applicants' claim in full.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares admissible the complaint under Article
6 § 1 of the Convention concerning the excessive length of the
proceedings, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants
jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Moldovan lei
at the rate applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros) each, plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
556 (five hundred and fifty six euros) jointly, plus any tax that may
be chargeable to the applicants, 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 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
