THIRD SECTION

CASE OF OJOG AND OTHERS v. MOLDOVA

(Application no. 1988/06)

JUDGMENT
(merits)

STRASBOURG

13 December 2011

This judgment is final but it may be subject to editorial revision.
In the case of Ojog and Others v. Moldova,
The European Court of Human Rights (Third Section), sitting as a committee composed of:
	Ján Šikuta, President,
	Ineta Ziemele,
	Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 22 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1988/06) 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 five Moldovan nationals (“the applicants”).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
2.  The applicants are Moldovan citizens that obtained a favorable decision concerning immovable property by means of a final judgment. This judgment has later been quashed following revision proceedings initiated by third parties. Detailed information concerning the applicants and their proceedings can be found in the appended table.
II.  RELEVANT DOMESTIC LAW
3.  The relevant provisions of the Code of Civil Procedure read as follows:
Article 449
“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...”
Article 450
“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.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
4.  The applicants complained that the quashing of their final decision by means of revision had violated Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, 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
5.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
6.  The parties 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 because they have merely tried to obtain a rehearing of the case.
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.
7.  The Government disagreed and argued that revision was necessary as a means for correcting grave judicial errors. More precisely, the Government argued that since the defendants were not notified about the proceedings at issue and since the correct legal competence to sit in similar proceedings belonged to courts specialised in economic matters, the reopening of the proceedings was necessary in order for them to be heard.
The Government also claimed that the statutory positions concerning revision are sufficiently clear and accessible.
Lastly, the Government argued that the rules of procedure of both the European Court of Human Rights and of the International Court of Justice provide for the possibility to revise final decisions.

2.  The Court’s assessment
8.  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).
9.  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).
10.  As to the revision procedure, the Court has found that the purpose of this 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).
11.  Turning to the cases at stake, the Court takes note of the arguments raised by the Government concerning the necessity to correct the serious judicial errors committed during the proceedings involving the applicants.
12.  The Court notes in particular that the Government argued that it was the lack of notification of the defendants and the incorrect legal competence that justified the revision. However, the Court observes that the decision of the Supreme Court of Justice of 20 July 2005 which admitted the revision makes no reference to the reasons put forward by the Government. On contrary, the Supreme Court of Justice offered different reasons for the admission of the revision.
Lastly, the Court attaches particular importance to the fact that revision proceedings of the same defendants have been rejected three times by almost the same judicial formation prior to the admission of the revision at issue three years after the relevant decision became final.
13.  In view of the above, the Court considers that the Government failed to adduce arguments as to the justification of the revision proceedings at issue and that nothing distinguishes the present cases from the above-mentioned Popov (no. 2) case. The Court finds thus a violation of Article 6 § 1 of the Convention in respect of the legal certainty principle.
14.  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.
Hence, there has been a violation of that provision, too.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
15.  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.”
Damage
16.  The applicants asked the Court to reserve the question under Article 41 on the ground that, due to the specifics of the liquidation proceedings, it was impossible for them to assess the pecuniary and non-pecuniary damage.
17.  The Government agreed to the reservation requested by the applicants.
18.  The Court holds thus necessary to reserve the said question as a whole.
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 applicants 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 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Ján Šikuta
	Deputy Registrar	President

Annex

No. of application and date of introduction	Information concerning the applicants	Object of the dispute	Final decision	Decision adopted following the extraordinary appeal	
1988/06 (lodged on 13 January 2006)	OJOG Ludmila (born on 14 December 1959)

ROIBU Valeria (born on 3 August 1942)

ROIBU Mihail (born on 4 March 1942)

ROIBU Dragos (born on 31 August 1968)

OJOG Igor (born on 6 June 1981)

All applicants are Moldovan citizens and reside in Chişinău. 	The applicants are minority shareholders of a private joint-stock company. They have initiated proceedings seeking the liquidation and distribution of its assets amongst shareholders.
	Final decision of 6 February 2003 of Chisinau Court of Appeal admitted the applicants’ action and ordered the liquidation of the company under discussion.
Final decision of 3 March 2004 of the Supreme Court of Justice by which the assets of the company at stake were distributed.
	After four unsuccessful attempts to reopen the proceedings, the Supreme Court of Justice admitted on 20 July 2005 the revision proceedings initiated by third parties, quashing the final judgments of 6 February 2003 and 3 March 2004 and ordering a rehearing of the case.
In the reopened proceedings, the applicants’ claims were rejected as unfounded by the Economic Court of Appeal on 14 July 2006. This judgment was upheld by the final decision of the Supreme Court of 25 January 2007.