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THIRD
SECTION
DECISION
Application no.
48814/06
INTERDNESTRCOM
against Moldova
The
European Court of Human Rights (Third Section), sitting on 13 March
2012 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 1 December 2006,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant is a company from the breakaway Transdniestrian region of
Moldova in the telecommunications field. It was represented before
the Court by Mr V. Griţco, a lawyer practising in Chişinău.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
- On
12 June 2003 the Government of Moldova adopted decision No. 712,
under which private businesses from the breakaway Transdniestrian
region of Moldova could obtain temporary registration with the
Moldovan Registration Chamber to facilitate their export operations
by using Moldovan customs stamps.
- On
8 July 2004 the Government of Moldova adopted decision No. 782-37,
making it possible for the applicant company to obtain a licence in
the telecommunications field after obtaining temporary registration.
This decision was taken in private, however, it appeared later from
the decision of the Constitutional Court of 2 September 2004 (see
below) that the purpose of the decision was to unify the
telecommunications systems of the two banks of the Dniester River and
to re-establish telephone communications with the breakaway province.
- On
13 July 2004 the applicant company obtained temporary registration
under Moldovan law in accordance with Government decision no. 712 and
was issued with a State registration number and a registration
certificate by the State Registration Chamber.
- On
15 July 2004 the applicant company obtained, in accordance with
Government decision no. 782-37, two licences from the National
Regulatory Agency for Telecommunications and Informatics (“ANRTI”)
to provide mobile and fixed telephony services, for which it paid one
million United States dollars (“USD”) to the Moldovan
Ministry of Finance.
- On
21 July 2004 the Supreme Security Council of the State decided
against allowing the applicant company a presence in the Moldovan
telecommunications market, and on 27 July 2004 the President of
Moldova challenged Government decision no. 782-37 before the
Constitutional Court. The grounds for challenging the decision were,
inter alia, that the price paid by the applicant company had
been considerably lower than that paid by other similar companies
present on the market and that the rules of fair competition had thus
been infringed.
- On
30 July 2004 ANRTI decided to suspend the applicant company’s
licences.
- On
31 July 2004 the Government suspended decision no. 712.
- On
2 September 2004 Government decision no. 782-37 was declared
unconstitutional by the Constitutional Court.
- On
29 October 2004 ANRTI informed the applicant company that on
21 October 2004 its licences had been withdrawn in view of the
fact that its registration as a legal entity under Moldovan law had
been terminated and in accordance with the Constitutional Court
decision of 2 September 2004. The letter made reference to the
provisions of section 21 (1) (b) of the Licensing Act (see below).
- It
does not appear from the materials of the case that upon learning the
above the applicant company challenged the State Registration
Chamber’s decision to terminate its registration or ANRTI’s
decision to withdraw its licences. Instead, the applicant company
requested on several occasions that the Government refund the money
paid for the licences. Since the Government refused to refund the
money, on 1 December 2005 the applicant company initiated proceedings
before the Economic Court claiming USD 1,000,000 and default interest
from the Government.
- During
the proceedings the Economic Court requested information from the
State Registration Chamber concerning the applicant company. The
State Registration Chamber informed the court that no company named
Interdniestrcom was registered in Moldova.
- On
13 April 2006 the Economic Court struck the applicant company’s
application off the list of cases, on the ground that it did not have
standing to initiate a civil action because it was not registered as
a legal entity in Moldova or in any other country. The court ordered
the Ministry of Finance to return to the applicant company the court
fees paid by it. The court fees were paid by the Ministry of Finance
to the applicant company’s account.
- The
applicant company appealed and argued, inter alia, that it had
followed the rules instituted by the Government when it had obtained
a temporary registration and had paid the money for the licences. It
also argued that its registration under Moldovan law had never been
formally cancelled.
- On
15 June 2006 the Supreme Court of Justice dismissed the applicant
company’s appeal and upheld the first-instance court’s
decision. It reached the same conclusion as the first-instance court,
that the applicant company lacked capacity to plead before courts as
it was legally non existent.
- On
3 August 2006 the applicant company wrote to the State Registration
Chamber and inquired whether it was still registered as a legal
entity in Moldova. In a letter dated 8 August 2006 the State
Registration Chamber explained to the applicant that its registration
had automatically became null when decision no. 712 was suspended on
31 July 2004.
- On
10 November 2006 the applicant company wrote again to the Ministry of
Finance and requested the refund of the money paid for the licences.
In a letter dated 27 December 2006 the Minister of Finance informed
the applicant company that its request had been examined and asked
the applicant company to provide details of its bank account. The
applicant company complied, but no payment followed.
B. Relevant domestic law and practice
- According
to sections 14 and 27-29 of Law No. 1265 of 5 October 2000 on the
State registration of legal entities (“the Legal Entities
(State Registration) Act 2000”), the termination of
registration of a legal entity can be carried out only on the basis
of a request by the legal entity in question or on the basis of a
court decision.
- According
to section 21 (1) (b) of Law No. 451 of 30 July 2001 on licensing
(“the Licensing Act 2001”), a licence can be withdrawn,
inter alia,
as a result of adoption of a decision terminating the state
registration of the company. According to Section 21 (5) of the same
act, if a licence is withdrawn for any reason the licence fee shall
not be refunded by the State.
- Article
267 (b) of the Code of Civil Procedure provides that a court shall
strike out applications lodged by incapable persons. According to
Article 60 of the Civil Code a legal entity acquires capacity
(dobândeşte capacitatea de
folosinţă) on registration
by the State Registration Chamber, and loses capacity (pierde
capacitatea de folosinţă)
on removal from the registry of the State Registration Chamber.
COMPLAINTS
- The
applicant company complained under Article 6 § 1 of the
Convention that it had not had access to court.
- The
applicant company also argued that its right to respect for its
property guaranteed by Article 1 of Protocol No. 1 to the Convention
had been violated because it has not been refunded the money paid for
the licence.
THE LAW
A. The complaint under Article 6 § 1 of the
Convention
- The
applicant company complained that the refusal of domestic courts to
examine its case had constituted a breach of Article 6 § 1 of
the Convention, the relevant part of which reads:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a hearing ....”
- The
Government disagreed with the applicant company and submitted, inter
alia, that it was open to the applicant to challenge in the
administrative courts the decision of the State Registration Chamber
concerning the termination of its registration; however, it did not
to do so. In such circumstances the applicant company’s
application must be declared inadmissible for failure to exhaust
domestic remedies.
- The
applicant company maintained that the termination of its registration
by the State Registration Chamber had been unlawful because,
according to the Legal Entities (State Registration) Act 2000 (see
above) termination of registration could only take place at its own
request or on the basis of a court order. Since those conditions had
not been met, the termination of its registration was unlawful. The
applicant company argued that it had legal capacity because the
Economic Court had refunded the court fee paid by it and later the
Ministry of Finance had requested information about its bank account
in order to refund the one million dollars.
- The
Court recalls that Article 6 § 1 extends only to “contestations”
(disputes) over (civil) “rights and obligations” which
can be said, at least on arguable grounds, to be recognised under
domestic law; it does not in itself guarantee any particular content
for (civil) “rights and obligations” in the substantive
law of the Contracting States. Confirmation of this is to be found in
the fact that Article 6 § 1 does not require that there be a
national court with competence to invalidate or override national law
(see James and Others v. the United Kingdom, 21 February 1986,
§ 81, Series A no. 98 and Lithgow and Others v. the United
Kingdom, 8 July 1986, § 192, Series A no. 102).
- The
Court notes from the outset that the applicant company did not have
the intention to continue its activity in the field of
telecommunications and did not challenge the withdrawal of its
licences as it was done by the applicant, for example, in Megadat.com
SRL v. Moldova (no. 21151/04, ECHR 2008).
Instead, the applicant company’s intention was merely to
recover the fee paid for the licences and its sole claim made before
the domestic courts was to that effect.
- In
that context the Court notes that according to section 21 (5) of the
law on licensing, the money paid for licences was non-refundable. The
applicant company did not argue that the provision in question was
not applicable to its case, was unclear or that it should be
interpreted otherwise than it actually reads.
- That
being said, the Court considers that the applicant company had no
legal basis under the domestic law in force at the material time to
support its efforts to obtain a refund for the licences. Furthermore,
the domestic courts have never recognised the existence of such a
right for the applicant company. In such circumstances, the Court
cannot but conclude that the dispute in question did not concern
rights and obligations “which can be said, at least on
arguable grounds, to be recognised under domestic law”.
It follows that in the present case Article 6 § 1 is not
applicable and that the applicant company’s
complaint must be rejected under Article 35 §§ 3 and
4 of the Convention.
B. The complaint under Article 1 of Protocol No. 1 to
the Convention
- The
applicant company contended that its right to respect for its
property as guaranteed by Article 1 of Protocol No. 1 to the
Convention had been violated. Article 1 of Protocol No. 1 to the
Convention read as follows:
“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.”
- The
Government submitted that the interference with the applicant
company’s right took place on 2 September 2004 when the
Constitutional Court declared unconstitutional Government decision
no. 782-37. Since the applicant company had no right to appeal
against the Constitutional Court’s decision and could not
challenge domestic law, any subsequent judicial proceedings had no
prospects of success. Therefore, the six-month term started running
from 2 September 2004 and not from the date of the last judgment of
the Supreme Court of Justice on 15 June 2006. Accordingly, the
applicant did not comply with the six-month rule, according to
Article 35 § 1 of the Convention.
- The
applicant company maintained that the decision of the Constitutional
Court of 2 September 2004 could not be an impediment for it to claim
the reimboursement of its investiment before the civil courts. The
six-month term shall not be calculated from 2 September 2004 but
starting with 15 June 2006, the date of the final domestic decision
in the case pronounced by the Supreme Court of Justice.
- The
Court reiterates that under Article 35 § 1 of the Convention an
application must be introduced within six months of exhaustion of the
last “effective remedy” that could be pursued in the
respondent state, or, where there are no such remedies, from the date
of the act or measure complained of, or knowledge thereof (see
D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26
June 2001).
- The
Court notes that the applicant company’s licences were
withdrawn by ANRTI in October 2004. As stated
above, in accordance with section 21 (5) of the Law on licensing (see
paragraph 19 above) the applicant company did not have any prospect
of having the money it had paid for the licences refunded. The
interference with its property rights thus resulted directly from the
text of section 21(5) on the date of the withdrawal of its licences
(see, mutatis mutandis,
Ciubuc and Others v. Moldova,
(dec.), no. 32816/07, 10 January 2012)
and the applicant did not have any available instruments under
Moldovan law to challenge the Convention compatibility of that
provision, since individuals and private entities do not have access
to the Constitutional Court in Moldova (see Tănase v.
Moldova [GC], no. 7/08, § 122, ECHR 2010 (extracts)).
- In
such circumstances the six-month time-limit started to run from the
date on which the applicant company learned about the withdrawal of
its licences, namely from 29 October 2004. The Court notes
that the applicant company, which is represented, introduced the
present application on 1 December 2006 and that there is nothing
to suggest that it was hindered in any way by the authorities from
introducing it earlier. Consequently, the complaint under Article 1
of Protocol No. 1 was lodged more than six months after the alleged
breach took place, and must be declared inadmissible under Article 35
§§ 1 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
