LIPCAN v. THE REPUBLIC OF MOLDOVA - 22820/09 - Committee Judgment [2013] ECHR 1302 (17 December 2013)

In the case of Lipcan v. the Republic of Moldova,

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

          Luis López Guerra, President,
          Nona Tsotsoria,
          Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 26 November 2013,

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

PROCEDURE

1. The case originated in an application (no. 22820/09) 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 Moldovan national, Mr Ioan Lipcan (“the applicant”), on 11 February 2009.

2. The applicant was represented by Mr L. Osoian, a lawyer practising in Chişinău. 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 was born in 1966 and lives in Călărași, Moldova.

5. On 24 December 2007 the Călăraşi District Court approved a friendly settlement agreement concluded between the applicant and the Călăraşi local council and discontinued proceedings. This judgment was final. A writ of enforcement obliging the Călăraşi local council to pay the applicant the amount of 521,811 Moldovan lei (MDL) was issued and on 11 January 2008 the applicant instituted enforcement proceedings.

6. On 12 May 2008 the Călăraşi local council submitted a revision request challenging the final judgment of 24 December 2007. They argued that the representative of the local council had not been authorized to conclude a friendly settlement agreement with the applicant. They invoked as new circumstances a report prepared by the local committee on issues regarding victims of political repressions. The report was drawn up after the settlement agreement had been approved by the court and it invalidated a previous decision of the committee, which acknowledged the applicant’s right to compensation for property confiscated during the 1949 political repressions.

7. On 30 May 2008 the Călăraşi District Court dismissed the revision request as submitted outside the three-month time-limit and as ill-founded. The local council appealed this judgment.

8. On 28 November 2008 the Chișinău Court of Appeal upheld the appeal, quashed the judgments of 30 May 2008 and 24 December 2007, and remitted the matter for fresh consideration. According to the information in the case file, the proceedings are still pending.

9. On 2 December 2011 the applicant lodged a civil action claiming damages for the violation of his right to a fair hearing within a reasonable time pursuant to Law no. 87 of 21 April 2011 (see paragraph 12 below), which at the time amounted to four years and four months.

10. On 12 May 2012 the Supreme Court of Justice finally found the length of the proceedings to be excessive and attributable to the acts of the authorities; it awarded the applicant MDL 5,000 (approximately 316 euros (EUR)) as non-pecuniary damage, dismissing the remainder of his claims.

II. RELEVANT DOMESTIC LAW

11. 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).

12. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 IN RESPECT OF THE REVISION OF A FINAL JUDGMENT

13. The applicant complained that the quashing of the final decision of the Călărași District Court of 24 December 2007 delivered in his 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.”

14. The applicant also claimed that he had no effective domestic remedy against the quashing of the judgment of 24 December 2007. He relied on Article 13 of the Convention, which reads as follows:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

15. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

16. 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 ; Istrate v. Moldova, no. 53773/00, §§ 46-61, 13 June 2006).

17. The Court notes in the first place that in dismissing the request for review in its judgment of 30 May 2008, the Călăraşi District Court found that the administration of the local council had learned about the friendly settlement agreement with the applicant on 23 January 2008 and that the request was submitted on 12 May 2008, after the expiry of the three-month time-limit. In overturning the district court’s decision, the Chișinău Court of Appeal did not contradict this important finding.

18. Additionally, the decision of the Chișinău Court of Appeal of 28 November 2008 cited as grounds for reopening the proceedings a report drawn up by the Călăraşi local council on 8 May 2008, i.e. after the challenged judgment became final. The Court considers that a situation allowing an authority to obtain the revision of a final judgment by citing as a new circumstance its own decision invalidating one of its previous decisions would be contrary to the principle of legal certainty.

19. 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. Indeed, the Court considers that in the present case the revision procedure was used by the Chișinău Court of Appeal in a manner incompatible with the principle of legal certainty.

20. In relation to the applicant’s complaint concerning his 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 abusively quash the final judgment by which the applicant had acquired an award of a sum of money violated his rights as guaranteed by Article 1 of Protocol No. 1 to the Convention.

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

21. The Court does not consider it necessary to rule on the complaint under Article 13 because Article 6 § 1 is the lex specialis in relation to the applicant’s complaint, and the requirements of Article 13 in this context are absorbed by those of Article 6 § 1 (see, mutatis mutandis, Popov v. Moldova (no. 2), cited above, § 55).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

22. The applicant also complained under Article 6 of the Convention about the excessive overall length of the proceedings, which at the time of the events constituted four years and four months. He argued that the amount of compensation of EUR 316 awarded by domestic courts was insufficient and that he kept his victim status.

23. Having regard to all the material in its possession and to the overall duration of the proceedings, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application is manifestly ill-founded and must dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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

25. In respect of pecuniary damage the applicant claimed EUR 32,613, which represented the amount awarded by the court judgment of 24 December 2007.

26. The Government disputed the amount claimed by the applicant and argued that his claims were premature because domestic proceedings were still pending and the applicant could obtain a new award in a different amount.

27. Having examined the parties’ submissions and the evidence submitted by them, the Court accepts that the applicant suffered pecuniary damage as a result of the breach of his rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. It reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The fact that the re-opened proceedings are still pending is not relevant in the circumstances of the case (see Popov (no. 2) cited above).

28. The Court considers that in the present case the applicant has the right to recover the money to which he is entitled by virtue of the judgment of 24 December 2007 and awards him EUR 32,613, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

29. The applicant also claims EUR 17,000 in respect of non-pecuniary damage.

30. The Government disagreed and argued that the applicant had failed to adduce evidence in support of his claims under this head.

31. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 for non-pecuniary damage, plus any tax that may be chargeable on that amount.

C. Costs and expenses

32. The applicant also claimed EUR 100 for the costs and expenses incurred before the Court, representing secretarial expenses.

33. The Government disagreed and asked that the claim be rejected.

34. Regard being had to the documents in its possession and to its case-law, and the fact that the applicant clearly incurred some secretarial expenses, the Court considers it reasonable to award him the sum of EUR 100 for incidental costs and expenses, plus any tax that may be chargeable on that amount.

D. Default interest

35. 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 complaint concerning the quashing of the final judgment admissible and the remainder of the application inadmissible;

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 there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 32,613 (thirty two thousand six hundred and thirteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 100 (one hundred 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;

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

Done in English, and notified in writing on 17 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Luis López Guerra
Deputy Registrar President

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