THIRD SECTION

CASE OF CORNEA v. THE REPUBLIC OF MOLDOVA

(Application no. 22735/07)

JUDGMENT

STRASBOURG

22 July 2014

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 Cornea v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Ján Šikuta,
	Dragoljub Popović,
	Luis López Guerra,
	Valeriu Griţco,
	Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 1 July 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22735/07) 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 Gheorghe Cornea (“the applicant”), on 7 May 2007.
2.  The applicant was represented by Mr M. Batrincea, a lawyer practising in Orhei. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3.  The applicant alleged, in particular, that in breach of his right of access to a court, he had not been allowed to take part in civil proceedings in which his rights were affected.
4.  On 16 December 2010 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1956 and lives in Curchi.
6.  At the time of the events the applicant was head of female patient services at the Orhei Psychiatric Hospital. In February 2003 the hospital’s chief physician was suspended from his position – owing to his being the subject of a criminal investigation – and the applicant was appointed to temporarily replace him. Another doctor, V.C., was appointed to temporarily fill the applicant’s former position.
7.  In October 2005 the criminal investigation conducted in respect of the hospital’s chief physician was terminated and, on the basis of a court order, he returned to his position. On 27 October 2005 the hospital ordered the applicant’s transfer to the position of head of female patient services and V.C.’s transfer to the position of an ordinary doctor. On the basis of that order, the applicant took up his initial position of head of female patient services and V.C. returned to being a simple doctor.
8.  On an unspecified date V.C. challenged the order of 27 October 2005 arguing that he had not consented to being removed from the position of head of female patient services. The proceedings lasted until February 2006 during which time the applicant worked as head of female patient services. Nobody informed the applicant about the proceedings.
9.  On 28 February 2006 the Orhei District Court examined the action brought by V.C. without involving the applicant in the proceedings, and upheld it, quashing the hospital’s order of 27 October 2005. V.C. was reinstated in the position of head of female patient services. The applicant learned about the trial after its conclusion and appealed against the judgment. He argued, inter alia, that the judgment was unlawful because he had not been involved in proceedings in which his own rights and interests were clearly affected, relying – inter alia – on Article 360 (1) (b) of the Code of Civil Procedure (see paragraph 14 below). The hospital did not appeal against the judgment but supported the applicant’s position during the proceedings before the Court of Appeal.
10.  On 8 June 2006 the Chişinău Court of Appeal declared the applicant’s appeal inadmissible on the grounds that he had not been a party to the proceedings and had no right to lodge an appeal against the judgment of 28 February 2006. In dismissing his argument quoting Article 360 (1)(b) of the Code of Civil Procedure, the Court of Appeal stated: “[...] the [applicant’s] reference to Article 360 (1)(b) of the Code, which would have entitled him to appeal without having been a party to the proceedings [...], is based on a wrong interpretation of this procedural rule, which cannot be applied in the present case”.
11.  The applicant lodged an appeal on points of law with the Supreme Court of Justice, again relying on Article 360 (1)(b) of the Code of Civil Procedure (see paragraph 14 below).
12.  On 15 November 2006 the Supreme Court of Justice dismissed the applicant’s appeal on points of law after finding that the applicant did not have the right to lodge an appeal against the judgment of 28 February 2006 because his rights and obligations had not been affected by that judgment.
13.  After the above events, the applicant took up a position as an ordinary doctor at the hospital, receiving a salary which was lower than that of the head of section.
II.  RELEVANT DOMESTIC LAW
14.  The relevant provisions of the Code of Civil Procedure in force at the material time provided as follows:
Article 360. Persons entitled to lodge an appeal
“(1) The following persons have the right to lodge an appeal:
a) the parties and other participants to the proceedings;
b) persons who did not participate in the proceedings, but whose rights are affected by the judgment;
...”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained under Article 6 § 1 of the Convention that his civil law rights had been affected by a court judgment in proceedings in which he had not been allowed to take part, thus depriving him of the right to have his position heard by the courts. The relevant part of Article 6 § 1 of the Convention reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
16.  The Government submitted that the applicant had failed to exhaust the domestic remedies available to him. In their view, the applicant could either have initiated separate reinstatement proceedings or challenged with a revision request (extraordinary appeal) the final judgments of the courts in the proceedings that ended with the Supreme Court’s judgment of 15 November 2006. The applicant maintained that there had been a breach of Article 6 § 1 of the Convention in the present case.
17.  The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are exempted from answering for their acts before an international body until they have had the opportunity to put matters right through their own legal systems (see, for example, Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
18.  In the instant case, the Court finds that the question of the exhaustion of domestic remedies is inextricably linked to the merits of the complaint under Article 6 of the Convention, namely, to the question of whether the applicant’s rights were affected by the judgment of the Orhei District Court of 28 February 2006. Therefore, it considers that the two questions should be joined and examined together (see Buzilo v. Moldova, no. 52643/07, § 24, 21 February 2012).
19.  The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring the application inadmissible have been established. It must therefore be declared admissible.
B.  Merits
20.  The applicant submitted that his right had been affected by the judgment of the Orhei District Court of 28 February 2006 and that the refusal of the Court of Appeal and of the Supreme Court of Justice to allow him to take part in the proceedings breached his right to access to a court as guaranteed by Article 6 § 1 of the Convention.
21.  The Government reiterated their submission that the applicant could have initiated separate proceedings through which to attempt to rebut the conclusions reached by the courts in the proceedings initiated by V.C.
22.  The right of access to a court secured by Article 6 § 1 of the Convention is not absolute but may be subject to limitations; such limitations are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect the Contracting States enjoy a certain margin of appreciation, although the final decision as to observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999‑I). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Tsalkitzis v. Greece, no. 11801/04, § 44, 16 November 2006).
23.  Turning to the facts of the present case, the Court notes at the outset that the applicant learned about the proceedings only after the first-instance court adopted a judgment (see paragraph 9 above). There is no indication and the Government have not argued that the applicant would have been aware about the proceedings prior to that date (see, a contrario, Cañete de Goñi v. Spain, no. 55782/00, § 40, ECHR 2002‑VIII). The Court notes further that by its judgment of 28 February 2006 the Orhei District Court quashed the hospital’s order whereby the applicant was transferred to the position of head of female patient services. As a result of this judgment the applicant lost his administrative position in the hospital and took up that of a less well paid ordinary doctor. In such circumstances, the Court finds it surprising that the Supreme Court of Justice considered that the applicant’s rights had not been affected by the judgment of the first-instance court (see paragraph 12 above). By contrast, the Court is of the opinion that the applicant’s civil rights were affected in a most direct manner by the judgment of 28 February 2008 and that, therefore, Article 6 is applicable in the present case.
24.  In view of the above conclusion, the Court cannot but agree with the applicant that Article 360 of the Code of Civil Procedure (see paragraph 14 above) gave him the right to lodge an appeal against the judgment of 28 February 2006. Indeed, the provisions of that article appear to be very clear and the Court is not aware of any practice of the domestic courts which would give those provisions an interpretation other than that implied by their wording.
25.  The applicant exercised the right provided by Article 360 but his appeal was not examined on its merits but was struck out for being lodged by a person not entitled to do so, the applicant’s access to a court being thus blocked in an arbitrary manner.
26.  The Court reiterates that an individual is not required to try more than one avenue of redress when there are several available (see, for example, Avram and Others v. Moldova, no. 41588/05, § 33, 5 July 2011). Therefore, since the applicant attempted to use the avenue offered to him by Article 360 of the Code of Civil Procedure, he was not obliged to explore other avenues such as those suggested by the Government (see paragraph 16 above). The Court thus dismisses the Government’s objection of non-exhaustion of domestic remedies and holds that there has been a breach of the applicant’s right of access to a court as guaranteed by Article 6 § 1 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
27.  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
28.  The applicant claimed 1,800 euros (EUR) in respect of non-pecuniary damage.
29.  The Government objected and argued that the amount was excessive.
30.  Having regard to the violation found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified. Making its assessment on an equitable basis, the Court awards the applicant’s claim in full.
B.  Costs and expenses
31.  The applicant did not make any claim in respect of costs and expenses.
C.  Default interest
32.  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
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,800 (one thousand eight hundred euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 22 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	 Marialena Tsirli	Josep Casadevall
	Deputy Registrar	President