GRAFESCOLO S.R.L. v. THE REPUBLIC OF MOLDOVA - 36157/08 - Chamber Judgment [2014] ECHR 817 (22 July 2014)

In the case of Grafescolo S.R.L. 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,
          Johannes Silvis,
          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. 36157/08) 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 company incorporated in Moldova, Grafescolo S.R.L (“the applicant company”), on 11 July 2008.

2. The applicant company was represented by Mr V. Nagacevschi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant company alleged, in particular, that it had been the victim of unfair civil proceedings and arbitrary deprivation of property.

4. On 27 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant is a company incorporated in Moldova.

6. On 13 February 2003 the Vadul lui Voda local council adopted a decision concerning the sale of a plot of land with a greenhouse on it to the applicant company. Subsequently, in March 2003, a contract was entered into for that purpose between the local council and the applicant company.

7. On 15 June 2006 the local council adopted a decision revoking its previous decision. The applicant initiated proceedings against the local council.

8. On 25 December 2006 the Vadul lui Voda local council introduced a counter action seeking the termination of the contract of sale between it and the applicant company on the grounds that the price asked for the property had been too low and that the land had been sold unlawfully owing to its proximity to a river. The applicant company opposed this action and argued, inter alia, that it was time-barred under the provisions of the Civil Code in force at the time the contract was entered into.

9. On 13 April 2007 the Ciocana District Court rejected the applicant’s action but accepted that of the local council and declared the contract of sale null and void. The court held that the rules governing time limitation contained in the new Civil Code should apply. The court expressed of its own motion the opinion that the local council’s action had concerned the declaration of the absolute nullity of the contract of sale and that therefore, in accordance with the provisions of Article 217 of the new Civil Code, it could not be time-barred. The applicant appealed.

10. On 5 September 2007 the Chişinău Court of Appeal upheld the appeal lodged by the applicant company and quashed the judgment of the first-instance court. It upheld the applicant company’s action and dismissed the counter action lodged by the local council. The local council lodged an appeal on points of law.

11. On 16 January 2008 the Supreme Court of Justice upheld the appeal on points of law lodged by the local council. It quashed the judgment of the Court of Appeal and upheld the judgment of the Ciocana District Court of 13 April 2007. The Supreme Court did not state any position in respect of the applicant company’s initial defence concerning the statute of limitations. Only the representative of the local council was present at the Supreme Court hearing. The judgment of the Supreme Court was final.

II. RELEVANT DOMESTIC LAW AND PRACTICE

12. The relevant provisions of the Civil Code in force at the time of the sale of the plot of land provided:

Article 74

“The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations.”

Article 78

“The competent court ... shall apply the limitation period whether or not the parties request such application.”

Article 83

“Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim.

If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected.”

13. The relevant provisions of the new Civil Code, in force after 12 June 2003, read:

Article 6. Effect of civil law in time

“(1) The civil law does not have retroactive effect. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the previously-created effects of a legal situation which has ceased to exist or is in the process of execution.”

Article 217. The absolute nullity of a legal act

“(1) The absolute nullity of a legal act can be invoked by any person having an interest. The court can invoke it on its own motion...

(3) An action to declare the absolute nullity is not limited in time.”

14. In its judgment of 20 April 2005 (case no. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff’s contentions - which were based on the provisions of the new Civil Code - because the facts of the case related to a period before the entry into force of the new Civil Code, and the provisions of the old Civil Code were therefore applicable.

15. The relevant provisions of the Code of Civil Procedure read as follows:

“Article 105. Service of the summons...

(1) The summons ... shall be sent by registered mail with confirmation of delivery or through a person authorised by the court. The date of service of the summons ... shall be written on the summons, as well as on the receipt, which shall be returned to the court.

...

(5) The summons ... addressed to a natural person shall be served on him or her personally and shall be countersigned on the receipt. The summons ... addressed to a legal person shall be served on the authorised employee and shall be countersigned on the receipt; if such a person is absent, the summons shall be served on another employee in the same conditions...”

“Article 441

... (2) The President of the Chamber [of the Supreme Court of Justice] shall set, within one month, the date for hearing the appeal in cassation and inform the parties accordingly. A copy of the appeal in cassation shall be sent to the other parties together with a summons to attend the hearing, indicating that a written reply should be submitted to the court not later than five days before the hearing.

Article 444

... (2) The appeal in cassation shall be examined after the parties have been summoned. However, their failure to appear shall not prevent the examination of the appeal.”

16. On 12 December 2005 the Plenary Supreme Court of Justice adopted a decision “Regarding the application of the rules of the Code of Civil Procedure to the examination of cases by the first-instance courts”. In point 5 of that decision the court noted that examining a case in the absence of a party which had not been properly summoned was contrary to the law. It added that under Article 105 § 5 of the Code of Civil Procedure a person should be considered as lawfully summoned only if he or she had been personally served with the summons and had countersigned the receipt.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17. The applicant company complained of a violation of its right to a fair trial, contrary to Article 6 of the Convention. In particular, it complained that the courts had failed to apply the statute of limitations and that it had not been summoned to the hearing before the Supreme Court of Justice. The relevant part of Article 6 reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

18. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

19. The applicant company submitted that the proceedings had been unfair because the domestic courts had failed to apply the provisions of the Civil Code concerning time limitation that were in force at the time the contract of sale for the plot of land was entered into and had chosen to apply the provisions of the new Civil Code. Moreover, the applicant company had not been summoned to the hearing before the Supreme Court of Justice.

20. The Government disagreed with the applicant company and argued that the statute of limitations did not apply because the domestic courts had declared the absolute nullity of the contract of sale. Moreover, the Government contested the applicant company’s allegation that it had not been summoned to appear at the hearing before the Supreme Court of Justice.

21. The Court refers to its previous case-law, in which it has stated that the observance of admissibility requirements for carrying out procedural acts is an important aspect of the right to a fair trial. The role played by limitation periods is of major importance when 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 (see Dacia SRL v. Moldova, no. 3052/04, § 75, 18 March 2008).

22. The Court further reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments. In Ruiz Torija v. Spain, (judgment of 9 December 1994, Series A no. 303-A), the Court found that the failure of a domestic court to give reasons for not accepting an objection that the action was time-barred amounted to a violation of that provision.

23. The Court notes in the above context that the issue concerning the Statute of Limitation was an important argument raised by the applicant company during the proceedings. If accepted, it could have led to the dismissal of the action lodged by the local council against the applicant company. In spite of that, the Supreme Court of Justice omitted to give any reasons for not accepting this important argument (see paragraph 11 above). Moreover, the hearing of the Supreme Court was held without the applicant company being summoned to it. Indeed, the Government did not submit any evidence to the contrary.

24. In the light of the above, the Court concludes that the proceedings were not fair and that, accordingly, there has been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

25. The applicant company also complained that its rights guaranteed by Article 1 of Protocol No. 1 to the Convention had been breached.

26. The relevant part of Article 1 of Protocol No. 1 to the Convention 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. ...”

27. The Court has found a violation of Article 6 § 1 of the Convention as a result of the failure of the Supreme Court of Justice to examine an important argument raised by the applicant company in its defence and to summon the applicant company to its hearing. It cannot, however, speculate as to the outcome of the proceedings, had they been fair under Article 6 § 1 of the Convention. It therefore considers that this complaint is inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

29. The applicant company claimed 25,000 euros (EUR) in respect of non-pecuniary damage and the restitution of the plot of land in respect of the pecuniary damage.

30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant company EUR 3,600 in respect of non-pecuniary damage.

B. Costs and expenses

31. The applicant company also claimed EUR 2,350 for the costs and expenses incurred before the Court.

32. The Government objected and argued that the amount claimed was excessive.

33. Regard being had to the circumstances of the case and to the documents submitted by the applicant company, the Court considers it reasonable to award EUR 2,000 for costs and expenses.

C. Default interest

34. 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 admissible the complaint under Article 6 § 1 of the Convention, and the remainder of the application inadmissible;

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 company, 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand 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;

4. Dismisses the remainder of the applicant company’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

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