FOURTH SECTION
DECISION
Application no. 25058/04
by AROMA FLORIS
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 13 November 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 12 June 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,
Having deliberated, decides as follows:
THE FACTS
The applicant company, Aroma Floris, is a company incorporated under Latvian law. It was represented before the Court by Mr Alexandru Tănase, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 January 2004 the Appeal Chamber of the Economic Court issued a court order according to which a third company (“the company”) (a corporation in which the State had a 100% shareholding) had to pay the applicant company 885,058.8 US dollars (USD). The company did not appeal and the court order became final 10 days later.
On 22 January 2004 the applicant company sent the court order to a bailiff and the latter ordered the freezing of the debtor company’s bank accounts.
On 10 February 2004 the Buiucani District Court issued a decision, upon the debtor company’s request, ordering the stay of the enforcement proceedings for a period of two months. The applicant company appealed against the decision.
On an unspecified date, the debtor company asked the Appeal Chamber of the Economic Court for permission to make deferred payments.
On 19 February 2004 the applicant company and the debtor company agreed upon a payment schedule according to which the payment was to take place in seven instalments, setting the deadline for 20 April 2004. On the same date the Appeal Chamber of the Economic Court ordered the debtor company to comply with the court order of 5 January 2004 in accordance with the payment schedule and issued an enforcement warrant.
On 25 and 27 February 2004, the debtor company paid the applicant company USD 13,079.69 and USD 100,000, respectively.
On 1 April 2004 a bailiff sent a letter to the Appeal Chamber of the Economic Court. He sought interpretation of the conflict between the decision of 10 February 2004, ordering a stay of the enforcement, and the decision of 19 February 2004, ordering the company to comply with the court order of 5 January 2004.
On 14 April 2004 the Appeal Chamber of the Economic Court ordered the enforcement of the court orders of both 5 January 2004 and of 19 February 2004.
On 15 April 2004 the Chişinău Court of Appeal examined the applicant’s appeal against the judgment of 10 February 2004 of the Buiucani District Court and quashed it. It found that any ruling on enforcement proceedings could be issued only by the court which had adopted the court order and not by the Buiucani District Court.
On 4 May 2004 the Buiucani District Court upheld another request for a stay of the enforcement proceedings for two months. The applicant company appealed.
On 3 June 2004 the Chişinău Court of Appeal upheld the applicant company’s appeal and quashed the decision of 4 May 2004 of the Buiucani District Court.
On an unspecified date in 2004 the debtor company lodged with the Appeal Chamber of the Economic Court a request for a stay of the enforcement proceedings; however it was dismissed on 28 June 2004.
On 12 July 2004 the Buiucani District Court upheld the third request for a stay of the enforcement proceedings by the debtor company for another two months. The applicant company appealed.
On 29 September 2004 the Chişinău Court of Appeal dismissed the applicant company’s appeal on the ground that the two months’ period had already expired.
On 26 October 2004 the debtor company lodged with the Buiucani District Court another request for a stay of the enforcement proceedings on the ground that criminal proceedings had been initiated against the former director of the company.
On 29 October 2004 the Buiucani District Court upheld the request and ordered a stay of the enforcement proceedings pending the resolution of the criminal proceedings.
On 5 November 2004 the company lodged with the Economic Court a request for revision of the court order of 5 January 2004, which was dismissed on 10 February 2005. The company appealed invoking the institution of criminal proceedings against the former director of the company.
On 31 March 2005 the Supreme Court of Justice dismissed the appeal.
On 21 April 2005 the company lodged with the Economic panel of the Supreme Court of Justice a revision request against the decision of 31 March 2005, invoking the same argument as in its appeal against the decision of 10 February 2005.
By a final decision of 19 May 2005 the Economic panel of the Supreme Court of Justice upheld the revision request, quashed the decisions of 10 February 2005 and 31 March 2005, upheld the revision request lodged on 5 November 2004 and quashed the court order of 5 January 2004. The Supreme Court explained to the applicant company that it could initiate contentious proceedings against the company before a competent court.
Following the communication of the case by the Court, the Government Agent asked the Prosecutor General’s Office to lodge a revision request with the Supreme Court of Justice to quash its decision of 19 May 2005. On 19 March 2008 the Prosecutor General complied with the Government Agent’s request and lodged a revision request relying on Article 449 § 1 (j) of the Code of Civil Procedure.
On 15 May 2008 the Supreme Court of Justice upheld the revision request, found that there had been a breach of the applicant company’s rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as a result of the non-enforcement of the court order of 5 November 2004 and its subsequent quashing on 19 May 2005. The Supreme Court also awarded the applicant company USD 771,979.11, representing the judgment debt, 404,797.11 euros (EUR) in compensation for pecuniary damage suffered as a result of the impossibility to use its money, EUR 2,500 in compensation for non-pecuniary damage and EUR 800 for costs and expenses.
B. Relevant domestic law and practice
Chapter XXXV of the Civil Code “The court order (simplified procedure)”
Article 344 reads as follows:
“(1) A court order is a decision issued by a judge on the basis of evidence presented by the creditor and concerns money debts (...)
(2) The court order represents an enforceable writ, which is enforced in accordance with the provisions set forth for the enforcement of judicial acts.”
Article 352 reads as follows:
“The debtor is entitled to present his objections against the awarded claims within 10 days from the receipt of a copy of the court order (...)”
Article 353 reads as follows:
“If the debtor presents objections against the court order within the time limit set forth in Article 352 the judge shall annul the court order by a final judgment.”
COMPLAINTS
The applicant company complained under Article 6 § 1 of the Convention that its right of access to court had been violated by the failure to enforce the court orders of 5 January 2004 and 19 February 2004.
The applicant company also alleged that the failure to enforce the court orders of 5 January 2004 and 19 February 2004 had breached its right to protection of property guaranteed by Article 1 of Protocol No. 1 to the Convention.
On 28 June 2005 the applicant company complained that its rights under Articles 6 § 1, Article 1 of Protocol No. 1 to the Convention and Article 13 had been breached following a misuse of revision proceedings (the complaint has been registered by the Court as a separate case).
THE LAW
Article 37 of the Convention, as far as relevant, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved...”
Rule 43 § 1 of the Rules of Court, as far as relevant, reads as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases in accordance with Article 37 of the Convention.”
On 22 September 2008 the Government informed the Court that on 19 September 2008 the applicant company had been paid the amounts awarded by the decision of 15 May 2008. They considered that since the applicant company had received adequate redress, the Court could strike the application out of its list of cases.
On 24 September 2008 the applicant company also informed the Court that it had been paid the amounts due and requested the Court to strike the application out of the list of cases.
Having regard to Article 37 § 1 (a) and (b) of the Convention and to the fact that the applicant company has been awarded adequate redress by the domestic courts, the Court notes that the applicant company does not intend to pursue its application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy