FOURTH SECTION
DECISION
Application no. 13225/04
by Galina BOGUSLAVSCHI
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 13 May 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 29 March 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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, Mrs Galina Boguslavschi, is a Moldovan national who was born in 1927 and lives in Chişinău. She is represented before the Court by Mr Vitalie Iordachi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu, and by Ms Lilia Grimalschi, Head of Department of the Government Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 the applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), whereby she paid an insurance premium in exchange for a monthly annuity pension of 200 Moldovan lei (MDL) per month, the equivalent of 48 United States dollars (USD) at the time).
In December 1998 ASITO stopped paying the pension, invoking a change in the interest rate of the National Bank of Moldova and calling for the termination of the contract.
On an unspecified date in 2001 the applicant brought a civil action against ASITO, seeking the payment of her pension arrears and requiring the company to abide by the 1994 contract.
By a final judgment of 17 April 2002 the Chişinău Regional Court ruled in favour of the applicant and ordered ASITO to pay her the pension arrears and to resume the execution of the contract.
On 14 December 2001 the Prosecutor General, in the context of different but related proceedings, lodged an “appeal in the interest of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding the contracts and of setting a uniform practice for all courts.
On 11 March 2002, the Plenary Supreme Court of Justice delivered a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. In particular, it found that the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova could be relied upon by ASITO in order to terminate unilaterally the annuity contracts. It also found that its judgment was binding on all courts, although it could not affect already existing judgments nor be used against parties to proceedings which had already been decided.
Subsequently, on an unspecified date in 2002 ASITO brought a civil action against the applicant asking for the termination of the contract concluded in 1994. It relied on the same reasons as contained in the judgment of the Plenary Supreme Court of 11 March 2002.
By a final judgment of 3 December 2003, the Supreme Court of Justice ruled in favour of ASITO and ordered the termination of the contract concluded in 1994.
On 25 October 2004, the Plenary Supreme Court of Justice upheld a revision request lodged against its judgment of 11 March 2002 by a group of ASITO pensioners. The Supreme Court quashed its previous judgment while finding, inter alia, that ASITO could not rely on the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova for avoiding its annuity contracts.
Following the communication of the case by the Court, the Government Agent asked the Prosecutor General to lodge a revision request with the Supreme Court of Justice to quash its judgment of 3 December 2003. On 12 December 2007 the Prosecutor General complied with the Government Agent’s request. He lodged a revision request relying on Article 449 § 1 (j) of the Code of Civil Procedure and arguing that by terminating the 1994 contract there had been a similar infringement of the applicant’s rights under the Convention as in the case of Macovei and Others v. Moldova (nos. 19253/03, 17667/03, 31960/03, 19263/03, 17695/03 and 31761/03, 25 April 2006).
By a judgment of 19 December 2007 the Supreme Court of Justice upheld the Prosecutor General’s request for revision, quashed its judgment of 3 December 2003 and ordered that the case be re-tried before the Supreme Court.
On 20 December 2007 the Supreme Court of Justice issued a new judgment in the proceedings initiated by ASITO in 2002 and dismissed the action. Relying on Macovei and Others (cited above) the Supreme Court found that there had been a breach of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of calling into question the finality of the judgment of the Chişinău Regional Court of 17 April 2002. The Supreme Court also awarded her 900 euros (EUR) in compensation for pecuniary damage, representing her pension arrears, EUR 2,000 for non-pecuniary damage and EUR 800 for costs and expenses. It has also been mentioned in the judgment that the 1994 contract remained valid and that the parties should abide by its provisions.
B. Relevant domestic law
The relevant domestic law is set out in Macovei and Others, cited above, §§ 16-18.
The relevant provisions of the Code of Civil Procedure read as follows:
Article 449 Grounds for revision
“Revision may be requested:
...
j) When the Government of the Republic of Moldova, represented by the Government Agent, or the European Court of Human Rights has started a procedure of friendly settlement in a pending case against the Republic of Moldova, and the Government consider that by a final decision of a court a fundamental right guaranteed by the Constitution of the Republic of Moldova or by the European Convention for the Protection of Human Rights and Fundamental Freedoms has been breached.
k) When the European Court of Human Rights has found a breach of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court.”
COMPLAINTS
The applicant complained, in substance, of a breach of the principle of legal certainty provided for in Article 6 § 1 of the Convention. She argued that the validity of her pension contract had been confirmed by a final judgment in her favour; however, it had been called into question later, after the judgment of the Plenary Supreme Court of 11 March 2002, when the courts upheld ASITO’s action against her and ordered the cancellation of the contract.
She also complained about the unfairness of the proceedings because of an alleged secret arrangement between ASITO and the Government. She claimed that ASITO had an agreement with the Government according to which it would withdraw its application (No. 40663/98 declared admissible at the time) from the Court in exchange for the Government’s assistance with their problem with the pensioners.
The applicant also complained that her right, as guaranteed by Article 1 of Protocol No. 1 to the Convention, to the peaceful enjoyment of possessions (namely her pension right) had been breached by the State, in particular by the judgment of the courts which cancelled her annuity contract.
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 25 December 2007 the Government informed the Court about the outcome of the proceedings, which ended with the judgment of the Supreme Court of Justice of 20 December 2007. The Government considered that the applicant had been awarded adequate redress and requested the Court to strike out the application in accordance with Article 37 of the Convention.
On 19 March 2008 the applicant also informed the Court about the outcome of the proceedings, which ended with the judgment of the Supreme Court of Justice of 20 December 2007. Since the Supreme Court had awarded her adequate redress for the breaches of the Convention, she 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 has been awarded adequate redress by the domestic courts, the Court notes that she does not intend to pursue her 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 (Article 37 § 1 in fine of the Convention and Rule 43 of the Rules of Court). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the Court’s list.
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