FOURTH SECTION
DECISION
Application no. 36001/03
by CALBOR CORPORATION S.A.
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 4 March 2008 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
Stanislav Pavlovschi,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 September 2003,
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 formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Calbor Corporation S.A., is the Moldovan registered subsidiary of an international company, with an office in Chişinău. It was represented before the Court by Mr V. Nagacevschi of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 March 1998 ‘Calbor corporation’ (hereinafter called CALBOR) and the Executive Committee of Cimişlia (hereinafter called the Committee) concluded a contract according to which CALBOR would furnish fuel to the Committee and pay its debts to a third company. The Committee would pay for these services with sunflower seeds. The total price of the contract was 1,200,000 Moldovan lei (MDL). CALBOR fulfilled its part of the contract.
In 1998-1999 the Committee paid to CALBOR the equivalent of MDL 655,601. The shortfall amounted to MDL 544,398. The contract provided for penalties in case of delayed payments and also a clause for taking inflation into account. CALBOR accordingly claimed that the outstanding debt amounted to MDL 1,920,428. The Committee refused to pay the remaining debt and CALBOR instituted court proceedings.
On 21 June 1999 the Chişinău Economic Court found in favour of CALBOR and awarded it MDL 1,877,212 (154,918 euros (EUR) at the time). Since no appeal was lodged, the decision became final and enforceable 15 days later.
In 1999 an administrative reform took place and the local authorities were re-organised. The Committee was succeeded by the Lăpuşna County. Its Financial Unit (hereinafter called the Unit) continued all the Committee’s financial activities.
On 26 August 1999 the Chişinău Economic Court modified its judgment of 21 June 1999, specifying that the award would be enforceable against the Lăpuşna County as the legal successor of the Committee and, more precisely, against the Unit.
On 25 October 1999 the same court accepted an appeal from the Unit on the grounds that it had not been summoned to court or represented at the 21 June 1999 hearing. A full re-hearing of the case was ordered.
On 22 December 2000 the Chişinău Economic Court awarded to CALBOR the amount of MDL 1,621,145 (EUR 143,230) and rejected the Unit’s counter-claim.
On 23 May 2001 the Economic Court of the Republic of Moldova set aside the above judgment and ordered the re-hearing of the case.
On 28 March 2002 the Chişinău Economic Court awarded to CALBOR the amount of MDL 1,733,410 (EUR 146,784). This judgment was not appealed against and became final and enforceable 15 days later.
On 26 April and on 8 August 2002 CALBOR unsuccessfully requested the enforcement of the final judgment.
On 6 November 2002 the Economic Court of the Republic of Moldova re-opened the proceedings (procedural irregularities in the trial before the Chişinău Economic Court were cited). It partially set aside the above judgment and awarded to CALBOR the amount of MDL 1,485,696 (EUR 106,814).
On 6 March 2003 the Supreme Court of Justice rejected the cassation requests of both parties to the case, upholding the judgment of 6 November 2002. It specified that the amount awarded would be paid by the Unit.
At the initiative of the Unit, the Prosecutor General filed a request for annulment of all the above judgments, asking that the claims of CALBOR be rejected.
On 2 June 2003 the Plenary Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the above-mentioned judgments. It adopted a new judgment in which it awarded to CALBOR the amount of MDL 280,000 (EUR 16,718).
COMPLAINTS
1. The applicant company complained under Article 6 § 1 of the Convention that by upholding the Prosecutor General’s request for annulment the Supreme Court of Justice had infringed its right to a fair trial.
2. The applicant company claimed that its right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention, had been breached by the State and in particular, by the judgment in which the Supreme Court of Justice upheld the request for annulment and changed the final judgment in its favour .
3. The applicant company also complained of a violation of Article 6 § 1 because the Supreme Court of Justice had not given sufficient reasons for its judgment and also because of the excessive overall length of proceedings.
THE LAW
On 10 October 2007 the parties informed the Court that on the same date they had signed a friendly settlement agreement. They submitted to the Court a copy of the agreement according to which the Government had acknowledged a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention. They had also undertaken to pay the applicant company, within three months from the date of the adoption of a strike-out decision by the Court, MDL 1,205,696 (approximately EUR 73,288), representing the unpaid original debt, as well as the equivalent of EUR 50,000 in respect of any damage caused. The parties requested the Court to strike the application out of the list of cases.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reason to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy