SECOND SECTION
CASE OF DUNAS v. THE REPUBLIC OF MOLDOVA
(Application no. 65102/14)
JUDGMENT
STRASBOURG
17 May 2022
This judgment is final but it may be subject to editorial revision.
In the case of Dunas v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application no. 65102/14 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 Andrei Dunas (“the applicant”), on 9 September 2014;
the decision to give notice to the Moldovan Government (“the Government”) of the complaint concerning access to a court and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 26 April 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the limitation of the applicant’s right of “access to a court” in accordance with Article 6 § 1 of the Convention.
THE FACTS
2. The applicant was born in 1976 and lives in Cahul. The applicant was represented by Mr V. Vanțevici, a lawyer practising in Cahul.
3. The Government were represented by their Agent, Mr O. Rotari.
4. The facts of the case may be summarised as follows.
5. On 3 February 2012 the applicant lodged court proceedings against B.D., a private individual. He argued that he had lent 20,000 euros (EUR) to B.D., who had failed to repay it. The applicant paid a part of the court fees due (4,800 Moldovan lei (MDL), the equivalent of approximately EUR 308 at the time) and asked to be exempted from the remainder of court fees, which was granted.
6. On 4 May 2012 the Buiucani District Court in Chișinău accepted the applicant’s claim and ordered B.D. to pay him EUR 20,000, as well as MDL 172,501 of interest and MDL 4,800 in court fees. That judgment was upheld by the Chișinău Court of Appeal on 30 May 2013. On 23 October 2013 the Supreme Court of Justice quashed the lower court’s judgment and ordered a re-hearing.
7. On 16 January 2014 the Chișinău Court of Appeal quashed the first-instance court’s judgment and adopted a new one, rejecting the applicant’s claims as unfounded. It found ex officio that the contract signed between the applicant and B.D. was null and void.
8. The applicant appealed against that judgment. He also asked to be exempted from the payment of court fees in view of his difficult financial situation and of the fact that he provided care for his two children.
9. On 15 April 2014 the Supreme Court of Justice rejected his request for exemption from the payment of court fees. The applicant was given time until 30 April 2014 to pay MDL 8,137 (the equivalent of approximately EUR 438) in court fees.
10. According to the register of mail sent by the Registry of the Supreme Court of Justice, a letter was sent to the applicant’s address on 18 April 2014 with a simple confirmation of receipt (aviz simplu).
11. In the absence of evidence that the applicant had paid the court fees within the time-limit it had set, on 13 May 2014 the Supreme Court of Justice left the applicant’s claim without examination. It added that the decision did not preclude him from re-submitting his appeal after paying the court fees, while observing the two-month statutory time-limit for lodging an appeal, which period could not be extended. That decision was final and not subject to any form of appeal.
12. In a hand-written note (without a date or identification of the author) on the envelope of the letter sent by the Supreme Court of Justice to the applicant on 18 April 2014, it was written: “the client refuses reception”. According to a postal slip accompanying the envelope, on 19 May 2014 the time for keeping the letter at the post office expired. As a result, the letter was returned to the Supreme Court of Justice as unclaimed.
13. On 18 June 2014 the applicant asked the Supreme Court of Justice to issue him a copy of the decision of 15 April 2014. On the same day that court repeatedly sent the applicant a copy of its decision of 15 April 2014. According to a postal receipt slip, the applicant received this letter on 20 June 2014 and signed to confirm its receipt.
RELEVANT legal framework and PRACTICE
14. In accordance with Section 100 of the Code of Civil Procedure, procedural acts shall be notified to the participants in court proceedings, via an authorised person, by registered letter with an acknowledgement of receipt, a notary public’s office or by other means which ensures the transmission of the text of the relevant act and the confirmation of its receipt.
15. In its judgment of Godorozea v. Moldova (no. 17023/05, § 24, 6 October 2009) the Court referred to the interpretation of the domestic law made by the Plenary Supreme Court of Justice of the Republic of Moldova that in practice the domestic courts do not accept as sufficient evidence the sending of a letter by a court and require proof of delivery.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicant complained of a violation of Article 6 § 1 of the Convention as a result of the failure of the Supreme Court of Justice to examine his appeal, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility17. The Government argued that the application was abusive. They referred to the differences between the copy of the letter from the Supreme Court of Justice submitted by the applicant and that submitted to the Government by the Supreme Court of Justice, such as the style of quotation marks and the outgoing number/letters.
18. The applicant submitted that he was not to be blamed for the authorities’ mistakes: he had submitted to the Court what he had received.
19. The Court considers that the differences mentioned are minor and it is unclear whether it was the applicant or the authorities that are responsible for them. More importantly, those differences do not change the meaning or effect of the letter from the Supreme Court of Justice of 18 April 2014. If the Government’s argument is that the applicant has in fact received that letter and falsely declared that he has not, the Court observes that in that case the letter would not have been returned by the post office to the sender as unclaimed as it happened in the present case (see paragraph 12 above). Therefore, any differences between the version of the letter kept by the Supreme Court of Justice and that received by the applicant do not affect the issue under consideration, that is the alleged breach of the applicant’s right of “access to a court” under Article 6 § 1 of the Convention. Accordingly, this objection must be dismissed.
20. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
Merits21. The applicant submitted that the domestic courts used the procedure for leaving his appeal without examination in a manner which barred his access to a court, notably by sending him a copy of the initial decision after the date when the final decision had been taken.
22. The Government argued that the right of access to a court was not unlimited. The applicant had to pay court fees in the amount of 1.68% of the sum claimed. Since he had been able to lend EUR 20,000, he must have been able to find another EUR 400 for court fees, which was not excessive and was in accordance with the law. The applicant was aware of the legal requirement to pay court fees and had to foresee the need to pay a certain amount of court fees. Moreover, the applicant was initially partly exempted from paying the court fees, which allowed him to have his case heard by the first two levels of jurisdiction.
23. The Court observes that the determination of the need to pay the court fees in the present case falls within the purview of Article 6 § 1 of the Convention (Rotaru v. Romania [GC], no. 28341/95, § 78, ECHR 2000‑V; and Pyrobatys A.S. Restrukturalizacii v. Slovakia (dec.), no. 40050/06, § 59, 3 November 2011), which is accordingly applicable.
24. It reiterates that the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention (see, for instance, Karahasanoğlu v. Turkey, nos. 21392/08 and 2 others, § 134, 16 March 2021). However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his right of access and had “a ... hearing by [a] tribunal” (see Kreuz v. Poland, no. 28249/95, § 60, ECHR 2001‑VI).
25. In the present case it is noted that the applicant claimed EUR 20,000 plus interest yet failed to pay EUR 438 in court fees. In the Government’s view, being able to lend someone such a sum also meant that the applicant could afford to pay a much more modest sum for court fees, the more so that he had to foresee the need to pay those fees once he decided to lodge a court action. The Court finds that such arguments could be relevant when the domestic courts examined the request for exemption from court fees.
26. The Court observes that when the applicant’s request for an exemption was rejected, he was given time to pay the court fees. At that point he could have either paid the court fees or submitted evidence in support of his request for an exemption, since a person’s financial situation may change drastically over time. However, he received the letter informing him of the decision of 15 April 2014 only on 18 June 2014, after the Supreme Court of Justice rejected his request in a final decision on 13 May 2014.
27. The Government argued that the applicant had in fact been presented with the letter of 18 April 2014 but refused to receive it. Moreover, he thereafter failed to look for it at the post office. Therefore, he was himself responsible for the situation created. The applicant argued that he never received the first letter and that the procedure for sending procedural acts, provided for in Section 100 of the Code of Civil Procedure (see paragraph 14 above) had not been observed. The Court notes that the only evidence of his refusal to receive the letter was a handwritten note without any date or identification of its author, so that it was impossible to confirm the genuine character of that note.
28. In this context it is noted that the law clearly required proof of receipt of a letter (see paragraph 15 above). In several previous judgments (see, for instance, Russu v. Moldova, no. 7413/05, §§ 19-28, 13 November 2008; Godorozea , cited above, § 31; Rassohin v. Moldova, no. 11373/05, § 34, 18 October 2011 and Deli v. the Republic of Moldova, no. 42010/06, § 51, 22 October 2019), referring also to the interpretation of the domestic law made by the Plenary Supreme Court of Justice of the Republic of Moldova (see § 15 above), the Court found that in practice the domestic courts do not accept as sufficient evidence the sending of a letter by a court and require proof of delivery. In sending its letter of 18 April 2014 the Supreme Court of Justice used a letter with simple confirmation (see paragraph 10 above) and thus did not have evidence of delivery. Accordingly, in the absence of clear evidence that the applicant received the letter or refused its receipt or that he was notified of a letter which he could pick up at the post office, it must be considered under domestic practice that the applicant did not receive it. Moreover, there is nothing in the file to show that the Supreme Court of Justice made any attempt to verify that the applicant received or refused to receive its letter of 18 April 2014. In particular, in the event that a letter requiring confirmation of receipt cannot be delivered for whatever reason, the postal office will hold the letter for one month and then return to the sender the letter as unclaimed, together with a slip confirming this. In the present case this one-month period expired on 18 May 2014. However, even before this period expired, the Supreme Court of Justice already adopted its decision on 13 May 2014. It follows that that court did not wait to have any kind of confirmation of receipt, a failure to deliver or a failure to claim the letter, before deciding to leave the applicant’s appeal without examination.
29. The Court further notes that the applicant’s court action was examined at three levels of jurisdiction and that it was in the reopened proceedings that the issue of the court fees appeared. At the same time it observes that it was only in the reopened proceedings that, for the first time, a court rejected his claims relying ex officio on a new ground, namely the nullity of the contract with B.D. (see paragraph 7 above). Accordingly, the applicant’s appeal on points of law made to the Supreme Court of Justice was the only possibility for him to argue against this new ground.
30. The Court considers that, in the absence of definitive proof that the decision of 15 April 2014 had been delivered or had been refused by the addressee, and without any attempt to verify whether the letter had in fact been delivered, the applicant was prevented from taking steps to ensure that the substance of his case be examined by the Supreme Court of Justice (either paying the court fees or submitting evidence of the impossibility of doing so).
31. The foregoing considerations are sufficient to enable the Court to conclude that the manner of dealing with the applicant’s appeal and request for a court fee waiver constituted a disproportionate restriction on his right of access to a court. It accordingly finds that there has been a breach of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. 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.”
33. The applicant claimed EUR 20,000 and MDL 177,301 in respect of pecuniary damage, consisting of the sums awarded him by the first-instance court.
34. The Court notes that it found a breach of Article 6 § 1 of the Convention in respect of the failure of the Supreme Court of Justice to examine the substance of his claims. In such circumstances it cannot speculate what the decision of that court would have been had it allowed the applicant to properly make his case and pay the court fees. Therefore, it sees no causal link between the violation established and the pecuniary damage claimed.
35. The applicant also claimed EUR 10,000 for non-pecuniary damage resulting from the psychological suffering caused to him.
36. The Government considered that the sum claimed was exaggerated.
37. The Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.
38. 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,
Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds(a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;
Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 17 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President